ZULFIQAR AHM AD KHAN, J. Through this Second Appeal, appellant has assailed the impugned judgment dated 30.03.2012 and decree dated 03.04.2012 passed by learned Additional District Judge, Shahdadpur, District Sanghar, whereby it allowed the Civil Appeal No.27 of 2011 filed by the respondent /appellant Darya Khan ("the buyer") and set aside the judgment and decree dated 08.10.201I passed by learned Senior Civil Judge, Shahdadpur in F.C. Suit No. 66 of 2009, where the said Court dismissed the suit of said buyer.
2. Relevant and necessary facts are that Darya Khan filed a suit for Specific Performance of Contract and Permanent Injunction against the seller Naeem Ahmed alleging therein that he had entered into an agreement with the latter in respect of agricultural land bearing S.No.776 area 2-4 acres, situated in deh Chamro, Taluka Shahdadpur, for the total sale consideration of Rs.4,55,000/- on 11.10.2009 and at the time of sale agreement, he paid Rs.200,000/- to the seller in cash and also issued him a cheque for Rs.200,000/- dated 31.10.2009, bearing cheque No.970193 drawn on National Bank of Pakistan, Shahdadpur Branch in the presence of witnesses, the said seller handed out possession of the suit land to the buyer, and it was agreed in the sale agreement that the seller would execute registered sale deed before the Sub-Registrar in the name of the buyer on the receipt of the balance amount of Rs.55,000/- from the buyer on 20.11.2009. It was further alleged that on 12.11.2009 the buyer through his Advocate sent a notice to the seller by registered post A.D, requesting the seller to execute and register the sale deed on the receipt of the balance amount of Rs.55,000/- this notice was received by the seller but neither the latter sent any reply of the said notice, nor he turned up to execute and register the sale deed in favour of the buyer, therefore, he filed the suit with the following prayers:
(a) That the defendant be directed and ordered to execute and register the sale deed of the Suit land bearing S.No.776 area 2-4 acres, situated in deh Chamro, Taluka Shahdadpur in the name of plaintiff on receipt of balance amount of Rs.55,000/- from him, before the sub-registrar Shahdadpur, failing which the Nazir of the Court may be empowered, directed and ordered to do the needful, on behalf of the defendant.
(b) Permanent Injunction be issued against the defendant from interfering with the Suit land in possession of the plaintiff, so also from alienating the same to any other person except the plaintiff in any manner whatsoever directly or indirectly.
(c) Costs of the suit be borne by the defendant and the same may be awarded to the plaintiff.
(d) Any other relief which this Hon'ble Court may deem fit and proper be awarded to the plaintiff.
3. It is important to add here that prior thereto, the said suit was decreed as ex pane vide judgment dated 23.02.2010 and decree dated 25.02.2010. However, after about three months, defendant Naeem Ahmed Khan (seller). appeared on 10.05.2010 when the execution of the above matter was fixed for orders and he filed an application under section 12(2), C.P.C. along with his affidavit stating therein that said ex pane judgment was obtained by the plaintiff buyer through fraud, misrepresentation and without proper service of the process effected on him, hence he prayed that the ex-pane judgment and decree may be set aside. After hearing both parties, the application of the defendant under section 12(2), C.P.C. was allowed vide order dated 14.09.2010 whereby said judgment and decree was set-aside. Subsequently, defendant Naeem Ahmed filed his written statement on 23.09.2010, wherein he categorically denied execution of any sale agreement, handing over possession of the suit property as well as receipt of any sale consideration. He further stated in his written statement that the document in respect of sale agreement of the suit land was forged and managed one. He further denied in his written statement from having put his signatures on the said documents. It was further declined by him that any legal notice was received by him and he pointed out that notices were served on someone else on a wrong address with ulterior motive of the buyer. He also denied handing over the possession of the suit land to the plaintiff. He admitted that he is sole owner and in possession of the suit land which is being cultivated by his hari namely Imam Bux Dahri.
4. On the pleadings of parties, following issues were framed:-
1. Whether the defendant executed sale agreement in favour of plaintiff in respect of Suit land bearing S.No.776 area 2-4 acres for total consideration Rs.4,55,000/-?
2. Whether the defendant at the time of execution of sale agreement received an amount of Rs 200,000/- from the plaintiff and a cheque of Rs. 200,000/-bearing No.970193 of N.B.P Shahdadpur branch dated 31.10.2009 in presence of witnesses?
3. Whether the defendant handed over the possession of the suit land to the plaintiff under the sale agreement?
4. Whether the defendant abide the terms and conditions of the said sale agreement? If not whether he is liable to return Rs, 400,000/-plus Rs. 400,000/- as penalty to the plaintiff?
5. Whether the sale agreement bears the original signatures of the defendant?
6. Whether the Suit of the plaintiff is maintainable?
7. Whether the plaintiff is entitled for the relief claimed?
8. What should the decree be?
5. Thereafter both parties lead their respective evidence. The plaintiff got examined Muhammad Anwar, Mukhtiarkar Land Revenue at Ex.37, he produced copy of report of SHO at Ex.38, copy of Form VII-B at Ex.39, copy of written statement in proceedings of 145 Cr.P.C at Ex.40, copy of letter of police at Ex.41, application of Darya Khan at Ex.42, copy of letter addressed to SHO by Mukhtiarkar at Ex.43.
Plaintiff examined his witness Sikandar Khaskheli, Operation Manager in NBP, Shahpurchakar Branch at Ex.44, who produced copy of withdrawal Cheque at Ex.45, account statement at Ex.46, certificate at Ex.47, copy of CNIC of defendant along with application of defendant at Ex.48, copy of application of plaintiff Darya Khan at Ex.49, copy of letter addressed to plaintiff at Ex.50. He also examined Muhammad Soomar, Tapedar of the Beat at Ex.51, who produced copy of Dhall receipt at Ex.52, copy of field book at Ex.53, copy of receipt at Ex.54, he produced copy of deh Form VII Jamabandi at Ex.55, plaintiff examined himself at Ex.70, he produced original copy of alleged agreement at Ex.71, copy of legal notice at Ex.72, original postal receipt at Ex.73, acknowledgment of the postal authority at Ex.74, bank statement at Ex.75, he examined author of agreement namely Dur Muhammad at Ex.76 and eye-witnesses namely Gul Khan Chandio at Ex.78 and Muhammad Shabir Mari at Ex.79, then the side of plaintiff was closed vide statement at Ex.79.
6. The defendant examined himself at Ex.85, he produced certified true-copy of Constitutional Petition No.D-551 of 2010 at Ex.86, certified true copy of deposition in the departmental enquiry No.2030/2010 at Ex.87, certified copy of deposition of Mumtaz Ali Bailiff at Ex.88, certified copy of statement at Ex.89, Resident Certificate at Ex.90, certificate of Rufi Fountain Welfare Association, Karachi and clarification of Union Council Gujro. Then the side of defendant was closed vide statement dated 18.05.2011 at Ex.93.
7. Learned counsel for the appellant contends that impugned judgment and decree passed by learned appellate Court are opposed to law, facts, equity and justice and has acted in exercise of its jurisdiction illegally and committed material irregularities while passing the impugned judgment and decree. Per learned counsel, the buyer failed to prove that the appellant / seller had entered into any sale transaction in respect of the suit land and that the buyer had paid any amount in respect of the sale transaction, therefore, learned trial Court decided Issues Nos.1, 2 and 3 in favour of the appellant after examining the evidence on record, but the findings of learned appellate Court are faulty as the same is result of misreading and non-reading of pleadings of the parties and evidence on the record. He next contended that respondent also failed to prove that the alleged sale agreement bear signature of the appellant and the trial Court decided the issue No.5 in favour of the appellant / seller by comparing signature of the appellant allegedly made by him on the sale agreement and on back side of the cheque allegedly issued to appellant from those of appearing on CNIC and deposition of the appellant and the appellate Court did not consider the fact that the attesting witnesses and scriber of the so-called sale agreement were set up persons / witnesses of the respondent / plaintiff, whose evidence was false and fabricated. He next submits that learned appellate Court also did not consider the fraudulent character of the respondent / plaintiff which is evident from the record of the case that how he managed ex-parte judgment and decree which was subsequently set aside by the trial Court, hence learned appellate Court passed impugned judgment and decree without considering all of the above aspects of the case, which are illegal, improper, erroneous and the same may be set aside.
8. On the other hand, learned counsel for the respondent contended that the signature on agreement of sale (Ex.71) belonged to appellant which was executed by the appellant Naeem Ahmed Khan himself in the presence of independent witnesses Dur Muhammad, Gul Khan and Muhammad Shabir and such fact has been verified by the witnesses by appearing in witness box.
He supported the impugned judgment and decree passed by learned appellate Court.
9. Heard the learned counsel for the parties and perused the material available on record.
10. Following points are framed for my determination:-
(i) Whether the decision of the appellate Court is contrary to law, having substantial error or defect?
(ii) What the decree should be?
11. My findings on the above issues with reasons thereof are as follows:?
Point No. 1. ...As under.
Point No.2. ...Appeal is allowed.
REASONS
12. I have perused the judgment of both the Courts below and the evidence led by the respective parties and find it appropriate to first refer to the judgment of the trial Court wherein, on the basis of the findings given in respect of issue No.5 as to "whether the sale agreement bears the original signature of the defendant or not", all remaining issues, were answered. Incidentally, the appellate Court also considered this issue as the leading issue and ended up giving divergent findings, hence, it would be appropriate to examine as to which Court (in my humble view) had gone wrong.
13. As to the burden of proof in respect of issue No.5 lied upon the plaintiff, he in support of his version examined himself and three attesting witnesses namely Dur Muhammad Chandio, Gul Khan Chandio and Muhammad Shabbir Mari. The plaintiff deposed that he purchased the suit land in the total sum of Rs.4,55000/- from the seller Naeem Ahmed (present appellant) vide sale agreement dated 11.01.2009 and paid Rs.200,000/- in cash and an equal amount of money through cheque, while the remaining amount of Rs.55000/- was to be paid to the defendant on 20.11.2009.
He further deposed that formalities in connection with the above-mentioned sale were witnessed by the above-named three witnesses. He produced the sale agreement at Ex.71. In his cross- examination, he admitted that he himself purchased the stamp paper from the stamp vendor Sain Dino Soomro. He admitted that the agreement was written by PW Dur Muhammad at his shop. PW Dur Muhammad Chandio deposed that the sale agreement was executed in his presence on 11.10.2009 and after receiving the amount, the seller Naeem Ahmed handed over possession of suit land to the buyer Darya Khan then and there. In his cross-examination he stated that he knew the seller Naeem Ahmed for the last 20 years, however, he admitted that he did not know where did the seller reside in Shahpurchakar. He also admitted that he was not aware as to what was the job or service the said seller was professing. He denied that Naeem Ahmed Khan did not sign the agreement and that the Darya Khan was fraudulently pursuing the case. Plaintiffs other witness Gul Khan Chandio also deposed that he was a very close friend of seller Naeem and agreement took place in his presence. In his cross-examination, he states that he knew defendant for 30 years but strangely also admitted that he did not know where was the house of defendant in Shahpurchakar town. He also admitted that he did not know anything about the profession or livelihood of the defendant. Third witness Muhammad Shabbir Mari also stated that he knew both the parties and agreement took place in his presence, however, once again he did not know what was the profession of the defendant, neither he knew when did defendant's father died. In contrast the defendant examined himself and showed that he owned the suit land and such entry was available in the record of rights and that the land was in his possession. He denied executing any agreement or even that he received any money. He also denied that he did not encash the subject cheque from the Bank. He deposed that his signature on the agreement was false. Neither he admitted that he had received any legal notice from the plaintiff's side. He stated that he never met any of the attesting witnesses in his life, however, deposed that Imam Bux Dahri was cultivating his land to whom the plaintiff's side had issued warning and threats than he should not appear in this Court. In support of his version, he produced certified copy of his deposition recorded in Departmental Enquiry at Ex.87 and true copies of depositions of Bailiffs Mumtaz Ali and Syed- Irfan Hyder at Exs. 88 and 89. He, in his cross-examination deposed that he shifted from.
Shahpurchakar to Karachi in the year 1984 where he was engaged in a government job. He admitted that his earlier CNIC had the address of Shahpurchakar but later on when he moved to Karachi, his subsequent CNICs had Karachi's address. He denied that he had intentionally put different version of signatures on different documents in the Court.
14. The learned trial Court on the basis of above evidence, being cognizant of the fact that the defendant had moved an application under section 151 C.P.C. with a prayer that his alleged signature appearing on sale agreement be sent to a writing expert for his opinion, dismissed the said application as such procedure would be consuming time particularly A when a remedy was available under section 73 of the Evidence Act / Article 84 of the Qanun-e-Shahadat Order, 1984 where the Court itself was competent to compare the signatures in order to effectively resolve the subject controversy. The learned trial Court having been beefed up in this regard by the judgment referred by the Hon'ble Supreme Court in the case of 1999 SCMR 85 took the painful exercise of scrutinizing the signatures of the defendant. The trial Court took notice of the fact that the sale agreement was purchased by the plaintiff and written in Sindhi script where on the top front side of the agreement an endorsement was written by the stamp vendor vide No.680 of 05.10.2009 where under signature and stamp of the stamp vendor were affixed. The trial Court minutely noted that on the first page of the agreement there were no signatures of the plaintiff or defendant whereas on its backside strangely there were five different signatures, one each for buyer himself, third by PW Gul Khan, fourth of PW Muhammad Shabbir and fifth by PW Dur Muhammad. The trial Court scrutinized the written statement filed by the defendant alongside his CNIC to examine signature of defendant carefully and compared it with the signatures shown on the backside of sale agreement. The trial Court at page No.10 of its judgment has reproduced the images of the signatures which through the naked eye appear to be totally different. Having made these ocular observations, the trial went into a deep discussion on this subject. The trial Court observed inconsistencies between the deposition of PW Dur Muhammad and the plaintiff. Also, the trial Court highlighted the discrepancies between the statement of PW Muhammad Shabbir made in contrast to the other witnesses whereupon it concluded that there were serious inconsistencies with regard to writing and signing of the agreement, receipt of the cash and cheque and handing over of the possession of the suit land from the seller to the buyer. With regard to the controversy that who collected payment of Rs.200,000/- while encashing cheque No.970193, the learned trial Court perused a copy of the said cheque dated 31.10.2009 (Ex.45), which was produced by the Manager, National Bank of Pakistan, Shahpurchakar Branch and found that the signatures on the back side of the cheque of the person receiving the money were totally different than those of the seller Naeem Ahmed Khan, which negated the assertion of the plaintiff that the defendant collected proceeds of the cheque. On the above-mentioned grounds, the learned trial Court empowered by Article 84 of the Qanun-e-Shahadat Order, 1984 concluded that the signatures of the defendant on the agreement did not tally.
15. At this juncture, it would be relevant to look at the scope and applicability of Article 84 of the Qanun-e-Shahadat Order, 1984 which is an enabling provision leaving the Court to satisfy itself, in its sole discretion, as to the proof of handwriting or signature, in cases where a dispute as to handwriting or the signature's genuineness appears. The Hon'ble Supreme Court of Pakistan in the case reported in 1998 SCMR 346 has held that where during comparison of signatures it appears that there are signs of the same person and the signatures having striking dissimilarities, the receipt is held to be not proved. While this Court is cognizant of the fact that the opinion of expert (though not available in this case) is a very weak type of evidence and not that of a conclusive nature and such opinion must always be perceived with great caution, however, as already mentioned that the Court is empowered to evaluate the signatures itself, which power the learned trial Court used and found the signatures of defendant not tallying; therefore, in the presence and availability of such evidence showing differences in between the signatures of defendant as elaborated by the learned trial Court in its judgment, issue No.5 was answered in negative rightly.
16. Now when we look as to how the learned appellate Court answered this question, it immediately comes to the mind that the appellate Court did not give findings on all of the issues as discussed by the trial Court, rather considered a single point determination being "Whether defendant / respondent entered in an agreement with the plaintiff / appellant on 11.10.2009 and received consideration as alleged and plaintiff / appellant was put in possession of suit land". While giving the reasoning on this point even, the learned appellate Court has totally isolated itself from the findings given by the learned trial Court under Article 84 of the Qanun-e-Shahadat Order, 1984; it in fact, blamed the defendant that he intentionally signed differently on different documents maliciously. The learned appellate Court has instead chosen to consider the testimony of the plaintiff in isolation, while ignoring the discrepancies and inconsistencies present therein, as highlighted in the judgment of the trial Court. For example, the appellate Court failed to appreciate the discrepancies and inconsistencies within the narration of PW Dur Muhammad vis-a-vis that of the plaintiff, which has been highlighted in detail at pages Nos.11 and 12 of the judgment of the trial Court. The appellate Court completely ignored the fact that while all the PWs stated that they knew the defendant for years and years; however, they could not answer simple question as to what was the profession of the said defendant or whether did, he live in the small town Shahpurchakar. The case of the present appellant in these circumstances that a scheme was cooked up by the respondent Darya Khan where an allegedly fake agreement was engineered and its witnesses clouded with each other, in isolation of the manner as to how the money was transferred and how the possession was handed over, appears to be more plausable. Hence, the appellate Court's judgment seems to be result of misreading and non-reading of the evidence, whereas the trial Court judgment appears to stand on solid foundations. It is also surprising to note that the appellate Court had completely ignored the aspect of the case that the issue as to how the payment was made as incaptulated under issue No.2 of the trial Court judgment remained un- answered by it. In the haste of things, the appellate Court also ignored the fact that the ex-parte decree referred to in its concluding para had already been set aside and the initiative of the buyer to pay the balance sale consideration of Rs.55000- was already dusted away by the judgment referred by the trial Court on 08.10.2011.
17. In the given circumstances, I reach at the irresistable conclusion that the impugned judgment dated 30.03.2012 and decree dated 03.04.2012 passed by learned appellate Court / Additional District Judge, Shahdadpur in Civil Appeal No.27 of 2011 suffer from illegalities and irregularities as pointed above, as such, the same cannot be allowed to remain in the field, which are set aside, while for the judgment and decree dated 08.10.2011 passed by the learned trial Court / Senior Civil Judge, Shahdadpur in F.C. Suit No.66 of 2019 where the learned trial Judge has given valid and cogent reasons for his findings, I see no legal justification to disturb the same, which are accordingly upheld. Resultantly, instant appeal is allowed.
18. These are the reasons for my short order dated 28.04.2022.