' This second appeal calls in question the impugned judgment, dated 30th May, 1970, of learned District Judge, Nawabshah, whereby the appeal was allowed and the suit was decreed by setting aside the judgment of the learned Civil Judge, 1st Class, Nawabshah, who had dismissed the suit for injunction filed by the plaintiff, who is respondent in this appeal.
2. Briefly stated the relevant facts are that the dispute between the parties is with regard to the agricultural land which is specified in detail in the plaint. Respondent/plaintiff in the suit, namely, Ghulam Muhammad filed a suit for injunction under section 5 (c) of the Specific Relief Act in the Court of Civil Judge, 1st Class, Nawabshah, against the appellants/defendants, praying that they be prevented from interfering with his possession of suet land, which had been transferred to him when an agreement to sell the said land was executed by Muhammad Tufail, defendant No, I in the suit, who had power of-attorney from other defendants in the suit excepting defendants Nos. 8, 9 and 10. Plaintiff in the suit further claimed that he is continuing in possession, enjoying produce and paid land revenue assessment for which he had receipts. Written statement was filed by the defendants in the suit in which it was specifically denied that any sale agreement was executed by Muhammad Tufail and further that Muhammad Tufail had no such power of attorney or authority to enter into any such alleged agreement on behalf of defendants 2 to 7. It was further averred in the written statement that plaintiff had been in possession of the suit land on the basis of some lease agreement stated to have been executed by previous allottees of the suit land and those allotment orders were cancelled and subsequently the suit land was transferred to the defendants Nos. 2 to 7, out of whom defendants 5, 6 and 7 had died long before the land in suit was transferred in their names on the basis of their verified claims. Plea was taken in the written statement that the alleged agreement for sale was a forgery and it was denied that the plaintiff in the suit entered into possession of the suit land on the basis of the alleged agreement for sale. In view of the pleadings of the parties as many as 10 issues were framed. Plaintiff Ghulam Muhammad did not examine himself but examined Muhammad Yousuf as P. W. 1 and Eidan as P. W.
2. Defendants examined D. W. 1 Anwar, D. W. 2 Pahalwan, D. W. 3 Muhammad Tufail, D. W. 4 Shahraz, D. W. 5 Khan Muhammad and D. W. 6 Iftikhar Ahmed. The trial Court after assessment of evidence came to the conclusion that the plaintiff had failed to prove that Muhammad Tufail had executed alleged sale agreement in respect of the land in suit and no power-of-attorney was executed in favour of Muhammad Tufail by other defendants. In the result the suit was dismissed. The plaintiff went in appeal which was allowed by the learned District Judge, Nawabshah, who has set aside the judgment of the trial Court and decreed the suit as prayed.
3. I have heard Mr. A. M. Khoja, Advocate for the appellants/ defendants in the suit and Mr. Nooruddin Sarki, Advocate for the respondent/plaintiff in the suit, It was argued on behalf of the appellants that plaintiff in the suit has failed before the trial Court in producing sufficient and satisfactory evidence in support of averments made by him in the plaint as such the suit was rightly dismissed by the trial Court and there was no justification for reversing the findings on the issues by the 1st Appellate Court, which has decreed the suit for reasons which are inconsistent with evidence brought on the record and the law. It appears from the record that the suit is for injunction filed by the plaintiff/respondent on the basis of doctrine for part performance as contemplated under section 53-A of Transfer of Property Act in conjunction with section 54 of the Specific Relief Act, which provides for perpetual injunction. The relevant requirement of section 54 of the Specific Relief Act for the purpose of present case is that perpetual injunction may be granted to prevent breach of an obligation existing in favour of the applicant, whether expressly or by implication and when such obligation arises from contract, the Court shall be guided by the Rules and Provisions contained in Chapter II of this Act. In the instant case, the claim of the plaintiff in the suit undoubtedly is that he is in possession of the suit land pursuant to an agreement of sale executed by Muhammad Tufail on behalf of other defendants in the suit. Similarly, section 53-A of the Transfer of Property Act also provides that if any person contracts to transfer for consideration any immovable property by writing signed by him or on his- behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the tranferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of contract and has done some act in furtherance of the contract, notwithstanding that the contract, though required to be registered, has not been registered, or transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transfer or any person claiming under him shall be debarred from enforcing against the transferee and person/persons claiming under him any right in respect of the property of which the transferee has taken possession, other than a right expressly provided by the terms of the contract. It is thus obvious that the plaintiff in the suit has imperatively to prove that he is in possession of the suit land transferred to him on the basis of agreement of sale executed by Muhammad Tufail. Such issue bras framed by the trial Court and the burden was upon the plaintiff to prove that any such agreement of sale was executed. It may be mentioned that defendants in the suit has taken up the plea that no such agreement of sale was executed by Muhammad Tufail on behalf of other defendants and no power-of-attorney was executed in his favour by other defendants allowing him to do so. Original document was not produced before the trial Court. Perusal of plaint clearly shows that plaintiff had filed true copy of agreement of sale and even in the documents relied upon no mention was made about the original copy. During the proceedings no attempt was made to produce the original. True copy was attested by a Notary Public and no explanation was given as to where the original was and what happened to it and why it could not be produced.
To cap it all very strangely plaintiff Ghulam Muhammad did not examine himself before the trial Court and chose to remain away as such no further light could be thrown on this aspect on the matter. In the circumstances, it can be presumed that original document was deliberately not produced with a motive, particularly in the light of the fact that the defendants denied execution of such document and alleged that if such document is in existence it is a forgery. Such stand was taken by the defendants in the written-statement and the plaintiff was in the know of the fact and he should have produced the original document and examined himself to explain the reasons if he could not produce the original. Plaintiff also did not examine scribe of the original document and attesting witnesses to prove the execution, which was denied by the defendants. In the circumstances, non- production of evidence of the execution of the original document coupled with the hesitation or it can be said the refusal o plaintiff Ghulam Muhammad to come in the witness box explains the fact that in the plaint only true copy of sale agreement was mentioned in the documents filed and no mention was made in the documents relied upon of the original sale agreement. In such a case presumption can be drawn under section 114 (g) of the Evidence Act that had the original been produced, it would have been found to be unfavourable to the plaintiff. Instead plaintiff produced two witnesses, namely, Yousuf and Eidan. Both have deposed before the trial Court that Muhammad Tufail, who was general attorney of the owners of the suit land entered into an agreement of sale with plaintiff and put him in possession of the land in question. Yousuf in cross-examination admitted that he lived in village in Deb Chibhir and plaintiff lived at a distance of one mile from his village. He did not know the names of the actual owners of the land and knew only Muhammad Tufail. This witness admitted that original document was not written in his presence and he was not attesting witness. P. W. 2 Eidan has stated in his cross examination before the trial Court that Muhammad Tufail is the owner of the land in dispute.
This witness further admitted to be hari of plaintiff for the last three years. This evidence is certainly not satisfactory and adequate to prove that original sale agreement was executed and possession was handed over to the plaintiff of the suit land in pursuance thereof, particularly when original document was not produced, scribe and attesting witnesses were not produced and plaintiff did not examine himself before the trial Court. I am, therefore, of the view that the trial Court has rightly given finding on this issue against the plaintiff.
4. The next important issue was whether Muhammad Tufail was duly constituted general attorney of defendants 2 to 7 at the time of alleged sale agreement and whether be was duly authorised to transfer the suit land to the plaintiff. In this respect, it would be worthwhile to mention that plaintiff has not offered any evidence on this point. Even in the plaint it is not stated that the plaintiff had seen and checked the powerofattorney in favour of Muhammad Tufail executed by other defendants. As a prudent purchaser plaintiff would have checked the power-of-attorney first before making a transaction with Muhammad Tufail and would have retained the power- of-attorney till the agreement of sale was finally registered. Defendants denied the execution of power-of- attorney in favour of Muhammad Tufail. Muhammad Tufail was examined before the trial Court as D. W.
3. He has specifically denied that other defendants as alleged executed any power-of-attorney in his favour to sell the suit land to the plaintiff. He has further denied having executed any agreement of sale with plaintiff.
Since original document was not produced it was not put to this witness and he was not confronted with his signature thereupon. Muhammad Tufail also deposed that defendants Noora, Moo and Dilawar had died a long time ago and never executed power-of-attorney in his favour. He further stated that defendants mentioned above had died before the land in question was allotted to them against their claims, hence the question of execution of power-ofattorney for the purpose of sale of suit land did not arise.
5. D. W. 1 Anwar is son of defendant Noora and he deposed that his father Noora died 9-10 years back. His father was a claimant and no land was received by him on his claim. Subsequently, he filed objections against the said claim and it was only then that 18 acres 20 ghuntas were allotted. This witness has further filed several documents in support of the allotment which are exhibited on record. D. W. 2, Pahalwan, who is son of deceased defendant Dilawar, deposed that his father had died long ago. He has also produced some documents which are exhibited on record. D. W. 4 Shahraz is defendant and has deposed that he owns 25 acres of land which he got on his claim. The land was previously allotted to one Sadiq Choudhary. There was litigation between them and finally the land was confirmed on his claim. He has further stated that he then leased the land to Soofi Muhammad Yar. He has denied having appointed Muhammad Tufail, defendant No, 1, as his attorney to sell his land. He has also produced documents which are exhibited on record.
6. D. W. 5 is Khan Muhammad, who has deposed that his father Allauddin was a claimant and died about six years back. After his death land was allotted, which was settled in the name of this witness as he was the only heir of his father. He further positively stated that neither he nor his deceased father ever gave any power-of- attorney to Muhammad Tufail regarding sale of the land. The question of execution of power-ofattorney by his deceased father did not arise for the reason that his father had died before the allotment of land. This witness has produced mutation order which is exhibit No, 110 on record and Khatooni which is Exh. 111 on the record.
7. The last witness examined by defendants is D. W. 6 Iftikhar Ahmed who is Tapedar. He has brought the record regarding the claime and settlement of lands to the defendants
8. It is not necessary to go into all these documents for the reason that they prove the title of the defendants which is not in dispute. There is sufficient evidence on record produced by the defendants to show that defendants Nos 5, 6 and 7 were dead and for that reason succession proceedings had been taken by the Rehabilitation Authorities hence in the mutation orders names of their heirs were substituted. There is also sufficient evidence in support of the claim that three defendants namely, Noora, Aloo and Dilawar had died before 18th December, 1965 which is alleged to be the date when the sale agreement was executed. For these reasons I feel inclined to hold that plaintiff has failed to prove that Muhammad Tufail was general attorney of the defendants 2 to 7 who had executed power-of-attorney in his favour to sell the suit land, particularly when three defendants died before the lands were allotted to them and in the light of denial by other defendants and Muhammad Tufail himself that no such power-of-attorney was executed in his favour.
9. The next important point worth consideration is that plaintiff claims to be in possession of the suit land and has produced some receipts, but the evidence produced by the plaintiff is neither sufficient nor satisfactory to prove that he was in possession of the land in part performance of the contract under section 53-A of the Transfer of Property Act because neither original document has been produced nor it is proved on behalf of the plaintiff that power-of-attorney was executed in favour of Muhammad Tufail by other defendants. Even if it is assumed that plaintiff is in possession of the suit land, that alone would not give him protection under section 53-A of Transfer of Property Act because he has to prove before the trial Court that he was in possession of the suit land by virtue of agreement of sale as alleged by him in the plaint. This has not been done and neither the original agreement of sale was produced B nor the scribe or attesting witnesses of that document were produced. Plaintiff himself chose not to come in the witness box to be examined as witness. On the other hand, defendants have produced overwhelming evidence to prove their title in the suit land which is not in dispute and the facts that Muhammad Tufail was not authorised by the defendants to sell the suit land nor did he execute any agreement of sale in favour o the plaintiff.
10. For the facts and reasons mentioned above I am of the consider led opinion that the trial Court has rightly dismissed the suit of the plaintiff. I, therefore, set aside the judgment and decree by the 1st Appellate Court and restore the judgment of the trial Court. In the result, appeal is allowed. However, there will no order as to costs.