' The facts giving rise to this appeal are that the appellants filed a suit in the Court of Additional District Judge, Jacobabad bearing Civil Suit No, 1 of 1971 for specific performance of an agreement for the sale of a house bearing C.S. No, 822/224-8 Ward No, 5, situated in the main city of Jacobabad. The suit was based on an alleged agreement of sale, dated 25-4-1970 where under the respondent was shown to have received a sum of Rs,1,000 as earnest money agreeing to receive the balance amount of Rs,6,000 at the time of executing a registered sale-deed in favour of the appellants in respect of the said house. The respondent denied the very execution of the said agreement or the receipt of Rs,1,000 as earnest money for the alleged sale of the said house.
2. The learned trial Judge after recording the evidence and hearing both the counsel for the parties came to the conclusion that the alleged agreement was not executed by and between the parties.
The signature alleged to have been put by the respondent on the agreement is not of the respondent. He did not rely on the evidence of the two witnesses produced by the appellants, holding them as false and set up witnesses. For all these reasons he dismissed the suit with costs by his judgment and decree, dated 28-4-1972 against which the appellants have preferred this appeal.
3. I have heard Mr. Mazharul Jameel, Advocate on behalf of the appellants and Mr. Abdul Hafiz Siddiqui, Advocate on behalf of the respondent.
4. Learned counsel for the appellants has submitted that the execution and the contents of the agreement to sell have been duly proved as there was no contradiction in the evidence of the witnesses produced by the appellants. He further submitted that the learned trial Judge has misread the evidence.
5. At the very outset, I must say that none of the submissions put forth by the learned counsel for the appellants have impressed me.
6. It is alleged that the said agreement to sell bears the signature of the respondent. Both the learned counsel agreed that the respondent's alleged signatures bear at two places of the said alleged agreement: one at the top and the other one at the right side of page 2 of the said agreement. Both these alleged signatures; I have rounded them with red pencil. The respondent in the written statement has clearly denied that he ever entered into the alleged agreement to sell. In view of this clear denial of the respondent there cast heavy burden on the appellants to prove the signature of the respondent by calling some handwriting expert. No such application or request was made. I, however, find from the judgment that a request was made by the learned counsel for the appellants to compare the alleged signature of the respondent on Exh. 21 with his signature on the power of the Advocate and other documents produced in the Court. In this respect, the learned trial Judge observed as follows:- "During the course of argument and in presence of the Advocates of the parties, I did see the different signatures carefully. I did not find any apparent points of similarities in the different signatures and as such it appears to me that the signature on the document Exh.21 is not of the defendant."
7. I also looked at the two signatures alleged to have been put by the respondent on Exh.21. To me as well there appear a number of points of dissimilarities between the two signatures put on the agreement Exh.21. The signatures on the written statement 'and the Vakalatnama signed by the respondent in favour of his Advocate also have points of dissimilarities with the alleged signatures on the agreement Exh.21. I A am, therefore, clear in my mind that the alleged agreement does not bear the signature of the respondent. It may also be mentioned that the agreement to sell does not bear the signature of any of the appellants who are allegedly purchasers of the house in question. The agreement, in fact, is in the form of a declaration. There is no recital of the parties' names in the agreement in the usual form.
8. To prove the execution and the contents of the agreement Exh.21, learned counsel for the appellants has also referred to the evidence of the two witnesses produced on behalf of the appellants i.e, Radesham Exh.22 and Jethanand Exh.23. Radhesham has deposed that the agreement was executed and signed by Motiram in his presence whereas Jethanand has not said a word about the execution of the agreement by the respondent. To quote Jethanand, he stated, "None had signed in my presence as the document had already been signed by all persons".
Further, the appellant No,1 deposed that the father of the respondent Gobandram was present at the time of the execution of the document whereas none of the witnesses has said anything about the presence of the father of the respondent. No separate receipt for the alleged amount of Rs,1,000 has been produced in the evidence nor the appellants produced any Account Books to prove the payment made to the respondent by the appellants who are stated before me to be businessmen.
The contention of the learned counsel that there is no contradiction in the evidence led by and on behalf of the appellants has, therefore, no force.
9. Learned counsel for the appellant also referred to the attestation of the alleged agreement by a Notary Public. On plain reading of the endorsement of the Notary Public it is clear that there is a mention of none of the persons executing the agreement Exh.21 before him. The endorsement by him which appears on the said agreement is that "Executant is known to Murlidar who is known to me." In the said endorsement the execution has not been named by the Notary Public. Notary Public has put in a date after his signature as 26-4-1970. None of the witnesses have deposed that they appeared before the Notary Public at the time of attestation. On the contrary, both of them stated before the trial Court that they did not go anywhere subsequent to the execution of the agreement Exh.21. So, the attestation does not lend any support to the appellants.
10. The last submission of the learned counsel for the appellants that the learned trial Court misread the evidence has also no force. He was not able to show me any piece of evidence which can be said to have been misread by the learned trial Judge except that of the alternative plea taken by the respondent regarding damages. In this respect, I agree with the learned trial Judge that the execution and contents of the agreement Exh.21 cannot be said to be proved simply because the respondent has taken an alternative plea in the case. The mentioning of alternative plea in the written statement is, therefore, of no consequence so as to prove the execution and contents of the agreement Exh.21.
11. To sum up, I agree with the learned trial Judge that the agreement is a forged one, does not bear the signature of the respondent and the witnesses are false and set up. The judgment and decree of the learned trial Judge is upheld. The appeal is, therefore, dismissed with costs.