' MUHAMMAD SHARIF, J.--The appellants have preferred this appeal to set aside the judgment and decree dated 15-12-1980 pronounced by Syed Riaz Hussain Shah, the then learned Civil Judge I- Class, Liaqatpur.
2. The facts giving rise to the instant appeal in substance are that the land in dispute measuring 433 Kanals and 15 Malas including two residential Ihatas situate in Chak No. 69-A, Tehsil Liaqatpur belonged to Haji Abdur Rashid, the predecessor-in-interest of the defendants-appellants. It is alleged that Abdur Rashid sold the property in dispute in favour of Murad Ali and his sons Bashir Ahmad and Muhammad Abbas in consideration for a sum of Rs. 2,16,875 and executed a deed of agreement Exh.P.1 dated 20-1-1975. Haji Abdur Rashid the alleged vendor is stated to have received Rs. 45,000 by way of advance money and executed a receipt Exh.P.2 on the same day in favour of vendees. The sale-deed according to the deed of agreement was to be registered within one year.
Abdur Rashid died during this period and Murad All and his sons brought a suit for the specific performance of the contract against the successors-in-interest of Abdur Rashid.
3. The appellants put in a written statement and explained that Haji Abdur Rashid, Murad Ali, Ghulam Rasool, Sheikh Muhammad Saeed, Muhammad All and Dilawar All acquired 1,542 Kanals and 17 Marlas of land in an auction and Haji Abdur Rashid, their predecessor-in-interest held one- fourth share in the joint Khata who lived at Karachi and Sheikh Muhammad Saeed and Murad Ali were in possession of the land in dispute and used to pay the instalments towards the sale price from the joint income of the produce. It is alleged that Sheikh Muhammad Saeed and Murad Ali etc. got the land in dispute privately partitioned in the absence of Haji Abdur Rashid and they took possession of the entire land. Sh. Muhammad Saeed brought a declaratory suit against Haji Abdur Rashid on 2-7-1972 claiming that he had acquired an adverse title on an area of 52 kanals belonging to Haji Abdur Rashid. That suit was contested and Murad Ali appeared as a witness in that suit on behalf of Sh. Muhammad Saeed which was dismissed on 22-7-1975 i.e. after the date of the execution of the impugned agreement of sale. Sh. Muhammad Saeed lodged an appeal which was dismissed in default. The written statement further shows that Haji Abdur Rashid had shifted to Karachi and he never came to Liaqatpur for the execution of any deed of agreement nor did he receive Rs.45,000 as earnest money and the agreement deed and the receipt had been fabricated in order to deprive the appellants of their share of the land in dispute. They claimed compensatory costs under section 35-A of the C.P.C. It may be noted that the plaintiffs-respondents claimed to retain the possession of the land under section 53-A of the Transfer of Property Act which embodies the theory of part performance.. On the basis of the pleadings of the parties, the learned trial Court formulated the following issues:--
(1) Whether Muhammad Abdur Rashid (predecessor-in-interest of the defendants) made an agreement with the plaintiffs to sell the suit land in consideration of Rs.2,16,875 received a sum of Rs.45,000 in part performance of the agreement, delivered the suit land to the plaintiffs and executed the agreement deed dated 20-1-1975 in this behalf?
(2) Whether the agreement deed dated 20-1-1975 is fictitious, without consideration, fabricated, collusive, void and ineffective on the rights of the defendants?
(3) Whether the plaintiffs are entitled to the decree of specific performance as prayed for?
(4) In the alternative whether the plaintiffs are entitled to retain possession of the suit land under section 53-A of the Transfer of Property Act?
(5) Whether the suit is false and vexatious and is liable to be dismissed with special costs? If so, on what costs?
(6) Relief.
4. The onus of proving issue No.1 was rightly placed on the plaintiffs-respondents who have examined not less than six witnesses in support of their claim. Faiz Muhammad, petition-writer, Liaqatpur, the scribe of the agreement deed Exh.P.1 has testified that he had written this deed at the instance of Abdur Rashid and Rs.45,000 were paid in his presence and Rashid Ahmad had signed the deed of agreement Exh.P.1 and the receipt Exh.P.2. When subjected to cross-examination, he stated that he did not know Rashid Ahmad personally and Murad Ali had identified him and that person had stated that he was Abdur Rashid who was a seventy years' old man was a short statured with a white beard. He has added that he knew Murad Ali, headman before the execution of the deed of agreement because the latter used to get documents scribed from him since long and the attesting witnesses were already present in the Court premises before the execution of the impugned documents. He has also stated that the attesting witnesses had come to him after the sale-deed and the receipt had been written and they had signed those documents. He went on to say that Abdur Rashid was alone on that day and it was incorrect that Exh.P.1 and Exh.P.2 had been fabricated through his instrumentality.
5. Ghulam Muhammad P.W.2 has stated that he sold the stamps to Abdur Rashid who signed his register at serial No.1284. He has deposed that he did not know Abdur Rashid personally nor could he identify him. He could not state the stature, age or the complexion of Abdur Rashid nor could he state whether he had beard. The statement of this witness is of no avail because anybody could go to him and pose to be Abdur Rashid and get the stamps from him. Muhammad Ramzan P.W.3 and Allah Rakha P.W.4 are the attesting witnesses of the documents Exh.P.1 and Exh.P.2. Muhammad Ramzan has stated that he was present at the time of the execution of these documents and in his presence Rs.75,000 were paid and receipt for the same was executed and he thumb marked the said document. This witness does no know the correct earnest amount which is alleged to have been paid when the agreement deed was executed. He has stated the age of Abdur Rashid as 40 or 45 years whereas he was about 60 years old at the time of the execution of the impugned documents. He has stated that he had come to the courts for getting scribed an application as he was to purchase some land and Allah Rakha was also present there who is a neighbour and relative of Murad Ali. About the identity of Abdur Rashid, he has stated that Abdur Rashid was keeping a small beard and most of the hair of the beard were black.
6. Allah Rakha P.W.4 has stated that he thumb marked the documents Exh.P.1 and Exh.P.2 and in his presence Rs.45,000 were paid to Abdur Rashid. He has added that he and Abdur Rashid had come from the village with the plaintiff on that day and the bargain was struck between Abdur Rashid and Murad Ali only. He could not state the place where the bargain of the land in dispute was negotiated and completed. He has added that only Murad Ali had purchased the land in dispute and he had seen Abdur Rashid 16 years back.
7. Murad Ali, plaintiff No.1, who is now dead, appeared as P.W.5 to state that Abdur Rashid had struck a bargain of 433 Kanals and 15 Marlas of land and had received Rs.45,000 as advance money. According to him the balance of the sale price was to be paid within a year and Abdur Rashid died before the expiry of the said date and he could not contact the heirs of Abdur Rashid who lived at Karachi. In his cross-examination, he conceded the fact that there were other co- owners of this land including Sh. Muhammad Saeed and Abdur Rashid never came to see the land in dispute and Sh. Muhammad Saeed had instituted a suit against Abdur Rashid on the basis of adverse possession in which he appeared as a witness and the suit of Sh. Muhammad Saeed was dismissed. Murad All has stated that Sh. Muhammad Saeed had instituted a false suit against Abdur Rashid. It is significant to note here that the statement of this witness which he made in the suit of Sh. Muhammad Saeed is on the file and he had fully supported the case of Sh. Muhammad Saeed. He has admitted that the permanent abode of Abdur Rashid was at Karachi and he had transacted this bargain with him alone and it was not even informed to his issues. He has added that Anwar, a vegetable vendor, had come from Feroza to tell him that Abdur Rashid had called him there and he went to Feroza and it was settled that Abdur Rashid should go to Liaqatpur from Feroza and he would go to Liaqatpur from his village. According to this witness, Ramzan was present there by chance and Allah Rakha had gone with him from the village. About the procurement of Rs.45,000, Murad Ali explained that he had mortgaged his land with Sikhs and non- Muslims and had brought Rs.45,000 with him. No mortgage deed has been produced. It is also not conceivable that in the year 1975 he would mortgage land with the non-Muslims who have migrated to India since long. He did not give any notice to the appellants for the registration of the sale-deed.
8. In rebuttal, Syed Irshad Ahmad, D.W.1, who is a clerk of the District Registration Office, Karachi West, produced registration form, the copy of which is Exh.D.1, which contains the photograph of Abdur Rashid. He also brought the original identity card of Abdur Rashid and the copy of the same was exhibited as D.2. These documents show that Abdur Rashid was having a long beard and he was shown as Chughtai by caste and not Sheikh. Nooruddin D.W.2, an Assistant, Habib Bank Ltd., New Chali Branch, Karachi, came forward with the original bank draft, the copy of which is Exh.D.3 in order to prove that on 20-7-1975, Abdur Rashid was at Karachi who had produced a cheque, the copy of which is Exh.D.4 and had got prepared a draft Exh.D.3 worth Rs.9,145.79 in favour of M/s. Amin Brothers. He has further stated that Abdur Rashid was suffering from sugar and heart ailment.
Muhammad Amin D.W.3, who was a maternal-cousin of Abdur Rashid has stated that Muhammad Abdur Rashid was the Managing Partner of the firm namely Haji Muhammad Ashraf and Company and he used to make entries in the Rokars himself, the copy of which is Exh.D.5. It shows that on 20- 1-1975, Abdur Rashid had made entries himself with the exception of entries mark A to A and he was present at Karachi. He has added that Abdur Rashid was a heart patient and had also contracted sugar and whenever he came to Bahawalpur, his son or somebody else used to accompany him.
He has denied the signatures of Abdur Rashid on Exh.P.1 and Exh.P.2. He has further more clarified that he used to see Abdur Rashid writing daily, so he could identify his witting and signatures.
Muhammad Amin D.W.4 has stated that Abdur Rashid used to make entries in the Rokars as Managing Partner and the entries in Exh.D.5 had been made by him on 20-1-1975. He also denied the signatures of Abdur Rashid on the impugned documents Exh.P.1 and Exh.P.2. Nur Ahmad D.W.5 hapens to be the brother of Abdur Rashid, deceased who has stated that they were Chughtai by caste and Abdur Rashid was a heart patient, a diabetic and suffered from hypertension.
9. Muhammad Ibrahim Jamil, appellant No.1 appeared in the witness box as D.W.6 who has stated, that they are Chughtai by caste and his father was a working partner who used to make entries in the Rokar and was at Karachi on 20-1-1975 as the entries in the Rokars show. He has denied the fact that Abdur Rashid had signed the deed of agreement Exh.P.1 and the receipt Exh.P.2.
10. In rebuttal, Muhammad Siddique P.W.6 of Chak No.29-A was examined to show that Abdur Rashid was not Chughtai but was Sheikh by caste. He has stated that he is related to the plaintiffs.
11. The learned trial Court has not taken pains to discuss the evidence produced by the parties properly. The scribe of the documents Exh P.1 and Exh.P.2 did not personally know Abdur Rashid. The stamp venom was also not familiar with Abdur Rashid and anybody could come to purchase the stamps and get documents scribed saying that he was Abdur Rashid. Muhammad Ramzan P.W., is a chance witness and does not know the earnest money paid by the vendees. The attesting witnesses have stated that the vendee was Murad All only but the plaint and Exh.P.1 manifest that his sons have also been associated as vendees in the deed of agreement. Allah Rakha happens to be a relative and neighbour of Murad Ali.
12. It has been conceded by Murad All that Sh. Muhammad Saeed had instituted a suit against Abdur Rashid for having his property on the basis of his adverse possession in which he appeared as a witness. Strangely enough, Murad All or his sons did not come forward for being impleaded as a party in that case which remained pending much after the date of the execution of the sale- deed Exh.P.1 and the receipt Exh.P.2. He has stated that he could not contact the heirs of Abdur Rashid after this bargain but a material suggestion was put to Muhammad Ibrahim D.W.6 that after the death of his father, Murad All had approached him and had apprised him of the disputed bargain and they had stated that they would get the mutation attested after getting sanctioned a mutation of inheritance in their favour. This is a suggestion which contradicts the statement of Murad Ali. Murad Ali could not properly explain as to how he was able to procure a sum of Rs.45,000 which are alleged to have been paid to the vendor on 20-1-1975. Allah Rakha, an attesting witness, has stated that they had come from the village alongwith Abdur Rashid and Murad All has stated that Abdur Rashid had come from Feroza whereas he had come to Liaqatpur from his village. It has been admitted that the permanent residence of Abdur Rashid was at Karachi and his arrival at Liaqatpur has not consistently been stated by the witnesses of the plaintiffs. It appears that Sh.
Muhammad Saeed wanted to grab the property of Abdur Rashid in collusion with Murad All and was litigating against him in the civil Court. After the dismissal of the appeal of Sh. Muhammad Saeed, Murad Ali was prompted to fabricate the agreement deed Exh.P.1 on 20-1-1975 because Abdur Rashid died on 7-1-1976 and the date 20-1-1975 was scribed on both the questioned documents so that it could be said that Abdur Rashid had transacted the bargain in dispute within his life-time.
13. In rebuttal, it has been proved from the copy of the draft and the entries in the Rokars that Abdur Rashid was at Karachi on 20-1-1975. He was not expected to visit Liaqatpur on the same day which is at a distance of about 500 miles from Karachi.
14. It may also be noted that Abdur Rashid must have signed the written statement etc., in a civil suit and appeal instituted by Sh. Muhammad Saeed. So a sordid endeavour was made to copy his signatures on the questioned documents.
15. The plaintiff-respondents could not prove their case and there is overwhelming evidence on the file to show that Murad Ali and his sons were guilty of fabricating two documents Exh.P.1 and Exh.P.2 to deprive Abdur Rashid of his landed property which was in their posses sion since long. The findings on issues Nos.1 and 2 are, therefore, set aside. On the basis of our findings on issues Nos.1 and 2, it is futile to discuss issues Nos.3 and 4.
16. Since there is no evidence on the file as to what should be the amount of compensatory costs under section 35-A of the C.P.C., so they are not allowed. Consequently, we accept this appeal and set aside the impugned judgment and decree. The suit of the plaintiffs-respondents is dismissed with costs throughout.