1. QURBAN SADIQ IKRAM, J.--Briefly stated the facts of this case are as follows:- ' On the basis of an agreement to sell dated 12-7-1974 regarding Square No.72 in Chak No.226/R.B.
2. Mulkhanwala Tehsil and District Faisalabad. Khurshid Alam, Taj Muhammad, Muhammad Sharif and Parvaiz Akhtar on 7-6-1975 filed a suit for specific performance of contract against Mst.
3. Bashiran Begum widow of Ghulam Murtaza Khan and her minor children. It was pleaded in the plaint that Ghulam Murtaza Khan on his own behalf and as attorney of his wife Mst. Bashiran Begum on 8-7-1972 executed an agreement to sell entire Square No./2 for Rs.1,25,000; that he received Rs.65,000 as advance money and another sum of Rs.15,000 advanced on 1-8-1972. After some time with consent of the parties another agreement to sell dated 4-10-1972 was executed between the parties regarding Square No.72. In this agreement the sale price was fixed as Rs.1,50,000. Another sum of Rs.20,000 was paid making a total of Rs.1,00,000 as advance payment.
4. Another sum of Rs.5,000 was also paid. On 27-7-1973 a further sum of Rs.20,000 was paid making the total advance money as Rs.1,25,000. Before this agreement could finalise, the parties again decided to execute fresh agreement to sell on 12-7-1974. It was agreed that the sale price would be Rs.1,75,000. An additional sum of Rs.40,000 was paid by the plaintiffs to Ghulam Murtaza Khan making the total advance payment as Rs.1,65,000. It was agreed that sale deed would be completed and executed by 1-5-1975. Ghulam Murtaza Khan died a few week before this date. The plaintiffs, therefore, asked Mst. Bashiran and other defendants to execute the sale deed in terms of the agreement to sell dated 12-7-1974. They did not honour the agreement. Hence the suit.
2. Mst. Bashiran and other defendants put in appearance before learned Civil Judge, Faisalabad.
5. They controverted the averments in the plaint and denied execution of the agreements and also receipt of advance payment. It was pleaded in the written statement that Ghulam Murtaza neither required any money nor he ever agreed to sell Square No.72 in favour of the plaintiffs. The learned Civil Judge, 1st Class, Faisalabad vide the impugned judgment and decree dated 6-6-1982 dismissed the suit of the plaintiffs for specific performance of contract but passed decree for recovery of Rs.1,65,000 with costs in favour of the plaintiffs and against the defendants.
3. We have carefully gone through the evidence on record and have also heard the learned counsel appearing for the parties at some length.
6. ' In was contended on behalf of the appellant that the agreement to sell dated 12-7-1974 and the receipt showing payment of Rs.1,65,000 as advance are not proved to have been executed/signed by Ghulam Murtaza Khan; secondly, that the payment of Rs.1,65,000 by the plaintiffs to Ghulam Murtaza Khan is not proved and that the alleged acknowledgement of transaction by the executant could not be considered as proof of the execution of the documents. It was further contended that various agreements to sell dated 8-7-1972, 4-10-1972 and 12-7-1974 were independent transactions and as such it could not be said that the payment of Rs.1,65,000 by the plaintiffs was proved under the agreement to sell dated 12-7-1974. The learned counsel appearing for the respondents controverted the above contentions.
4. We have carefully examined the respective contentions on behalf of the parties and have also gone through the evidence as well as the documents which form part of this record. The only question requiring determination seems to be as to whether plaintiffs paid Rs.165,000 as advance money to Ghulam Murtaza Khan or not. Ex.P1 is the agreement dated 8-7-1972. According to this Ghulam Murtaza Khan is alleged to have agreed on his own behalf and on behalf of his wife Mst.
7. Bashiran Begum to sell square No.72 for Rs.1,25,000. He received Rs.65,000 as advance payment towards price. The sale deed was to be finalised by 7-7-1973. Receipt Ex.P2 was executed on the same date showing payment of Rs.65,000 to Ghulam Murtaza, Receipt Ex.P1/1 on the back of agreement Ex.P1 dated 1-8-1972 indicates payment of another Rs.15,000 to Ghulam Murtaza making a total of Rs.80,000 as advance payment under agreement P/1.
8. ' On 4-10-1972 agreement to sell P.3 was executed between the same parties regarding sale of square No.72 for Rs.1,50,000. A receipt Ex.P.4 was executed on the same day showing payment of Rs.1,00,000 as advance payment of price under the agreement Ex.P.3. Another sum of Rs.5,000 is alleged to have been paid on 7-3-1973 to Ghulam Murtaza vide receipt Ex.P 3/1 on the back of the agreement Ex.P3. This means that a total sum of Rs.1,05,000 was paid under agreement Ex.P.3 in which the sale-deed was stipulated to be executed by 20-8-1973. A perusal of this agreement would show that it does not contain any reference to the earlier agreement P.1 and receipt P.2.
9. On 27-7-1973 another agreement to sell Ex. P.5 between the same parties regarding square No.72 was executed. The sale price was fixed at Rs.1,50,000. It was stipulated that Rs.1,25,000 would be paid as advance money and the sale deed will be completed by 25-7-1974. This agreement did not contain any reference of earlier two agreements. On that very day a receipt Ex.P 6 was written to show the payment of Rs. 1,25,000 to Ghulam Murtaza. In this receipt it was stated that a sum of Rs.1,05,000 has already been received by Ghulam Murtaza and only a sum of Rs.20,000 was being paid in cash at that time.
10. ' On 12-7-1974 yet another agreement to sell Ex.P.7 between the same parties regarding same land was executed. In this the price of land was fixed at Rs.1,75,000. The sale deed was to be registered by 1-5-1975 and Rs.1,65,000 was paid as advance money vide receipt Ex. P 8 on same date. In documents Ex. P.7 and P.8 there is no reference of the earlier agreements and receipts. It is stated in receipt Ex.P.8 that a sum of Rs.1,65,000 was received in cash by Ghulam Murtaza in presence of the witnesses. (There is some confusions in the statements of the plaintiffs' witnesses regarding exhibit marks of the above mentioned documents. We have given the exhibit marks after having a look at the documents).
11. ' Khurshid Alam etc. Plaintiffs, to prove the above detailed documents, examined PW 2 Muhammad Hussain, PW 3 Muhammad Isa and PW 5 Abdul Khaliq. It was stated by Muhammad Hussain PW 2 in his examination-in-chief that "the truth is that I, Captain Nizam Din, Khurshid Alam and Ghulam Murtaza came to the office of Police Quami Razakar, Faisalabad. Ghulam Murtaza and Khurshid told them that their mutual dealing was all right ( ). There is no doubt of any nature. It is a matter of their honour and, therefore, they should go to the Munshi and sign the agreements and receipts."
12. He further stated that after execution of agreement Ex.P.8 and receipt P.9 (in fact P.7 and P.8 respectively) Ghulam Murtaza had admitted receipt of Rs.1,65,000 as advance payment. In cross- examination he stated that the parties and other witnesses had not signed these documents in his presence. He volunteered that Ghulam Murtaza had stated that he had already signed the documents. He admitted that he was a clerk in the office of Police Quami Raza Kar. PW 3 Muhammad Isa stated that Ghulam Murtaza signed the documents and received Rs.1,65,000 as advance payment. In cross-examination he stated that the bargain was not struck in his presence.
13. He admitted that no payment against the receipt was made in his presence and that Ghulam Murtaza had admitted the receipt of money against these receipts. He also admitted that he was typist in Rifle Club where Captain Nizam Din, father of Khurshid Alam plaintiff, was employed as Cashier. He was unable to remember the name of the Petition-writer. He stated that whenever he signed the documents Muhammad Hussain PW was with him. He admitted to be of brotherhood of Captain Nizam Din. On the other hand, Muhammad Hussain stated that no one of the parties or witnesses signed in his presence. A perusal of tte statements of these two witnesses would show firstly that the agreements were not written or signed by Ghulam Murtaza Khan in their presence.
14. Secondly, that no money was paid in their presence to Ghulam Murtaza Khan by the plaintiffs, and thirdly, that at the time of signing these documents these two witnesses did not record in their own handwriting that the payment had been made in their presence or that Ghulam Murtaza admitted to have signed the documents. PW 5 is Abdul Khaliq Petition-writer. He is scribe of the abovementioned agreements and the receipts. It was stated by him that he had written these documents at the instance of Ghulam Murtaza Khan who had admitted the receipt of payment before him. He further stated that Ghulam Murtaza Khan signed the documents in his presence. In cross-examination he stated that he did not count the money and the payment was made by the parties themselves. He stated that he did not know as to whether the same witnesses signed the documents as marginal witnesses or they were different persons. He stated that he was unable to identify the witnesses. He added that some time some witnesses attested the documents and some time they were different witnesses. He further stated that the entire payment was made by Captain Nizam Din but the documents were written in the name of the sons of Captain Nizam Din.
15. According to this witness Captain Nizam Din made all the payments in his presence to Ghulam Murtaza Khan. In our view Captain Nizam Din was, therefore, an important witness to be examined by the plaintiffs in this case. He was not produced by the plaintiffs in support of their case. It is, therefore, clear from the evidence of Abdul Khaliq PW 5 that no payment was made by the plaintiffs and instead the payment was made by Captain Nizam Din who did not offer himself to be subjected to cross-examination by the defendants. Khurshid Alam plaintiff No.1 in his statement dated 3-6-1980 did not state that he himself had paid the amount through various receipts to Ghulam Murtaza Khan. The case of the plaintiffs-respondents regarding payment of Rs.1,65,000 is based only on the so-called admission by Ghulam Murtaza Khan. It is not known as to what was the precise admission. It was also not stated by the witnesses as to when and at what precise place Ghulam Murtaza Khan made admission regarding receipt of Rs.1,65,000. As stated above each agreement does not contain any reference of the earlier agreement said to have been executed by the parties. Excepting the receipt Ex.P.6 there is no mention of various payments made to Ghulam Murtaza Khan by the plaintiffs. Each agreement indicates independent transaction between the parties. In the receipt Ex.P.6 there is some mention of earlier payment of Rs.1,05,000 to Ghulam Murtaza Khan but this receipt also does not indicate as to when and in what connection the said payment was made to him. A perusal of the receipt Ex.P.8 would show that a sum of Rs.1,65,000 was received in cash ( ) by Ghulam Murtaza Khan. This would mean that the entire sum of Rs.1,65,000 was allegedly paid to Ghulam Murtaza Khan on 12-7-1974. This receipt further indicates that the payment was made by Khurshid Alam and his three brothers. On the other hand, according to Abdul Khaliq PW 5 the money was paid by Captain Nizam Din and secondly, according to the statement of Khurshid Alam plaintiff No.1 dated 3-6-1980 only a sum of Rs.40,000 was paid on 12-7-1974 and that the payment, as indicated in the receipt, was not made on that date. This means that the contents of the receipt P.8 were belied by the oral evidence led by the plaintiffs during trial of this case. All these facts make the execution of the agreements and receipts mentioned above doubtful. The so-called acknowledgement of receipt of advance money by Ghulam Murtaza Khan is vague and doubtful. The receipt P 8 is without consideration.
16. ' We have also carefully scrutinized the agreements and receipts and find that the alleged signatures of Ghulam Murtaza on these documents were not completely identical. There was visible difference between the signatures of Ghulam Murtaza on these documents. Mst. Bashiran Begum defendant No.1 appeared as DW.1 in support of her case. It was stated by her that she was familiar with the signatures of her husband and that signatures Ex P.7/1 on agreement Ex.P.7 and signatures Ex.P.8/1 on receipt Ex.P.8 were not that of her husband. She also denied having executed the agreements and received any advance payment. It may hereby mentioned that Khurshid Alam plaintiff No.1 in his statement dated 18-2-1981 tendered in evidence copy of mutation No.560 Ex. P.9 (Ex.D.1 as well). According to this mutation Mst. Bashiran Begum had gifted her land to her children on 25-7-1973. A perusal of this mutation would show that 1/3rd share in Khata No.150 measuring 218 Kanals 10 marlas was gifted by Bashiran Begum to her children. The land in suit also was partially in Khata No.150. This mutation, which was relied upon by the plaintiffs, would show that Mst. Bashiran Begum on 25-7-1973 was not owner of part of the property in question. There was, therefore, no question of execution of agreement to sell Ex.P.7 on her behalf by Ghulam Murtaza Khan on 12-7- 1974. The present suit is based on agreement P.7 only. P.W. 6 Mian Muhammad Akram Fazal Advocate, Notary Public stated that he attested agreement P.7 and receipt P.8 on 12-7-1974. The executant Ghulam Murtaza Khan, who admitted his signatures on P.7 and P.8 was identified by Muhammad Isa Khan. He further stated that excepting Muhammad Isa PW no other witness was present at that time. He admitted that Ghulam Murtaza was not known to him personally and that if Muhammad Isa produced, before him a wrong person then mistake could occur. A perusal of the evidence of this witness would show that the documents were not executed in his presence; that the payment was not made before him and that Ghulam Murtaza was not personally known to him. It is surprising that even at this time Ghulam Murtaza was identified by Muhammad Isa PW who was not only of the brotherhood of Captain Nizam Din but also employed in the Rifle Club where Captain Nizam Din was a cashier. The endorsement of Notary Public on documents P.7 and P.8 would show that he only attested them. He did not record his note that Ghulam Murtaza admitted having signed those documents. He also did not mention that Ghulam Murtaza had been identified by Muhammad Isa PW. As such the evidence of this witness is also of no help to the plaintiffs. There is another aspect which requires consideration. The first agreement was allegedly executed on 8-7-1972, second on 4-10-1972, third on 27-7-1973 and fourth on 12-7-1974. No subsequent agreement contained any recital about the cancellation or even existence of the earlier agreement. The evidence does not indicate and circumstance as to why all these independent agreements were executed regarding same property between same parties without cancellation of the earlier agreements. As already held above the agreement Ex.P.7 and receipt Ex.
17. P.8 were without consideration.
5. In view of the above discussion we are satisfied that the plaintiffs have failed to prove payment of Rs.1,65,000 to Ghulam Murtaza Khan. As a result of this we accept this appeal and set aside the impugned judgment and decree dated 6-6-1982. In view of the complicated facts involved the parties are left to bear their own costs.