The defendant appeal against the judgment and decree dated 28-6-1987 passed by the learned Addl: District Judge, Sargodha, for specific performance of contract on acceptance of appeal filed by the respondents/plaintiffs against the judgment and decree dated 17-2-1980 passed by the learned trial Court through which their suit was dismissed.
2. The facts giving rise to this appeal in brief are that Sultan Ahmad s/o Muhammad Khan predecessor-in-interest of the respondents filed a suit for specific performance of agreement of sale of land allegedly executed on 6-9-1974 regarding property in dispute by his sister namely Mst.
Mumtaz Begum predecessor-in-interest of the appellants in consideration of Rs. 80,000. According to the case of the plaintiffs out of this amount an amount of Rs. 30,000 was paid on 1-7-1974 i.e. Before the execution of the said agreement as earnest money and another amount of Rs. 45,000 was paid at the time of execution of said agreement of sale on 6-9-1974 as such only an amount of Rs. 5,000 remained to be paid. Mst. Mumtaz Begum died and the suit was filed against the present appellants as her legal heirs. The suit was contested. In the written statement filed by the appellants the execution of the said agreement of sale by Mst. Mumtaz Begum and receipt of any amount was specifically denied. On the pleadings of the parties the learned trial Court framed the following issues:- (1)Whether Mst. Mumtaz Begum agreed to sell the suit land in favour of the plaintiff? OPP (2)If issue No. 1 is proved in the affirmative whether plaintiff is entitled to specific performance of the agreement? OPP (3)Whether the suit is not maintainable in its present form? OPD.
(4)Whether the agreement in question and the receipt are fictitious and result of fraud? OPD.
(5)Whether the plaintiff is estopped to institute the suit by his words and conduct? OPD.
(6)Whether the defendants are entitled to special costs under section 35(A), C.P.C.? OPD (7)Relief.
3. The parties produced evidence. In support of his case the plaintiff examined Sh. Muhammad A.I as PW.1, Faiz Ahmad as PW.2, Ghulaui Nabi s/o Sardar Khan as PW.3, Qazi Noor Elahi Petition Writer as PW.4 and Sultan Ahmad plaintiff examined himself as his own witness as PW.5. Apart from this oral evidence the plaintiff also produced a receipt dated 1-7-1974 evidencing receipt of an amount of Rs. 30,000 by Mst. Mumtaz Begum as Ex. P.1, and agreement of sale in dispute dated 6-9-1974 as Ex. P.2, copy of register haqdaran Ex. P.3, and copy of Khasra Girdawari Ex. P.4 were also produced.
The appellants/defendants on the other hand examined Mukhtar Ahmad s/o Muhammad Hussain as D.W. 1, Amanat A.I s/o Ghulam Hassan alias Muhammad Hassan as D.W. 2, and Muhammad Nazir appellant No. 1 defendant examined himself as his own witness as D.W.3. The learned trial Court after appraising the evidence of both the parties decided issues Nos. 1 and 2 against the plaintiff whereas issue No.Was decided in favour of the present appellants. Issue No. 3 has been answered against the defendants and it was held that the suit was in proper form. Regarding issue No. 5 it was observed that the same was not pressed by the learned counsel for the defendants, therefore, it was answered against the defendants. On the basis of findings on issues Nos. 1, 2 and 4, issue No. 6 was also answered in favour of the defendants and they were awarded an amount of Rs. 5,000. As special costs above the ordinary costs of the suit. In consequence of the said findings the learned trial Court through judgment dated 17-2-1980 dismissed the suit. Feeling aggrieved the respondents filed appeal before the learned lower appellate Court. The learned lower appellate Court reversed the findings of the learned trial Court on the crucial issue regarding execution of agreement by Mst. Mumtaz Begum and accepted the appeal through judgment dated 28-6-1987 and decreed the suit filed by the plaintiffs. The legality of this judgment and decree has been assailed in this second appeal.
4. The question is whether the execution of documents Ex. P.1 and P.2 by Mst. Mumtaz Begum deceased and receipt of money by her was established or not. Learned counsel for the appellants argued that the learned lower appellate Court misconstrued and misread the evidence and the impugned judgment and decree also suffer from non-consideration of material on the record. I have examined the record of the learned trial Court to satisfy myself whether there is any misreading or non-consideration of evidence. The mainstay of the case of the respondents regarding execution of these documents is the evidence of Muhammad A.I PW.1, Faiz Ahmad PW.2 and the evidence of Qazi Noor Elahi PW.4 who is the scribe of agreement of sale. It is in the evidence of PW.1 that the grand daughter of this witness, namely; Mst. Nasreen was married to the son of the plaintiff whereas sister of PW.2 was married to the plaintiff. These two witnesses are also residents of different places and their presence at the time of alleged execution of both the, documents Ex. P.1 and P.2 which were allegedly executed at different times was of much significance to make the credibility of their evidence doubtful. The learned lower appellate Court observed that both these witnesses were related to both the parties as the parties were brother and sister cannot be sustained inasmuch as PW.1 and PW.2 were very closely related to the plaintiff and due to their that relationship they had reasons to depose falsely in favour of the plaintiff. PW.4 the scribe has admitted in his evidence that a woman with `burqa' came to him for execution of agreement of sale and he did not see her face. It was not disputed that Mst. Mumtaz Begum was Pardah-- observing illiterate woman. PW.4 admitted in cross-examination that he could not identify the woman who executed the document and that he did not also satisfy himself about her identification from independent source. He also admitted when suggested to him that he got bail in a case in respect of agreement written by him at the instance of the Patwari. It is also borne out from the record that Mst. Mumtaz Begum did not have an independent advice. None of her family Member, i.e. Husband or any of her sons were joined when the bargain was allegedly struck.
Evidence of PW.3 was not of much credibility, for, this witness appear to be chance witness and it does not stand to reason as to how he knew Mst. Mumtaz Begum who was parda observing lady.
Tire case of the plaintiff was that he paid an amount of Rs. 75,000 our of total consideration of Rs.
80,000 which plea on the face of it appears to be false because no man of ordinary prudence would part in such a huge amount for mere execution of agreement of sale. In such a situation ordinarily a person would be interested to get the sale-deed executed and registered by arranging another amount of Rs. 5,000 or above. Learned counsel for the respondents argued that since the amount of Rs. 5,000 plus expenses for registration could not be arranged, therefore, mere agreement of sale was got executed.
5. I am afraid the explanation is not plausible. According two plaintiff he had already paid Rs.
30,000 before execution of agreement of sale through receipt and if the total amount of consideration could not be arranged, he could easily get agreement of sale executed on the same amount of Rs. 30,000 and there was no need to part Mph that further amount of Rs. 45,000.
Hollowness and falsehood of the case of the plaintiff is further established by the fact that on both the disputed documents PW.1 and PW.2 are the witnesses. It does not appeal to reason as to why only these close relatives were made to sign the documents as attesting witnesses and no independent and disinterested witness was available. The logical basis on which the learned trial Court discarded the documentary as well as oral evidence of the plaintiff have not been dealt with by the learned lower appellate Court and the learned lower appellate Court appears to have proceeded to hold that execution of Exs. P.1 and P.2 was established merely on the production and examination of their marginal witnesses. The learned lower appellate Court did not take into consideration the matters discussed above which are apparent on the face of the record and it did not undertake appraisal of evidence in accordance with law settled by the superior Courts about proof of execution of such documents by an illiterate Pardah-observing lady. The judgment and- decree of the learned lower appellate Court thus suffers from legal infirmities due to non- consideration of material evidence and misreading of the record and the facts apparent on the face of the record. It can safely be held that the plaintiff hatched conspiracy in connivance with PW.1 and PW.2 to grab the property of his sister without payment of any consideration. The execution of documents Exs. P.1 and P.2 has not been established nor the payment of money to Mst.
Mumtaz Begum stands proved. The findings of the learned lower appellate Court are not sustainable. In the result this appeal succeeds, it is accepted with costs. The impugned judgment and decree of the learned lower appellate Court are set aside and that of the learned trial Court restored.