' This revision petition under Section 115 C.P.C. Was directed against the judgment and decree dated 13-4-1986 of the learned Additional District Judge, whereby the judgment and decree of the learned trial Court dated 28-9-1985 decreeing the suit for specific performance of contract filed by the petitioner/plaintiff, was set aside and the suit of the petitioner/plaintiff was resultantly dismissed.
2. The necessary facts briefly stated are that the suit for specific performance of the contract was filed by the petitioner/plaintiff with the assertions that Mst. Qudrat Jan, respondent, had agreed to sell the area measuring 12/1-2 acres got allotted under the Islamabad Oustee Scheme in Chak No,183-9/L, Tehsil and District Sahiwal, vide agreement dated 4-5-1968 for consideration of Rs,30,000 out of which Rs,20,000 were paid as earnest money while Rs,9,500 were to be deposited by him in Government Treasury towards instalments of the land and the balance of Rs,500 was to be paid to Mst. Qudrat Jan at the time of registration of sale-deed or attestation of mutation in his favour after grant of proprietary rights to the allottee. It is also averred that in case any other land is obtained by Qudrat Jan in lieu or in exchange of the land of Chak No,183-9L the said agreement will also be effective as against the land so obtained. It is also averred that Mst. Qudrat Jan got the land in village Chak No,128/10-R Tehsil and District Khanewal in exchange of the land originally allotted in the aforesaid village and then after grant of proprietary rights vide sale-deed dated 17- 6-1980 sold the land obtained in exchange to respondents Nos.1 to 4 on the same day. It was alleged that the respondents had the full knowledge of the agreement to sell in his favour and as such, the plaintiff is entitled to have the agreement specifically performed after cancellation of the sale-deed dated 17-6-1980 in favour of respondents Nos.1 to 4. The suit was resisted by the respondents/defendants. The execution of the agreement, the receipt of sale consideration as well as the bargain itself was denied with the further assertion that the agreement dated 4-5-1968 relied upon by the petitioner/plaintiff was forged and a fictitious document. It was also pleaded that since the disputed property was owned by the Provincial Government, the alleged agreement dated 4-5-1968 is illegal, void and ineffective and fails to create any right in favour of the petitioner/plaintiff. The learned trial Court framed as many as 3 issues arising out of the pleadings of the parties and after recording the evidence, decreed the suit holding inter alia that the execution of the document and the payment of the earnest money stand established. The appeal filed by the respondents/defendants succeeded as the fmdings of the learned trial Court were reversed. Hence, this revision petition.
3. I have heard the learned counsel for the parties and have also gone through the record. Learned counsel for the petitioner submitted that the findings on issues Nos.3, 4 and 7 are contrary to record, as the execution of the agreement Ex.P1, payment of Rs,20,000 at the time of execution, deposit of Rs,95,000 by paying instalments as well as the readiness and willingness to perform plaintiff's part of contract, stood established through the evidence of Ihsanul Haq Tahir (P.W.1)
Manzoor Ahmad (P.W.2) and Nasrullah Khan (P.W.3). It was added that the circumstances brought on record i,e. The deposit of instalments through deposit receipts (Ex.P6 to 11), the possession of the land in question with the petitioner also establish that the parties had finalized the bargain and Qudrat Jan had executed the document and that the reasons given by the learned Appellate Court for holding that the execution had not been established, are flimsy and in any case are not sufficient for disbelieving the witnesses. It was added that Manzoor Ahmad had established that the name of his father was mistakenly entered in the document as 'Lal Khan'. Learned counsel argued that the reason for non-production of Abdul Hakeem, the other attesting witness, was explained by saying that he due to accident is lying crippled and as such is unable to appear before the Court; that the scribe had also died and that his non-production cannot give rise to an adverse inference; that the burden to establish that the respondents had no notice of the agreement Ex.P1 lay heavily on the respondents, the subsequent transferees but the said burden was neither discharged nor any evidence was produced by them to establish that they were bona fide transferees for consideration and had no notice of the earlier contract. Reliance was placed on Mst. Khair-ul-Nisa and others v. Malik Muhammad Ishaque and others PLD 1972 SC 25 and Mst.
Noor Nisa v. Abdus Salam and another PLD 1982 Pesh.
42. It was argued that because the land is in possession of the petitioner, and subsequent vendees and the petitioner are of the same village, it is to be presumed that they have the notice of first contract. In support of this plea reliance was placed on Khawaja Aamer Shakil and others v.
Muhammad Afzal and others (1988 CLC 2089). It was also contended that Mst. Qudrat Jan did not enter the witness box and as such an adverse inference should be drawn against her. Lastly, it was contended that the agreement in question is not hit by Section 19 of the Colonization of Government Lands Act, 1912 as the document Ex.P1 only contemplated that the rights in the land in question will be conveyed after the grant of proprietary rights.
4. It is pertinent to note that the findings recorded by the learned appellate Court have not been assailed on the ground that the learned appellate Court has misread or not read any material piece of evidence. The argument nutshell was that the reasons given are flimsy and not sufficient to reverse the findings recorded by the learned trial Court.
5. Having gone through the evidence on record, I am of the view that the execution of the agreement and payment of consideration have not been satisfactorily established. I agree with all the reasons given by the appellate Court for arriving at the said conclusions. It may also be added that the learned counsel A for the petitioner during the arguments submitted that he does not rely on the evidence of Ihsanul Haq Tahir (PW.1) as it contradicts the version of Manzoor. Ahmad (PW.2) and Nasrullah Khan (P.W.3). He deposed that the document alongwith Qudrat Jan was produced before on 5-5-1968 and he made Qudrat Jan to affix her thumb impressions twice on the document which had already been thumb marked by the attesting witnesses. Manzoor Ahmad PW.2 and Nasrullah Khan PW.3 as against above, deposed that the document was prepared and executed on 4-5-1968 and that Qudrat Jan had affixed the thumb impression on the same day, before Ihsanul Haq, Advocate. Nasrullah Khan, P.W.3, the petitioner, on the other hand, stated that the document was thumb marked by Qudrat Jan before the petition-writer/scribe on 4-5-1968. On the question of payment also the statement made by the three witnesses are contradictory. Hence, neither the execution nor the payment of Rs,20,000 stand established on record. Abdul Hakeem, the second attesting witness was not produced by merely saying that he has been crippled in an accident. Except for the deposition of Manzoor Ahmad, there is nothing on record to support the version of inability of Abdul Hakeem to appear in Court. If he was lying crippled, his statement could be got recorded through commission. Moreover, Nasrullah Khan, being a party could not be treated as an attesting witness. It is also to be noticed that Mst. Qudrat Jan being a lady, it was necessary for the petitioner/plaintiff to show that independent advice was available to her when she executed the said document. It is in the evidence that Aslam, her brother, was present when she executed the said document. If he was so present, it would have been but natural to have Aslam attested the document as one of the witnesses but that was not done. Learned appellate Court was also right in discarding the evidence of Manzoor Ahmad as the person who attested the document was described as Manzoor son of Lal, resident of New Katarian, Rawalpindi, whereas Manzoor who entered the witness box as P.W. 2 was statedly resident of Bismal Arok though he deposed that name of his father has been incorrectly recorded as Lal Khan but nothing was stated by him about the residential address. He even failed to assert that he was at that time resident of New Katarian Rawalpindi. These factors brought on record in cross-examination were sufficient to dispute the identity of Manzoor Ahmad P.W.2.
6. It is to be noted that in the plaint it was asserted that on 4-5-1968 two documents were got executed, one, the agreement Ex.P1 and the other registered power of attorney in favour of one Muhammad Amin son of Jamal Din by Qudrat Jan. Neither this registered power of attorney in original nor any certified copy of the same was produced on record. It will further be seen that even the name of the scribe as entered in document, Ex.P1 is not legible. The petitioner himself failed to give names of the attesting witnesses as well as of the scribe.
7. The agreement was purportedly executed on 4-5-1968 in respect of the land situated in Chak No,183/9-L Tehsil and District Sahiwal but the said allotment had been cancelled vide order dated 16-4-1968 and till 4-5-1968, the land in other village had not yet been admittedly allotted. It will, therefore, be seen that though the agreement provided that if land is obtained in lieu of the land, subject-matter of the agreement, the agreement will also cover the exchanged land but it will be noted that on the day of agreement, the corpus of the bargain was not existent. Learned counsel tried to wriggle out of the situation by saying that on the day of agreement, Qudrat Jan was not aware that the order cancelling the land in question and transferring the present property for obtaining allotment of land in other village had been passed and as such she in the agreement executed by her agreed that this agreement will cover the land if any obtained in exchange. This explanation cannot be accepted because the learned counsel in the same breath also stated that it was the petitioner who had obtained the allotment in the first village and it was he who had also obtained the land in the other village Chak No, 128/10-R and had been paying the instalments thereof and was in possession. If that version is accepted, then the recital of the agreement should have been quite different and the cancelled land would not have formed the basis of the agreement. As regards the possession, the version of the respondents is that they are in possession through their tenants. None of the tenants was produced by the plaintiff that they are attorneying him. Hence the version that the petitioner is in possession cannot also be accepted. In these circumstances, the question of applicability of Section 19 of Colonization of Government Lands Act need not be gone into.
8. The circumstances noted above alongwith the circumstances noted in the impugned judgment sufficiently establish that the petitioner plaintiff failed to discharge the onus of issues Nos.3, 4 and 7.
In view of above, the findings F recorded by the learned appellate Court are not only reasonable and sound but these findings being findings of fact cannot be interfered with in revisional jurisdiction.
9. For the reasons given above, the revision petition fails and is hereby dismissed with costs.