' This second appeal under Section 100, C.P.C. Has been filed by the defendants in a suit filed by the respondents for specific performance of agreement of sale dated 9-2-1970 and is directed against the judgment and decrease dated 18-4-1989 passed by the learned Additional District Judge, Lahore dismissing their appeal from judgment and decree dated 7-124987 passed by the learned trial Court through which the suit of the respondent No,1 was decreed.
2. The only question raised by the appellants in this appeal for consideration is that the execution of disputed agreement of sale dated 9-2-1970 by Dr. Abdul Qayyum deceased in favour of the plaintiff was not established. This is no doubt a pure question of fact and concurrent finding recorded by both the Courts below to the effect that the execution of said agreement of sale by Dr. Abdul Qayyum was established could be challenged only if the same had proceeded upon a mis- apprehension and was condemnable on any of the grounds mentioned in Section 100 of the C.P.C.
3. Learned counsel for the appellants argued that the original agreement of sale was got removed from the file of the learned trial Court by the plaintiff himself in order to destroy the direct evidence as the Hand Writing Expert in connection with criminal proceedings initiated in respect of the alleged forgery of the said agreement had given opinion that the same was not a genuine document, as such, this circumstance is sufficient to raise inference that the execution of the same by Dr. Abdul Qayyum predecessor-in-interest of the appellants was not established. He also raised the following contentions:-
(a) that Muhammad Siddique P.W.3 one of the marginal witnesses of the disputed agreement is the husband of sister of Allah Ditta P.W.4 who is scribe of the document and that Iftikhar-ud-Din P.W.1 the other marginal witness was a man of bad character, therefore, their evidence regarding execution of agreement of sale should not have been given any credence;
(b) that out of the expert witnesses one each produced by the contesting parties, the expert witness of the appellants was more reliable as he was an officer of the Government and his evidence was based upon the opinion which he recorded when the suit was not pending, therefore, the said witness being independent witness, his evidence could not have been equated with the evidence of the expert witness of the plaintiff;
(c) that the alleged execution of agreement of sale at the Wood Shop of Muhammad Azim P.W.5 was unusual, therefore, the very factum of execution of document in these circumstances was highly doubtful.
4. All these contentions are relatable to the question of drawing of inferences from the evidence produced by the parties. What the appellants want in this second appeal is that this Court on re- appraisal of evidence, should substitute its own findings of facts for those recorded concurrently by the two Courts below. I am afraid this is not permissible under Section 100, C.P.C. The two Courts below after careful and elaborate appraisal of evidence produced by both the parties found the evidence produced by the plaintiff regarding execution of agreement of sale as reliable and was found sufficient to establish the execution of the same, therefore, these findings according to well- established law cannot be substituted by this Court even if a different view was possible on re- appraisal of evidence. Learned counsel for the appellants failed to satisfy me that the two Courts below while arriving at the said finding of fact misconstructed, misread or kept out of consideration any material piece of evidence.
5. The argument that the evidence of Hand Writing Expert of the appellants should have been preferred as against the evidence of expert witness produced by respondent for the reasons noted in the argument of the learned counsel for the appellants has also no substance in the facts and circumstances of this case. The said witness has not mentioned the reasons in support of his opinion that the agreement of sale was not executed by Dr. Abdul Qayyum. In the absence of mention of the reasoning in support of his conclusions his evidence could not even otherwise be considered as reliable evidence.
6. So far as the argument that the evidence of Iftikhar-ud-Din P.W.1 was not worthy of any credence because he was a man of bad character, suffice it to say that it was merely an allegation and no evidence was produced to prove this fact, apart from the fact that it was proved that Dr. Abdul Qayyum had been selling his property in the past through this witness, as such, the argument in my view has no substance and is repelled.
' Learned counsel for the appellants stressed that the plaintiff was responsible for removal of original agreement of sale from the file so as to destroy the evidence because he had come to know that the expert opinion had been given in the criminal case that the said agreement did not bear the signatures of Dr. Abdul Qayyum deceased, therefore, adverse presumption should have been raised against the plaintiff. This submission too has no force. The plaintiff produced original agreement of sale, receipt evidencing the payment of earnest money When the Court passed an order at the initial stages of the suit while disposing of the application for temporary injunction.
Apart from the said original agreement of sale, the receipt for payment of earnest money and the register of the scribe is also available on which signatures of Dr. Abdul Qayyum are present. There is no ground to hold that it was the plaintiff who was responsible for the removal of the said agreement of sale and that he was to be benefited therefrom. The learned two Courts below have not committed any illegality in not raising any inference against the plaintiff on that account.
7. I have examined in detail the evidence produced by the parties regarding their respective pleas in relation to disputed agreement of sale, receipt for payment of earnest money and the register of scribe on which the said agreement of sale has been entered. P.W.1 Iftikhar-ud-Din and P.W.3 Muhammad Siddique are the two marginal witnesses of agreement of sale. P.W.4 Allah Ditta is the scribe of the said agreement. Muhammad Azeem was examined as P.W.5 at whose Wood Shop the agreement of sale was executed. I have undertaken close analysis of evidence of these witnesses and find that the execution of agreement of sale, receipt for payment of earnest money have been fully established. The evidence of these witnesses inspires confidence. I have not been able to pursuade myself to agree with the view of the learned counsel for the appellants that their evidence should be discarded. I have also taken note of the fact that it is in the evidence of one of the defendants himself which has also been noted by the two Courts below that their predecessor- in-interest Dr. Abdul Qayyum in the past while disposing of his property did not consult him. After appraising the evidence I am convinced that it is not possible even to take the view different from the one taken by both the Courts below concurrently. The findings of the two Courts C below do not suffer from any illegality as envisaged by Section 100, C.P.C.
8. Learned counsel for the appellants, however, argued that the relief of specific performance being discretionary should be refused. I am not inclined to refuse relief of specific performance at this stage to the plaintiff especially when the appellants have not proved on record any circumstance to show that it is a fit case for exercise of discretion in favour of the refusal to give relief of specific performance.
9. During the pendency of the suit an attempt was made by the appellants to produce evidence to the effect that Dr. Abdul Qayyum was once admitted in the United Christian Hospital and he was sick to the extent that for certain period he could not move in order to prove that it was not possible for him to walk to the shop of P.W.5 where the agreement of sale was allegedly executed. The application for permission to examine the Doctor from United Christian Hospital as a witness who had issued the certificate after many years of the filing of the suit was rightly not allowed to be examined as the said plea that Dr. Abdul Qayyum could not walk due to illness was neither raised in the written statement nor so stated in the affidavits filed in support of the reply to the application, filed by the plaintiff with the suit for issuance of temporary injunction.
10. Learned counsel for the appellants lastly argued that since the agreement of sale was executed on 9-2-1970 and nearly about 21 years have passed, therefore, a relief by enhancement of amount of consideration may be granted to the appellants in view of the value of the currency having inflated. In this regard he placed reliance on judgment delivered in RFA No,30 of 1989 by a Division Bench of this Court in which the Court in its discretion enhanced the amount of consideration. I have gone through the said judgment delivered in that case. The plaintiff/vendee admittedly had throughout been in possession of the property and it was found that he having not paid any rent for use and occupation of the property for the entire period of litigation from which the vendor was deprived of, therefore, an ascertained amount was granted to the defendants on account of arrears of rent of the property. In the present case the case of the deceased defendant/vendee had throughout been that the possession of the property remained with him which was never delivered to the plaintiff. He also got temporary injunction order passed for retention of possession and raising of wall during the pendency of the suit with the undertaking that in case of success of the plaintiff he would remove the same at his own expenses, therefore, the enhancement of amount of consideration in this case on the strength of the said judgment is not justifiable.
11. The judgments and decrees passed by both the Courts below suffer from no illegality, therefore, do not call for interference. The appeal fails which is accordingly dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.