MUNIR A. SHEIKH J:- In this revision petition, the legality of judgment and decree dated 8.2.1990 passed by learned Additional District Judge, Gujrat, whereby the appeal filed by the petitioner against judgment and decree dated 3.7.1989 of the learned trial Court passed in favour of respondent for recovery of an amount of Rs.20,000.00 was dismissed, has been challenged.
2. The respondent filed a suit for recovery of an amount of Rs.20,000.00. The case set-up by the respondent in the plaint was that on 30.12.1985 the present petitioner/defendant executed an agreement of sale in respect of land measuring 18 Kanals in favour of the petitioner agreeing to sell the said land for a consideration of Rs.40,500.00 and that the respondent/plaintiff paid an amount of Rs.15,000.00 to the petitioner as earnest money. He also pleaded that it was agreed between the parties that any of the parties to the agreement if failed to abide by it would be liable to pay an amount of Rs.5,000.00 to the other. His case was that the petitioner did not abide by the terms of the agreement as he inspire of demand made by the respondent, the petitioner refused to execute sale-deed as such he became entitled to recover an amount of Rs.15,000.00 which was paid as earnest money as also an amount of Rs.5,000.00 as damages. In the written- statement, the petitioner denied the allegations made in the plaint and averred that an amount of Rs. 12,000.00 was due from the respondent to the petitioner in lieu of which he gave him one he-buffalo and two bullocks. He also pleaded that he was illiterate person and he got his thumb impression giving him understanding that the same was obtained in connection with the delivery of the said bullocks and buffalo. The petitioner denied having executed agreement of sale in respect of land in dispute.
3. The learned trial Court after framing issues, recorded evidence of the parties. The learned trial Court through judgment and decree dated 3.7.1989 decreed the suit of the respondent. Issue No. 1 and 2 were answered in favour of the plaintiff. Under issue No.3, it was held that agreement Ex.Pl was authentic and was executed by the petitioner.
4. The petitioner feeling aggrieved filed appeal before the learned Additional District Judge which has been dismissed through judgment dated 8.2.1990.
5. Learned counsel for the petitioner mainly argued that evidence produced by the respondent/plaintiff has been mis-read and contradictions between the case made out in the plaint on the one had and as made out in the evidence have not been taken into consideration. He also argued that the case as made out in the evidence by the respondent fully supports the case as made out by the petitioner in his written-statement and the evidence produced in support of the same.
6. I have been taken through the evidence produced by the parties by the learned counsel for the petitioner. Agreement of sale in dispute has been produced as .Ex.PT. It is manifest fr6m its contents that it is not recited therein that any part of earnest money was paid in the form of he-buffalo and two bullocks, whereas in his statement when appeared as P.W. 1, the respondent stated that out of the amount of Rs.15,000.00 regarding earnest money an amount of Rs. 2000.00 was paid in cash whereas in lieu of the rest, one he-buffalo arid two bullocks were given. In the plaint itself, the respondent did not plead that earnest money was paid partly in cash and partly in the form of he- buffalo and two bullocks. He admitted that at the time of execution of Ex.Pl the present petitioner was not accompanied by any other person. The respondent examined Qazi Muhammad Hussain as P.W. 2 who is scribe of agreement Ext. PI. He stated that agreement Ext. PI was written by him and it was read over to the petitioner who thumb marked it. He also staled that the petitioner acknowledged to have received animals for an amount of Rs. 13,000.00 and also admitted to have received Rs. 2,000.00 in cash. He admitted that nothing was exchanged in his presence. No credence can be given to his evidence inasmuch as the agreement itself does not contain anything regarding receipt of any animals in lieu of Rs. 13.0. 00 and receipt of remaining amount of Rs. 2,000.00 in cash. There is no reason as to why in the agreement itself it was not written that in lieu of Rs. 13.0. 00 the petitioner had received animals and the remaining amount was received in cash. P.W. 3 Sacc son of Ghulam Qadir examined by the respondent who was one of the marginal witnesses of agreement Ex.Pl stated that it carried his signatures and that the present petitioner thumb marked it. He also stated that the petitioner admitted to have received to bullocks and one buffalo and Rs. 2000/- in lWu of earnest money of Rs. 15,000.00. In the cross-examination he admitted that the bargain was not settled in his presence. He admitted that there is no mention of animals in the agreement. He also did not state that the petitioner received anything in his presence. Allah Din was examined as P.W. 4 who is also one of the marginal witnesses of agreement Ex.Pl. He stated that he thumb marked this agreement and in his presence the present petitioner also thumb marked the same to whom it was read over. In the cross-examination he categorically denied that the present petitioner received animals in his presence. He also did not know as and when the animals were given to the petitioner. He also slated that he knew only about the writing of the agreement and nothing else. The case as made out by the petitioner in defence as stated above, was put to all these witnesses. It is in the evidence of the petitioner and his witnesses that as a matter of fact the respondent owed an amount of Rs.20,000.00 which he got as loan from the petitioner which was partly paid in the form of one he-buffalo and two bullocks and the remaining amount was paid by him in cash and it was in connection with this transaction that the thumb impression of the petitioner was obtained.
7. The two Courts below without evaluating the evidentiary value of the evidence produced by the respondent on the question of payment of earnest money and without taking into consideration the contradictions in the case of the respondent as made out in the agreement Ex. PI and the plaint on the one-had according to which an amount of Rs. 15,000.00 was paid as earnest money without mentioning that any part of it was paid as in the form of animals recorded a finding that execution of Ext. PI was proved merely because the marginal witnesses of the document had been examined.
The case as made out in the evidence by the respondent himself that there was exchange of one he-buffalo and two bullocks between the parties furnish strong evidence to support the defence plea of the petitioner that in fact he gave these animals in lieu of part of the loan which he owed to the petitioner. The findings of the two Courts below on issue No. 1 are based on not only mis- reading, mis-construction as also non- consideration of material contradictions in the case of the respondent, as pointed out above, as such are not sustainable. The petitioner has succeeded to establish that the ease of the respondent was false and that the agreement of sell Ex. PI was obtained from the petitioner through mis-representation therefore, findings on issue No. 3 are also not sustainable for the same reasons as discussed above. The petitioner is an illiterate person therefore, the Courts below were required under the law to be very careful in appraising the evidence before the recording a finding that execution of the agreement by the petitioner was established which has not been done in this case as material contradictions, have not been given due weight which establish the case of the petitioner as made out in the written-statement.
8. For the foregoing reasons, the two Courts below have committed material irregularity and illegality in answering issues 1 and 3 against the petitioner. The findings on the said issues are hereby reversed. The revision petition is accepted. The impugned judgments and decrees passed by both the Courts below arc hereby set aside and the suit filed by the respondent is dismissed with no order as to costs.