' The bone of contention, in this second appeal, is agricultural land measuring 12-1/2 acres in Square No,42-51 situated in Chak No,427/6-R, Tehsil Fort Abbas, District Bahawalnagar.
2. According to the amended plaint, Ghulam Muhammad herein respondent No,2, agreed to sell the suit land in favour of Rahim Bakhsh, herein respondent No,1/plaintiff, by means of agreement to sell dated 12-11-1971 in consideration of Rs,42,000, received Rs,10,000 as earnest money and agreed to receive the remaining price either at the time of attestation of mutation or at the time of execution of sale-deed; that Ghulam Muhammad illegally transferred the suit land in favour of Haji Nazir Ahmad, herein appellant/defendant No,2, vide registered sale deed dated 27-4-1973 for a sum of Rs,70,000 that the sale deed in favour of Haji Nazir Ahmad was illegal and ineffective on the rights of Rahim Bakhsh--plaintiff. It was prayed therein that the decree for specific performance of agreement to sell noted above be passed in favour of respondent No,1 and against the appellant and respondent No,2. The suit was contested. The respondent No,2 and appellant jointly filed written statement controverting the averments in the plaint. It was asserted that agreement to sell in favour of Rahim Bakhsh was, in fact, a fictitious and forged document. It was contended that the appellant was a bona fide purchaser under registered sale deed dated 27-4-1973 and was Protected under section 27(b) of the Specific Relief Act.
3. On the divergent pleadings of the parties, following issues were framed:--
(1) Whether the plaint is deficiently stamped. If so, what is the proper court-fee payable on it? OP Parties.
(2) Whether the suit is not maintainable in its present form? OPD.
(3) Whether the defendant No,1 had entered into an agreement for the sale of the suit land with the plaintiff as written in the plaint? OPP.
(4) If issue No3 is proved, whether defendant No,1, has failed to perform his part of contract. If so, with what effect? OPP.
(5) If issue No,3 is proved, whether the sale-deed executed by defendant No,1 in favour of defendant No,2 in respect of the suit land is illegal, and ineffective against the rights of plaintiff?
OPP.
(6) Whether the defendants are entitled to special costs? OPP.
(7) Relief.
4.. The parties led their evidence' in support of their respective pleas. Upon the examination Of evidence so adduced, the learned Court of first instance came to the conclusions that agreement to sell Exh.P/1 as well as receipt,. Exh.P/2, were proved by the plaintiff. On this conclusion, the learned Court decreed the suit of respondent No,1 on 30-11-1976. Feeling aggrieved with this decision, the appellant preferred appeal which was accepted by the learned Additional District judge vide decision-dated 18-3-1980, holding that the learned trial Court had not framed issue with respect to claim of Haji Nazir Ahmad that he was bona fide purchaser; the Wan-framing of that material issue had caused prejudice to the case of the appellant Haji Nazir Ahmad who was thus prevented from leading evidence in respect of that plea. On this finding, the learned Ist Appellate Court set aside the judgment and decree of the Court of first instance, framed issue No,5/A and remanded the case back to the first Court for decision afresh after recording the evidence of the parties on newly framed issue. Pursuant to this, the parties led their evident. Upon the consideration of the evidence so adduced by the parties, the learned original Court decided issue No,3 against respondent No,1 by concluding that respondent No,1 had failed 'to prove the genuineness of agreement to sell Exh.P/1 and receipt Exh.P/2. On this conclusion, the suit filed by, respondent No,1 was dismissed.
Against this decision, Rahim Baldish respondent No,1 preferred appeal which was allowed by Mr. Ata-ul-Mohsan, learned Additional District Judge-H, Bahawalnagar by means of impugned decision dated 26-5:1985. While deciding issue No,3 the learned first Appellate Court held that sufficient evidence was adduced by Rahim Bakhsh to prove the agreement to sell Exh.P/1 as well as receipt Exh.P/2. On the question of lis pendent, it was found that registered sale deed in favour of Haji Nazir Ahmad was made during the pendency of the suit and was, therefore, hit by the doctrine of lis pendent. On these conclusions, the suit filed by Rahim Bakhsh was decreed and he was directed to deposit the remaining price of Rs,32,000 within a period of four months. This decision of the first Appellate Court is the subject-matter of challenge in this regular second appeal.
5. The arguments advanced by the learned counsel for the appellant can be conveniently summarised as follows: ' Firstly; that the learned first Appellate Court had failed to notice that Syed Muhammad Hussain, P.W.1 who had scribed the document Exh.P/1 had admitted in cross-examination that he did not know Ghulam Muhammad previously. According to the learned counsel this aspect of the case was not correctly considered by the 1st Appellate Court. As such, the finding rendered by the first Court of appeal on issue No,3 was vitiated and merited to be set aside. Secondly;that the finding of the first Appellate Court on issue No,3 was based upon misreading of record. Learned counsel pointed out that from the examination of the proceedings of the first Court, it was clear that the petition-writer had not brought his register regarding the incorporation of entries of execution of agreement to sell (Exh.P/1) in Court. The learned first Appellate Court had noted the number of entry of agreement. To sell (Exh.P/1) in the Register of Petition-writer. This amounted to assuming the facts which were not on record. This circumstance alone vitiated the whole of the impugned decision.
' Thirdly; that the learned Ist Court of appeal has set aside the well-considered fmding of the Court below on issue No,3 on the basis of conjectures and surmises. According to the learned counsel, the suit land was situated in Chak No,427/6-R, Tehsil Fort Abbas which was at a distance of 12 miles from Haroonabad Sub-Division where all the paraphernalia was present for the purpose of execution of agreement to sell i,e. The stamp vendor, and petition writers. Instead of going to Haroonabad, respondent No,1 and attesting witnesses proceeded to Bahawalnagar which was at a distance of more than 40 miles from Chak No,427/6-R and respondent No,2 was stated to hate executed the agreement to sell (Exh.P/1) and receipt (Exh.P/2). According to learned counsel the version of Abdul Rahim did not stand to logic.
' Fourthly; on the question of lis pendens, learned counsel argued that suit was dismissed for non- prosecution on 25-4-1973, the application for restoration was allowed on 28-4-1973, while the registered sale-deed was executed on 28-4-1973. According to the learned counsel, the sale deed was, thus, executed when there was no lis pending adjudication against either Ghulam Muhammad or Haji Nazir Ahmad. On the strength of this circumstance, it was submitted that the doctrine of lis pendens was not applicable to the registered sale deed dated 28-41973 executed by respondent No,2 in favour of the appellant.
' Fifthly; that the appellant had purchased the suit land by means of registered sale deed dated 27- 4-1973, had made the payment of entire consideration; that suit filed by respondent No,1 was dismissed on 25-4-1973. According to the learned counsel, these facts clearly established that the appellant had purchased the suit land bona fidely and without any knowledge of agreement to sell Aif any) in favour of Rahim Bakhsh. On these circumstances, it was suggested that appellant was bona fide purchaser within the meaning of section 27(b) of the Specific Relief Act and, therefore, the registered sale-deed in his favour was protected under the law. Reliance was placed on Mst.
Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) and Mehmuda Sultana v. Naseem Mumtaz and another (1990 MLD 1028).
6. On the contrary, learned counsel for the respondent Not raised a preliminary objection to the maintainability of this appeal by saying that the question "as to whether agreement to sell Exh.P-1 and receipt Exh.P-2 were proved or not", was essentially a question of fact and finding rendered by the first Appellate Court could not be scrutinized under section 100 of the Code of first Appellate Court could not be scrutinised under section 100 of the Code of Civil Procedure. Reliance was placed on Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), Hafiz Muhammad Hussain and another v. Abbas Khan and another (1981 SCMR 1233), Islam v. Mukhtar Ahmad (PLD 1979 Lah. 300), Allah Din v. Habib (PLD 1982 SC 465), Alloo v. Sher Khan and others (PLD 1985 SC 382) and Commissioner of Income Tax, Karachi v. Haji Gulzar and Sons (1986 SCMR 1'315).
7. On merits, it was contended that the finding of the first Appellate Court on issue No,3 was correct and unexceptionable. According to the learned counsel, the execution of Exh.P-1 and Exh.P-2 was fully proved by Muhammad Shafi, P.W.3 and Muhammad Sharif, P.W.4 who had proved the execution of agreement to sell (Exh.P/1), the receipt (Exh.P/2). According to the learned counsel the testimony of these witnesses was sufficient in quality and quantity to prove the aforementioned documents. On the question of lis pendens, it was submitted that the suit was dismissed on 25-4- 1973. The application for its restoration was submitted on 26-4-1973; that the application was allowed on 28-4-1973. The effect of aforesaid event was that. The suit. Stood restored with effect from the date the suit was dismissed. The registered sale deed was made on 27-4-1973. According to the learned counsel, the registered sale-deed in favour of appellant, was, thus, hit by the doctrine of lis pendens. Reliance was placed on Ashoutosh Roy v. Ananta Ram Bhattacharjee and others (AIR 1919 Calcutta 40), Hemeraj, v. Rustomji (AIR 1953 SC 503). John Servage Philip v. City of Nagpur Corporation through its Commissioner (AIR 1959 Bombay 458), Karnaphully Paper Mills Ltd. v. Karnaphully Paper Mills Workers' Union and others (PLD 1961 SC 329), Carrier Telephone Industries Ltd. v. M/s. Sohail Brothers & Co, Capital Development Authority (PLD 1978 Lah. 1116) and Sh. Aftab Ahmad v. Deputy Commissioner, Karachi and others (1986 SCMR 445).
8. Respondent No,2 who appeared in person, supported the case of appellant and submitted that agreement to sell, Exh.P/1 was a fictitious and forged document and was not executed by him.
9. From the above narration of facts, circumstances of the case, and the arguments advanced by the parties, the fate of this appeal hinges upon the decision on issue No,3. On the jurisdiction of second Appellate Court, undoubtedly, the leading case is Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617). It was laid down by the Supreme Court therein as under: "If the finding of fact reached by the first Appellate. Court is at variance with that of the trial Court, the former will ordinary prevail, although it would not possess the same value or sanctity as a concurrent finding. Such finding by the lower Appellate .Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record, and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the finding. The finding being at variance with that of the trial Judge the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding, of the first Appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal"
' The rule laid down in Madan Gopal's case (supra) was reiterated in Hafiz Muhammad Hussain and another v. Abbas Khan and another (1981 SCMR 1233), Islam v. Mukhtar Ahmad (PLD 1978 Lah. 994), Munawar v. Razia Begum and 9 others (PLD 1979 Lah. 300), Allah Din v. Habib (PLD 1982 SC 465), Alloo v. Sher Khan and others (PLD 1985 SC 382) and. Commissioner of Income Tax, Karachi v. Haji Gulzar and Sons (1986 SCMR 1315).
10. In the light of aforesaid principle I herein proceed to appraise the evidence of the parties. The evidence of respondent No,1/plaintiff comprises of both oral as well as documentary evidence. The anchor sheet of plaintiffs evidence is agreement to sell (Exh.P. 1) and receipt (Exh.P/2), which were proved by. Syed Muhammad Hussain P.W.1, Muhammad Iqbal P.W.2 Muhammad Shafi P.W.3, Muhammad Sharif P.W.4 and Rahim Bakhsh P.W.S. P.W.1 scribed Exh.P/1 and Exh.P/2. Syed Muhammad I I ussain P.W., however, admitted in the cross-examination that he did not know Ghulam Muhammad at the time of scribing the documents. His evidence, is thus, valueless as far as identification of Ghulam Muhammad is concerned. P.W.3 and P.W.4 are attesting witnesses.
P.W.3 stated that about 4 months ago Rahim Bakhsh had negotiated the sale of suit land with Ghulam Muhammad who had agreed to sell the suit land for a sum of Rs,42,000. He furthei stated that in consequence of this agreement, Ghulam Muhammad, Rahim Bakhsh, Muhammad Sharif and he had gone to Bahawalnagar where Ghulam Muhammad received Rs,10,000 as earnest money and executed agreement to sell Exh.P/1 and receipt Exh.P/2 in his presence. In cross- examination he had taken up the stance that Ghulam Muhammad, Rahim Bakhsh, Muhammad Sharif and he had gone in the first instance to Haroonabad for the purpose of execution of agreement to sell but were unable to purchase the stamp paper as it was not available and, hence, from there they proceeded to Bahawalnagar in order to purchase the stamp and execute the agreement to sell. The same was reiterated by Muhammad Sharif P.W.4 and Rahim Bakhsh with parrot-like exactitude. On the contrary, (ihulam Muhammad stated that Rahim Bakhsh was his uncle; that he had instituted a suit on the basis of a false document; that Rahim Bakhsh was assassin of his father and used to torture him; that he had made the sale of suit land in favour of Nazir Ahmad on account of vindalism of his uncle Rahim Bakhsh.
11. Before I proceed to determine the worth of P.W.3, P.W.4 and P.W.5, it is expedient to have a look at the stamp-paper on which the agreement to sell was scribed. It indicates that this stamp paper was purchased on 5-11-1971. It neither shows the name of stamp-vendor nor the place from where it was purchased. It further shows that the document was executed on 12-11-1971. This entry appears to be of a decisive significance. It is well known maxim 'that a person can tell lie but a document cannot'. This maxim is fully attracted to the facts and circumstances of this case. The version of Rahim Bakhsh/plaintiff and Muhammad Shafi and Muhammad Sharif P.W.4, is completely demolished by this entry. The stance taken by the plaintiff had been that in the first instance he had gone to Haroonabad and then proceeded to Bahawalnagar on account of non-availability of stamp-paper there; that the same was purchased on the date of execution. This version is totally negatived by the document itself. Seen from this perspective I have no difficulty in coming to the conclusion that the version of Ghulam Muhammad vendor rings true.
12. There is yet another aspect of the case. The assertion of Ghulam Muhammad that his father was murdered by Rahim Bakhsh was not refuted by respondent No,l. From this circumstance, it was crystal clear that the relations between vendee-uncle and vendor-nephew were not pleasant. In the context of this relation it does not appeal to logic that Ghulam Muhammad would have accompanied the assassin of his father in the first instance to Haroonabad and then to Bahawalnagar for selling him his land. This aspect of the case was not taken into notice by the learned first Appellate Court at all.
13. As a result of above discussion, I have no hesitation in coming to the conclusion that the finding rendered by the first Appellate. Court on issue No,3 in this regard, is in conflict with the oral as well as documentary evidence on record noted above and cannot be sustained. I accordingly set aside the finding of the learned first Appellate Court on issue No,3 and restore the finding of the learned Court of first instance on this issue. As it has been found that the agreement to sell, Exh.P/1 and receipt Exh.P/2 are not proved, I do not feel necessity to dilate upon the remaining questions.
14. In the light of foregoing discussion, this regular second appeal succeeds. The judgment and decree passed by the learned Additional District Judge-11, Bahawalnagar dated 26-5-1985 is hereby set aside and the judgment and decree passed by the learned Civil Judge, Ist Class, Haroonabad dated 4-4-1984 is hereby restored. Resultantly, the suit instituted by Rahim Bakhsh- plaintiff/respondent No,1 is hereby dismissed with costs throughout.