' This second appeal was dismissed in limine by a learned Judge of this Court vide order, dated 1-7- 1986. On appeal filed by the appellant in the Supreme Court the order, dated 1-7-1986 was set aside and the matter was remanded to the High Court for redecision of the appeal to determine as to whether Muhammad Sharif had agreed to sell the house.
2. The relevant facts briefly stated are that a suit for specific performance of agreement dated 3- 8-1973 was filed by the appellant which was resisted by Muhammad Sharif, the predecessor-in- interest of the present respondents. The learned trial Court framed necessary issues arising out of the pleadings of the parties and after recording evidence decreed the suit vide judgment and decree, dated 29-1-1985. On appeal the aforesaid decree was set aside and the suit was dismissed vide judgment and decree, dated 27-11-1985. The second appeal filed by the appellant failed as aforesaid and the learned Judge in Chamber upheld the finding of the first appellate Court that the agreement Exh.P.1 was found to have been signed by the executing witnesses prior to the affixing of the signature allegedly by Muhammad Sharif executant. The appellant in the Supreme Court submitted that even if the agreement of sale Exh.P.1 was excluded for the reason that the attesting witnesses had signed the same before it was signed by the executant, still there was evidence on record to show that the executant Muhammad Sharif had executed the said agreement. This aspect of the case has not been attended to by the High Court.
2. Mr. Jehangir A. Jhoja, Advocate, learned counsel for the appellant submitted that besides the agreement to sell Exh.P.1 there is other evidence on record which independently shows that an agreement to sell the house was executed by Muhammad Sharif in favour of the plaintiff and that as agreement to sell is a document which is not required by law to be attested at the time when the document was executed the said agreement can be proved in the manner that any other document can be proved in law. Learned counsel, therefore, took me through the evidence on record.
3. The appellant-plaintiff had produced eight witnesses including himself. Out of these witnesses learned counsel relied on the testimony of Nasim Kashmiri P.W.1, Mian Abdur Rahim P.W.4, Shah Din P.W.6, Farrukh Butt, P.W.7, and Muhammad Saeed P.W.8. Ultimately he relied on the testimony of Nasim Kashmiri P.W.1 and Farrukh Butt P.W.7, as according to the version of the plaintiff the document Exh.P.1 was written when Muhammad Sharif the alleged executant was not present. It is also the case of the appellant that Nasim Kashmiri and Farrukh Butt had taken the document to the house of Muhammad Sharif alongwith Shah Din and Mian Abdur Rahim and they both went inside the house of Muhammad ,Sharif and got the document signed by him. Thus the testimony of these two witnesses has been relied upon as far as the appellant-plaintiff is concerned. Ad against that Muhammad Sharif deceased defendant appeared as his own witness to controvert the version of the plaintiff.
4. Nasim Kashmiri P.W.1 stated in his examination-in-chief that in his presence Muhammad Sharif had affixed his signature on the document Exh.P.1 and that he had got the terms settled between the parties. In cross-examination he admitted that the plaintiff is his Khalu Zad but not a real Khalu Zad. Farrukh Butt P.W.7 is nephew of the wife of defendant and is his brother-in-law. He refuted the suggestion that the document mark A was bogus and forged document. According to him another receipt Exh.P2 for Rs.2,625 was also executed by Khalid son of Muhammad Sharif acknowledging payment of the amount admittedly due to Muhammad Sharif on account of some decree obtained by him. At this juncture it may be noted that there is no explanation on record as to why this receipt was got executed from Khalid Latif son of Muhammad Sharif when Muhammd Sharif was himself available and according to the witnesses had affixed his signature on the agreement to sell. The other witness is Farrukh Butt P.W.7. He in his examination-in-chief deposed as under:- {{URDU TEXT}} ' In cross-examination he stated that Muhammad Sharif had 1/9th share of which he had to receive the price.
5. A perusal of the statements of these witnesses and other evidence would show that both these witnesses are related to the parties. The basis of the transaction which was allegedly reduced to writing as agreement to sell Exh.P.1 was the result of a decision arrived at, according to Farrukh Butt P.W.7 by him and Nasim with the consent of Muhammad Sharif. When was that consent given has not been spelt out. As against that Nasim Kashmiri P.W.1 in his statement does not talk of any such decision rendered by him and Farrukh. Moreover the version of Nasim Kashmiri is that he was the one who got the terms settled between the parties. He thus does not talk of any decision rendered by both of them. Learned counsel admitted that the transaction of bargain preceded the writing of the agreement to sell and, signing it. No substantial evidence of the said transaction of bargain is available on record. In fact the version of Nasim Kashmiri is different from that of Farrukh Butt.
6. Now the question whether agreement to sell Exh.P.1 can be said to have been established satisfactorily, may be taken. The relations between the parties admittedly were strained to the extent that they did not face each other. Even Abdur Rahim a close relative remained outside the house when the agreement was taken to Muhammad Sharif for obtaining his signature. Had settlement been arrived at with the consent of Muhammad Sharif there was no question of drafting it at the house of Abdur Rahim and then taking it to the house of Muhammad Sharif. Mian Abdur Rahim who is also relative of the parties would not have remained out of the house along with the Wasiqa Nawis' and Nasim Kashmiri and Farrukh Butt would not have alone entered the house for obtaining signature of Muhammad Sharif. There is no explanation, as' noted above, as to why one document was got signed by Muhammad Sharif and a receipt representing the amount of the decree was got signed from his son. Although both Nasim Kashmiri and Farrukh Butt are related to Muhammad Sharif respondent but they are equally related to the appellant-plaintiff as well though nothing is on record to show as to why they have sided with one party as against the other. The fact remains that the version put up by the plaintiff is not probable. Had Muhammad Sharif agreed to sell the house the document would not have been prepared, drafted and got signed as is stated.
It may further be noted that the learned first appellate Court has surveyed the evidence and drawn conclusion which is finding of fact and such finding of fact cannot be substituted in second appeal.
Neither any non-reading of evidence nor misreading has been pointed out. The net result of the above discussion is that there is no merit in this appeal and the same is dismissed with cost.