' The plaintiff appeals against judgment and decree dated 15-10-1989 by which his suit for possession of the land through specific performance of agreement of sale dated 28-14984 has been dismissed by Mr. Allah Bakhsh Ranjha learned Civil Judge Ist Class, Sheikhupura.
2. The dispute relates to land measuring 13 acres, situated in the revenue estate of Kot Sondha, Tehsil and District Sheikhupura. This was owned by the respondent and the appellant was cultivating the same as tenant under him. According to the appellant on 28-1-1984 the respondent executed an agreement of sale in his favour in respect of this land for a consideration of Rs,2,70,000 out of which an amount of Rs,2,00,000 was paid as earnest money. The appellant's case as made out in the plaint was that an amount of Rs,60,000 as part payment of the remaining price was also subsequently made. It was agreed as per stipulation in the said agreement that the sale-deed would be executed and registered in August 1985 and the remaining amount of Rs,10,000 was to be paid at that time. The appellant's case was that the possession of the land had been handed over to him simultaneously with the execution of the said agreement of sale on 28-1-1984, therefore, he was occupying the same as prospective vendee. According to him in August 1985 the defendant refused to execute the sale-deed, therefore, need to file the instant suit arose.
3. The suit was contested by the defendant who in the written statement filed by him denied the execution of the said agreement of sale which according to him was a fabricated and forged document. An objection regarding maintainability of the suit was also raised. The controversies arising from the pleadings of the parties were reflected in the following issues framed by the trial Court:--
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the plaintiff is entitled to specific performance of the alleged agreement to sell? If so, on what terms? OPP
(3) Whether the alleged agreement to sell is void being based on uncertainty? OPD
(4) Relief.
4. In support of his case the appellant examined Bashir Ahmad Bhatti, Naib-Tehsildar Chunian as P.W.1, Iqbal Javaid Halqa Patwari as P.W.2, Muhammad Yousaf son of Muhammad Ibrahim as P.W.3, Manzoor Ahmad son of Muhammad Ibrahim as P.W.4, Muhammad Tufail son of Muhammad Sharif as P.W.5, Ata Muhammad son of Abdullah as P.W.6, Muhammad Munawar Chaudhry, Advocate as P.W.7, appellant examined himself as his own witness as P.W.8 and A.G. Pasha, Handwriting Expert as P.W.9. The documentary evidence produced by the appellant consists of a copy of application moved by him before the Naib-Tehsildar/Sub-Registrar (P.W.1) Exh.P.1 on which signatures of P.W.1 are Exh.P1/1, copy of agreement of sale dated 28-1-1984 Exh.P.2, notice dated 9-5-1985 issued by Ch. Muhammad Munawar, Advocate P.W.7 as Exh.P.3, postal receipt Exh.P.4, acknowledgement due receipt Exh.P.5, report of Postman regarding the said post Exh.P.6, copies of Khasra Girdawari Exhs.P.7, P.8 and P.9 and copy of sale-deed in favour of Muhammad Irfan son of Sikandar Khan, Exh.P.10.
5. In rebuttal the respondent examined Zaka A. Malik, Handwriting Expert as D.W.1 and Syed All Abbas respondent himself appeared as his own witness as D.W.2. The documentary evidence produced by the respondent consists of specimen signatures of the respondent Exh.D.1, report of Mr. Zaka A. Malik Exhs.D.2, Chart prepared by Zaka A. Malik with the photo enlargement of the disputed signatures on Exhs.D.3 and D.4, Exh.D.W.1, certified copy of suit between Ehsan Ullah and the respondent, prohostat copy of suit filed by Ehsan Ullah Exh.D.W.2, copy of written statement Exh.DW/3, copy of another suit Exh.D.W.4, copy of signatures of respondent Exh.DW/5,copy of sale- deed Exh.DW/6, copy of sale-deed Exh.DW/7, and copy of another sale-deed Exh.DW/8.
6. The trial Court after appraisal of evidence held under issue No,1 that since it had been established that the respondent did not execute agreement of sale, therefore, the suit was not maintainable. Under issue No,2 it was held that as per finding of issue No,3 that the disputed agreement of sale was forged and fictitious document which had not been signed by the respondent, the same was decided in favour of the respondent. Under issue No,2 it was held that the agreement of sale in dispute was a forged and fictitious document. Consequently the suit was dismissed through the impugned judgment dated 15-10-1989.
7. Learned counsel for the appellant during arguments assailed the findings of the trial Court on issue No,3 as that was the crucial issue in the suit and decision of the suit centres around the decision on the said issue.
8. Learned counsel for the appellant has taken us through the evidence both oral and documentary produced by the parties. The disputed agreement of sale was produced in evidence as Exh.P.2. Muhammad Yousaf P.W.3 and Manzoor Ahmad P.W.4 are the marginal witnesses of this document. The name of the scribe of the said document has not been mentioned in it. These two witnesses stated that the person who scribed the said document did put his signatures on the same. They are belied by bare perusal of the document itself which as observed earlier did not bear the signatures of its scribe. According to the opinion of the Handwriting Expert i,e, A.G. Pasha examined by the appellant as P.W.9 the alleged signatures of the respondent on the disputed agreement of sale and the specimen signatures of the respondent were of the same person whereas Zaka A. Malik, Handwriting Expert examined as witness by the respondent opined that the disputed signatures on the agreement of sale were not of the respondent. Since it was not a case of comparison of finger prints of a person with his admitted thumb-impression, therefore, according to firmly settled law it is not safe to place reliance on expert opinion as the science as regards handwriting has not developed so much that any definite opinion could be given regarding genuineness or otherwise of signatures of a person. In this case the parties examined expert witnesses and opinions of both of them run contrary to each other, therefore, the Court has to of back upon the direct evidence produced on record.
9. An amount of Rs,2,60,000 according to the appellant had been paid out of the total consideration of Rs,2,70,000. It does not stand to reason that if the appellant had with him that much amount, what was the hindrance in his way to get the sale-deed executed and registered forthwith and instead opted to part with such a huge amount under mere agreement of sale.
Bashir Ahmad Bhatti, Naib-Tehsildar to whom application Exh.P.1 was presented by the appellant who approached him in order to establish that he was ready to perform his part of agreement to get his presence recorded stated that on the said application he put his signatures Exh.P.1/1. He admitted that the order over the said signatures was not written by him which according to him was written by the Registry Moharrar. He admitted that the appellant was not known to him. In our view the unilateral act of the appellant to approach the Sub-Registrar without there being any document of sale and the presence of vendor before him was of no avail to him. Iqbal Javaid Patwari P.W.2 stated that the respondent was owner of land measuring 13 acres which was under cultivation of the appellant. Muhammad Yousaf P.W.3 stated that the agreement of sale was executed in his presence for an amount of Rs,2,70,000 out of which an amount of Rs,2,00,000 was paid at that time and the remaining amount of Rs,70,000 was to be paid within a period of eight months. He stated that this document (Exh.P.2) bore his signatures. This witness in the first instance attempted to conceal his relationship with the appellant but subsequently admitted that his wife Mst. Rashidan Bibi was the sister of the appellant. He also admitted that the mother of the appellant was his real aunt. According to him disputed agreement of sale was executed at the Tubewell at 10/11-00 a.m. According to him an amount of Rs,2,00,000 was paid on 28-1-1984 after about 10 days of the execution of the agreement. Manzoor Ahmad P.W.4 according to this witness was his brother who was also present at the time of execution of the said agreement of sale which means that even the other marginal witness was near relative of the appellant, as such, it is a case where no independent evidence was available regarding execution of disputed agreement of sale.
10. P.W.4 Manzoor Ahmad, as observed above, is the real brother of P.W.3 Muhammad Yousaf. He is also one of the marginal witnesses of the agreement of sale and stated that when earnest money was paid apart from the appellant, the respondent and two other persons were also present.
Muhammad Sharif P.W.5 stated that an amount of Rs,60,000 was paid by the appellant to the respondent and at that time the respondent admitted having received Rs,2,00,000 earlier and execution of agreement of sale dated 28-1-1984 but no receipt was produced evidencing payment of Rs,60,000 which means that the same was paid without obtaining any receipt. P.W.5 stated that at the time of payment of this amount of Rs,60,000 Rashid, Bashir, Idrees, Maulvi Taj Din, Siraj Din, Muhammad Siddique and Abdul 'Chalk; were present. To the same effect is the evidence of P.W.6 Ata Muhammad. P.W.6 was Pesh Imam' in the village and he admitted that he was removed from the said office due to his bad character. P.W.7 is Muhammad Munawar Chaudhry, Advocate, whose evidence was that he issued a notice Exh.P.3 on the instructions of the appellant. Postal receipt was produced by him as Exh.P4 and acknowledgement due as P.5. He admitted that the said notice was not received by the respondent as per report Exh.P.6. The appellant when appeared as P.W.8 supported his case.
11. After examining the evidence and in particular keeping in view that no c independent witness was produced to prove execution of disputed agreement of sale Exh.P.2, the two marginal witnesses namely P.W.2 and P.W.3 being near relatives of the appellant we are convinced that the execution of the said document has not been proved. The evidence produced by the appellant does not inspire confidence. None of other persons who were allegedly present at the time of payment of Rs,60,000 as stated by Muhammad Sharif P.W.5 was produced and according to evidence of P.W.3 and P.W.4 the document was scribed by a person but he was not known to them but the said scribe was not examined. It also does not stand to reason that the appellant would pay an amount of Rs,60,000 without obtaining receipt which a man of ordinary prudence would not do. Admittedly the appellant was occupying the land as tenant, therefore, no benefit on account of possession of land by him as circumstantial evidence in proof of agreement of sale can be derived by him. The findings recorded by the learned trial Court do not suffer from any illegality which are based on evidence which we endorse.
12. For the foregoing reasons the judgment and decree passed by the learned trial Court do not suffer from any illegality. The appeal has no merits which is hereby dismissed with no order as to costs.