' In this revision petition the legality of judgment and decree dated 26-11-1990 passed by the learned Additional District Judge, Gujranwala through which the appeal filed by the petitioners against judgment and decree dated 29-3-1990 passed by the trial Court by which the suit filed by respondents for specific performance of agreement of sale had been decreed in their favour was dismissed has been assailed.
2. The dispute relates to land measuring 46 Kanals 4 Marlas situated in Mouza Mehadpur, Tehsil Wazirabad, District Gujranwala. It was owned by petitioner No,1. It may be significantly mentioned that petitioner No,1 is the real maternal-uncle of the respondents. According to respondents/petitioner No,1 executed an agreement of sale regarding his land in their favour on 13- 12-1982 for an amount of Rs,23,500 as consideration which amount he received at the time of execution of the said agreement who also executed simultaneously a receipt regarding the payment of this amount. Instead of executing sale-deed when requested by the respondents, petitioner No,1 got a collusive decree based on gift passed in favour of petitioner No,2 from Civil Court on 18-4-1985. The respondents filed suit on 19-4-1987 for specific performance of the said agreement of sale and also for cancellation of the said collusive decree. The suit was contested by the petitioneRs, The parties led evidence in support of their respective pleas. The case of the petitioner was that the agreement of sale in dispute was not executed by petitioner No,1 and the same was a forged and fabricated document. It was denied that any amount was received as consideration by petitioner No,1. The trial Court framed the following issues arising from the pleadings of the parties:--
(1) Whether the plaintiffs have no locus standi to bring this suit? OPD.
(2) Whether the agreement and the receipt dated 13-12-1982 were validly executed? OPP.
(3) Whether the suit is not maintainable in its present form? OPD.
(4) Whether the suit is liable to be dismissed in view of preliminary objection No,4? OPD.
(5) Whether the plaintiff is entitled to decree for specific performance, if so, on what terms and conditions? OPP.
(6) Whether the decree dated 18-4-1985 by defendant No,1 in favour of defendant No,2 is collusive, void, ineffective upon the rights of the plaintiffs? OPP.
(7) Relief.
3. The trial Court through judgment and decree dated 29-3-1990 decreed the suit. It was held that the respondent succeeded in establishing through cogent evidence that agreement of sale was executed by petitioner No,1 in their favour who received the amount of consideration and decree dated 18-4-1985 was collusive which did not have the adverse effect on the rights of the respondents in the land derivable from the said agreement of sale to get decree for specific performahce.
4. The petitioners feeling aggrieved filed appeal before the learned Additional District Judge, Gujranwala. The lower appellate Court upheld the findings recorded by the trial Court and through judgment and decree dated 26-11-1990 dismissed the appeal. In this revision petition, these concurrent findings of facts have been challenged by the petitioneRs, It is well-settled law that a concurrent finding of fact could only be challenged under section 115, C.P.C. If the same was shown to have suffered from misreading, misconstruction or non-reading of evidence or taking into consideration such evidence which was not admissible according to law.
5. Learned counsel for the petitioners maintained that the original agreement of sale was not produced whereas a photostat copy of the same was allowed to be produced in evidence after granting permission to the respondents to lead secondary evidence through order dated 8-2-1987 which order in the facts and circumstances of this case suffers from illegality and should be set aside.
6. Photostat copy of agreement of sale was produced in evidence as Exh.P.1. It is mentioned in it that original agreement of sale was retained by petitioner No,1 whereas a photostat copy of the same had been given to the respondents. It appears that the parties to this agreement being close relatives petitioner No,1 being the maternal-uncle, therefore being elderly member of the family appears to have prevailed upon the respondents to keep with him the original agreement of sale.
In this view of the matter, since petitioner No,1 had refused to act upon the said agreement when requested to execute sale-deed and instead got a decree based on gift passed in favour of petitioner No,2, the dispute arose and the respondents were compelled to file the present suit. In this background the only mode prescribed by law to prove the said agreement of sale was to obtain permission to produce secondary evidence. In these circumstances the law permits production of secondary evidence therefore, order dated 8-2-1987 passed by the trial Court permitting the respondents to lead secondary evidence does not suffer from any legal infirmity. It may be mentioned here that legality of order dated 8-2-1987 was not challenged in appeal before the lower Appellate Court as no ground was urged in the memo. Of appeal therefore the petitioners could not challenge it in this revision petition.
7. Alongwith the photostat copy of agreement sale (Exh.P1) photostat copy of National Identity Card of petitioner No,1 was produced as Exh.P.2 which according to petition-writer was provided by petitioner No,1 at the time of execution and writing of the said agreement of sale. Receipt regarding payment of consideration of Rs,23,500.00 was produced in evidence as Exh.P.3. Both on agreement of sell (Exh.P1) and the receipt (Exh.P.3) Chaudhry Muhammad Hussain son of Haji Ghulam Muhammad and Chaudhry Bootay Khan son of Sardar All are the marginal witnesses. None of them was examined by the respondents. Learned counsel for petitioners took strong exception to non-production of any of them to prove the execution of these two documents. The argument was certainly ingenious but not tenable on close scrutiny of the evidence and the record, on examination of which, I am of the view, for reasons to follow that the petitioners were responsible for non-production of these persons as witnesses by the respondents.
8. The respondents filed list of witnesses in which the names of these two witnesses were also included for 4-1-1986. Both the witnesses had been summoned through Court and Bootay Khan was served alongwith Ghulam Nabi another witness personally and about Muhammad Hussain process-server reported that he had not been served. The evidence could not be recorded on the said date and the case was adjourned to 26-2-1986. On this date Bootay Khan was present in person. On this date evidence could also not be recorded because an adjourment was granted to the learned counsel of the respondents on account of death of his wife. Bootay Khan was bound down to appear on the next date of hearing i,e, 24-3-1986. On 24-3-1986 evidence was not recorded because all .The witnesses of the respondents were not present and it was observed that piecemeal evidence was not to be recorded. For this date according to the note Bootay Khan had been served whereas about Muhammad Hussain it was reported that he had not been served. The case was adjourned to 15-4-1986. On this date the evidence of one of the witnesses of the respondents was recorded. About Bootay Khan it was observed by the Court that he had not appeared in spite of service effected on him personally therefore bailable warrants of his arrest in the sum of Rs,5,000.00 were issued. It may be mentioned here that Muhammad Hussain was also present on 1-6-1986. I have noticed that petitioner No,1 filed a list of witnesses on 11-12-1985 which he intended to examine in support of his case. This list. Is available on the record. In this list names of Ch. Muhammad Hussain son of Ghulam Jat and Chaudhry Bootay Khan son of Sardar All i,e, the marginal witnesses of Exh. P.1 and Exh. P.3 have been mentioned. It appears that in order to damage the case of the respondents petitioners went to the extent of winning over the said two witnesses. The reluctance of Bootay Khan to appear against whom the Court was constrained to issue bailable warrants of arrest is also indicative of the fact that he had been won over by the petitioners and was not ready and willing to appear as witness on behalf of the respondents. In these circumstances, the respondents were justified in not examining them as witness and whatever other evidence was available with them they could justifiably rely upon the same and if the said other evidence was such which was sufficient to prove their case, the judgments could be passed on the basis of the same.
9. Muhammad Iqbal son of Ghulam Ghaus was examined as P.W. 1 who is stamp-vendor from whom the stamp paper on which agreement of sale (Exh. P.1) was written was purchased.
According to him it was purchased by one Sana Ullah for execution of agreement of sale in favour of Muhammad Manzoor etc. He stated that said Sam Ullah put his signatures on his register and number of his National Identity Card was also got written against the said . Entry. Muhammad Ashraf Lambardar was examined as P.W.
2. He stated that he had gone to Sana Ullah to get medicine with whom one Subedar was sitting. In his presence the respondents came there and they started talking about payment of some amount. According to him petitioner No,1 asked respondents to pay him the amount and the documents would be got written at Wazirabad and there he was having stamp paper with him. He demanded the money at house to avoid taking money to Wazirabad for payment at the time of execution of the document. He stated that in his presence an amount of Rs,23,500 was paid to petitioner No,1, by the respondents and thereafter he had returned to his village after getting medicine. On behalf of petitioners their learned counsel suggested him that payment was made in respect of agreement of purchase and sale of buffaloes and not of the land which he denied. From this suggestion it is abundantly clear that as regards agreement between the parties and payment of the said amount in pursuance thereof between petitioner No,1 and respondents, the same was admitted but a case was made out that the said payment was made in respect of agreement of sale of some buffaloes, as a consequence of which the onus shifted to petitioner No,1 to prove that he received the said amount in respect of sale of buffaloes and not the land. No evidence was produced. A suggestion was given to P.W. 1 as to whether he personall' knew petitioner No,1. He franldy stated that he did not know him personally nor he was got identified by any other person.
This does not advance the case of the petitioner inasmuch as a stamp vendor is not required to know personally the purchaser of the stamp paper. His evidence is natural and inspires confidence.
He stated that he got the signatures of Sana Ullah who purchased the stamp paper from him in his register whose number of National Identity Card was also written against the relevant entry which must have been provided by petitioner No,1 for normally it was he who should have been in possession of his National Identity Card. No question was put to him in cross-examination regarding correctness or otherwise of the number of said. National Identity Card. Muhammad Sharif son of Ismail was examined as P.W.3 (wrongly written as P.W.2). This witness is relative of both the parties. He stated that he had gone to the house of petitioner No,1 which was in the way where he stayed because he had to proceed further to meet his other relatives. In the morning respondents came to petitioner No,1. He stated that the money was paid by the respondents to petitioner No,1 and he was told by petitioner No,1 that he had sold the land to them which act of his he also approved. The presence of this witness has also been admitted by Muhammad Ashraf P.W.2.
10. Ghulam Nabi son of Ch. Faiz Muhammad P.W.4 is the scribe of disputed agreement of sale (Exh.
P.1). This witness brought his register with him with reference to which he got his evidence recorded.
According to his evidence entry regarding this agreement of sale was made in his said register at serial number 246 on 13-12-1982. He also stated that the receipt dated 13-12-1982 was also written by him. He stated that agreement of Exh. P.1 which was photostat copy was written by him.
According to him Sana Ullah put his signatures on his register as also on the agreement of sale. He stated that at the time of writing of the said document Sana Ullah delivered him photostat copy of his National Identity Card which was Exh. P.2 and he wrote the number of his National Identity Card in his register. According to him the marginal witnesses also put their signatures on this agreement of sale and his register as also on the receipt Exh. P.3. In the cross-examination he admitted that no payment was made at the time of execution of these two documents. This part of evidence is consistent with the evidence of P.Ws. 2 and 3 according to whom payment of consideration had already been made in the house of petitioner No,1 to avoid taking money to the premises of the Court.
11. Learned counsel for the petitioners argued that according to recital in receipt Exh. P.3 the amount of consideration was paid in the presence of the marginal witnesses of the said receipt i,e, Muhammad Hussain and Bootay Khan therefore, the evidence of P.W.2 and P.W.3 as also P.W.4 is contradictory to the contents of the receipt as such should not be believed. Keeping in view the close relationship between the parties, the conduct of the petitioners whose allout efforts was to avoid abiding by the covenant for which they went to the extent of winning over of the said marginal witnesses and the fact that some times, the parties in such circumstances agree for payment of consideration at home and thereafter to get deed executed in the Court premises therefore, the so-called contradiction is not of any material nature on the basis of which the evidence of P.Ws. 2 and 3 could be discarded which inspire confidence. Learned counsel for the petitioners has not been able to persuade me to take different view from the one taken by the two Courts below.
12. Learned counsel for the petitioner submitted that the land was situated in Tehsil Wazirabad where the agreement Exh. P.1 was allegedly executed but. The stamp paper was purchased from Tehsil Ferozewala which creates doubt in the genuineness of the said document for which there is no explanation on the record. I am afraid, the argument in my opinion in the background of facts of this case is plainly unsound. One of the plaintiffs namely Muhammad Maqbool examined himself as P.W. 5 whereas the other as P.W.8. It appears that they were not asked to explain in the cross- examination as to in what circumstances the stamp paper was purchased from Ferozewala. One of the respondents present in the Court was however, asked by me who stated that he was a teacher in a school at Muridkey where petitioner No,1 had come to meet him who used to come and stay with him being real maternal-uncle, and it was found convenient by both of them to purchase stamp paper from Ferozewala which was a place nearer to Muridke. No benefit from alleged omission of the respondents to explain of their own in their evidence the circumstances in which the stamp paper was purchased from Ferozewala, can be derived by the petitioneRs,
13. The petitioners examined Haji Muhammad Naseer, Advocate who was Oath Commissioner at Wazirabad as D.W.1. He stated that his signatures were present on Exh. P.3 but the date written under his signatures was not in his handwriting. Likewise according to him his signatures were also present on agreement of sale Exh. P.1 but the date written under his signatures was not in his handwriting. He admitted that he was Notary Public till 1987 and he had been Notary Public since for the last six years prior thereto. He admitted that he was Notary Public in the year 1982. In cross- examination he admitted that he had not brought the register maintained by him as Notary Public.
From this evidence the attempt was made to create doubt in respect of attestation of the two documents i,e, Exh. P.1 and Exh. P.3 by Notary Public which otherwise carried presumption that the executant must have appeared before him. D.W. 1 admitted that he had attested these two documents. Strangely enough it was not stated by him that he attested the said documents without the appearance of executant before him whereas he only disowned the dates written under his signatures. This evidence in my opinion rather, supports the respondents that the same were executed at Wazirabad and got attested by a Notary Public. I would safely raise an inference which is supported by the silence of D.W.1 about non-appearance of the executant of these documents at the time of attestation by him, that Sana Ullah petitioner No,1 must have appeared and acknowledged the execution of the same and thereafter the same were attested by D.W. 1 because it was his duty to satisfy himself before attestation that the executant had acknowledged execution of the same.
14. Allah Ditta Akhtar clerk of D.W.1 was examined as D.W.2 who stated that Manzoor one of the plaintiff brought Exh. P.1 and Exh. P.3 to him for attestation and on both of them D.W.1 put his signatures but the date was not written by him because Manzoor insisted that he wanted to mention a date of the year 1982 whereas according to his observation the stamp paper on which the agreement of sale had been written was purchased in the year 1984 from which petitioner wanted to prove that the original stamp paper on which Exh. P.1 was written was purchased in 1984 and an ante-dated document Exh. P.1 was written on it and for this reason the original was not produced. The evidence of this witness instead of helping the petitioners, has destroyed their case to a greater extent. The evidence of this witness even if accepted as it is, it is manifest therefrom that he was produced to support the petitioneRs, If he had noticed that Manzoor wanted to prepare document to show that the same had been executed in 1982 on a stamp paper which was purchased in 1984, he instead of getting the same attested by D.W.1 should have declined to do it and brought it to the notice of D.W.1, rather than becoming party to this alleged fraud. There is nothing in the, evidence of D.W.1 that it was brought to his notice by D.W.2 even after the attestation.
D.W.2 was telling a lie in collusion with the petitioners therefore his evidence is of no avail.
Munawwar Ali was examined as D.W. 3 to prove that the market price of the land was much higher from which the efforts of petitioners was that the agreement of sale was for inadequate consideration therefore, this circumstance was sufficient to infer that the same had not been executed consciously. According to law mere inadequacy of consideration is no ground to hold that an agreement was void unless the same was set up as a ground and proof with supporting evidence that apart from inadequacy there were other grounds to avoid the contract. Petitioner No,1 appeared as D.W.4 who stated that he had gifted the land to petitioner No,2 about three years prior thereto. His statement was recorded on 28-2-1986 therefore, the gift was allegedly made somewhere in the year 1983. It was subsequent to the date of execution of the agreement of sale therefore neither the said alleged gift nor decree dated 18-4-1985 passed on that could adversely affect the rights of the respondents in the land in dispute accruing from the said agreement.
Muhammad Iqbal petitioner No,2 appeared as D.W.2/1 and supported the case of petitioner No,1 and alleged gift in his favour. Ahsan Elahi a stamp vendor was examined as D.W.5 who stated that copy of register of stamp vendor Exh. D1 was in the hand of his father who identified the said handwriting. He stated that he did not bring the original register of which Exh.D1 was the copy because it has been taken away by the police in connection with some case.
15. The petitioners examined expert witness who compared the alleged signatures of petitioner No,1 on Exh. P.1 and Exh. P.3 with his admitted specimen signatures. Learned counsel for the petitioners submitted that since the expert gave an opinion that alleged signatures on Exh. P.3 of petitioner No,1 were not similar and identical to his specimen signatures therefore, this evidence is sufficient to rebut the evidence produced by the respondents. He submitted that as regards alleged signatures of petitioner No,1 on Exh. P.1 is concerned no definite opinion could be recorded by the expert because as it was a photostat copy and not the original document therefore the petitioners did maxi-um which was possible to do in order to obtain expert opinion.
16. The evidence of expert witness in respect of handwriting as against Finger Prints has never been accepted as cogent evidence as it was never thought safe to rely upon such evidence because the science has not developed so much to give credibility to such an opinion because handwriting of a person can materially change from time to time. P.W. 1 stamp-vendor stated that he obtained the signatures of Sana Ullah on his register while selling the stamp paper and P.W. 4 petition-writer also stated that he also obtained the signatures of Sana Ullah on his register therefore if the alleged signatures of Sana Ullah on Exh. P.1 being photostat copy could not be compared by the expert, the petitioners should have summoned the said two original registers and got the alleged signatures of Sana Ullah on them compared with his admitted signatures. From the avoidance of the petitioners to get the same done though they produced the expert witness, it can safely be inferred that had it been done the opinion would not have in their favour. After going through the opinion recorded by the expert witness and his evidence I am not convinced that the same inspires confidence.
17. After holding close scrutiny of evidence I have satisfied myself that concurrent findings of facts recorded by both the Courts below do not suffer from any material irregularity and illegality such as misreading, misconstruction or non-reading of any material piece of evidence. Though under section 115, C.P.C. Even if a different view could possibly be taken on reappraisal of evidence the same would not have been a ground to interfere in a concurrent finding of fact, I am of the view, that in this case it is of possible even to take a different view.
18. For the foregoing reasons, the revision petition has no merits which is accordingly dismissed with no order as to costs.