' TANVIR AHMAD KHAN, J.---This Regular First Appeal is directed against the judgment dated 22nd of December, 1991 passed by the Civil Judge Ist Class, Okara, whereby the suit for specific performance filed by the appellant/plaintiff was dismissed.
2. Facts briefly for the disposal of this appeal are that the appellant plaintiff on the basis of an agreement,dated 13-12-1988 filed a suit for specific performance on 1st of September, 1990 with the averments that the respondents/defendants agreed to sell their property comprising land measuring 7 Kanals 15 Marlas 3 Sarsai including an Oil Mill Building, houses, shops and godowns comprising Khewat No, 163/70, Khatooni No, 304 situated at Chak No, 55/2-L, land measuring 331 Kanals 8 Marlas bearing Khewat No,45/42, Khatooni No,, 424/425; land measuring 85 Kanals 7 Marlas bearing Khewat No, 47/46, Khatooni No, 427/428 situated in the revenue estate of Village Dhool Chuhr, Tehsil Depalpur, District Okara, for a total consideration of Rs, 51 lacs. Rs,50 lacs were paid as an earnest money at the time of execution of the agreement while the remaining amount of Rs,1 lac were to be paid to the respondents/defendants at the time of execution of sale-deed which was deferred till the redemption of the part of the property in dispute mortgaged with the banks. If was also agreed that the redemption of the property would be got completed within 1-1/2 years. Further the possession of one Kanal of the portion of property was handed over to the appellant/plaintiff at the time of the execution of the agreement. The respondents/defendants filed the written statement denying the execution of the agreement and the receipt of the earnest money. A stance/plea was taken that the parties were partners along with others in Muslim Corporation. 'A dispute arose between the partners whereupon a document was to be filed in a suit filed by the Bank. To prepare the same respondents/defendants affixed their signatures on the blank stamp paper and handed over to the plaintiff/appellant so as to get the signatures of the other partners. He instead had fabricated this alleged agreement on the basis of which the present suit was filed. Out of the pleadings of the parties the following issues were framed:-
(1) Whether the suit is mala fide, false and collusive? OPD
(2) Whether plaintiff is estopped by his conduct from filing the present suit? OPD
(3) Whether the disputed agreement to sell is without consideration? OPD
(4) Whether the disputed agreement is a result of fraud? OPD
(5) Whether the suit is bad for non-joinder of necessary parties? OPD
(6) Whether the disputed agreement was required to be registered under law, if so, what is the effect of non-registration? OPD
(7) Whether the defendants agreed to sell the disputed property to the plaintiff through the agreement deed dated 13-12-1988 and received a sum of Rs, 50,00,000 as earnest money? OPP
(8) Whether the plaintiff is entitled to a decree for specific performance of the contract as prayed for, if so, on what terms? OPP
(9) Relief.
' The appellant produced four witnesses to establish its case while the respondents produced three witnesses to controvert the stance. Both the parties also brought certain documents on record to advance their cause. The learned Civil Judge, Okara, dismissed the suit on 22-12-1991.
3. We have heard the parties at length and have perused the evidence with the assistance of the learned counsel. In this case the signatures of the parties upon the agreement dated 13-12-1988 are admitted. The point involved would be to determine whether it was genuine agreement to sell the disputed property as stated by the appellant or a Salisnama as put up by the respondents. The appellant appeared as P.W.1 and reiterated the stance taken in the plaint and stated that since the respondents did not comply with the stipulation of the agreement, as such, he was constrained to file the suit for specific performance. In the cross-examination he admitted that he had close relationship with the respondents. He stated that he brought Rs,50 Lacs in cash from home. To establish his financial viability, he stated that he possessed a garden comprising 185 Acres situated near Dipalpur City from which he derives Rs,35 lac per annum. He also stated that the agreement was written by his brother-in-law Arshad (P.W.): Said Muhammad Arshad scriber of agreement appeared as P.W.2 and confidently stated that he wrote the agreement Exh.P.1 at the asking of the respondents. The amount of Rs,50 lac was paid in his presence. He admitted his relationship with the appellant and stated that the agreement was written at the house of Amanullah appellant at Okara, He also stated about the presence of the respondents and others at the time of writing of the agreement. He supported the financial position of the appellant saying that he being an owner of 8 squares of land had brought amount from his house. He denied the suggestion categorically that he had given the statement on account of this relationship with the appellant.
4. Zafar Nasir, a marginal witness, appeared as P.W.3 and stated that the agreement Exh. P1 was written and the amount was paid in his presence. Agreement was got written at the asking of Abdul Majid Khan-respondent. The parties signed the documents in his presence which he also signed as a witness. He also stated that the agreement Exh. P1 was written by Muhammad Arshad (P.W.2) and the amount was brought in his presence. He also categorically stated that all the signatories of Exh.P1 affixed their signatures in his presence.
5. Ghulam All (W.P.4) even admitted the execution, of the agreement written by Arshad (P.W.) and the payment of amount in his presence. He also stated that before signing the agreement he went through the same. He further mentioned in categorical terms that all the signatories affixed their signatures on Exh. P1 in his presence.
6. The respondents produced three witnesses apart from documentary evidence to controvert the plea, taken by the appellant. Javed Iqbal Mirza appeared as D.W.1 and stated that he purchased the stamp paper Exh.P1 at the asking of his Bank Manager for the execution of an arbitration ({{URDU TEXT}}) qua the repayment of loan/4 Rs,13 lass due against the firm known as "Muslim Corporation" owned by the parties. He further stated that one Haji Saeed-ur-Rehman was also a partner of the firm. He admitted that nothing was written on the stamp paper in his presence nor any sale took place before him. He admitted that at the back of the stamp paper, which was bought for arbitration purposes, the mention of Salisnama was not made. He also admitted that some application was given by the appellant to the FIA against him as well as against the Bank Manager qua fraud perpetrated in his amount.
7. The Bank Manager appeared as D.W.2. He admitted his signature on Exh. P1 as a witness and explained the circumstances leading to the affixation of his signature. In this regard he stated that both the parties are share-holders of Muslim Corporation and there was a dispute with the Bank over the payment of loan. The parties agreed to appoint him as an Arbitrator to settle their dispute.
In this regard he secured the stamp paper through a bank employee Javed Iqbal (D.W.). All the partners except Saeed-ur-Rehman and Zubaida Khatoon were present over there, as such, all the persons including himself signed the blank stamp paper and handed it over to the appellant so as to get the signatures of the aforestated two absentee partners. The appellant did not turn up and instead in a clandestine manner prepared this agreement of sale. In cross-examination he admitted that he never signed any blank paper before. He also admitted that on the stamp paper his appointment as Arbitrator is not mentioned. He never took any step to get back the stamp paper from the appellant nor got recorded any criminal case. He also admitted like Javed Iqbal (D.W.) that the application was given by the appellant before FIA respecting drawing of money from his account fraudulently. On a Court ' Question he admitted that he asked Javed Iqbal (D.W.) to purchase a stamp paper for Salisnama/award.
8. Abdul Majid Khan-respondent No,1 appeared as D.W.3. He stated that he is a partner in Muslim Corporation for thirty years. He also admitted that the property in dispute was mortgaged with the bank. He also stated that the Bank Manager got the stamp paper to write an award. He also stated that after singing the blank stamp paper it was handed over to the appellant so as to get the signatures of the absentee partners. He admitted his close relationship with the appellant. He stated that he did not remember whether or not he took any action against the appellant for not returning the stamp paper or gave any notice in this regard. However, in the written statement he admitted that a notice was given to the appellant for this purpose.
8. The aforestated resume of the evidence when read in juxtaposition to the written statement filed by the respondents bring out the shallowness of their case. In the written statement filed in January, 1991 in para. 2 thereof it is written as under:-
9. {{URDU TEXT}} ' According to respondent No,1 the appellant in a fraudulent manner took over the possession of the present record of Muslim Corporation where he was the partner. In the alleged illegal act he came across certain blank papers with the signatures of the share-holders. He also admitted that he not only gave notice to the appellant for the return of the stamp paper but also filed a suit. However, we have noticed that nothing has been brought on record by the respondents qua the suit filed for the return of the disputed document whether or not it was taken to its logical conclusion. It is also to be noticed that in the written statement the case was differently stated while a different stance was taken during the course of evidence. Thus, the respondents admittedly took contradictory stances. The stance taken by Abdul Majid Khan-respondent in his written statement do not tally with the evidence/deposition of the Bank Manager. Furthermore, the Bank Manager has stated in categorical terms that he was appointed Arbitrator while Abdul Majid Khan admitted in his cross- examination that the Arbitrator was yet to be appointed. It was even suggested to the appellant that the stamp paper was given to the Bank Manager for Iqrarnama but he stole the same from there. It is also to be noticed that the stamp paper was purchased on the 13th of December, 1988 and if the story put up by the respondents' side is accepted that the blank stamp paper with signatures was handed over to the appellant to secure the signatures of other two absentee partners, there is no evidence whatsoever worth consideration whether any step was taken either by the respondent-Abdul Majid Khan or by the Bank Manager to retrieve the same. Even the suit filed by the respondents for its return was not pursued and the outcome of the same has not been brought on record. Further we failed to understand how the Bank Manager holding such a responsible position would sign the blank stamp paper and remain quite for such a long time. Their conduct is doubtful and the stance taken by them including the Bank Manager that they just signed blank stamp paper does not fit in the circumstances of the case. The evidence brought by the respondents do not inspire confidence. On the other hand, the evidence brought by the appellant is consistent and confidence inspiring. He has successfully established his sound financial position on record and the execution of the agreement and delivery of possession of a part of the property in part performance thereof while the stance of the respondents was simple blowing hot and cold. There was genuine cause as brought on record for deffering the execution of the sale-deed qua the disputed property as Abdul Majid Khan respondent admitted that the property had been mortgaged with the bank which was to be redeemed in the first instance for which huge amount was required, due to which payment of Rs,50 lac was made. The parties were known to each other being partners in business and had confidence in each other, therefore, payment of an amount of Rs,50 lac in cash was not an exceptional circumstances and can legitimately be believed. All these aspects escaped notice of the trial Court. The evidence produced by the appellant brings us to an irresistible conclusion that the agreement was executed genuinely between the parties and payment made as deposed by the appellant side. The findings recorded by the trial Court on issues Nos.1, 3, 4, 5, 7 and 8 are thus found to be not maintainable and are hereby reversed.
' In view of what has been stated above, the appeal is accepted and the judgment/decree dated 22-12-1991 passed by the Civil Judge, Okara, is set aside. The suit for specific performance filed by the appellant is decreed. Parties are left to bear their own costs.