' This second appeal is directed against the judgment and decree, dated 25-1-1995 of Additional District Judge, Jhang, whereby the respondents'/defendants' appeal against the judgment and decree, dated 25-10-1992. Of Civil Judge 1st Class, Jhang, has been accepted and the appellant's/ plaintiff's suit for specific performance of the agreement to sell, dated 27-3-1983 (Exh.P.1) has been dismissed.
2. The facts, in brief are that the appellant/plaintiff Allah Bakhsh filed a suit for specific performance of an agreement to sell. Dated 27-3-1983 (Exh.P.I), whereby the defendant,. Fazal Din, who died during the pendency of the suit, and respondents are his legal representatives, allegedly agreed to transfer the suit land to the plaintiff for a consideration of Rs 60,000. According to the plaint, a sum of Rs,55,000 was paid towards the consideration through a separate receipt, dated 27-3-1983 (Exh.P.2) and the remaining amount of Rs,5,000 was to be paid at the time of execution of the registered sale-deed. It is also alleged that on the asking of the defendant', the plaintiff also paid the due instalments of Rs,7,120 while depositing the same in the Treasury, -which is to be adjusted.
It is also narrated that the defendant, Fazal Din, was allottee of the land in dispute under the Islamabad Oustees Scheme and the land in dispute was to be transferred in favour of the plaintiff through the registration of the sale-deed in his favour on the conferment of proprietary rights upon the defendant, Fazal Din and the plaintiff was constrained to file the suit because after the conferment of proprietary rights, the defendant had backed out to honour the agreement. The suit was resisted by the respondents through their written statement in which the execution of the agreement was denied. The learned Trial Court, out of the pleadings of the parties, framed the following issues:---
(1) Whether deceased Fazal Din predecessor-in-interest of defendants Nos.1 and 2 entered into an agreement of sale in respect of one suit land with the plaintiff and executed an agreement of sale, dated 27-3-1988? OPP
(2) Whether Fazal Din deceased received an amount of Rs,55,000 and executed a receipt, dated 27-3-1983?
(3) Whether the plaintiff deposited an amount of Rs,7,120 in the Government Treasury on behalf of the deceased Fazal Din? OPP
(4) Whether agreement of sale, dated 27.3-1988 and receipt, dated 27-3-1983 for payment of Rs,55,000 are forged and fictitious documents? OPD (5)Whether the suit is barred under section 11 of C.P.C.? OPD
(6) Whether the plaintiff has no cause of action? OPD
(7) Whether the defendants are entitled to special costs if so, to what extent? OPD
(8) Relief.
3. In order to prove his case, the plaintiff has produced four witnesses including himself. P.W.1, Abrar Hussain, Senior Clerk, from the Office of Colony Department/D.C. Office, Jhang, deposed that the suit land was allotted to Fazal Din deceased on 9-10-1973, proprietary rights were conferred on him and after his death the proprietary rights were conferred on his heirs on 18-1-1987. P.W.2, Muhammad Iqbal, Petition-Writer, District Courts, bang, is the scribe of the disputed agreement to sell (Exh.P.1) and receipt (Exh.P.2). He has stated that both these documents have been written by him which were read-over to both the parties and the deceased/defendant Fazal Din signed the same in his presence and the marginal witnesses, Ghaus Muhammad and Noor Muhammad also respectively signed and thumb marked it in his presence and entry to the same effect was made by him on his Register on the same date i,e, 27-3-1983. This witness has further deposed that the defendant, Fazal Din. Received an amount of Rs,55,000 in his presence and thereafter, he signed the receipt (Exh.P.2). P.W.3, Ghaus Muhammad, is marginal witness of Exh.P.1 and Exh.P.2, who identified his signatures on these documents. He is also witness of payment of Rs,55,000 as part of the sale consideration. He has also deposed that Fazal Din put his signatures on the documents Exh.P.1 and Exh.P.2 in his presence and the other marginal witness, namely, Noor Muhammad also put his thumb-impression on these documents. In his examination-in-chief, in the end, he has given an information that the marginal witness, Noor Muhammad has since died. The appellant/plaintiff, Allah Bakhsh, appeared as his own witness as P.W.4 and has admitted in the cross-examination that he is not in possession of the land in dispute. On the other hand, the respondents/defendants have produced two witnesses. D.W.1, Noor Dad, has categorically stated that he does not know as to whether there was any agreement to sell or not between the plaintiff and defendant, Fazal Din and has denied any knowledge in regard to the disputed agreement D.W.2 Muhammad Bashir is special attorney (Exh.D.1) of respondents. He has stated that Fazal Din deceased did not enter into any agreement to sell with the appellant. His statement also shows that previously the appellant/plaintiff was in possession of the suit land as its tenant and that plaintiff had paid some money to Fazal Din as rent. In the cross-examination, he has admitted that it is possible that Fazal Din may have signed the disputed documents Exh.P.1 and Exh.P.2. Besides these two witnesses the respondents have also produced the documentary evidence, Exh.D.2 is the copy of the judgment of Civil Court, dated 31-7-1984. This ~ judgment shows that appellant, Allah Bakhsh instituted a suit for declaration to the effect that he is general attorney of deceased defendant Fazal Din and that AbtaalnamaVcancellation-deed, dated 28-3-1975 was illegal and was ineffective as against his rights. Learned Trial Court dismissed the suit, on the ground that the executant, Fazal Din was within his legal right to cancel the deed of general power-of attorney in favour of Allah Bakhsh and the cancellation-deed was a valid document. The respondents also produced copy of an order, passed by the Civil Judge 1st Class, Jhang, dated 15-7-1985 (Exh.D.3) whereby the suit instituted by Ghulam Qadir and Muhammad Sadiq (minor), sons of the appellant, on 16-8-1984, for the specific performance of the agreement, dated 9-10-1973 against the present deceased defendant Fazal Din was dismissed, on the ground that even if the execution of such an agreement was admitted to be correct even then the agreement was ab initio void as it was hit by section 19 of the Colonization of Government Lands (Punjab) Act, 1912 as at the time of execution of the same, Fazal Din was not competent to enter into an agreement to sell regarding the suit land which at the time belonged to Provincial Government and the proprietary rights of the suit land were yet to be conferred upon him and consequently the plaint was rejected under Order VII, Rule 11, C.P.C.
4. The trial Court after recording the evidence of the parties and after having heard the learned counsel for the parties decreed the suit with an order to the appellant to deposit the remaining amount of sale consideration of. Rs,5,000 in Court within the specified time. Being aggrieved thereby the respondents challenged the same through an appeal which, as mentioned above, has been accepted, the judgment and decree, dated 25-10-1992 of Civil Judge 1st Class, Jhang, has been set aside and the appellant's suit has been dismissed with costs. Hence, this appeal.
5. I. Have heard the learned counsel for the parties and I have also seen the record.
6. It is ,contended by the learned counsel for the appellant that the judgment and decree of the Appellate Court is based on surmises and conjectures and illegal and incorrect conclusions have been drawn from the facts found and after the completion of all the formalities and after the proving of the disputed documents I .e. , Exh.P.1 and Exh.P.2 through the statements of the marginal witnesses and scribe, the only conclusion which could be arrived at, was that a lawful agreement enforceable specifically was executed by the deceased defendant Fazal Din in favour of the appellant and the genuineness of the same could not be doubted merely because the appellant's sons had failed in their suit against Fazal Din in regard to a separate agreement to sell, dated 9-10- 1973. Learned counsel has also taken me through paragraph 17 of the impugned judgment. Which shows that the Appellate Court was under the misapprehension that the agreement in favour of the appellant/plaintiff was prior in time and the agreement by Fazal Din in favour of the plaintiff's sons was later in time and the learned counsel contends that due to this misapprehension the Appellate Court has wrongly concluded that these circumstances make the agreement in favour of the appellant as doubtful.
7. On the other hand, learned counsel for the respondent while opposing the appeal has submitted that the alleged executant, Fazal Din was not owner of the land in dispute at the time of the execution of the disputed agreement to sell, dated 27-3-1983 and the same, therefore, is not a valid agreement and being ab initio void the same is not enforceable in the law. Learned counsel has also contended that had there been any agreement in existence in favour of the appellant, he would not have filed a suit on behalf of his sons for the specific performance of the alleged agreement, dated 9-10-1973 which shows that the agreement, dated 27-3-1983 (Exh.P.1) is nothing but a forgery.
8. The contentions of the learned counsel for the respondents that the disputed agreement is ab initio void because at the time when it was allegedly executed by the deceased/defendant Fazal Din on 27-3-1983, he was not owner of the suit land and at the time it was owned by the Provincial Government, has no force because law recognizes such agreements. In Mst. Khurshid Begum and 7 others v. Inam Rabbani and another (1979 CLC 570), it was held that the agreement to sell by the grantee of the property, vesting with the Government becomes effective after the vesting of the property in the grantee. In Mirza Muhammad Hussain v. Abdul Hamid and others (1982 CLC 81), it was held that an agreement for the sale of the land to be made after the transfer of proprietary rights in favour of the allottee was not hit by section 19 of the Colonization of Government Lands (Punjab) Act V of 1912 and similarly in Hakim Ali and another v. Atta Muhammad and others (1981 SCM R 993), the Hon'ble Supreme Court held that the agreement to sell in anticipation of the grant of proprietary rights did not in terms violate express words of section 19 of Act V of 1912.
9. Similarly the argument that the failure of the appellant's sons in their suit for the specific performance of an agreement to sell, dated 9-10-1973 must lead to the conclusion that the deceased Fazal Din never entered into an agreement to sell the disputed rand in favour of the appellant/plaintiff on 27-3-1983 (Exh.P.1), has also no force because it does not conclusively prove that later on, Fazal Din did not execute the disputed agreement in favour of the appellant. The disputed agreement has to be proved or disproved on its own and the previous litigation between the executant and the appellant's sons has no bearing on it. It has to be decided in the light of the evidence brought on the record as to whether the disputed agreement in fact was ever executed by the .Deceased Fazal Din in favour of the appellant or not. The appellant/plaintiff has fully discharged the, onus of proving the agreement to sell in his favour by producing the scribe (P.W.2) as well as the marginal witness (Exh.P.W.3) and nothing has come out against the appellant in their cross-examination and thereafter it was for the respondents to show that the alleged signatures on the disputed documents i,e, the agreement to sell and the receipt of sale consideration (Exh.P.1 and Exh.P.2) were not that of the deceased Fazal Din and the same could have been done. By getting the signatures of the deceased Fazal Din compared with some other admitted or authentic 'signatures of the deceased Fazal Din and by not adopting this course, the respondents in fact have withheld the best evidence. Consequently the presumption has to be drawn against the respondents and in favour of the genuineness of the above said disputed documents. I have also noted that D.W.2, Muhammad Shabbir, the attorney of respondents was not sure that the signatures on Exh.P.1 and Exh.P.2 were not of Fazal Din and in fact he has admitted that Fazal Din might have put his signatures on these documents. The only conclusion which can be drawn from the evidence available on record is that the deceased Fazal Din executed the disputed agreement to sell, dated 27-3-1983 lExh.P.1) in favour of the appellant and, therefore, a wrong and illegal conclusion has been drawn by .The First Appellate Court on the facts found. Learned First Appellate Court has nowhere categorically held that the disputed agreement is a forgery and has merely concluded that he is not inclined to believe that there was any valid agreement to sell transferring the suit land to the plaintiff.
9. In view of the above discussion, this appeal is accepted, the impugned judgment and decree, dated 25-1-1995, of Additional District Judge, Jhang is set aside and the judgment and decree, dated 25-10-1992, of Civil Judge 1st Class, Jhang is hereby restored, with costs throughout.