' This Regular Second Appeal assails the judgment and decree of the Civil Judge, Khanewal, dated 11-12-1993 and its maintenance by District Judge, Khanewal on 21-7-1994.
2. The appellant on 2-2-1991 filed a suit as a plaintiff before the Civil Court at Khanewal praying for a decree for specific performance of the agreement, dated 10-5-1974 relating to 12 acres of agricultural land and an Ihata spread on 3 Kanals, 7 Marlas situated in village Jangal Ali Chappa Tehsil Mian Channu District Khanewal.
3. According to the plaintiff, one Muhammad Nawaz was allotted the suit land and on his death his wife Mst. Bobo was transferred the property in dispute through Mutation No,617, dated 9-10-1975. It was further alleged that at the time of allotment of the land in dispute in favour of the said owner, the father of the plaintiff was cultivating it as a tenant and after his death the plaintiff took over the tenancy and made the land arable after investing substantial amount and putting in personal labour. He alleged that late. Mst. Bobo widow of Muhammad Nawaz by way of the agreement to sell, dated 10-5-1974 received a sum of Rs,1,25,000 as earnest money and undertook to transfer the property in dispute for a total sum of Rs,1,75,000. Also that on the death of Mst. Bobo a further sum of Rs,40,000 was paid to defendant No,1 Ahmad Murtaza one of the scribe of agreement, dated 10- 5-1974.
4. The defendants in their written statement, however, denied the existence of the alleged agreement to sell, Also it was specifically pleaded that the plaintiff was a tenant in the suit land and that on 4-4-1990 he filed a petition before Tehsildar Mian Channu stating/ admitting himself as a tenant, of the suit land and sought the protection of the revenue authorities against alleged forcible eviction. The execution of the agreement to sell as well as the receipt of advance either by Mst. Bobo or by defendant No,1 was completely denied. It was stated that the plaintiff had fabricated the alleged agreement to sell and had filed the suit in order to avoid the payment of rent and to deprive the appellants of the fruits of their ownership.
5. After framing of issues, the parties were allowed to produce their respective evidence. The plaintiff produced Naseer Ahmad and Shamair witnesses to Exh.P.1, agreement to sell and Muhammad Ramwan (P.W.3), who stated to have witnessed the payment of Rs,40,000 to defendant No,1. Plaintiff/appellant Allah Bakhsh himself appeared as a witness and his counsel submitted copies of Jamabandis Exhs.P.6 to 7 and a copy of Khasragirdawari Exh.P.8. Exh.P.2 is a copy of mutation No,617 in favour of late Mst. Bobo while Exhs.P.3 to P.5 are copies of Jamabandis for the year, 1983-84 and Khasragirdawari for the year, 1989-90, The defendants produced only one witness D.W.1 Rana Muhammad Arshad Khan while Saeed Nawaz defendant appeared to support his defence. Their documentary evidence includes Exhs.P.l to D.4 copies of Khisragirdawaris. Exh.P.5 is a copy of the aforesaid petition/plaint filed before the Tehsildar Mian Channu on 4-4-1990 and Exh.P.6 is a copy of the last order recorded by the said officer thereupon on 16-4-1990. Exh.D-7 is a copy of lease deed in favor of one Muhammad Hussain who was in possession as a tenant of part of the total land owned by late Mst. Bobo.
6. The learned Trial Court on examination of documentary evidence evaluated in perspective of the oral evidence produced by the parties reached the obvious conclusion that Exh.P.1 was a forged document and that no payment of caudation either to Mst. Bobo or after her death to defendant No,1 was proved on record in any manner. Also keeping in view the plaint filed before Tehsildar, Mian Channu and the proceedings initiated thereby seeking protection as a tenant, the Civil Court concluded that the appellant had no cause of action or locus standi and that apparently his suit was mala fide.
7. The learned First Appellate Court agreed with the findings of fact recorded by the Trial Court and finally concluded that Allah Bakhsh plaintiff had fabricated Exh.P:1 the alleged agreement to sell.
Also the learned Appellate Court concluded that the alleged suit having been filed after 17 long years was barred by limitation inasmuch as no explanation for the delay had come forth because Exh . P .3 Mutation No .617 clearly stated that Mst. Bobo had become full owner on 19-9-1975.
Therefore, the contention that the delay occurred due to lack of vestment of proprietary rights in late Bobo was rejected.
8. Parties have been heard.
9. Learned counsel for the appellant in terms of grounds of appeal contends that the judgments of the Courts below are contrary to law, justice and equity, that they failed to see the case of the plaintiff in its true perspective and committed a material irregularity and illegality while passing the judgments which were otherwise based upon conjecture and surmises; that these were result of misreading of evidence and were mechanical in nature. Also that the Courts below failed to appreciate that the agreement to sell Exh.P.1 was established beyond doubt as both the marginal witnesses supported it out-rightly. The possession of the suit land allegedly having been admitted it is claimed that the learned Trial Court failed to give due weight to the same as also the fact that the appellant/plaintiff incurred huge expenses in developing the land. Admitting the filing of the plaint before Tehsildar Mian Channu on 4-4-1990, learned counsel for the appellant nevertheless would like the same to be ignored totally on account of its improper admission in evidence. In this regard reliance is placed up to re: Mst. Khair-un-Nisa v. Muhammad Ishaque (PLD 1972 SC 25). Also claims that the respondents/defendants having alleged fraud against the appellant/plaintiff were bound to establish the same which they miserably failed to do. Reliance with regard to the burden of proof in cases of allegations of fraud is placed upon the ratio settled by the apex Court in re: Dil Murad v. Akbar Shah (1986 SCMR 306).
10. Learned counsel for the respondents, however, supports the judgments of the Courts below. Also states that concurrent findings of fact cannot be disturbed in further appeal as found by their Lordships of the Supreme Court in re: Sughra Bibi v. Asghar Khan etc. (1988 SCMR 4). Further claims that Exh.D5 copy of the plaint/petition filed before Tehsildar Mian Channu having been admitted in evidence without any objection was rightly relied upon by both the Courts below to find that the plaintiff appropriated and reprobated and that the plaintiff had fabricated the agreement only in order to perpetuate his possession which was that of a tenant only. Learned counsel for the respondents further states that on issue of tenancy D.W.2 was not cross-examined nor the alleged witnesses claimed to have known vendor-Mst. Bobo before the execution of the alleged agreement to sell. Further submits that the appellant has failed to comply with the order of this Court, dated 5- 12-1995 whereby he was required to furnish security for mesne profits. Lastly relies upon re: Sahib Dad v. Imam (PLD 1985 Quetta 69), re: Abdul Ghani v. Mst. Hamida Bano (1998 CLC 2070) and re: Yameen Khan v. Raees Jhangli Khan (1999 CLC 1755) to contend that the objection qua limitation could be pressed in service at any stage of the proceedings inasmuch as it was duty of the Court to reject a lis which was brought before it beyond the limitation prescribed by law.
11. I will agree with the learned counsel for the respondents both on factual as well as legal plain.
The discrepancies in the statements of the attesting witnesses D.W.1 and P.W.2 as noted by the Courts below are quite glaring. Admittedly no witness knew the vendor who was identified none else by the plaintiff himself. The execution of agreement to sell at a place fifty miles away was also never explained properly and the learned Courts below were right in giving due weight to this aspect. Particularly in view of the fact that vendor lady was a resident of a village in Kasur District and petition writers were available at much closure place. The reason coined for the alleged desire of late Mst. Bobo to get the agreement executed in Multan hardly appeals to reason. In fact it was totally false and was not supported by an iota of evidence on record. Also none of the defence witnesses was cross-examined on the claim that she was an old lady who would not come out of her home but in the company of a male member of the family. The time of alleged payment of balance amount of Rs,40,000 to defendant No,1 also falls well before the filing of the said petition before the Tehsildar on 4-4-1990, In that petition Exh.P.5, the present plaintiff claiming himself to be a tenant under the defendants apprehended a forcible eviction. He stated that he was paying the respondents due share of the crop and had never provided them any justification for any complaint. In that petition all the respondents were shown to be residents of the village where the land in question is situated while in the original plaint and even in the amended, defendants Nos.1 and 2 were shown to be the residents of village Rodu Tehsil and District Kasur and defendants Nos.3 to 5 as residents of Garden Town, Lahore. However, apparently the respondents appeared before the Tehsildar Mian Channu where defendants Ahmad Murtaza and Saeed Ahmed got recorded their statements on 16-4-1990 that they did not wish to evict the appellant forcibly and that if so required they will act in accordance with law. Accordingly, the proceedings were terminated on 16- 4-1990. If nothing else, the mere fact that only a couple of month before the filing of the present suit, the plaintiff alleged and succeeded on the basis of his claim of being tenant is sufficient to non-suit him in his claim for specific performance. The defence version that on Exh.P.1 agreement to sell the stated thumb-impression of vendor Bobo bears double impression in order to avoid identification also appears correct.
12. The contentions of the learned defence counsel with regard to limitation are also forcible.
Admittedly the suit was filed after lapse of a period of 17 years from the date of alleged agreement to sell. However, no, explanation worth the name was given. The one put forth was rightly rejected by the Courts below inasmuch as late Mst. Bobo had become full owner in the year 1975 and, therefore, there hardly remained any justification to file the suit with a delay of the aforesaid period.
Learned counsel also sounds correct in pointing out that since Mst. Bobo died in the year, 1979-80, the plaintiff had to fabricate the document before the period. He was obviously aware that Mst.
Bobo visited her land only once in the year 1974 for the first and last time to execute the least deed in favour of other tenant said Muhammad Hussain who was in possession of the part of her land as a tenant. Accordingly to fabricate a document in back date was a requirement and the plaintiff went for the same without caring for the result that could follow. He conveniently forgot to have held himself out as a tenant only months ago. The District ,Judge during the pendency of appeal before him made a direction for deposit of manse profits which the plaintiff never complied with although his Revision Petition No,272 of 1993 against that order was rejected on 12-5-1993 by this Court. Again he remained contumacious as the order of this Court, dated 5-12-1995 to furnish security for manse profits was not complied with. It appears that the gentleman is used to a free ride. However, that streak must come to an end after all.
13. The appellant has not been able to make out even an arguable case against concurrent finding of fact as recorded by the Courts below. Their finding with regard to fabrication of Exh.P.1 are duly supported from the record. Accordingly these findings in this regard are maintained. The learned First Appellate Court was right in considering the issue of limitation in the facts and circumstances of the case despite the fact that issue with regard to limitation was not pressed by the learned counsel for the defendants. The case-law relied upon by the learned counsel for the defendants duly reiterates the established principle of law that issue of limitation can be raised and decided at any time in the proceedings and that it was the duty of the Court to refuse to entertain a lis which was filed beyond the prescribed time of limitation. An inordinate delay of 17 years having never been explained the findings of the First Appellate Court in that regard are also maintained.
14. I have, however, noted that both the Courts below have hesitated in allowing special costs to the defendants even after agreeing that document on which the claim was based was - fabricated one. That conclusion having been affirmed by me I will direct that the plaintiff is liable to pay special costs at Rs,50,000 (rupees fifty thousand only). The defendants shall also be entitled to cost of the proceedings throughout.
15. The menace of fabricating agreements to sell has already played havoc with our social-fibre. It is in fact that most favorable of defences with tenants. Obvious reason being that it hardly costs anything. It is a safe chance which everybody would like to take as in case of failure he would not lose anything. The proverbial delays of laws and procedure are always on his side. He will enjoy the possession or other similar fruits of, fabrication generally under the umbrella of an interim injunction. Normally what happens is that after rejection of fabricated agreement to sell the tenant or the fabricator will move to another place with his bag and baggage having not a slightest remorse that he deprived the true owner of the fruits of the property for a number of years. This needs to be curbed at every cost. The message that in such cases the fabricator does not stand to lose but to enjoy a property free of cost must be checked. It is, therefore, directed that every Civil Court trying a similar suit and every First Appellate Court on reaching a conclusion and recording a finding that an agreement to sell had been fabricated will send a copy of that order to the concerned District Judge for assignment of the same to a Judicial Magistrate who will treat the portions of the order relating to the fabrication of document as a complaint and will proceed under section 193, P.P.C., against all the persons involved in preparation, preservation and use of the document including beneficiaries. The person/ persons against whom the document was intended to be used shall be summoned for recording of their statement if they so desired. Otherwise, they shall be summoned and treated as prosecution witnesses. The final judgment in the case, however, may be reserved by the Court hearing the complaint till the disposal of appeal or as the Appellate Court may like to direct. As long the proceedings on complaint ' are pending the impugned document will remain a part of record of both the trial, appellate or provisional Court on Civil side as well as that of the Judicial Magistrate.
16. In this case the orders of the Courts below having already been maintained, the Trial Court shall immediately send a copy of the judgment and decree, dated 11-12-1993. The District Judge concerned who will instruct the same to a Judicial Magistrate to proceed in the light of the aforesaid observations.
17. With the above casts and order for criminal prosecution, of the petitioner.