' This regular second appeal impugns the concurrent findings of two Courts below. This was a suit for specific performance of an agreement to sell. The suit was dismissed by Ch. Habib-ur-Rehman, learned Civil Judge, 1st Class, Karor, District Layyah, on 13-2-1999, and his judgment and decree was upheld by Mr Ijaz Ali Sial, learned Additional District Judge, Layyah, Camp at Karor, vide his judgment dated 2-7-1999.
2. Muhammad Ramzan in this case is the deceased-plaintiff and who is presently represented by his legal heirs. It was said in the plaint that Munawar Hussain was a pre-emptor in another suit of pre-emption bearing No,842 of 2-6-1986 and in which suit he succeeded, had entered into a agreement to sell the suit land of the said pre-emption suit to Muhammad Ramzan on 25-7-1989 for a consideration of Rs,1,50,000. That earnest money said to be of Rs,1,30,000 was received by Munawar Hussain against a receipt. The sale was to be completed on 11-1-1989 after the payment of the balance amount and as the defendant, now respondent, Munawar Hussain had not fulfilled his commitment, the suit for Specific Performance of Contract was brought against him.
3. The defendant denied the validity of the agreement dated 27-5-1989 (Exh.P.2) as well as the receipt for having received the earnest money, Exh.P.3. He denied passing over the possession of the property to Muhammad Ramzan.
4. It came to light that the said pre-emption suit was decreed in favour of Munawar Hussain on 2- 6-1986. The matter was ultimately decided at the level of the High Court on 8-2-1989. It also transpired that amongst the eight persons against whom the said Munawar Hussain has filed the pre-emption suit, Muhammad Ramzan was one of the vendees, and the suit remained pending for about 5 years.
5. The case of Munawar Hussain was that the documents in question i,e, the agreement to sell (Exh.P.2) and the receipt for earnest money (Exh.P.3) were forged documents. The purpose of this suit was to turn into defeat the success achieved by him in the previous litigation. That the consideration amount fixed in the new agreement was Rs,1,50,000 whereafter 5 years of litigation he had himself paid Rs,1,27,720 against the decree. That where the prices had gone up manifold.
That the amount shown in the forged agreement itself reflected that it was a forged document.
6. In this case, the learned trial Court had framed seven issues. Issue No,1 pertains to the question whether the defendant had agreed to sell the suit land to the plaintiff against a consideration of Rs,1,50,000 and had executed the agreement to sell on 2-6-1986 after receiving the earnest money.
7. The plaintiff side produced eight witnesses and tendered documentary proof as well. Whereas defendant appeared as his own witness and produced Ramzan (D.W.1) as his witness. The judgment in the previous pre-emption suit of the High Court is Exh.D.1.
8. Issue No,1 was elaborately dealt with by the learned trial Court. Some excerpts from the judgment of the trial Court are reproduced below in extenso:--- "He then pointed out that according to P.W.2 he and the scribe Ghulam Abbas Shah sat at the same place to do their work but this fact is not supported by the marginal witnesses P.W.3 and P.W.5. According to whom they had been sitting at the 'Chapper' of the Araiz Nawees while the defendant had brought the stamp paper by purchasing the same from some stamp vendor. The learned counsel then pointed out that the marginal witnesses have vehemently contended that the agreement to sell took place for a confederation of Rs,1,50,000 and Rs,1,30,000 were paid but perusal of the statement of P.W.4 coupled with the perusal of the document Exh.P.4 which is the extract from the register of the scribe would show that the price has been mentioned to be only Rs,15,000 and 13,000 were paid as earnest money. As regards the statement of two marginal witnesses it was pointed out that according to P.W.3 Mukhtiar Hussain the agreement had taken place at the 'Baithak' of the plaintiff while according to P.W.5 the same took place at his well.
Moreover, according to P.W.3 in order to get the agreement reduced into writing they had boarded a bus first for Chak No,90-Mourr from where they went to Karor and then to Layyah but according to P.W.5 they first went to Fatehpur and then to Layyah via Chowk Azam. It was argued that taking of altogether different routes to reach Layyah in itself show that all this is a cooked-up story. It was further pointed out that according to P. W.3 when he signed on the receipt of Exh.P.3 the Stamp had already been affixed on the same while according to P.W.5 there was no stamp on the same."
"I have carefully considered the arguments of the learned counsel for the parties and perused the oral evidence on which the case of the plaintiff is mainly based. It is worth noting that P.W.2 who is the stamp vendor did not make any entry regarding the purpose for which the stamp paper was being sold to the defendant and this duty was performed allegedly by the deceased scribe Ghulam Abbas Shah. This omission on part of the stamp vendor makes the sale of the stamp vendor initially doubtful. Thereafter, as pointed out by the defendant's counsel there are discrepancies regarding the presence of Muhammad Ramzan deceased plaintiff at the time of the sale of the stamp paper which cannot be said to be minor in nature. No doubt minor discrepancies regarding the time as to when the bargain took place or when the agreement to sell was written are bound to occur especially when evidence is written after about 5/6 years but certain facts such as to which route was taken to reach Layyah to get the agreement written should not have been incorrectly stated. Apart from this it is very astonishing that a person who has been litigating to get the suit property for about five years through his suit for possession through pre-emption and in whose favour the decree is passed for a sum of Rs,1,27,720 on 8-2-1989 would only after about 2-1/2 months entered info the sale of the same land for only Rs,1.50,000 with the father of one of the judgment-debtors.
"Lastly, I would like to consider the signatures of the defendant over the agreement to sell Exh.P.2, receipt as Exh.P.3 and also the extract of the stamp vendor's register marked as Exh.P.1 and compared the same with the signatures of the defendant admittedly over the written statement and the power of attorneys and it becomes very clear that the same are not in the same handwriting. There is an apparent difference in the signatures which can be visualized with naked eye, especially because there is a difference in the (r ) of Munawar and (u') of Hussain. On arriving at the opinion that the signatures over the disputed document are not in the hand of the defendant and also on considering all the above facts which have made the agreement to sell doubtful. I hold that no agreement to sell took place with the defendant nor any possession was delivered to the deceased plaintiff and neither any earnest money was paid to the defendant, hence this issue is decided in favour of the defendant and against the plaintiffs."
' The learned trial Court dismissed the suit while not believing the evidence of the petitioner/plaintiff on the factum of agreement to sell.
10. The learned first appellate Court also came to the conclusion that the story made out by the plaintiffs/petitioners was a fabricated one and the documents prepared were forged. The purpose of the litigation was to frustrate the defendant from taking over the land in the pre-emption suit even after a protracted litigation.
11. The learned counsel appearing on behalf of the appellant has not been able to point out any misreading or non-reading of the evidence. Both the Courts below had fully appreciated the evidence and had come to a concurrent finding on fact that the agreement to sell was a forged document. The appreciation of evidence by both the Courts below is also not based on any material irregularity. Consequently, the R.S.A. Has no merits and dismissed.