' This is plaintiff's appeal whose suit for specific performance of the agreement, dated 8-5-1968 has concurrently been dismissed. It arises out of the following circumstances.
2. Mst. Ghulam Fatima, alias Aziz Fatima, owned land measuring 48 Kanals and 1 Marla in Chak No,51/RB Tehsil and District Sheikhupura. She agreed to sell the said land to the appellant on 8-5- 1968 (Exh.P1) and received an amount of Rs,9,000 as earnest money through receipt (Exh.P2).
Another amount of Rs,1,000 was received by her on 31-8-1968 vide receipt (Exh.P3). This is on, the reverse of Exh.P1. It appears that the matter was then pending before this Court in L.P.A. No,1238 of 1966 and there was an interim order passed by this Court restraining alienation of the land in dispute. On 6-7-1967, Mst. Ghulam Fatima made an application. Before this Court seeking permission to alienate her property. This application was allowed on 21-11-1968. Meanwhile on. 6- 10-1968 mutation No,2 of .Gift (Exh.P6/P7) of the disputed land in favour of the petitioner was entered but could not be attested because of the restraint order of this Court. Mst. Ghulani fatima died on 22-12-1968. On 22-4-1969 the appellant filed suit for 'specific performance against the legal representatives of the deceased vendor. It was resisted on a number of grounds'. It was alleged that the vendor was living with the plaintiff, was on the death bed, had lost her senses and the agreement was without consideration.
3. Necessary issues were framed and the suit was tried. Vide judgment and decree, dated 28-7- 1973 it was dismissed. The appellant filed an appeal against the said judgment and decree but the same was dismissed vide judgment and decree, dated 16-6-1976 of the learned Additional District Judge, Sheikhupura. The learned two Courts held that execution of the agreement by Mst. Ghulam Fatima, the vendor was not proved.
4. The learned counsel for the appellant has vehemently contended that once the appellant had discharged the initial burden of proving execution of the agreement to sell by legal evidence, it was for the respondent to prove that the agreement was not valid. Reliance was placed on Dil Murad and others v. Akbar Shah (1986 SCM R 306).
5. He next contended that execution of the agreement was disbelieved on the ground that it was the outcome of undue influence or that the vendor was an illiterate 'Pardah Nasheen' lady with no independent advice. These pleas were not even raised in the written statement. According to him, as far as the defence to the suit was concerned it was a case of no evidence that the agreement was executed by the vendor on the death bed or she was not in possession of her senses.
6. On the other hand, the learned counsel for the respondents has contended that execution of a document is a question of fact which stands concluded by concurrent finding of fact and no interference is called for. He next contended that the vendor was an illiterate 'Parda Nasheen' lady with no independent advice and, therefore, the learned two Courts were fully justified in dismissing the suit. He placed reliance on Muhammad Amir v. Khan Bahadur and another (PLD 1996 SC 267), Abdul Rashid v. Bashiran and another (1996 SCM R 808) and Musarrat Sultana v. Muhammad Saeed (1997 SCM R 1866), in support of the contention that a finding of fact was not liable to be interfered with in second appeal.
7. I have considered the submissions made by the learned counsel for the parties. The agreement to sell Exh.Pl was proved by the scribe (P.W.1) and the two marginal witnesses (P.W.2 and P.W.3). The receipt, dated 5-8-1968 (Exh.P2) was also proved by the scribe and the two marginal witnesses.
Receipt, dated 31-8-1968 for the balance amount of Rs,1,000 (Exh.P3) was also proved by P.W.2 and P.W.3. The evidence of P.W.4 to P.W.6 was that the vendor borrowed some money from them. To my mind this evidence is not of much significance. The plaintiff appeared in support of his case as P.W.7. He also testified to the 'execution of the agreement (Exh.P1) and receipts Exhs.P2 and P3. In rebuttal D W.1 patwari Halqa appeared and deposed that he entered mutation No,2 of gift on 6-10- 1968 at the instance of Shafa Ahn'tad (General Attorney of Mst. Ghulam Fatima) and the plaintiff.
D.W.2, Abdul Ghafoor, a son of Mst. Jainan daughter of Mst. Ghulam Fatima appeared as D.W.2. He admitted that the plaintiff got signed the receipt and the agreement to sell but it was not read over to Mst. Ghulam Fatima or to this witness. D.W.2 also deposed that the vendor was a patient of Asthema. D.W.3, Mst. Zainab Bibi sister of the vendor appeared to state that vendor used to live with the plaintiff. She fell ill four years before her death and was a patient of Asthema, used to observe 'pardah' and that the plaintiff used to manage the affairs regarding her property.
8. Without discussing the evidence in rebuttal, the learned Trial Court disbelieved the marginal witnesses. P.W.2 had claimed to be an attorney of Mst. Ghulam Fatima. He was disbelieved on the ground that Mst. Ghulam Fatima had no reason to appoint him as her attorney. P.W.3 was disbelieved on the ground that he was thick with the plaintiff. Regarding mutation No,2, it was noted that initially it was a mutation of gift but through interpolation it was changed into a mutation of sale. Likewise, the learned First Appellate Court disbelieved P.W.2 on the sole ground that he was in an "obliging mood" while P.W.3 was disbelieved on the ground that he did not know the necessity on account of which the vendor was alienating the land in dispute. The learned two Courts disbelieved the marginal witnesses on wholly irrelevant considerations and in an arbitrary manner without realizing that D.W.2, grandson of the vendor had admitted that the agreement to sell was thumb-marked by the vendor, undue emphasis was laid by the learned First Appellate Court on the entry of mutation No,2.
9. The learned two Courts did not advert even to the case set up in the written statement. The plea taken on behalf of the respondents was that Mst. Ghulam. Fatima was lying on the death bed, had lost her senses and that the agreement was without consideration. While the finding of the learned.
First Appellate Court was that the document Exhs.P1 to P3 were forged, the learned First Appellate Court held that the plaintiff was in position to dominate the will of Mst. Ghulam Fatima meaning thereby that the said documents were the result of undue influence, a plea which was not even raised in the written statement,
10. Once the execution of Exhs.P1 to P3 was proved by legal evidence as required by law very heavy onus shifted to the respondents to demonstrate that it was made during 'Marz-ul-Maut' or was without consideration. Reference may be made to the case of Dil Murad (supra) in which the Hon'ble Supreme Court were pleased to hold that once factum of execution was proved by sufficient legal evidence it was for the other party to prove by positive evidence that the disputed agreement was forged or fabricated. Reference may also be made to Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. Through Secretary, Forest and Agricultural, Peshawar and others (1993 SCM R 618). In the said case the Honourable Supreme Court noted a number of judgments including a judgment of the Privy Council and the following observations from Begum Shamas-un-Nisa v. Said Akbar Abbasi (PLD 1982 SC 413) were noted with approval: ' "We regret to note that it has become fashionable to make reckless allegation of fraud etc., against the respectable persons in order to obtain some unjust advantage and such practices deserve to be noticed seriously and discouraged by a Court of law."
' Except the oral assertion of D.W.2 and D.W.3 that Mst. Ghulam Fatima was suffering from Asthema, there was no evidence in support of the plea raised in the written statement that she was suffering from death bed illness or was not in possession of her senses.
11. Abdul Ghafoor, grandson of the vendor was witness to this agreement. He appeared as D.W.2 and admitted that Muhammad Hafeez, the scribe used to come to their house but Mst. Ghulam Fatima did not get any document written from him. He further stated that Nazir Ahmad, the plaintiff got signed document Exh.P1 from him and then went into the room and got thumb-impression of Mst. Ghulam Fatima affixed thereon. He claimed that this was not read over to the vendor. Even he, who was a witness to the agreement and had accepted at least having signed it, did not explain the circumstances under which this witness was made to sign and Mst. Ghulam Fatima was made to thumb-mark this document.
12. The learned First Appellate Court laid emphasis on the fact that Mst. Ghulam Fatima used to live in the house of the plaintiff and he was in a position to dominate the will of the vendor. This was not even the case of the respondents. Likewise, the learned two Courts have laid much emphasis on mutation No,(Exh.P6/D7) entered on 6-10-1968. This mutation was entered at the instance of Shafa Ahmad general attorney of Mst. Ghulam Fatima. D.W.1, the Patwari stated that it was entered at the instance of Shafa Ahmad and the plaintiff. The plaintiff appeared in the witness-box but was not confronted that he had got this mutation entered. Not only the mutation does not so indicate that it was got entered by the petitioner but also that since permission for alienation was granted on 21- 11-1968, the plaintiff would not get the mutation entered on 6-10-1968 because he was a party to L.P.A. No,1238 of 1966. Therefore, from this circumstance no adverse inference could be drawn against the petitioner.
13. There is no cavil with the proposition that a finding of fact is not liable to be interfered with in second appeal but in this case, the decision of the case is based on a plea which was not even taken in the written statement and the plea taken in defence remained unsubstantiated while the execution of the agreement had duly been proved.
14. In view of what has been stated above, this appeal is allowed and the suit filed by the appellant is decreed with costs throughout.