SAYED NAJAM-UL-HASSAN KAZMI, J.--- This is first appeal which arises from judgment and decree, dated 14-11-1987 of the learned Civil Judge, Mailsi.
2. Facts out of which this appeal has arisen are that Bashir Ahmad and three others, respondents herein, filed a suit for specific performance to enforce agreement of sale, dated 24-3-1980. It was claimed vide agreement, dated 24-3-1980, the appellant agreed to sell the land in dispute, in favour of respondents, in consideration of Rs.3,12,500 and received Rs.1,60,000 as earnest money while sale-deed was agreed to be concluded till 30-6-1980. It was added that the respondents did take steps for completion of deed but same could not be concluded on account of evasive attitude of appellant. The respondents, therefore, claimed enforcement of agreement through decree of Court.
3. Appellant resisted the suit and pleaded that the agreement, dated 24-3-1980 was obtained by fraud. It was claimed that the respondents had approached the appellant for acquiring the land on Mustajri basis but they got the agreement of sale prepared. The appellant, therefore, denied his liability to execute the sale-deed.
4. Controversies appearing in the pleadings gave rise to the following issues: "(1) Whether the defendant agreed to sell the suit land to the plaintiffs or a consideration of Rs.3,12,500 in favour of plaintiffs? OPP
(2) Whether the defendant has received a sum of Rs.1,60,000 as earnest money? OPP
(3) Whether the plaintiffs are entitled to the specific performance of the allied agreement? If so, on what terms and conditions? OPP
(4) Whether the defendant is entitled to special costs under section 35-A of C.P.C.? OPD
(5) Relief."
5. Respondents produced deed-writer as P.W.2, Manzoor Ahmad Registry Clerk P.W.1, Muhammad Younis P.W.3 while Nazar Muhammad respondent/plaintiff appeared in rebuttal as P.W.4. In defence, appellant Ghulam Rasool appeared as D.W.1 and produced Muhammad Hussain D.W.2 and Ismail as D.W.3.
6. On consideration of evidence, the learned Civil Judge decided Issues Nos.1 to 3 in favour of respondents. Issues Nos.4 and 5 were also decided against the appellant and resultantly, the suit was decreed on payment of Rs.1,52,500.
7. Learned counsel for the appellant argued that the respondents could not prove the agreement of sale, one of the marginal witnesses was not produced and that statement of one of the respondents was recorded after the evidence of appellant which prejudiced the case of appellant.
It was added that reliance was placed on the file of previous suit which was not permissible in law.
8. Learned counsel for the respondents supported the judgment of the Court below and maintained that no misreading of record could be pointed out.
9. With the assistance of learned counsel for the parties, we had the opportunity to re-examine the entire evidence on record. On deeper consideration of the record, it is observed that for the reasons hereafter, no ground is made out for interference.
10. Case of the respondents was that the appellant had agreed to sell the land in issue in favour of the respondents and in this context agreement of sale was executed. The sale agreement Exh.P.2 was produced in evidence which' was a registered document and was witnessed by Muhammad Younis Lumbardar and Ch. Shah Muhammad. The document was drafted by Niaz Ahmad Khan, deed-writer The case of the appellant was that the respondenthad approached him for lease of the property but they prepared an agreement of sale. This being so, the thumb-impressions on the documents were not disputed. It is also evident from the statement of appellant that he did not deny presence of witnesses mentioned in the document at the time of its execution. To prove the execution, respondents did produce Muhammad Younis who was Lumberdar of the Mouza and marginal witness of the document. Muhammad Younis also identified the appellant before the Sub Registrar. The statement of Muhammad Younis could not be shaken in cross-examination. He proved beyond doubt that the document was prepared and registered with consent of the appellant and that earnest money was exchanged between the parties.- Deed-writer also proved execution of document by stating that the document was prepared under the instructions of the appellant who had thumb-marked and signed the same. On the production of these two witnesses, the respondents had sufficiently discharged the onus to prove the agreement which was otherwise a registered document. Appellant having taken a contra-version, was legally bound to prove that he did not intend to execute the sale agreement but intended to execute the lease deed. Except a general statement, the appellant could not effectively rebut the evidence led by the respondents. It is-also observed that previously wife of appellant filed a suit against the respondents to challenge agreement of sale on the ground that the appellant was not in his proper senses and, therefore, document was not binding. The suit was contested and ultimately, it was decided that the appellant was a man of sound mind and the document was thus, binding. This judgment was challenged upto High Court but ultimate decision was rendered in favour of the respondents. The learned Civil Judge did take note of the judgments in the earlier suit. Objection of the appellant that the earlier judgment could not be taken note of is not well---founded. The copies of record of judicial proceedings between the parties can be judicially taken note of, particularly when the same was relevant. In this view of the evidence, the execution of agreement of sale was proved beyond doubt.
11. As regard the objection that the respondents did not produce second witness, it may be observed that the respondents did produce sufficient evidence to prove execution. The execution was proved by the marginal witnesses and the deed-writer who was practically a witness of the document as he was claiming that the document was attested in his presence and he had seen the appellant while signing the document. In presence of this much evidence, the non-appearance of other witnesses would not defeat the claim of the appellant.
12. Regarding objection of recording of statement of one of the respondents after the evidence of appellant, suffice it to observe that the appellant never raised any objection at the time of recording of statement was never claimed that the appellant was prejudiced by recording of evidence after the evidence of the appellant. So much so, the appellant did not object to the reservation of right to produce evidence in rebuttal nor he ever applied for additional evidence on the plea that the statement of respondents was recorded after his evidence. Even in the grounds of appeal, no attack to the impugned judgment was made on this account. This being so, the appellant does not claim to have suffer adversely- by the subsequent recording of statement of the respondent.
13. No misreading or non-reading of evidence or error of law could be pointed out in the impugned judgment.
14. For the reasons above, there is no substance in this appeal which is accordingly dismissed. It is, however, directed that if the balance amount of consideration in terms of impugned decree has not so far been deposited, the same shall now be deposited by the respondents within three months, failing the suit shall be deemed to have been dismissed.