This judgment shall decide Civil Revisions Nos.431 of 1996 and 738 of 1997 as both these civil revisions proceed against a common judgment.
2. On 22-12-1988 the petitioner filed a suit against the respondents. In the plaint it was stated that 100 Kanals of suit-land was allotted to Muhammad Ismail, the predecessor-in-interest of the respondents under 15 Years Scheme; that the proprietary rights have since been conferred anti the conveyance deed had been executed in favour of the respondents on 8-6-1988; that Ismail had agreed to sell the suit-land to the petitioner and an agreement was executed on 1-12-1973; that the terms of the agreement Were that the petitioner would get a tubewell installed on the suit-land which was uneven and Banjar; that both the parties shall jointly cultivate the land in shall share the expenses and the produce; that the petitioner shall share the expenses for getting the ownership rights. Thereafter, the half of the land would be transferred to the petitioner; that acting under the terms of the contract the petitioner got a tubewell installed and made efforts for the completion of ownership proceedings and spent a sum of Rs.74,052 from his own pocket; that total amount spent for the purpose was Rs.83,412 and that half of this amount is Rs.41,706, which the respondents are bound to pay; that after the death of Muhammad Ismail respondent No.2 on 28-1-1987 also executed an agreement in his favour to acknowledging fulfil the terms of the earlier agreement; that the petitioner through his efforts got the sale-deed, dated 8-6-1988 registered in favour of the respondents and bore all the expenses except Rs.9,360 which were spent by respondent No.2 in the process; that after getting the sale-deed in their favour the respondents had refused to perform their part of the contract. With these averments a prayer was trade for specific performance of the agreements, dated 1-12-1973 and 28-10-1987 and also recovery of Rs.40,346. In their written statement the respondents took the plea of total denial.' Following issues were framed:--
(1) Whether the plaintiff is estopped by his act and conduct to file the suit? OPD
(2) Whether the plaintiff has got no cause of action to file the suit? OPD
(3) Whether the suit is time-barred? OPD
(4) Whether the description of the suit-land given 'in the plaint is not correct, if so, with what effect?
OPD
(5) Whether the suit is based on mala fide intention and filed just to harass the defendants? OPD
(6) Whether the suit is wrongly valued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation for both the purposes, and with what effect? OPD
(7) Whether deceased Muhammad Ismail, predecessor of the defendants has executed an agreement dated 1-12-1971, in favour of the plaintiff, is so, whether the plaintiff had fulfilled his part of the agreement and with what effect? OPP
(8) Whether the defendant No.2 had executed agreement dated 28-10-1987 in favour of the plaintiff in continuation of agreement, dated 1-12-1983 executed by deceased, Muhammad Ismail?
OPP
(9) Whether the plaintiff is entitled to a decree for specific performance of agreement as prayed in the plaint, if so, on what terms and conditions, if any? OPP (9-A) Whether the impugned agreements are result of fraud, misrepresentation, without consideration, thus, are illegal, void, inoperative, ineffective, against the rights of the defendants Nos.3 to 7? OPD (9-B) Whether the sale in question is hit by M. L.R.115? OPD/3 to 7.
(10) Relief.
Evidence of the parties was recorded. The learned trial Court proceeded to pass a decree for specific performance of the agreement but dismissed the suit inasmuch as it sought recovery of Rs.40,346. This was done vide judgment and decree, dated 5-6-1995. Both the parties filed first appeals which were heard by a learned Additional District Judge, Chiniot who allowed the appeal of the respondents while dismissed the appeal of the petitioner. The result was that the suit was dismissed in its entirety by the learned Additional District Judge on 4-12-1995.
3. Learned counsel for the petitioner contends that evidence on record has been misread by the learned Additional District Judge. According to the learned counsel his judgment is not supported by any material on record. Learned counsel for the respondents, on the other hand, has tried to support the impugned judgment and decree of the learned Additional District Judge.
4. I have gone through certified copies of the record appended with this civil revision. I find that the agreement Exh.P.1 which is dated 1-12-1973 has been proved by producing its marginal witnesses.
Muhammad A.I as P.W.1 as also Muhammad Aslam P.W.2 have stated that Ismail had put his thumb-impression on the document in their presence. Both the witnesses have also stated that Ismail and the petitioner had been cultivating the land jointly and had been sharing the produce.
These witnesses have been cross-examined at length but nothing material had come out in their cross-- examination. Document Exh.P.2 which is agreement, dated 28-10-1987 had been proved by producing its scribe namely Sikandar A.I as P.W.4 and marginal witness Menga Khan, P.W.3.
Regarding this latter document, the objection of the learned counsel for the respondents is that- this was executed after promulgation of Qanun-e-Shahadat Order, 1984 and as such was required by law to be attested. According to the learned counsel since the document was required by Article 17 of the said order to be attested, under Article 79 of the said order the document could not have been taken into evidence without examining the attesting witnesses. Now Menga Khan has stated that the document was written by the scribe under the instructions of the petitioner and respondent No.2 and that respondent No.2 had signed in his presence. Similarly the petitioner and Bhai Khan (other marginal witness) had also signed in his presence P.W.4 Sikandar A.I had stated that he had written the document under the instructions of respondent No.2 and that he had read over the document to him and thereafter respondent No.2, the petitioner and the marginal witnesses had put their signatures on the same. To my mind since the document bears the ,signatures of this witness, he is as competent a witness of execution as any other. Be that as it may, this evidence is to be read in the overall context of the evidence on record.
5. As I have stated above the respondents have come out with total denial of all the allegations in the plaint. The petitioner has not only proved the execution of the agreement Exh. P.1 as also Exh.P.2 but he has also produced the receipts for deposit of the amounts admittedly towards the price and other charges of the suit-land. Learned counsel for the respondents states that these receipts do show that the amounts were being deposited by the petitioner as a nephew (BHANJA) of Ismail.
The fact, however, remains that the receipts had come from the possession of the petitioner. This possession becomes of significance when it was specifically pleaded in the plaint that the petitioner had been making efforts acting under the agreement and spending money to get the ownership rights of the and to pay the charges/ instalments thereof.
6. Now the petitioner appeared as P.W.5 and reiterated the pleas taken in his plaint. He was cross- examined at some length. In his cross---examination it was suggested to him that he had stolen the receipts of Lagan. This suggestion he has denied. On the other hand, he has stated that he had been paying Lagan even after the death of Muhammad Ismail. It has then been suggested to him and he had denied that Sher Muhammad had been giving him money to deposit in the Bank and that some receipts had been stolen by him. He has also denied the accusation that the petitioner had stolen the I.D. Cards of Ismail and Sher Muhammad. Now these suggestions are not based on any plea taken in the written statement. The respondent Sher Muhammad has entered the witness-box as D.W.2. In his cross-examination he stated that he had paid the amount to Asghar Hussain who deposited the same in the treasury and got his name entered in the challan form.
Then he proceeds to state that the price was fixed at Rs.81,600 in the year 1988 and that he and his father had been paying the Lagan for 16/17 years.. He does not remember the amount of Lagan but insists that he and his father had been paying the same in the National Bank, Chiniot Colony Branch. He admits that he is not in possession of the receipts. He stated that the receipts had been stolen by the petitioner 5/6 years ago; that he used to visit house of the petitioner and while he was asleep the petitioner would steal the receipts; stated that the petitioner had stolen the receipts of Lagan for 15 years and he had also stolen the receipts for the money paid as price; that receipts for Lagan were stolen earlier. He then proceeds to say that every year they used to pay the Lagan and every year the petitioner would steal the receipts; that the receipt of a sum of Rs.81,600 has also been stolen by the petitioner. Further states that Rs.81,600 were deposited in the treasury through the petitioner.
7. In the above state of evidence it is only to be wondered as to how the learned Additional District Judge believed the yarn woven by the respondents. No prudent man would accept the said explanation of the respondent for possession of the receipts by the petitioner. It is almost ridiculous that the petitioner would first collect the money from the respondents, would make the deposit in the Bank, hand over the receipts to the respondents and thereafter would proceed to steal it every year for 16 years and the respondents would despite knowledge keep on giving him the money every year for deposit and to repeat the routine.
8. So far as the said argument regarding Article 17 of Qanun-e---Shahadat Order, 1984 Exh.P.2 is concerned, I have already stated above that the scribe was as good a witness and besides even if Exh.P.3 is to be discarded on the touchstone of Article 17 read with Article 79 of the said Order, there is no manner of doubt that Exh.P.I stands fully proved in accordance with law on record and after the conferment of proprietary rights the respondents are bound to perform their part of the contract and to transfer the suit-land to the petitioner. For all that has been discussed above I do find that the judgment of the learned Additional District Judge suffers from misreading as well as failure on his part to read the evidence on record. Both these civil revisions are accordingly allowed.
The judgment and decree dated 4-12-1995 passed by learned Additional District Judge is set aside while that, dated 5-6-1995 passed by the learned trial Court is restored with costs throughout.