SYED ZAWWAR HUSSAIN JAFRI, J.--- BY this judgment I intend to dispose of above appeals being 1st. C.A. No. 15 of 1991 and 16 of 1991 as both these suits were consolidated vide order dated 21.1.1991 by the Trial Court.
2. The facts giving rise to instant appeals are that the Agricultural land measuring 19.22 acres and 9.00 acres sikni land belong to defendant No. 4 (hereinafter known as plaintiff in suit No. 8/1989) and he agreed to sell the said lands to plaintiffs (hereinafter known as defendants Nos. 3 to 5 in the suit No. 8/1989) and executed such agreement of sale on 18.12.1988 for a consideration of Rs.5,00,000/- alongwith standing sugar-cane crop and received an amount of Rs.10,8000/- as earnest money and such agreement was executed in presence or witnesses which was duly arrested by Notary Public and the defendant No. 4 has attached photo-stat copy of his NIC alongwith the sale agreement. It was agreed by the defendant No. 4 that he will execute registered sale-deed in favour of plaintiff on or before 18.1.1989 after receiving the balance amount of Rs.3,92,000/-. It is pertinent to note that said Agricultural land was mortgaged with the Agricultural Development Bank of Pakistan and the defendant No. 4 has undertaken to get it cleared before the due date.
3. It is contended by Mr. Habibullah Shaikh learned counsel for the appellant that in performance of contract the defendant but the plaintiff in possession of the suit land and the sikni lands on 18.1.1989 and the plaintiffs were in peaceful possession of the said suit land. It is further urged that in the said agreement it was agreed by the parties that the price of construction of house, cattle shed and the Otak will be determined by the Amins to be appointed by the executants and the plaintiffs started the cultivation and enjoying the produce and thereafter they also constructed their house in the suit land. It is further contended by the learned counsel that after execution of sale agreement the defendant No. 4 was arrested by the police of Sobhodero in a triple murder case and after due investigation the charge sheet was filed in the Court of law. It is further argued by the learned counsel that defendants 5 to 17 being caste fellow of defendant No. 4 instigated other caste fellow to get the vacant possession of the suit lands forcibly from the plaintiffs and the defendant No. 4 was pressurized to resile from the contract and they made different attempts to occupy the said lands forcibly but the plaintiffs retained their possession, the plaintiffs were threatened to vacate the suit land. The plaintiffs also pressurized the defendant No. 4 to obtain the clearance certificate and execute the registered sale-deed in their favour after receiving remaining amount. However, the defendant No. 4 kept the plaintiffs in false hopes and promises and ultimately the plaintiffs were constrained to approach the Court of law for redressing their grievance. The plaintiffs facing the atrocities of the respondents/defendants filed a suit with the following prayers:- "(1) Declare the plaintiffs is the legal and legitimate owners of the suit land with possession of suit property and the defendants to have no right to interfere with the rights of the plaintiffs of their possession, enjoyment over the suit land and it may b further declared that the action of the defendants 2 an 3 is illegal, void and not binding on the plaintiffs or their relatives and any one else on their behalf.
(ii)Defendant No. 4 be ordered to perform the contract specifically and register the suit land in favour of the plaintiffs and get his balance of Rs.3,92,000/- towards the value of the suit land and Rs.20.000/- as costs of his house, cattle shed and Otaq from the plaintiffs, or in the alternative this Hon'ble Court be pleased to execute the registered safe-deed in favour of the plaintiffs, for the suit property through the Nazir of this Hon'ble Court.
(iii) Restrain the defendants to refrain from any sort of interference with the ownership and possession of the suit property of the plaintiffs- and their relatives or any one else on their behalf in any manner either by themselves or through any one else on their behalf.
(iv) To award any other relief as this Hon'ble Court may deem fit and proper; and
(v) To award the costs of the suit to plaintiffs.
The defendant No. 4 also presented a suit being suit No. 8 of 1989 for declaration, injunction, possession and mense profit through his attorney Muhammad Ismail stating that he is the owner of the land and has cultivated the sugar-cane crop,. cotton crop and has also planted Mango, palm, lemon, Zaitoon and other trees and he has incurred huge amount over it and when he was in police custody on 18.12.1988 the plaintiffs got executed a sale agreement forcibly under the coercive means without any consideration or making any payment as the SHO P.S. Sobhodero was in league of the plaintiffs- and the signatures were obtained by the defendant No. 2 by force and the plaintiffs cut down the trees and also removed the valuable articles from the house of defendants. It is stated that defendants Nos. 3. to 5 taken undue advantage of custody of respondent No. 4/plaintiff and during the pendency of the suit the plaintiffs occupied the suit land forcibly hence the suit was filed with the following prayers:-
(i) That sale agreement dated 18.12.1988 be declared null and void of no legal effect and not binding upon plaintiff.
(ii) damages be awarded.
(iii) Permanent injunction be issued, restraining the defendants not to interfere in the rights, title and possession of plaintiff over suit land.
(iv) Costs of the suit be awarded.
(v) Any other relief."
After consolidation of the suits and from the pleadings of the parties the following consolidated issues were framed by the Trial
(1) Whether the either, suit is not maintainable at law?
(2) Whether the either suit is bad for mis-joinder and non-joinder of necessary parties?
(3) Whether suit No. 8 of '1989 is bad for misjoinder and non-joinder of causes of action?
(4) Whether suit No. 8 of 1989 is under valued and dificit court-fee is paid?
(5) Whether the agreement to sale dated 18.12.1988, has been executed by defendant Atta Muhammad in favour of plaintiff and received a sum of Rs.108,000/- as earnest money towards sale consideration of Rs.5,00,000/- only?
(6) Whether the agreement to sale- dated 18.12.1988, has been got executed by plaintiff from defendant Atta Muhammad under coercion, under pressure, and same is .not binding upon the defendant Atta Muhammad and that no part payment is made to defendant Atta Muhammad?
(7) Whether the plaintiff is put in possession of suit land by defendant Atta Muhammad, in part performance of against?
(8) Whether the plaintiff trespassed into the suit land during pendency of suits and are in illegal possession of the same?
(9) Whether the suit land belongs to defendant if so, its effect?
(10) Whether the plaintiff is entitled to relief claimed?
(11) Whether the defendant Atta Muhammad is entitled for damages, if so to what extent?
(12) What should the decree be?
The Trial Court proceeded with the case and examined the plaintiff as Ex.65 and he produced the original agreement of sale Ex.66 alongwith photostat copy of NIC Ex.67 and other documents in order to prove his case, and P.W. Jan the petitioner writer and P.W. Abdul Sattar Desi Advocate were examined as Exs.83 and 84 respectively, whereas the plaintiff Imam Bux was also examined as Ex.80 and witness Muhammad Soomar as Ex.81 who produced the letter allegedly written by Hidayatultah the son of respondent No. 4. The Trial Court examined the defendant No. 2 as Ex.90 by producing the khasra Girdwari, to the year 1983-84 as Ex.91. The defendant No. 4 as Ex.93 and he produced the original power-of-attorney in favour of attorney Ismail as Ex.94 and 95, the true copy of challan was also produced as Ex.96 and witness Khamiso was also examined as Ex.97 and defendant closed his side vide Ex,98.
4. Mr. Habibullah Shaikh learned counsel for the appellant has urged that the plaintiff has relied upon the following case-law:
(1) P.L.D. 1968 Lah. 1076.
(2) P.L.D. 1968 Pesh. 70.
(3) P.L.D. 1972 S.C. 59.
(4) P.L.D. 1960 Dacca 1333.
(5) PLJ 1975 Kar. 215.
(6) P.L.D. 1962 Pesh. 105.
(7) P.L.D. 1961 Kar. 486.
(8) P.L.D. 1980 Kar.
Conversely Mr. A.M. Mobeen Khan, learned counsel for respondent No. 4 has argued that no sale agreement was executed by the respondent No. 4 in favour of the appellant nor the respondent No. 4 has ever received the alleged amount of Rs:1,08,000/- as earnest money nor he put the appellant in possession of the suit land but on the contrary when the respondent No. 4 was in police custody in a murder case the appellant in collusion with the SHO Police Station, Sobhodero who was in league of appellant forcibly and by coercive means obtained the signature of the defendant No. 4 on the papers and the applicant forcibly occupied the land of the respondent No. 4. It is further contended by the learned counsel that the appellant also cut the tees and removed the valuable 'articles from the house of the respondent No. 4. Mr. A.M. Mobeen Khan has relied upon the following case-law:-
(1) P.L.D. 1989 S.C. 503.
(2) P.L.D. 1989 Lah. 399.
(3) 1988 C.L.C. 2388.
(4) 2000 SCM R 204.
(5) 1987 SCM R 624.
(6) 1987 M LD 3016.
(7) P.L.D. 1986 Lah. 399.
Mr. Gianchand Advocate appearing on behalf of the official respondents has supported the judgment and decree of the learned Trial Court.
5. I have heard the learned counsel for the parties and perused the record. It is conceded by the counsel that the agreement of sale in respect of suit property was made on 18.12.1988 whereas the respondents Nos. 4 to 17 in their written statement as well as in the evidence admitted execution of sale agreement but stated that L.I.T. of defendant No. 4 was obtained under coercive method and by some torture with the help of SHO P.S. Sobhodero as he was in police custody in murder case and some signatures were obtained under coercion and torture. It is conceded that defendant No. 4 was in custody on 18.12.1988 but while cross-examination the defendant in Court it was suggested that he was arrested after 1.00, a.m. on 18.12.1988. It was also suggested in cross-examination of defendant No. 4 was in physical possession of suit land on 18.12.1988 all these suggestions were denied by defendant No. 4 in his cross-examination. As per challan sheet produced by defendant No. 4 alongwith co-accused was arrested on 18.12.1988 at about 15.00 clock from his village falsely the plea taken by the plaintiff in respect of execution of sale agreement, handing over of possession and receipt of Rs.1,08,000/- as earnest money. The agreement has been written and signed by petition writer Jan Muhammad and which was attested by Abdul Sattar Desi Advocate Notary Public. The plaintiff has not examined the Notary Public namely Fateh Muhammad and during the cross-examination P.W. Soomar and 'Abdul Sattar Desi and Jan Muhammad petitioner writer have affirmed that the agreement was written at about 10.00 a.m. or 8.00 a.m. at Gambat the same statement has been made by witness Abdul Sattar Desi Advocate. The Trial Court while perusing the Ex.66 it was observed that signature of the vendor (plaintiff) was not available. The document Ex.66 was purchased in their name whereas as per its perusal it reveals that it was purchased in the name of defendant No: 4 by Atta Muhammad Stamp Vendor and on the basis of evidence advanced by the parties this Ex.66 became doubtful. As per evidence of P.W. Arbab Machhi who was brought by plaintiff from his village in his own signature and returned at Gambat at 8.00 a.m. while the defendant No. 4 who returned in Court premises all along on the day of execution of document Ex.66. This witness has not -stated about the possession of suit property and some of these defendants in the Court premises. The signatures of the P.Ws. appears to be a managed affairs there is corroboration of witness imam Bux Ex.80 the document Ex.86 was written in presence of Allah Mahar Soomro and Hidayatullah. This tact is contradicted by witness in his cross-examination, he was brought by 3 peoples from shop at Mehro at Gambat and they reached at Gambat at 10-00 or 11.00 a.m. The evidence so adduced and on the basis of cross-examination that contradictory pleas have been taken by the witnesses in respect of the relevant time and presence of the parties in Court. The plea taken by the respondent No. 4 appears to be reasonable that the signature of respondent No. 4 were obtained by coercion method and by some torture and the said agreement was not executed by him with free-will as he was in custody of police on 18.12.1988 therefore the finding of the Trial Court appears to be reasonable as this sale agreement was not prepared and signed by them particularly by respondent No.. 4 as he was in police custody in a murder charge and view taken by the Trial Court in respect of Ex.66 appears to be genuine. If the plea taken by the plaintiff is taken into consideration that the respondent No. 4 after execution of sale agreement put the plaintiff in physical possession of the suit property in part performance of contract then the contradictory statements of witnesses regarding preparation of sale agreement may not be given but the respondent No. 4 was arrested on 18,12.1988 at 15.0'clock and the possession of suit land was taken over by the plaintiff forcibly with the connivance of SHO Sobhodero.
6. In view of the circumstances and the'evidence recorded by the parties the plaintiff has failed to prove their version about the sale agreement and the plaintiffs are admittedly in possession of the suit property it is without any legal authority as the whole structure has fallen down as the sale agreement made on 18.12.1988 with respondent No. 4 when he was in police custody in murder charge. I have examined the issues framed by the Trial Court and I also concur the said view taken into consideration by the Trial Court. It is settled law that burden of proving each issue is based upon the plaintiff but no tangible evidence was produced that the sale agreement was executed for the said land. It is surprising to state that defendant No. 2 while submitting his written statement it was contended that said land is Government property and the defendant No. 4 had no title over the suit land for entering into sale agreement the execution of Ex.66 is fabricated. The plaintiff has admitted in his statement Ex.65 that he has never informed that the suit land is the Government property and there is revenue record. As per record the defendant Nu. 4 is agricultural land measuring about 2 acres and rest of sikni plot belong to the Government and sketch of land was produced by defendant No. 2 as Ex.69. This is also admission that 9 acres land was reserved for village ashaish and there is entry in the Government record about the Government land. The plaintiff have failed to prove issues Nos. 1, 2, 3, 4, 5, 6, 7 so far issue Nos. 7 and 8 are concerned and both are interconnected therefore both these issues were decided together by the Trial Court. It has been held that the plaintiffs are in unauthorized possession of the suit property whereas the issue No. 9 has been decided in affirmative on the ground that there is decree of Civil Court and unless it is set aside by the any competent Court the defendant No. 4 is termed to be owner of Agricultural land and sikni land so far the finding of Trial Court in respect of issue No. 10 it is held that the plaintiffs themselves have admitted to be in possession of the property and availed the benefits of sugar-cane crop and cultivating the other crops in the suit land the trial has rightly awarded the damages to the extent of Rs. 50,000/- and the Trial Court has rightly granted mense profit.
The Trial Court has disbelieved the evidence adduced by the plaintiffs and find the same to be unreliable and. it is rightly disbelieved by the Trial Court. The findings of said Court do not suffer from any inherent defect or misreading of the evidence. The plea of Mr. Habibullah Shaikh, learned counsel for the appellant that no additional issues were framed by the Trial Court in respect of status of the land cannot be considered at this stage as this plea has not been taken at the Trial Court and this ground for permitting the additional issue it relates to the Court of original jurisdiction and at this stage it cannot be considered to remand the case on this plea.
In view of the foregoing reasons there is no substance in the present appeals and consequently the same are dismissed.