' This appeal under section 96, C.P.C. Calls in question the judgment and decree, dated 21-4-1998 and 24-4-1998 respectively in F.C. Suit No,41 of 1996 passed by 1st Senior Civil Judge, Nawabshah whereby the suit for declaration, specific performance of contract and injunction filed by Miandad against respondents Abdul Qadeer and others was dismissed with ordinary costs as well as compensatory costs.
2. The subject-matter of this case is an agricultural land bearing Survey No,161/2 (7-29 acres), 162/1 (4-33 acres) and 147/4 (4-00 acres) total admeasuring 16-22 acres in Deli 89 Nusrat Taluka and District Nawabshah which was inherited by respondents Nos.1, 2, 3 and 4 from their father Abdul Rehman, the owner of this land, and it was managed by Abdul Qadeer, respondent No,
1. It is the case of appellant that he was Hari on this land and purchased the same from respondent No,1 through an agreement for sale executed on 22-6-1995, at the rate of Rs,35,000 per acre that is to say for a total sum of Rs,5,79,250 and he paid an amount of Rs,4,80,000 to the respondent No,1 at the time of agreement while the balance of Rs,99,250 was payable to respondent No,1 up to 15-3- 1996. According to appellant, the agreement was duly attested by witnesses as also by Notary Public and possession was delivered to him. The sale, however, could not be finalized as the respondent No,1 could not obtain requisite documents and certificates for the purpose of registration of final sale-deed and also failed to get the land mutated in favour of the legal heirs/respondents Nos.1 to 4. The appellant/plaintiff was, allegedly, kept on hopes and promises for execution of final sale-deed but at a later stage Rao Shamim, respondent No,9 filed a complaint against the appellant before Assistant Commissioner, Nawabshah, respondent No,6 in order to put pressure on the appellant so that the said respondent could get the land on lease or 'purchase it. In these circumstances the appellant filed Suit No,31 of 1996 against respondent No,1 for declaration but during the proceedings when he came to know that the respondents Nos.2, 3 and 4 are his sisters and also that the land stands mutated in the name of deceased Abdul Rehman, he withdrew the suit. The said respondent had also declined specific performance of the contract. The appellant ultimately filed the instant suit.
3. The respondent No,1 filed his written statement which was later on adopted by the defendants/respondents Nos.2, 3 and 4. The defendant/respondent No,1, in his written statement, admitted that the appellant is Hari on the suit land but he denied the transaction of sale of suit land and stated in unequivocal terms that the alleged sale agreement was absolutely a forged and fraudulent document. He explained that he had no authority on behalf of respondents Nos.2, 3 and 4 to sell the suit land to the appellant. He also denied receipt of any amount as part payment of consideration of alleged sale. The delivery of possession of the suit land to the appellant in the latter's capacity of purchaser/owner, was also denied in express terms. According to him, the ejectment proceedings against the appellant before the Revenue Authorities were in progress when the appellant managed the forged sale agreement. He explained that the land was given on lease to the respondent No,9 which fact annoyed the appellant as the respondent No,9 had informed the appellant as the respondent No,9 had informed the appellant to cultivate the land in future according to the instructions of the former (respondent No,9). He denied that the names of other heirs, respondents Nos.2, 3 and 4 were suppressed. On these pleadings the learned trial Court settled the following issues:--
(1) Whether the defendant No,1, sold the land Survey Nos.161/2 (7-29 acres), 162/1 (4-33 acres) and 147/4 (4-00 acres) total area 16-22 acres in Deh 89-Nusrat Taluka N'Shah to plaintiff under sale agreement, dated 22-6-1995?
(2) Whether the sale agreement is forged fabricated and not executed by defendants?
(3) Whether the possession of land under the suit land is in the capacity of Hari of purchaser?
(4) Whether the defendants are liable to perform the part of their contract by executing sale-deed in favour of plaintiff?
(5) Whether the suit is not maintainable?
(6) What should the decree be?
4. The parties led evidence and produced the relevant documents. On appraisal of the evidence, the trial Court dismissed the suit.
5. The controversy essentially rests on the agreement, dated 22-6-1995, produced at the trial by appellant Miandad as Exh.72. The foremost point to be determined, therefore, is whether there was legally valid agreement for sale in favour of appellant? It has been admitted by the appellant in his evidence that the land still stands in the Khata of late Abdul Rehman. As against this the agreement contains a recital that in the record of rights the land in suit is in the name of Abdul Qadeer the respondent No,l. Admittedly this version in the agreement is a false statement vitiating the entire contract.
6. According to appellant the respondent No,1 Abdul Qadeer on receiving an amount of Rs,4,80,000 singed the agreement whereafter witnesses Ali Asghar and Sajan Parejo signed and put thumb- impression on the agreement and then Notary Public Muhammad Hayat Bughio after confirming the contents of agreement from respondent Abdul Karim attested the same. Much against this the said Notary Public Muhammad Hayat Bughio who is a retired Mukhtiarkar and First Class Magistrate stated in cross-examination that the agreement was false and that earlier he had voluntarily sworn an affidavit before the trial Court on 6-5-1996 stating this fact therein. He clarified in the examination-in-chief that the parties were identified by Abdul Rasheed Bond-Writer. The evidence of scribe namely Abdul Rasheed as such was of immense significance but the appellant intentionally gave him up at the trial by his statement (Exh.75). Mr. Muhammad Munawar Khan learned counsel for respondents, therefore, was wholly justified in contending that within the meaning of Article 129 Illustration (g) of Qanun-e-Shahadat, the Court may reasonably presume that the evidence of Abdul Rasheed if produced would have been unfavourable to appellant Miandad. This contention finds full support from the observations made by this Court in Abdul v.
Suhrab PLD 1997 Kar. 985, wherein reliance was placed on Dil Murad v. Akbar Shah 1986 SCM R 306.
7. Learned counsel for appellant, however, attempted to seek support from the evidence of witnesses who attested the agreement, namely Ali Asghar and Sajan. Out of them Ali Asghar stated that he was a student of B.Sc. Part-I Chemistry and resident of Sanghar and that his lands were situated in Sanghar and he had no land in Nawabshah District. He had some land on lease in Deh 89-Nusrat from 21-6-1995 and onwards that is to say one day before the execution of agreement, but he has admitted that he had no land on lease prior to that. He has also admitted that the parties were not known to him and he had no station in Deh 89-Nusrat and on that occasion he had simply gone to the Otaq of appellant for taking water where he stayed for about 5 to 10 minutes. He was, thus completely a stranger and on the basis of 10 minutes visit to the Otaq of appellant he has become a witness to the transaction or alleged sale. He had gone for the first time to Otaq of appellant but the appellant in his deposition stated that talks of sale had also been held earlier and both the witnesses were present on both occasions. This is absolutely a damaging contradiction. The other witness Sajjan is also not resident of that locality. He has explained that he had gone there in connection with the business of cattle and chaff. After talks he went there on the following day and alongwith appellant Miandad and P.W. Ali Asghar as also respondent Abdul Qader reached the office of Bond Writer. Obviously, both these persons were chance witnesses and failed to furnish reliable explanation about their presence at the time of talks of sale agreement.
Their evidence is not of that value as to render independent support to the version of appellant/plaintiff, when the attesting Notary Public had expressly called the document a false agreement, while the evidence of scribe was intentionally withheld. Burden of proving of sale agreement was on the appellant. Reliance in this regard may be placed on Muhammad Subhan v.
Mst. Bilquis Begum PLD 1994 Kar. 106 and Siraj Din v. Mst. Jamilan PLD 1997 Lah.
633. The appellant, however, could not satisfactorily discharge this burden.
8. The respondent No,1 on the other hand has totally denied the execution of this agreement. He has explained in his evidence that after the death of - his father there are in all four legal heirs who are the owners of the suit land and according to him the appellant was their Hari, but in the year 1995 he forcibly occupied the entire piece of land bearing Block 147. He lodged a complaint with the Deputy Commissioner which was forwarded to Assistant Commissioner and the application is pending there. He filed certified copy of the said application and the forwarding letter. The fact that there are four legal heirs of Abdul Rehman stood unrebutted. Even general power of attorney produced by the witness showed that there were four legal heirs. This factual aspect could not be controverted during the course of arguments in this Court.
9. Obviously, in presence of other co-heirs the respondent No,1 alone could not make transfer in excess of his share in the land, he could not make a valid agreement for sale of the land over and above other legal heirs. It is hardly expected that the appellant would pay an amount of Rs,4,80,000 knowing very well that the other co-heirs were not signing the agreement while the land was still in the name of Abdul Rehman their predecessor-in-interest. No general power of attorney in favour of Abdul Qadeer was mentioned in the alleged agreement. Learned counsel for appellant was also not able to make a submission if an agreement for sale of land by one co-sharer in absence of three others could validly make out a case for transfer of the entire undivided land to another person'. All the circumstances on factual plane are sufficient to indicate that there was no such transaction or agreement for sale between the appellant and respondent No,1 and that the sale agreement was not a genuine document. The appellant was only a Hari on the land in suit and the question of tenancy was under adjudication on the crucial date. There was no question of specific performance of alleged contract. Learned trial Court had rightly decided all issues in favour of the respondent.
10. For the foregoing reasons, I am inclined to conclude that the findings of the learned trial Court are not open to exception and as such are maintained. The suit was rightly dismissed. The order of award of compensatory cost of Rs,5,000 passed by the learned trial Court is also maintained. The appeal is dismissed with costs. These are the reasons of short orders announced on the date of hearing of appeal.