' SYED ZAHID HUSSAIN, J.---Respondent No,1 had brought a suit for possession through specific performance on the basis of agreements to sell, dated 10-4-1993, 2-10-1993 and 8-11-1993, alleged to have been executed by Zahoor Ahmad Khan deceased for the sale of land measuring 7 Kanals, 7-112 Marlas (described in the plaint) for a consideration of Rs,6,63,750. The appellants, who are daughters, successors of late Zahoor Ahmed Khan, contested the suit denying any such sale transaction by their late father. The suit has been decreed vide the judgment of the learned trial Judge, dated 25-7-2000. This first appeal has been preferred by the two defendants (sisters inter se), whereas respondent No,2 is their brother. The appeal has the background briefly stated below:--
2. It was the case of respondent No,1 before the learned trial Court that Zahoor Ahmed Khan, deceased had agreed to sell the suit land vide the agreements, mentioned above, and had received the entire sale consideration and also executed a power of attorney in his favour which was registered on 10-11-1993. After the death of Zahoor Ahmed khan, in the month of February,, 1995, the respondent/plaintiff issued notice to the appellants about the agreements alleged to have been executed by their father and completion of the same. It was the case of the respondent/plaintiff that on the refusal of the appellants he had to file the suit for specific performance. In the written statement, filed by the appellants, the execution of the agreements, receipt of any consideration money or power of attorney was denied which was alleged as the result of forgery and fabrication in league with their brother who was defendant No,3 in the suit.
Respondent No,3 initially remained absent from the proceedings of the trial Court and was proceeded ex parte, his attempt, however, later on, at the fag end of the trial to participate in the proceedings, failed. Seven issues .Were framed by the trial Court. Since it was for the respondent/plaintiff to establish that he was entitled to the decree prayed for by proving the execution of the agreements he produced Mr. N.A. Shehzad, Advocate, Notary Public, Sialkot P.W.1, Rana Muhammad llyas P.W.2, Noor Ahmed Khan P.W.3, Roshan Din P.W.4, Qazi Maqbool Ali, P.W.6 and himself appeared as P.W.5. Agreement, dated 10-4-1993 was produced as Exh. P.2, agreement, dated 2-10-1993 as Exh. P.1 and agreement, dated 8-11-1993 as Exh. P.3, power of attorney dated 10- 11-1993 Exh. P.4. Reply dated 5-9-1995, sent by the appellants/defendants to the notice of the plaintiff/respondent was produced as Exh. P.5, whereas reply dated 30-9-1995 was Exh. P.6. Copy of the Jama Bandi showing 'the ownership of Zahoor Ahmed Khan was produced as Exh. P.8. The appellants produced Abdul Latif, D.W.1 and Yawar Ali appeared as D.W.2, who was attorney of both the appellants. As mentioned above, the learned trial Judge returned the findings that the respOndent/plaintiff had proved the execution of Exhs. P.1 to P.4 and payment of price to Zahoor Ahmed Khan deceased, and was thus entitled to decree. Issue No,1 was, thus, decided in favour of the respondent/plaintiff. He also found that the suit was within time returning the affirmative findings on Issue No,2. Issues Nos.3, 4 and 5 were decided against the defendants.
3. Assailing the findings of the learned trial Court, it is contended by the learned counsel that the respondent/plaintiff had failed to prove the execution of Exhs. P.1 to P.4 through clear and positive evidence; the statements of the witnesses, produced by the plaintiff, were full of inconsistencies and were self-contradictory, they could not be relied upon. He has pointed out certain contradictions in the statements of witnesses. It is contended that Article 17 of Qanun-eShahadat Order, 1984 was very much attracted to the facts and circumstances of the case which required the production of two witnesses but has been totally ignored by the learned trial Court. Relies upon Abdul Khaliq v. Muhammad Asghar Khan and 2 others (PLD 1996 Lahore 367), Siraj Din v. Mst.
Jamilan and another (PLD 1997 Lahore 633) and Nawab alias Babu (deceasd) through his legal representatives v. Muhammad Rafique (deceased) through his legal representatives 2002 M LD 965 to support his contentions.
4. The learned counsel for the respondent/plaintiff to the contrary contends that Exh. P.1 to Exh. P.4 were proved to have been executed in accordance with law and the findings returned by the learned trial Judge are fully supported by the evidence on record. It is contended that not only agreement to sell were executed by Zahoor Ahmed Khan deceased but a power of attorney as well in favour of the respondent/plaintiff after receipt of full consideration money. He thus supports the judgment and decree of the trial Judge.
5. This being a first appeal against the decree we have gone through the evidence that has come on record and have analyzed, appreciated and weighed the same.
6. Exh. P.2, dated 10-4-1993 makes a reference to an earlier agreement, dated 2-3-1993 (which has not been produced) through which Zahoor Ahmed Khan, deceased, had allegedly agreed to sell the suit land: This document purports to have been attested by M. Noor Ahmed Khan and Muhammad Nazir. Only Noor Ahmed Khan was produced as P.W.3. Muhammad Nazir was not produced for no apparent reason. It does not bear the signature of Amjad Ikram, the alleged vendee even. Agreement dated 2-10-1993, Exh. P.1 was witnessed by M. Noor Ahmed Khan, P.W.3 and Roshan Din, P.W.4. Another agreement, Exh. P.3 is of 8-11-1993 which bears the attestation of M.
Noor Ahmed Khan, P.W.3 and Roshan Din, P.W.4. It contained a recital about two previous agreements dated 10-4-1993 and 2-10-1993 and receipt of sum of Rs,1,50,000. A sum of Rs,5,13,750 was scribed to have been received by Zahoor Ahmed Khan on 8-11-1993 leaving nothing outstanding. According to this document, the vendee had no money with him for the completion and attestation of the sale-deed, therefore, a power of attorney was given by Zahoor Ahmed Khan to the said vendee. At the back of this document is an endorsement, dated 8-11-1993/10-11-1993 by N . A . Sheraz, Advocate/Notary Public, Sialkot that a sum of Rs,5,13,750 had been paid by Amjad Ikram to Zahoor Ahmed Khan before him. This document again does not bear the signature of Amjad Ikram. Then is power of attorney, dated 8-11-1993, Exh. P.4, registered with the Sub-Registrar on 10-11-1993. The reason for the execution of the said document, as stated therein, was that Zahoor Ahmed Khan, was unable to be personally present for the completion of the sale-deed on account for his old-age and illness. Surprisinly, however, Zahoor Ahmed Khan is shown to have appeared before the Sub-Registrar on the said date. Exh. P.4 was witnessed by M. Noor Ahmed Khan, P.W.3 and Roshan Din, P.W.4. There was noticed dated 12-8-1995, sent to the appellants by Kh. Iqbal Ahmed Butt, Advocate, on behalf of Amjad Ikram, making reference to agreement, dated 10-4- 1990, 20-10-1990 and 8-11-1993. Reply sent by the appellants thereto on 5-9-1996 is Exh. P.5, demanding copies of the alleged agreement. In the same context is letter, dated 30-9-1975 Exh. P.6 addressed to Kh. Iqbal Ahmed Butt, Advocate. In the other notice, dated 8-10-1995 by Kh. Iqbal Ahmed Butt, Advocate, the agreements referred to therein are of 10-4-1990, 2-10-1990 and 8-11- 1993. It is in the context of these documents that the authenticity thereof and credibility of the witnesses produced by the respondent/plaintiff in support of his claim and decree for specific performance is to be determined. As the respondent/plaintiff had to prove the execution of Exhs. P.1 to P.4, i,e, agreements and the power of attorney, the statement of Amjad Ikram, the plaintiff himself, need to be examined to begin with. According to him, late Zahoor Ahmed Khan had agreed to sell the land. In dispute for Rs,6,63,750 which was reduced to writing. Initially a sum of Rs, 1 lac had been paid by him and a further sum of Rs,50,000 thereafter. It was stated by him that on the date fixed he paid dollars to Zahoor Ahmed Khan deceased. This payment was, according to him, made on way to Tehsil Office but not in the presence of Qazi Maqbool Ali or Roshan Din.
According to him he paid a sum of Rs,5,13,750 to the deceased in the office N.A. Shehzad and got back the dollars. In the cross-examination, he states that Zahoor Ahmed Khan was an old man and Munawwar Khan , (respondent, his son) used to accompany him. The assertion of payment of dollars by Amjad Ikram is in direct conflict with the statement of Noor Ahmed Khan, P.W.3 who stated that the payment of dollars took place at the Dera of Qazi Maqbool Ahmed, P.W.6. This is quite a material contradiction with regard to the payment of alleged consideration. P.W.1. N.A.
Shahzad, Notary Public admits that neither the agreement was written nor the attesting witness signed the same in his presence. Even the respondent/plaintiff did not sign that document in his presence. According to him, Zahoor Ahmed was not accompanied by his soli, daughter or any other relation. By expressing his ignorance as to the presence of Amjad Ikram, he belied his own version that payment was made by Amjad Ikram in his presence. His deposition could not be safely relied upon. Rana Muhammad Ilyas P.W.2 identifies Zahoor Ahmed Khan before the Sub-Registrar and was called for this purpose from the office of Amanat Ali, Advocate. He admits that power of attorney was not written in his presence, nor is aware of the scribe of the same. He happens to be per chance available for identification, which is quite unusual and makes his testimony doubtful.
Noor Ahmed P.W.3 claims to be the attesting witness of all the four documents (Exh. P.1 to Exh. P.4).
He states thk the payment of Dollars took place at the Dera of Qazi Maqbool and two days thereafter payment in Pak currency was made in the office of N.A. Shahzad P.W.1. This witness is contradicted by Qazi Maqbool (P.W.6) the scribe, and in the matter of payment of Dollars, he shows his ignorance about .Any such payment. Roshan Din P.W.4 another attesting witness states that except the payment of Rs,50,000 no other payment took place, in his presence.
7. As mentioned above late Zahoor Ahmed lived till February , 1995. In the notice issued on 12-8- 1995 besides agreement, dated. 8-11-1993, reference to agreement, dated 10-4-1990 and 20-10- 1990 was made. In the later notice, dated 8-10-1995, reference was made to agreements, dated 10- 4-1990, and 2-10-1990, besides 8-11-1993. In the agreement dated 10-4-1993 Exh. P.2 and, dated 2- 10-1993 Exh. P.1, there finds mention another agreement, dated 2-3-1993 when payment of Rs, 1 lac is stated to have been made. The said agreement, dated 2-3-1993 has not been produced, nor there is any explanation about the agreements mentioned in the notices referred to above. This whole state of affairs make the alleged transaction doubtful, which was required to be proved by clear, convincing cogent and reliable evidence. Some of the contradictions and inconsistencies in the depositions of the witnesses have been noted above which make their testimony uncredit- worthy. They are not Consistent even on the most important element of the alleged transaction, i,e, the payment of the alleged consideration.
8. There are few other aspects of the matter such as; (i) Zahoor Ahmed Khan was admittedly an old man of advanced age (80 years). He is alleged to have been made payment of huge amount at a place other than his residence, but was not accompanied by any of his relation or friend. Such an old man would not take risk of carrying a huge sum all alone. (ii) If, he had entered into any such transaction or received the consideration as alleged, it is not possible that he would have kept it secret from his daughters, who deny any such transaction by their. Father. (iii) Exh. P/4 is the power of attorney allegedly given by Zahoor Ahmed Khan to Amjad Ikram on 8-11-1993, divesting himself of all rights and interests in the property. The reason disclosed therein is the old age and illness of Zahoor Ahmed Khan, whereas in the agreement Exh. P/3 the reason for the same is entirely different i,e, the shortage of funds required for the execution and completion of the sale- deed. It is also beyond comprehension that huge sum was allegedly being paid but few thousands would not be arranged for the execution of sale-deed, (iv) Zahoor Ahmed Khan admittedly died in February 1995. No steps were taken during his lifetime for the 'completion or perfection of the transaction of sale. If the power of attorney had been given to the respondent/plaintiff, he in normal circumstances would have acted promptly in getting the alleged transaction implemented.
9. Considering the evidence in its totally and the circumstances, we are left with no doubt whatsoever that the respondent/plaintiff had failed to establish by producing concrete evidence, the execution of the agreements, power of attorney or the alleged payment. It may be observed that mere production of the scribe or the attesting witnesses would not in all cases ipso facto, be a proof of execution of a document. It is the quality and the content of their depositions which gains importance -and relevance. For that matter the evidence and the circumstances of each case have to be kept in view. Some discrepancies of trivial nature could be overlooked in the presence of other cogent evidence but not inconsistencies on important aspects.
' After taking into consideration and weighing the evidence on the record we have not been able to persuade ourselves to concur the findings of the learned trial Court. The judgment, and decree, dated 25-7-2000 is thus set aside by accepting this appeal. No order as to costs.