' This civil revision is directed against the judgment and decree, dated 6-3-1994 passed by the learned District Judge, Bahawalpur, by virtue of which, the appeal filed by the petitioner was dismissed and the judgment and decree, dated 23-9-1991 of the trial Court dismissing the suit for specific performance of the petitioner was upheld.
2. The facts are that Muhammad Anwar Khan respondent No,1 was allotted 150 acres comprised in Lot No,9 of the land situated in Khewat No,98, Khatooni No,219 Mouza Pacca, Tehsil and District Bahawalpur under 20 Years' Tubewell Scheme by the District Collector, Bahawalpur. The petitioner/plaintiff brought a suit on 10-9-1986 for specific performance of an agreement, dated 16- 12-1981. According to the averments made in the plaint, the defendant/respondent No,1 executed an agreement in favour of the petitioner/plaintiff for Abadkari for a period of 3 years. The terms and conditions of the said agreement as contended by the petitioner/plaintiff were that the petitioner would make it culturabte at his own cost and in consideration of the same, the respondent/defendant would give an area of 50 acres land to the plaintiff/petitioner who shall be entitled to the said 50 acres in his own right as an allottee. After the expiry of the specified period, the petitioner/plaintiff was to hand over the possession of the remaining land (excluding the area of 50 acres mentioned above) to the respondent. It was also agreed that the tubewell which was installed on the land shall also be maintained and kept in serviceable condition by the petitioner.
According to the petitioner/plaintiff, he fulfilled his part of the obligation but the defendant/respondent No,1 did not abide by the contract. Hence the suit for specific performance.
3. The suit was resisted by respondent No,1/defendant who submitted his written statement and completely denied the claim of the plaintiff in the suit. The defendant categorically denied the execution of any agreement to sell. In fact he pleaded that he was not even in. Pakistan when the alleged agreement is said to have been executed. The agreement, dated 16-12-1981 was a fake and fictitious document and did not create any rights in favour of the plaintiff. Upon the question of the power vesting in Kh. Mumtaz Hussain, the attorney, the defendant stated in the written statement that the power of attorney was only given for the purposes of managing and looking after his land and the said attorney was specifically not given any power to alienate the said land in any manner.
It was also denied that the possession of the land was given to the plaintiff. In fact it was averred that it was the defendant who is making the entire land cultivatable himself on his own expense including the installation of the tubewell.
4. From the pleadings of the parties, the following issues were framed:--
(1) Whether the plaintiff gave wrong address of the defendant in the plaint? If so, what was the correct address and its effect? OPD
(2) Whether the agreement in dispute is hit by section 19 of Colonization of Government Lands Act, 1912? OPD
(3) Whether this Court has got no jurisdiction to try this suit under section 36 of Colonization of Government Lands Act, 1912?
(4) Whether on 16-12-1981 the defendant was away to America? If so, its effect..
(5) Whether the defendant agreed to give the suit property to the plaintiff in compensation of Abadkari vide deed, dated 16-12-1981?
(6) Whether the deed, dated 16-12-1981 is binding on the parties?
(7) Whether deed, dated 16-12-1981 is forged, fictitious, fraudulent and product of fraud?
(8) Whether the plaintiff has spent an amount of Rs,1,50,250 on improvements over the suit property? If so, its effect.
(9) Whether the plaintiff is entitled to specific performance of deed, dated 16-12-1981 against defendant? If so, on what conditions?
(10) Whether the plaintiff is in possession of the suit-land in part performance of deed, dated 16-12- 1981?
(11) Relief.
5. The plaintiff produced Rehmat Ali P.W.1. He stated that the plaintiff Muhammad-Islam Khan obtained the land and made it culturable on his own expense. P.W.2 Ch. Abdul Hamid stated that the plaintiff purchased tubewell water and cultivated the crops with the help of 10/15 tenants and tractor. He also stated that it was the plaintiff who made the entire land cultivatable. Zameer Ahmad P.W.3 stated that the plaintiff obtained the tractor from him on rent and that he ploughed the land, for which, he received remunerations from the plaintiff. Kh. Mumtaz Hussain P.W.4 is the attorney of Muhammad Anwar Khan defendant and supported the case of the plaintiff. He produced agreement deed Exh.P.4/3 and also deposed that later the agreement in question Exh.P.W4/4 was executed which was scribed by Nizam Din and was signed by the defendant upon which document the said P.W.4 also put his signatures. He further stated about the payment of a sum of Rs,30,000 by the plaintiff to defendant No,
1. Muhammad Yaqoob P.W.5 is a marginal witness of agreement Exh.P.W.4/4. Abdul Sattar P.W.6 stated that he removed bushes from the land in question. Abdul Rauf P.W.7 stated about plying the tractor on the land in question against labour charges of Rs,15,000. Muhammad Islam Khan plaintiff appeared as P.W.8 and made a statement in detail supporting his contentions contained in the plaint.
6. In documentary evidence, the petitioner/plaintiff produced Exh.P.1 which is the letter of allotment of 135 acres of land made in favour of Muhammad Anwar Khan, the defendant/respondent No,1 which even describes the land to be in Lot No,9. Exh.P.2 and Exh.P.3 are the copies of Khasra Girdawaries, Exh.P.4 is the order, dated 1-2-1987 passed by the Divisional Canal Officer and Exh.P.5, Exh.P.6 and Exh.P.7 are the receipts. Exh.P.W./1 is the power of attorney from Muhammad Anwar Khan, defendant/respondent No,1 in favour of Kh. Mumtaz Hussain which is in respect of Lot No,9 and which specifically forbids the said attorney to enter into any sale transaction in respect of the said land. Exh.P.W.4/2 is another general power of attorney given by the defendant besides the other legal heirs of Khan Haq Nawaz Khan again in favour of said Kh. Muhammad Hussain but this power of attorney is in respect of Lots Nos.10 and 14 and not Lot No,9. Exh.P.W.4/3 is an agreement stated to have been executed by the said Kh. Mumtaz Hussain as attorney of the defendant in which land comprised in .Lot No,9 was proposed to be given to the plaintiff for making it cultivatable. Finally, Exh.P.W.4/4 is the agreement, dated 16-12-1981 itself, upon which, the suit has been filed.
7. As against this, the defendant produced Zahoor Ahmad Tareen D.W.1, general attorney of the defendant who stated about the permanent residence of the defendant in United States and deposed to the effect that the defendant was not present in Pakistan on 16-12-1981 when the alleged agreement is said to have been executed. He denied the signatures of the defendant upon Exh.P.W.4/4. Faiz Bakhsh D.W.2 stated that the land in dispute was made cultivatable after 1971.
D.W.3 Tariq Tareen also confirmed that at the time of the alleged execution of the agreement, the defendant was residing in the United States. D.W.4 Sadoor Khan, A.S.-I., Incharge Record Room, F.I.A.
Also confirmed about the absence of the defendant from Pakistan at the relevant time. Nizam Din Stamp Vendor and Deed Writer appeared as D.W.5 and stated that the agreement Exh.P.W.4/4 was scribed by him at Bahawalpur and stated that the defendant did not sign it in his presence and that agreement was taken away by Kh. Mumtaz Hussain. The non-judicial stamp papers on which the agreement was scribed were purchased by Kh. Mumtaz Hussain and not by Muhammad Anwar Khan. He also stated about scribing Exh.P.W.3/3 which was signed by Kh. Mumtaz Hussain. In the documentary evidence, the defendant produced Khasra Girdawari Exh.D.1 to Exh D . 3 , receipts Exh.
D W .3 /1 , Exh . D. W .3/2 and certificate Exh.D.W.4/2. It appears that the Passport of Muhammad Anwar Khan, the defendant/respondent No,1 was adduced in evidence as Exh.D.1.
8. The learned trial Court after considering the oral and documentary evidence concluded upon Issues Nos.4 to 7, 9 and 10 that the agreement to sell, dated 16-12-1981 was not proved to have been executed by the defendant and that the said document was not genuine. The findings of the learned trial Court on. Issues Nos.1 to 3 were decided against the defendant. The learned trial Court also found Issue No,8 against the plaintiff. As a result, vide judgment and decree, dated 23-9-101, the suit of the plaintiff/petitioner was dismissed.
9. Aggrieved of the said judgment and decree, the petitioner preferred an appeal which was heard and decided by the learned District Judge, Bahawalpur vide his judgment and decree, dated 6-3- 1994. The learned First Appellate Court considered in detail the respective pleadings of the parties.
The entire evidence was reappraised and after considering all the pros and cons of the case decided Issues Nos.4 to 10 against the petitioner/plaintiff once again and upheld the judgment and decree of the learned trial Court.
10. In this civil revision, the main grounds which have been taken concern a re-appreciation and re- appraisal of the evidence on the record. The entire oral as well as documentary evidence has been once again scrutinized with the assistance of the learned counsel for the parties. The main controversy is focused upon the agreement, dated 16-12-1981, the specific performance of which has been sought by the petitioner/plaintiff. As per the issues, the principle onus of proving the execution of the said agreement is upon the plaintiff and the evidence in that respect has to be strong, consistent and cogent. Exh.P.W.4/4 is scribed on a non-judicial stamp paper, the obverse of which shows that the said stamp paper was not purchased by Muhammad Anwar Khan defendant but was purchased by Kh. Mumtaz Hussain P.W.4 acting as attorney of the defendant. This is further supported by the statement of D.W.5 Nizam Din who is the stamp vendor and deed writer. He stated that the stamp papers were not purchased by the defendant. His further statement is that although he scribed the agreement Exh.P.W.4/4, the defendant never put his signatures in his presence. Another very important factor which is important for the determination of the controversy is the power of attorney Exh.P.W.4/1 produced by Kh. Mumtaz Hussain P.W.4 himself. This power of attorney specifically relates to the land in Lot No,9. The power of entering into sale transaction has been specifically excluded in the said power of attorney and Mumtaz Hussain could not act as an attorney of the defendant for the purpose of entering into any sale transaction under the said document. The other power of attorney Exh.P.W.4/3 does not relate to land in Lot No,9. A further perusal of the oral evidence would show that according to the petitioner/plaintiff who appeared as P.W.8 and the marginal witnesses P.W.4 and P.W.5 of the agreement of Exh.P.W.4/4, they had to go to Multan where the defendant got the agreement scribed. These statements however, even contradicted by the scribe Nizam Din himself who stated that he scribed the agreement at Bahawalpur and that he never went to Multan for this purpose. It is further noticed that the Passport of the defendant has been placed on record as Exh.D.1. A perusal of the entries of the passport and the certificates Exh.D.W.4/1 and Exh.D.W.4/2 also go to prove that at the relevant time i,e, 16-12-1981, the defendant was not in Pakistan. The learned counsel for the petitioner has not been able to point out from the record any material which was either misread or was not read by the two Courts below. The non-appearance of the defendant in the witness-box is of not much consequence, as the initial burden of proof was upon the petitioner/plaintiff. The learned counsel for the petitioner placed reliance on Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890 to contend that as the defendant did not appear as his own witness, the case of the plaintiff was prejudiced as he was neither cross-examined nor could be confronted with his signatures. He also relied upon Fazal Dad and others v. Jehandad and others 1991 CLC 1783, Riasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCM R 496 and Noorul Amin and another v.
Muhammad Hashim and 27 others 1992 SCM R 1744 to contend that in such circumstances a presumption would arise against him.
11. There is no cavil with this general proposition but this principle is distinguishable in the present case as the initial burden of proof was upon the petitioner/plaintiff himself which, as concurrently found by the two Courts below, he has failed to discharge. The non-appearance of the defendant in such circumstances is not material.
12. The scope of the civil revision under section 115, C.P.C. Is limited. The learned counsel for the respondent has cited the case of Mst. Sabiran Bi v. Ahmad Khan and another 2000 SCM R 847 in which the parameters of revisional jurisdiction have been given.
13. The upshot of the above discussion is that the concurrent findings of the learned trial Court and the learned First Appellate Court do not suffer from any misreading or non-reading of evidence which could warrant interference in revisional jurisdiction. No illegality or material irregularity has been pointed out in the said judgments. As a result, the civil revision has no merit and is dismissed.
The parties to bear their own costs.