' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment, dated 10-4-2001 whereby R.F.A. No,185 of 1993 filed by the petitioner was dismissed maintaining the earlier judgment of the learned Civil Judge 1st Class, Burewala, dated 26-7-1993.
2. Facts briefly, as narrated in the petition are that the respondents filed a suit for possession alongwith specific performance of an agreement on 1-2-1986 claiming therein that the petitioner/defendant was owner of land to the extent of 1/3rd share out of 952 Kanals, 6 Marla situated in Khata No,14, Khatooni Nos.57 to 63, 64/1 Mominpura Tehsil Ferozewala, District Sheikhupura. An agreement Exh.P.1 was stated to have been executed on 1-10-1984 between the parties for a consideration of Rs,11,80,000 out of which Rs,10,00,000 was given as earnest money vide receipt Exh.P-2. It was also one of the terms of the agreement that the sale deed would be registered up till 5-1-1986.
3. The petitioner controverted the pleadings and alleged that the agreement Exh.P.1 was forged, fictitious and outcome of fraud collusively brought by the respondent/plaintiff with Zafar Iqbal his real nephew so as to deprive him of his valuable property. Issues were framed and the parties led their evidence. The learned Civil Judge 1st Class, Burewala after scanning the entire evidence brought on record decreed the suit vide his judgment, dated 26-7-1993. The petitioner filed R.F.A.
No,185 of 1993 which has been dismissed, through the judgment and decree, dated 10-4-2001 of the learned Division Bench. Hence this petition for leave to appeal.
4. We have considered the contention and have gone through the documents appended with this petition. We must observe at the very outset that the stand of the petitioner during the course of his evidence brought before the learned Civil Judge is totally contrary to that of his case put up in reply to the suit filed by the respondent. In reply to the pleadings he put all the blame upon his nephew Zafar Iqbal who according to him in collusion with the petitioner and others was out to deprive him of his valuable property. It was he who fabricated all these documents fraudulently.
However, during the course of trial said Zafar Iqbal, his nephew, appeared as D. W.1 from his side and tried in vain to create doubts in the execution of agreement. He admitted the purchase of stamp paper alongwith Ramzan Ali Shah the special attorney of respondent. Thereafter according to him petitioner's thumb-impressions were taken on blank papers through coercion. Cross criminal cases were got registered whereafter the matter was compromised. However, in this' cross-examination he admitted that the stamp papers were purchased by him from the District Court, Lahore and further stated that the thumb-impressions were not made in his presence and the case was only got registered against him and Fayyaz but not against the respondent. His testimony, is full of contradictions and does not inspire-confidence. On the contrary the execution of the agreement Exh. P-1 and receipt Exh. P.2 has been established on record through the testimony of the marginal witnesses Muhammad Siddique P.W. 1 and Ahmed Hassan P.W.2.
Ramzan Ali Shah special attorney of the respondent appeared as P.W.3. He also fully corroborated the testimony of the other witnesses. It is also to be appreciated that the criminal cases registered and compromised between the petitioner and others on 30-6-1986 while the suit out of which the present petition has emanated was filed on 1-2-1986. The petitioner submitted an application in the suit on 20-5-1986 which amply demonstrates that he was in know of the agreement, dated 1-10- 1984 on-the basis the suit was filed by the respondent. If coercion or undue influence, as stated by the petitioner was effected upon him, then he should immediately have filed a suit for cancellation of agreement. There could have been no question of compromise. On the contrary he effected a compromise in criminal as well as in civil cases with Zafar Iqbal D.W. And others. The petitioner has failed to bring any evidence on record that the' respondent had any collusive liaison with Zafar Iqbal. The learned Civil Judge after thorough scanning of evidence has decreed the suit and learned Division Bench of the High Court maintained the same after going into depth of the same.
5. Learned counsel has failed to point out any illegality or irregularity. It is pertinent to mention here that it has not been brought on record that any case was got registered by the petitioner either against the respondent or his special attorney Ramzan Ali Shah. There is no allegation against both of them. Furthermore no evidence has been brought as already stated on record to prove the collusion of the respondent alongwith his brother Ramzan Ali Shah with Zafar Iqbal and others who were accused in the F.I.R. It would be appropriate to reproduce the determination of the learned Division Bench qua the conduct of Zafar lqbal against whom the whole case was put up by the petitioner of fabrication of the agreement in reply to the plaint who later on appeared as D.W. I and the other aspects of this case which are in the following terms:- ' "There is no explanation whatsoever on record and the learned counsel for the appellant has failed to furnish any as to how Zafar lqbal, in the background of allegation made against him in the written statement virtually attributing the fabrication of the documents to him alone, came to appear as a witness for the appellant. We find that he was not summoned through a process of Court. Thus he came of his own, obviously, on the request of the appellant and deposed as D.W.1.
Now we find that the entire , case set up by the appellant himself in his written statement was put to this witness by the learned counsel who cross-examined him and he came out with a denial of the entire case. Ultimately he was constrained to admit that the stamp paper was purchased with the consent of the appellant and his brother and ultimately he expressed ignorance that the appellant had entered into an agreement by his own free will and had received the advance money. It is admitted by all concerned including the appellant that respondent or Ramzan Ali Shah had not been involved in any criminal case. We have already referred to the F.I.R. Exh. D.2 above.
There is no allegation against the respondent and his brother Ramzan Ali Shah. No evidence has been brought on record to establish any relationship or privy of any kind or any conspiracy between the respondent and Ramzan Ali Shah on the one hand and Zafar Iqbal and his co- accused in F.I.R Exh. D.2 on the other. What we mean to say is that there is no material on record to show as to why would the said persons go to take all that trouble to get the documents Exhs. P.1 and P.2 executed in favour of the respondent. Even if we were to believe that some papers were in fact got thumb-marked by the appellant in the manner alleged by him, then there is no evidence on record that Exh. D.1 is the document on which the thumb-impressions of the appellant were obtained by the persons named as accused in the F.I.R. Exh. D.2. We have no doubt in our mind that this is not a simple case of denial of execution but is case of counter-version set up by the appellant in his written statement to explain the execution or for that matter the presence of his thumb-impressions on the documents Exhs. P.1 and P.2. And in these circumstances the respondent has succeeded in discharging the onus of Issues Nos. 1 and 2."
Resultantly, for what has been stated above we do not find any irregularity or illegality warranting interference in these concurrent findings. As such this petition is dismissed and leave to appeal is refused.