JUDGMENT MAULVI ANWARUL HAQ, J.- On 2.4.1975, Hakeem Abdul Aziz Khan, the predecessor-in- interest of the appellant (hereinafter to be referred to as the appellant) filed a suit against respondents Nos. 1 and 2. Later, Dost Muhammad respondent was added as defendant No. 3. In the plaint, it was stated that the suit land described in the plaint was owned by respondent No. 2 who agreed to sell the same, subject to mortgage, to the appellant for a consideration of Rs.30,000/- and received a sum of Rs.10,000/- and delivered the possession to the appellant. Agreement dated 7.1.1973 was executed with the promise that the amount of Rs.4000/- shall be paid and a decree will be obtained or a sale-deed will be executed and registered that Rs.4000/- were paid to the respondent No, 2 on 2.6.1974 against a receipt; that the respondent No. 1 states that he has purchased the land from respondent No. 2 but the sale is void inasmuch as the said respondent was aware of the agreement. With these averments, a decree for specific performance was sought. I may state here that Dost Muhammad respondent was impleaded on his on application as he is the person with whom the land stood mortgaged. The respondent No$. 1 and 2 filed separate written statements. The respondent No. 2 in his written statement filed in the Court on 2.7.1977 denied the said allegations in the plaint. Re explained that the land mentioned in para 2 of the written statement was sold by Kallu Mirasi to Muhammad Siddique, etc. Through the Court decree dated 2.5.1973; that the appellant had friendly terms with respondent No. 2 and his father and on his behest respondent No. 2 filed a pre-emption suit against the said sale; that at the time he was an Assistant Station Master and was posted away; that the matter was being pursued by a servant of the appellant in order to ensure that respondent No. 2 may not withdraw the suit.
However, he did withdraw the suit on 13.2.1975., During the pendency of the suit, respondent No. 2 recalled, that the said servant had brought three plain ?Papers and obtained his signatures that some application are to be filed; that later these papers were converted into receipt and the agreement. The respondent No. 2 insisted that he had not entered into an agreement of sale and that he had not received any money from the appellant. He stated that he had sold 54 kanals and 10 marias of land to respondent No. 1 vide registered sale-deed dated 17.2.1975 for a consideration of Rs. 40,000/-. The respondent No. 1 in his written statement filed in the Court on 17.6.1975 also denied the said allegation and pleaded that he is a bona fide purchaser for value and without notice. Dost Muhammad respondent No. 3 simply stated that the land is mortgaged by him.
Following issues were framed by the learned Trial Court:- "(1) Whether the suit is insufficiently valued for the purposes of Court-fee and jurisdiction? OPD
(2) Whether the defendant No. 1 had sold the property in favour of the plaintiff on the payment of Rs. 30,000/- and had executed an agreement dated 7.1.1973? OPP
(3) Whether alleged agreement is the result of fraud and collusion and mis-representation? OPD
(4) Whether the defendant No. 1 has received Rs. 14000/- towards the part of its performance of the contract? OPP
(5) Whether the defendant No. 1 has sold away the property in dispute in favour of the defendant No. 2 vide registered deed dated 17.2.1975, if so, with what effect? OPD
(6) Whether the plaintiff is entitled to the specific performance of the contract? OPP (6-A) Whether defendant No. 2 is a bona fide purchaser for value and without notice and his rights stand protected u/S. 41 of Transfer of Property Act?
(7) Relief.
Evidence of the parties was recorded. The suit was decreed vide a judgment and decree dated 21.1.1980. Feeling aggrieved respondent No. 1 filed a first appeal which was heard by a learned Addl.
District judge, Bhakkar who allowed the same and dismissed the suit of the appellant vide a judgment and decree dated 13.9.1984.
2. The learned counsel for the appellant contends that the evidence on record has -been mis-read by the Learned Addl. District judge, Bhakkar while reversing the judgment and decree of the learned Trial Court. The Learned counsel appearing for the respondent supports the impugned judgment and decree with reference to the evidence on record.
3. I have examined the Trial Court file, with the assistance of the Learned counsel for the parties. The agreement dated 7.1.1973 is available on the record as Exh. P/1, It is on a plain paper. On a bare examination of the document, it appears that the entire script is in the same pen and hand-writing including the signatures of Allah Diwata and Ashiq Hussain, witnesses and Ghulam jillani scribe. The name and particulars of respondent No. 2 are also in the same pen. However, it is apparent to the naked eye that the signatures of respondent No. 2 stand distinct in a separate ink and pen. The second aspect which appears on the face of the document is the attempt to sequeeze the entire writing so as to leave the place for the said signatures. Be that as it may, the said Ghulam jillani has appeared as PW-1. He stated that the document was scribed by him under the instruction of Abdul Qayyum respondent in favour of appellant that Abdul Qayyum witness had signed in his presence and received Rs.10,000/-. He states in his cross-examination that he belongs to Mianwali and resides there and comes to Bhakkar to meet his brother who is a school teacher who lives in Chak No. 185/T.D.A. He does not remember as to when his brother was transferred to the said Chak. He states that he knows Abdul Qayyum since 15/16 years but he has never gone to his house; that he is Station Master at Kotla Jam. He states that when he wrote Exh. P/1, he had gone to Kotla Jam he met Khadim Barbar and stayed the night there. Next morning he had tea with Abdul Qayyum and while he was having tea Sultan and Ashique came and told them that they had been sent by the appellant and he should proceed to Bhakkar for scribing the document. Abdul Qayyum stated that he is busy and let the document be scribed there and dictated the document. He says that while he was writing Exh. P/1, he came to know that Sultan is a servant of the appellant. He states that the witnesses of the document are not known to him. Further states that the document was delivered to Sultan after it was written, It will be seen that according to this witness, in his examination-in- chief the marginal witnesses signed in his presence and he has then stated that the document after It was completed was delivered to Sultan. Now he states that while he was having tea with Abdul Qayyum at Kotla Jan, Sultan and Ashiq came there whereupon he wrote the document. He excludes Allah Diwata the other witness.
4. Allah Diwata appeared as PW-2 and has stated that he is a marginal witness and Abdul Qayyum signed Exh. P/1 in his presence. In his cross-examination, he states that he is a servant of Amir Abdullah Khan, a younger brother of the appellant. He then states that he had gone to Kotla Jan with Sultana and both of them had gone there on the command of the appellant; that Abdul Qayyum was sitting in his office with Ghulam Jillani and the document was then written on a paper provided to the scribe by Sultan. This witness completely excludes Ashiq when according to the said Ghulam Jillani, Sultan was accompanied by Ashiq, when they came to meet when he was having tea with Abdul Qayyum. Ashiq Hussain has appeared as PW-7. He has made statement in examination-in-chief in line with that of PW-2. He states that Sultan is employed as a compounder with the appellant and that he visits the appellant when he needs some medicines. He states that he was already present at Kotla Jan Station as he had gone there to meet some relatives and Sultan and Allah Diwata met him at the Station: and Sultan asked him to accompany him for witnessing the document. Sultan is PW-3. Now he has proceeded to state that the negotiations were undertaken at Bhakkar at the hospital of the appellant. The price was settled and Abdul Qayyum was told that the. Money will be paid to him within one week; that he and Allah Diwata went to Kotla Jam from Bhakkar and told the said Abdul Qayyum to accompany them to Bhakkar but he stated that he is busy and let the document- be scribed there. Consequently, Ghulam Jillani wrote the document, Exh. P/1 and Abdu! Qayyum signed it. In his cross-examination he states that he is an employee with the appellant since 16 years and is general attorney of the appellant since 1973 and is pursuing his cases. This witness also excludes Ashiq Hussain. Thus upon a reading of the said statements made by the said relevant witnesses i.e. PW-1, PW-2 and PW-3 and PW-7, the conclusion arrived at by the learned Addl. District Judge in the matter of execution of the document, as pleaded stands fully supported. In rebuttal Abdul Qayyum, DW-5 has appeared and has denied having entered into any agreement with the appellant. He has explained the matter of the earlier pre-emption suit and the manner in which his signatures were obtained on plain papers. He also denied receipt Exh. D/2 and denied his signatures on Exh. P/1. He denied the several suggestions given to him in his cross-examination. The appellant appeared as PW-9. So far as the matter of execution of Exh. P/1 is concerned his statement would not be of much relevance as he stated that he was not present when the said documents was allegedly executed. He, however, states that his attorney, namely, Sultan, PW-3 had got the document executed and paid the money. In his cross- examination he admits that earlier he' had filed a declaratory suit against Abdul Qayyum respondent and later had withdrawn the same. He states that he had paid the money to Abdul Qayyum before filing the suit and that the transaction was not written. He admits that before filing the earlier suit he had shown the agreement to his counsel; that the plaint was read over to him and it was only thereafter that he had signed it. In the matter of possession he proceeded to state that he had filed a suit against respondent No. 1 because he has taken over the possession of the land. So much for the plea that the appellant is continuing in the possession under the agreement, he does not remember as to since when the respondent No. 1 is in possession of the land. He admits that when he filed the suit,, respondent No. 2 was in possession of the land. Now respondent No. 1 produced a certificate copy of the said plaint, as Exh. D/3. I find that the Learned Addl. District Judge has very correctly observed that the said plaint does not at ai!
Refer to any agreement oral or for that matter an agreement in writing between the parties, In the absence of any explanation, the Learned Addl. District Judge has very correctly drawn an adverse inference.
5. As to the said issue No. 6-A, Sultan PW-3 as well as the appellant as PW-9 have stated that in the course of negotiations Ghulam Rasool respondent was present. Ghulam Rasool has appeared as DW-6. He has stated that he checked- up the papers and that there was no agreement between the appellant and his vendor i.e. Respondent No. 2. He denied that he was present during the said negotiations.
6. To my mind, since there are no circumstances on record to attribute knowledge of the said otherwise nonexistent agreement to the respondent No. 1, in the said state of evidence it cannot be said that he had the knowledge of the same. I have already noted above that the appellant himself admitted that when he filed the suit the respondent No. 1 was in possession and it is not the case that the possession was taken over from the appellant. This being so, I do not find any error in the findings recorded by the learned Addl. District judge, Bhakkar on issue No. 6-A.
7. For all that has been discussed above, this R.S.A, is without any force. No question of law arises and the same is accordingly dismissed, leaving the parties to bear their on costs.