MAULVI ANWARUL HAQ, J. On 12.9.1993 the appellant filed a suit against the respondents. In the plaint it was stated that Ghulam Sarwar, the father of the respondents, was maternal uncle of the appellant who was the owner of the suit property mentioned in the plaint; that this property was rented out to the appellant in the year 1985 and she had been running a School under the name and style of Allama Iqbal Memorial Senior Cambridge School; that Ghulam Sarwar was living with the appellant in her house for the last 22 years; that he entered into an agreement of sale of the suit property in favour of the appellant for a consideration of Rs.5,00,000/-. Out of this amount a sum of Rs.4,50,000/- was paid as earnest and an agreement was executed on 30.11.1992. Regarding the balance of Rs.50,000/- it was settled that it will be paid upto 30.3.1993 when the sale-deed will be executed and registered; that Ghulam Sarwar died while living in her house on 12.1.1993 and the respondents during the funeral agreed to transfer the suit property in favour of the appellant by admitting the said agreement; that the respondents tried to sell away the suit property whereupon she filed a suit for permanent injunction which was later withdrawn. With these averments she sought a decree for specific performance of the said agreement to sell. The respondents in their written statement filed on 13.12.1993 denied the factun of the said agreement. Regarding the allegation that she was a tenant in the house it was stated that she was in fact a licencee of the respondents which licence has' been withdrawn. It was further stated that the School was being run in the ground floor of the suit house while their father had been residing in the first and the second floor of the same; that the appellant was divorced in the year 1980 and ever since was living with their father. It was then stated that the father of the appellant was a Majawar of the graveyard Miani Sahib where he lived with the mother of the plaintiff and he died in the said graveyard in the year 1985 3 while the mother of the appellant died in the year 1989. Her name was Khurshid Begum and that their father had brought up her two daughters. It was then stated that the mother of the respondents died in the year 1962 and they had been living with their maternal grand-father and uncles who brought them up; that the appellant and her sister were got married by Ghulam Sarwar who had also purchased a house for them which is located opposite to the suit house. It was then stated that the respondents are owners of the house and they have filed a suit for its possession against the appellant. It was denied that Ghulam Sarwar received any money from the appellant or that the agreed to sell the house to her. Following issues were framed by the learned Trial Court:-
(1) Whether the alleged agreement to sell dated 30.11.92 was executed by Ghulam Sarwar deceased (predecessor-in-interest of the defendants) and if the same was enforceable at la? OPP.
(2) Whether the agreement to sell relied upon by the plaintiff was fraudulent, forged and fabricated? If so, its effect? OPD.
(3) Whether the plaintiff has no cause of action? OPD.
(4) Whether the suit has been undervalued for purposes of Court Fe and jurisdiction? OPD.
(5) Whether the suit is false, frivolous and vexatious OPD.
(6) Whether the plaintiff has come to the Court with unclean hands? OPD.
(7) Relief.
Evidence of the parties was recorded. Vide judgment and decree dated 31.7.1998 learned Trial Court dismissed the suit.
2. Learned counsel for the appellant contends that all available evidence was produced by the appellant to prove the execution of the., agreement by the deceased Ghulam Sarwar and the receipt of the said amount of earnest money by him and the learned Trial Court has failed to read the evidence while dismissing the suit of the appellant. Learned counsel for the respondents, on the other hand, argues that the reading of the entire evidence led by the appellant do not go to prove execution of a valid execution of an agreement by the late Ghulam Sarwar and the receipt of money by him.
3. We have examined the Trial Court records, which are available, with the assistance of the learned counsel for the parties. Learned counsel for the appellant has taken us through the entire evidence on record-. The agreement dated 30.11.1992 is available on record as Ex.P.1. It purports to have been signed by Ghulam Samar and the appellant and is attested by Imtiaz Ahmad and Muhammad Riaz Shahid as witnesses. The name of the scribe is, however, not available. The legend on the back of the stamp narrates that the same has been sold by Ashfaq, a stamp vendor to Ghulam Sarwar s/o Mian Muhammad Din through Muhammad Riaz Shahid for an agreement in favour of Nasim Akhtar. The said Imtiaz Butt has appeared as P.W.1. He states that in the morning of 30.11.1992 Ghulam Sarwar came to his house all alone and told him to come to his house at 7.00 p.m.; that the witness went to the house of Ghulam Sarwar where he told hire that he has agreed to sell the house to the appellant for Rs.5,00,000/- and a sum of Rs.4,50,000/- has been paid as earnest money while the remaining Rs.50,000/- will be paid after four months when the sale-deed will be registered; that the agreement was then scribed which bears his signatures and the document is Ex.P.1; that apart from the witness, Nasim AKhtar and Ghulam Sarwar signed Ex.P.1 in his presence, while Riaz Shahid also assigned in his presence; that the earnest money was paid in his presence; that Ghulam Sarwar died on 1 2. 1 . 1 993 and his heirs refused to get a sale-deed registered when so demanded by the appellant. In his cross-examination he states that the house is triple storey and is located in a street in the main Bazar of Garrhi Shahu, Lahore where motor- vehicle can go; Ghulam Sarwar has two daughters and a son, namely, Tariq who is also related to the witness; that the father.. Of the appellant was not a good man and she throughout lived with Ghulam Sarwar while the respondents had been turned out of his house by Ghulam Sarwar while they were children; that the appellant was married by Ghulam Sarwar; that she is a teacher and runs a School in the same building. He reiterated that the document was scribed in his presence.
However, he does not know as to who wrote the document. He further affirmed that when the payment was made he, Ghulam Sarwar,, Nasim Akhtar and Riaz Shahid were present and none else was present; that Ghulam Sarwar had not informed him as to why was he selling the house. He expressed ignorance as to whether any rent was fixed when the appellant started running a School in the house. The witness expressed ' ignorance that at the relevant time the land underneath the house was worth Rs.2,00,00/- per maria and that the market value of the entire property was Rs.2 5,00,000/-.
4. Muhammad Riaz Shahid has appeared as P.W.2. He states that the appellant is his sister-in-law (that the agreement was made on 30.11.1992 for Rs.5,00,000/- and earnest money of Rs.4,50,000/- was paid; that agreement Ex.P.1 was signed by him, Imtiaz Butt, Nasim Akhtar and Ghulam Sarwar. In cross-examination he states that the stamp paper was purchased from Ashfaq Bhatti at Mughalpura. The witness states that his marriage was also arranged by Ghulam Sarwar and that he is not aware as to who bore the expenses from his wife's side. He admitted that at the time of his marriage on 22.2.1988 mother of the appellant used to live with Ghulam Sarwar; that the appellant was brought up by Ghulam Sarwar who got her married. The witness stated that he was not aware of the market value of the land at the relevant time. He then stated that he does not know as to who scribed the stamp but volunteered that Ghulam Sarwar got the document scribed. The witness was not aware as to wherefrom the appellant brought the said amount; that the deceased had not told him as to why he needed to money. He then stated that the deceased had told him that he is not well and wants to sell the property. He then stated that the deceased told him that the appellant is a widow and is childless and he wants to do something for her and wants to sell away his property to her so that she has a place of her own.
5. Ijaz Hussain Bukhari, P.W.3 produced the vending registered pertaining to the stamp of the document. Ashfaq Bhatti, Stamp Vendor appeared as P.W.4 to state that he had sold the stamp to Ghulam Sarwar through Riaz Shahid.
6. Nasim Akhtar, appellant appeared as P.W.5. The learned Trial Court proceeded to record her statement without administering oath to her. She stated that on 30.11.1992 the agreement was made for the sale of the house for Rs.5,00,000/- and she paid Rs.4,50,000/- as earnest money and the sale was to be registered by 31.3.1993 when the balance was to be paid; that the agreement Ex.P.1 was signed by P.Ws. 1 and 2; that Ghulam Sarwar got the agreement scribed himself and the document was signed by herself and Ghulam Sarwar; that P.Ws. 1 and 2 were present when the amount was paid and so were the said parties.; that Ghulam Sarwar died on 12.1.1993, respondents are his heirs and they have reused to get the sale-deed registered and are demanding more money from her. In her cross-examination she stated that Ghulam Sarwar deceased was her maternal uncle and that since her childhood she was living with him alongwith her father; that the deceased had been bearing her expenses and afterwards she herself is a teacher and is Headmistress of the School being run in the ground floor of the house. Now unlike her plaint she denied that she is a tenant. She stated that she started the School in the year 1982. She then stated that the house is comprised of three stories with six rooms on the ground floor, six rooms on the first floor and a store on the second floor; that the area of the land underneath the house is slightly less than ten marlas. She says that her monthly income is Rs.2000/- to Rs.4000/-. She states that she does not know as to why the deceased sold the house to her. She then proceeded to state that Ex.P.1 was written in her presence but then stated that the deceased had got it scribed and brought the document to her and told her to sign it.
7. All the said witnesses i.e. P.W.1, P.W.2 and P.W.51 were suggested and they denied that the document has been fabricated to deprive the respondents of their property.
8. Tariq, respondent No. 1 appeared as D.W.3 to make a statement in line with the contents of his written statement and to further state that Ex.P.1 does not bear the signatures of his father and he had no need to sell the house neither did he sell it. In his cross-examination he denied that when the appellant, after the death of their father asked the respondents to execute the sale-deed they demanded more money.
9. Abdur Rauf, D.W.1 and Abdul Qayyum, D.W.2 have appeared to state that the market value of the property was much more than Rs.5,00,000/- and further that the appellant was brought-up by the deceased. This is the entire evidence in the case.
10. Now the parties are ad idem that ever since the death of the mother of the respondents they were brought-up by their maternal relations while the deceased had been looking after the entire family of the appellant it her sister and parents. The appellant has herself stated that all her expenses were borne by the deceased. In the plaint she stated that the house was rented out to.
Her by the deceased in the year 1985 and she started running a School in the ground floor. The monthly income is stated to be Rs.2000/- to Rs.4000/- per month. She has admittedly no other course of income and none of the witnesses including the appellant has stated as to where from the amount of Rs.4,50,000/- allegedly paid to Ghulam Sarwar deceased was brought or arranged.
Another significant aspect which emerges from the reading or the statements of P.W.1, P.W.2 and P.W.5 together, is that whereas lmtiaz Butt, P.W.1 insists that a particular time was settled by the deceased for completion of the formalities and that the document was written in the house of the deceased whereafter it was signed by the appellant, the two witnesses and the deceased, the appellant as P.W.3 and Muhammad Riaz Shahid as P.W.2 expressed ignorance as to who wrote the document and when. The appellant insists that the document was brought by Ghulam Sarwar written down and he asked her to sign it. The witnesses have stated the matters in quite some details and lapse of memory is not to be attributed to them. At the same time the said discrepancy cannot also be said to be a minor or a natural variation. The impression we get from the said statements is that P.W.1 on the one hand and P.W. 2 and 3 on the other are deposing about two different documents, the one which according to P.W.1 was written in his presence and thereafter was signed by all concerned and the other which according to the appellant P.W.5 was brought to her by Ghulam Sarwar for her signatures.
1 1. We also do not find any explanation on record as to what prevented the execution and registration of a formal document of sale when almost 90% of the price was paid by way of earnest money. There is also no explanation despite prodding by the cross-examiner as to why the deceased sold the house to the appellant. Neither in the plaint nor in the witness-box there is a plea or deposition as to how the process was initiated and the house was offered for sale. We find the entire scenario presented by the P.Ws. In the witness-box to be wholly unnatural and not to be confidence inspiring.
12. So far as the said contection of the learned counsel for the appellant is concerned, suffice it to say that this is a suit for specific performance arri the relief is primarily discretionary and not to be granted merely because it is lawful to do so. We may here reproduce the following extracts from the, opinion of Mr. Justice Muhammad Bashir Jehangiri (as his Lordship then was) in the case of Rab Nawaz, etc. v. Mustaqeem Khan, etc. (NLR 1999 Civil 492) appearing at page 496 of the report:- "Undoubtedly there are many instances in which though there is nothing that actual amounts to fraud there is nevertheless a want of equity and fairness in the contract which are essential in order that the Court may exercise its extraordinary jurisdiction in, specific performance. In judging of the fairness of a contract, the Court will look not merely at the terms of the contract itself but at all the surrounding circumstances."
13. Even judging the case by applying. Rule of prudence which is the basis Rule underlying the law of evidence as also the Rule of probability, we are not at all convinced that a transaction as alleged by the appellant and her witnesses did take place.
14. For all that has been discussed above, we do not find any force in this R.F.A. Which is accordingly dismissed. However, the parties are left to bear their own costs.