1. This Revision is directed against the concurrent findings of two Courts below viz. 1st Senior Civil Judge, Khairpur who dismissed the F.C. Suit No,91 of 1995 Re: Saghir Ahmed v. Mst..Zakra by judgment and decree dated 29-5-1995 and learned 1st Additional District Judge, Khairpur who dismissed the Civil Appeal No,15 of 1995 Re: Saghir Ahmed v. Mst.Zakra vide judgment and decree dated 15-2-2000 and /2-2-2000 respectively. The applicant through the present revision has challenged the legality, propriety and correctness of the above-said judgements and decrees. The brief facts giving rise to this revision are that the respondent is owner of house bearing C.S. No,II-B-12 situated near Hussaini thowk, Mohalla Luqman, Khairpur, which was rented out to applicant about 20 years ago at the monthly rent of Rs,35 subsequently the respondent agreed to sale the suit premises to the applicant in the sum of Rs,18,000 and such agreement was reduced in writing on 21-12-1987 between the parties in presence of witnesses and the respondent promised to execute the registered sale deed within one year and the applicant paid Rs,8,000 to the respondent at the time of execution of sale agreement so also paid Rs,2,000 to him after two months of the agreement of sale. As per agreement of sale, Rs,8,000 was to be paid to the respondent at the time of registration of sale-deed. It was settled that the applicant will pay rent of the suit premises regularly till the execution of the registered sale-deed the applicant approached the respondent to execute sale-deed within one year but the respondent kept him on procrastination and subsequently in the month of July, 1988 the respondent refused to accept the rent of the suit premises and started negotiation for sale to others, therefore the applicant filed the suit in the lower Court. Thereafter in the Faisla the rent was enhanced from Rs,35 to Rs,50 per month. The applicant also requested the respondent after two years to execute the registered sale-deed in his favour and as per compromise the applicant was paying rent at the rate of Rs,50 per month. The applicant did not pursue the suit and the same was dismissed in default, thereafter the respondent refused to receive the rent and started moving applications before D.C. And S.P., Khairpur for dispossessing the applicant. The respondent also refused to execute sale deed in favour of the applicant, as such the applicant filed the suit with the prayer that the respondent be directed to pay balance amount to him. He further prayed that the permanent injunction be issued restraining the respopdent and or any other person from acting on her behalf not to dispossess the applicant from the suit property. The respondent contested the matter and filed written statement, in which she stated that she is still owner of the suit property and she rented out the said premises to the applicant. She had denied the execution of sale agreement in favour of the applicant and the said agreement of sale is forged and fabricated document. She further stated that the applicant had filed another suit in which the applicant did not mention the fact of execution of said sale agreement, and that suit was also dismissed by the learned lower Court. She has also challenged the maintainability of the suit from various corners. On the pleadings of the parties learned trial Court framed the following issues: --
(1) Whether the suit is not maintainable according to law?
(2) Whether the defendant has executed the agreement of sale deed dated 21-2-1987 and has received part payment of consideration?
(3) Whether the plaintiff is entitled to the relief claimed?
(4) What should the decree be? The learned trial Court after recording the evidence of the both the parties and hearing the learned counsel for the respective parties dismissed the suit as mentioned above. The applicant being aggrieved and dissatisfied with the judgment and decree of the learned trial Court went in appeal which was also dismissed by the learned 1st Additional District Judge, Khairpur vide his judgment and decree as referred above. I have heard the learned counsel for the respective parties and perused the record. It has been contended by the learned counsel for the applicant that the judgment and decree passed by the learned 1st Additional District Judge, Khairpur is not a speaking judgment but As against the arguments of learned counsel for the applicants it has been contended by Mr. Bashir Ahmed Dargahi learned counsel appearing on behalf of the respondent that no error has been committed by both the learned lower Courts. It has also been contended by him that no decree shall be reversed on misjoinder of the parties. The learned counsel also argued that previously the applicant filed a suit bearing No,169 of 1988 for permanent injunction, in para. No,6 of that suit it was mentioned therein that the defendant/respondent had promised to sale the suit premises to the applicant which is same as mentioned in the later suit as the respondent and her mother Mst. Anis Fatima had received Rs,8,000 and again Rs,2,000 and promised to sale the same premises to the applicant. The said suit was admitted on 28-2-1988. Since it was verbal agreement between the parties but suit for Specific Performance of Contract could be filed but the applicant has failed to seek such relief, therefore, he cannot subsequently claim the relief which he has omitted at the time of filing of such suit for Permanent Injunction. Learned counsel argued that provisions of Order 2, rule 2(2), C.P.C. Are to the effect that where plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of that portion so omitted or relinquished. The learned counsel for respondent has referred to the cases reported as Ch. Nazar Muhammad and others v. Shafiq Ahmed Khan and others (PLD 1963 (W.P.) Lahore 23), Ramzan Ali Shah v. Mst. Razia Sultana and others (PLD 1968 Baghdad-ulJadid 1), Qurban HuSsain v. Haji Ch, Manzoor-ul Hassan (1983 CLC 201), Ghufam Muhammad v. Muhammad Jan and 4 others (PLD 1987 Azad J&K 62), Province of Punjab and 3 others v. Gul Muhammad Khan through his L.Rs, (1988 MLD 2110), Abdul Latif v. Mst. Zainab Bibi and others 1992 CLC 515, Alam Khan and 3 others v. Pir Ghulam Nabi Shah & Company (1992 SCMR 2375), Shaikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohiuddin (1996 SCMR 813), Muhammad Sarwar and 6 others v. Mst Ghulam Bi and 2 others (1997 CLC 1800), Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCMR 431), Sirajuddin v. Najamuddin (2000 CLC 467), Talib Din v. Muhammad Bashir Ahmed (2000 MLD 1124), Khadim Hussain and others v. Fazal Din (2000 CLC 1359), Azizullah Khan and others v. Gui Muhammad Khan (2000 SCMR 1647), Muhammad Ayyaz v. Faizullah Khan and 21 others (2000 MLD 1890) in support of his contentions. I have given my anxious consideration to the arguments of learned counsel for the respective parties and perused the record which reveals that the applicant could not prove his case with regard to the part payment in respect of disputed premises. The suit of the applicant for Specific Performance of Contract is based upon a sale agreement dated 21-12-1987 which was allegedly executed between the parties and was written by petition-writer namely Syed Muhammad Hassan.
2. Said Syed Muhammad Hassan expired after writing the alleged sale agreement. The trial Court in order to ascertain the truthfulness of sale agreement examined one Manzar Hussain, the son of petition writer S. Muhammad Hassan who in examination-in-chief stated that he is well- conversant with the handwriting of his father S. Muhammad Hassan, when he was shown the said agreement, he apprised the trial Court that signature appearing thereon is not of his father. In cross-examination Mr. Manzar Hussain admitted that his father used to write in Urdu and not in Sindhi, whereas the alleged agreement was written in Sindhi as such it is crystal clear that the alleged sale agreement is a forged document. The record further reveals that the applicant filed previous Suit bearing No,169 of 1985 only for permanent injunction and in that suit he did not make prayers for Specific Performance of Contract. Moreover the applicant enhanced rent from Rs,35 per month to Rs,50 per month which means that no sale agreement was written between the parties. In view if the above circumstances, both the Courts below have rightly dismissed the suit and appeal of the applicant and no material illegality or irregularity have been pointed by the learned counsel for the applicant in the judgments and decrees of both the Courts below. Consequently this revision is dismissed. Civil Revision No,26 of 2000 stands disposed of.