' This second appeal impugns the concurrent findings rendered by the learned Civil Judge, Narowal dated 22-6-1995 and by the learned Additional District Judge, Narowal dated 2-8-2000.
2. The facts of this case are straightforward. The appellant, namely, Babu was owner of the suit- land measuring 33 Kanals, 2 Marlas situated in Mauza Bhatti Aulakh, Tehsil and District Narowal. The respondent Ghulam Rasool filed a suit against Babu to seek possession of the suit-land through specitit, nerformance of an agreement dated 3-2-1985 (Exh.P-1) executed in his favour by Babu.
Under the terms of the agreement, Rs,90,000 were stated to be paid as the consideration for the sale, out of which Rs,60,000 were paid as earnest money. The remaining Rs,30,000 were to be paid on the registration of the sale-deed in favour of Ghulam Rasool. It was stipulated in the agreement that 'a part of the land had been mortgaged in favour of the Federal Government and that the sale-deed would be executed after Babu had redeemed the mortgage. For this purpose, a period of one year was allowed for consummation of the transaction.
3. As Babu did not comply with the terms of the agreement Ghulam Rasool respondent/plaintiff filed the suit, out of which the present appeal arises. Babu appellant/defendant filed a written statement. He did not expressly deny having executed the agreement. Instead in paragraph 1 of the written statement on merits, it was stated that the agreement Exh.P-1 was not authentic and if Babu defendant had affixed his thumb-impression thereon, this was a result of fraud and deception.
4. Based on the pleadings of the parties, the learned trial Court framed six issues. However, before me, learned counsel for the appellant confined his arguments to Issues Nos.1, 2 and 3 only which were framed in the following terms:--
(1) Whether parties entered into any agreement to sell in respect of suit property?
(2) If Issue No,1 is proved then what was the consideration amount agreed upon?
(3) Whether any earnest amount have been paid at the time of alleged agreement if so how much and with what effect?
5. I have gone through the entire oral and documentary evidence on the record, with the assistance of both learned counsel. Ghulam Rasool produced the scribe of the agreement, namely, Abdul Latif as P.W.-1. He stated in his testimony that the agreement had been prepared on the asking of Babu, who had brought the stamp paper with him. Learned counsel for the appellant pointed out that in his testimony, P.W.-1 had acknowledged that the agreement Exh.P-1 had been written by his son and, as such, he could not be termed as the scribe of the agreement. This is hardly relevant because the witness is the licensed scribe and his son had actually written the agreement, although the witness says that the writing was done in his A office through his son. One of the marginal witnesses to the agreement Muhammad Younas also appeared as P.W.-3. He proved IA the execution of the agreement.
6. Most importantly, however, the thumb-impressions of Babu on the front and back of the agreement Exh.P-1 were examined by the Finger Print Bureau. The report of the Finger Print Bureau was proved through Bashir Muhammad D.W.4. The report confirms that the impression under the endorsement of the Stamp Vendor at the back of Exh.P-1 is the left thumb-impression of Babu.
From this, it is established that the stamp paper was, in fact, purchased by Babu. The entry of the Stamp Vendor also shows that the paper was meant B for an agreement by Babu in favour of Ghulam Rasool. This circumstance also tallies with the testimony of P.W.-1 that Babu had brought the stamp paper with him.
7. Learned counsel for the appellant, however, emphasized the fact that the thumb-impression Exh.P-1/1 appearing on the face of Exh.P-1 had not been proved in the Finger Print Report to be that of Babu. Here it needs to be mentioned that the report Exh.D.4 states that this thumb-impression is slided. In his cross-examination, D.W.4 has stated that he cannot state with certainty if the said thumb-impression Exh.P.1/1 showed shifting.
8. Learned counsel for the appellant also referred to the fact that the second marginal witness had not been produced to prove Exh.P-1 and nor had the Notary Public, who, according to the respondent/plaintiff, had attested the agreement. The second marginal witness could not be produced as he was stated to have died. There is nothing on record to suggest that the second witness had not, in fact, died. As to the testimony of the Notary Public, the same was not essential for the purpose of proving execution of Exh.P-1 if the document could be proved through other evidence.
9. Learned counsel for the respondent Ghulam Rasool 'drew my attention to the suggestion put to the witness during his testimony that Babu had demanded Rs,20, 000 initially as earnest money for the sale. From this, it can be inferred that the agreement itself was not denied. P.W.-3, the marginal witness, also testified that Babu had initially asked for Rs,20, 000. the respondent, however, stated that if the transaction was formally recorded, an amount could be paid. It is thereafter that the agreement Exh.P-1 was inscribed and executed at which time Rs,60, 000 were paid as earnest money to Babu.
10. It is important to note, firstly, that the thumb-mark of Babu on the agreement Exh.P-1 has not been expressly denied in the written statement. Furthermore, vague assertions have been made as to fraud and deception without giving any particulars. Secondly, the Purchase of the stamp paper by Babu is clearly established. There is some ambiguity as to the thumb-mark of Babu Exh.P-1/1 on the face of the agreement. This ambiguity has arisen on account of the fact that the thumb-impression was not clear on account of it having D shifted.
11. In view of the foregoing discussion, I find that the concurrent judgments and decrees of the two Courts below are not open to exception. As a result, this appeal is dismissed.