SYED SAKHI HUSSAIN BUKHARI, J.-This appeal is directed against the judgment dated 23.12.2000 passed by learned Civil Judge, Daska District, Sialkot whereby suit for specific performance of contract brought by Azhar . Mehmood, respondent/plaintiff against the appellant/defendant was decreed in his favour.
2. Relevant facts for the disposal of this appeal are that Azhar Mehmood, respondent/plaintiff filed a suit for specific performance against Inayat Masih, appellant/defendant and stated that defendant was owner of suit land (measuring 161 Kanals, T1 Marlas, Khewat No. 99, Khatuni No. 165 situated in Village Mallianwala Tehsil Daska) and he agreed to sell the same in his favour for a consideration of Rs.40,00,000/- and executed agreement to sell dated 13.10.1997 in his favour, after receiving Rs.38,00,000/- as earnest money. He further stated- that it was agreed upon between - the parties that defendant would get registered ^ the sale-deed on 2.12.1997 after receiving remaining sale price (Rs.2,00,000/-) but . Later on he (defendant) refused, therefore, he was constrained to file suit. Inayat Masih, defendant/appellant mentioned in written statement that plaintiff had no locus standi to file suit and that suit was false, frivolous and vexatious. He maintained, that plaintiff used to visit his house and he paid Rs.3,25,000/- to his son Wasim Sarwar for getting Visa of USA but Wasim Sarwar did not, provide him Visa, therefore, he (plaintiff) threatened him with dire consequences and obtained his signature and thumb- impression on blank stamp paper for preparation of agreement for payment of Rs.3,25,000/-. He asserted that he paid Rs.3,25,000/- to plaintiff in the presence of respectables but plaintiff did not return him blank stamp paper. The defendant averred that plaintiff had prepared agreement to sell in question through fraud to usurp his valuable property because neither he agreed to sell suit land in his favour nor received earnest money (Rs.38,00,000/-). The defendant/appellant stated that he was still owner of the suit land. On the pleadings of the parties, learned Trial Court framed following issues:- ISSUES:-
(1) Whether the plaintiff is entitled to the decree on the basis of agreement to sell dated 13.10.1997?
OPP
(2) If issue No. 1 is not proved whether the plaintiff is entitled to have Rs.76,00,000/- in' alternative?
OPP
(3) Whether the plaintiff has got no locus standi and cause of action? OPD .
(4) Whether the plaintiff is estopped by his on word and conduct? OPD
(5) Whether the suit is false and frivolous hence is liable to be dismissed with special costs? OPD
(6) Relief: The parties adduced evidence in support of their respective claims. After hearing the parties learned Trial Court decided issues NOs. 1 and 2 in favour of plaintiff/respondent whereas issues Nos.
3 to 5 were decided against the appellant/defendant and decreed the suit brought by respondent/plaintiff vide judgment dated 23.12.2000. Hence, this appeal.
3. We have heard the arguments and perused the record.
4. As mentioned above plaintiff/respondent had filed suit for specific performance against Inayat Masih. The case of plaintiff is that defendant was owner of suit land and he agreed to sell the same in his favour for a consideration of Rs.40,00,000/- and executed agreement to sell dated 13.10.1997 (Ex. P.1) after receiving Rs.38,00,000/- and agreed to get registered sale-deed on 2.12.1997 after receiving remaining sale price (Rs.2,00,000/-). However the case of appellant/defendant is that he never agreed to sell suit land in favour of respondent/plaintiff and that neither he received earnest money (Rs.38,00,000/-) nor executed aforesaid agreement (Ex. P.1) in his favour. The plaintiff produced Mr. Muhammad Anwar Hundal, Advocate as PW.1 who stated that he knew the plaintiff.
He further stated that parties met him and asked him to write agreement but he asked his clerk (Munshi) to write the same. The witness deposed that his clerk had written agreement, Ex. P.1 in his absence but the same bears his signature. During cross-examination he admitted that he had no register for' making entry of agreement. He stated that he did not know the defendant personally.
The witness further stated that Inayat Masih (appellant) had not signed or thumb-marked Ex. P.1 in his presence and nothing had been paid in his presence. It shows that he has contradicted the version of plaintiff. Even otherwise according) to his statement Ex. P.1 was written by his clerk (Munshi) but Ex. P-1 does not bare signature of his clerk rather it has been mentioned in the margin of Ex. P.1 that he (PW.1) is the scribe of the same, It is clear from the statement of PW.1 that Ex. P.1 is based on fraud. PW.2, Muhammad Yousaf, stated that he had written Ex. P.1. However, the same does riot bear his signature, therefore, his statement has no value. PW-3, Muhammad Alam is marginal Witness of Ex. P.1. He stated that Ex. P.1 was written at the instance of Inayat Masih and he (Inayat Masih) signed the same and received Rs.38,00,000/- in his presence. During cross- examination he admitted that he did not know Inayat Masih and that he knew Azhar Mehmood, plaintiff. He also admitted that Muhammad Anwar Hundal., Advocate (PW.1) had not signed Ex. P.1 in his presence and document (Ex. P.1) was not entered in any register of the scribe. The witness stated that suit land was situated in Village Mallianwala Tehsil Daska and Inayat Masih, defendant too resided there in village Mallianwala. He admitted that Lumberdar or any respectable of the area was not with Inayat Masih. He denied that thumb-impression of Inayat Masih was obtained before writing and that he alongwith Azhar Mehmood, Afzal and Muhammad Anwar. Hundal, Advocate prepared Ex. P.1 collusively. PW-4, Muhammad Afzal also made similar statement. During cross-examination he admitted that he did not know Inayat Masih before writing Ex. P.1. He stated that he was present in the house of plaintiff and he took him alongwith Inayat Masih to the Kacheri.
The witness deposed that Muhammad 'Anwar Hundal, Advocate asked his clerk (Munshi) to write agreement and went away and did not come back. He clearly stated that Muhammad Anwar Hundal, Advocate had not- signed Ex. P.1 in his presence. The plaintiff appeared as PW.5 in support of his version. During cross-examination plaintiff admitted that Ex. P.1 was not written in the presence of Muhammad Anwar Hundal, Advocate. As mentioned above Ex. P.1 shows that it was written by Muhammad Anwer Hundal, Advocate (PW.1). However according to statement of plaintiff it was written in his absence. So it becomes crystal clear that this document (Ex. P.1) was prepared through fraud only to deprive the defendant of his property.
5. The most important aspect of the case is that the plaintiff has not examined any witness of bargain. The' case of respondent/plaintiff is that he paid Rs.38,00,000/- but it is very strange that he did not think it proper to get registered agreement to sell in question. Moreover, admittedly defendant/appellant was resident of village Mallianwala Tehsil Daska District Sialkot whereas agreement to sell in question was executed at Gujranwala, which makes the case of the respondent/plaintiff doubtful. Even otherwise it does not sound to be natural that a person would go to other District alone for receiving Rs.38,00,000/- in cash.
6. The defendant examined DW.2, Aziz Gul ir support of his version. He clearly stated that plaint had to get Rs.3,25,000/- from defendant's son and had handed over to him a blank stamp paper. Inaya.
Masih, appeared as DW.3 in support of his version. The statements of DW.2 and DW.3 are convincing and confidence inspiring and there is nothing on record to disbelieve the same. Even otherwise as mentioned above, It is clear from the evidence of the plaintiff that defendant/appellant never agreed to sell suit land in his favour. Also that agreement to sell, Ex. P.1 is based on fraud. The appellant is still in possession of the suit land. As such we find that suit brought by plaintiff/respondent could not be decreed on the basis of agreement to sell dated 13.10.1997. He had no locus standi and cause of action to file suit and his suit is false and frivolous, In these circumstances we find that Trial Court had decided issues Nos. 1 to 5 without evaluating the evidence of plaintiff. As such findings recorded by Trial Court on aforesaid issues are set aside and the same are decided in favour of defendant.
7. The upshot of the above discussion is that appeal brought by appellant is accepted, impugned judgment and decree is set aside and suit brought b" plaintiff/respondent is accordingly dismissed. As stat- earlier suit brought by respondent/plaintiff is false frivolous, therefore, he is directed to pay Rs.50,000 as costs to the appellant.