(2) ' On 16-4-1984 respondent No,1 filed a suit against the appellants and respondent No,2. In the plaint it was stated that respondent No,2 is the owner of suit property measuring 200 sq. Ft. Bearing No,P.98 in Ward No,6, Chak No,212-RB, Faisalabad Municipal limits and agreed to sell the same to respondent No,1 for a consideration of Rs,3,00,000. He received a sum of Rs,50,000 by way of earnest money and executed an agreement and a receipt on 16-8-1993. The balance amount of Rs,2,50.,000 was to be paid by 15-4-1984 when the sale-deed was to be executed and registered; that the basement and ground floor was delivered to respondent No,1; that towards the end of March, 1984 respondent No,1 came to know that respondent. No,2 had executed a power of attorney in favour of the appellants; that on 12-4-1984 it revealed that respondent No,2 had gifted away the suit property to the appellants on 29-3-1984 and got a gift deed registered on 10-4-1984. With these averments a decree for specific performance of the said agreement was prayed for. The suit was resisted by the appellants and respondent No,2 by filing a joint written statement. Respondent No,2 denied having entered into any agreement of sale with respondent No,1 or to have executed the said documents. It was stated that respondent No,1 who is son of respondent No,2 represented that a challan has been made regarding encroachment vis-a-vis the shade of the suit property and that some settlement is to be made and obtained his thumb-impressions on a plain paper.
Respondent No,2 denied having any money from respondent No,1; that criminal cases have been lodged in this regard. He affirmed that he had gifted away the property to his wife, the appellant and had delivered possession to her. Regarding the possession it was stated that Liaqat Ali is a tenant in the shop as also in the basement, to whom a notice under section 13-A of the Punjab Urban Rent Registration Ordinance, 1959 has been issued by the appellants; that earlier the respondent No,1 got filed a fabricated suit in the name of respondent No,2 which has since been dismissed on the statement of respondent No,2. Following issues were framed by the learned trial Court:--
(3) Whether the suit has gone infructuous after registered gift of the suit-property in favour of Mst.
Aisha Bibi? OPD
(4) Whether the suit is barred by res judicata? OPD
(5) Whether the plaintiff lacks cause of action? OPD
(6) Whether the plaintiff is estopped by conduct? OPD
(7) (5) Whether the plaintiff lacks locus standi to challenge registered gift-deed in dispute? OPD
(6) Whether the suit is frivolous and defendants are entitled to recover special cost from the plaintiff? OPD
(7) Whether the thumb-impression of Din Muhammad, the defendant No,1 of this suit were obtained on receipt-and agreement of sale dated 16-8-1983 by the plaintiff in a fraudulent manner as alleged in para.(2) (factual) of the written statement? OPP (7-A) If Issue No,7 is not proved, whether the agreement of sale is bad for want of consideration inasmuch as Rs,50,000 were not received by the defendant No,1 as advance money? OPP (7-B) Whether the plaintiff is entitled to a decree of specific performance, if so, on what terms and conditions? OPP
(8) What is the effect of registered gift-deed of the suit property in favour of Mst. Aisha Bibi? OPP
(9) Relief.
' Evidence of the parties was recorded. All the issues were found by the learned trial Court in favour of respondent No,1 and the suit was decreed vide judgment and decree dated 16-2-1991.
2. Learned counsel for the appellants contends that the pleadings as well as the evidence on record has been misread by the learned Courts below. According to the learned counsel, respondent No,1 failed to prove that respondent No,2 had validly executed. The sale agreement in his favour and that he had received the part of consideration amount. Learned counsel for respondent No,1, on the other hand, supports the impugned judgments and decrees and primarily relied upon the admission on the part of respondent No,2 in the witness-box that the defendants Exhs.P.1. And P.2 bear his thumb-impressions.
3. We have gone through the record of the learned trial Court, with the assistance of the learned counsel for the parties. The examination of the record reveals that earlier on 2-10-1984 the learned Senior Civil Judge, Faisalabad framed the following issue on merits:-
(7) Whether Din Muhammad executed sale agreement and receipt of payment dated 16-8-1983 in respect of the suit property; received earnest money Rs,50,000 and delivered possession of a portion . Of the suit property in token thereof. If so, whether he is entitled for specific performance of the sale agreement on payment of arrears of sale price Rs,2,50,000? OPP It further appears that thereafter the case was transferred to the Court of learned Civil Judge, 1st Class, Faisalabad who had been adjourning the case for recording the evidence of respondent No,1 for several dates. On 29-3-1986 the learned Civil Judge on his own proceeded to examine the pleadings and the issues and struck off the said Issue No,7 and proceeded to frame Issues Nos.7, 7-A and 7-B as reproduced above. We find that the said issues have been framed in utter disregard of the pleadings of the parties. Respondent No,2 never admitted that he thumb-marked the agreement and the receipt which are Exh.P.1 and P.2 respectively. On the other hand, his case was that he had never entered into any agreement for sale and had not received any part of the consideration from respondent No,l. He also stated that he never purchased the stamp paper for the agreement. He Then explained that respondent No,1 who is his son got his thumb-impressjons on plain papers to settle the matter of encroachment challan. The said averments have been read by the learned trial Court as if the case of respondent No,2 was that his thumb-impressions were got obtained on the agreement of sale and the receipt as allegedly scribed. The result of the said misreading is that respondent No,1 stood absolved of the burden to prove valid execution of the agreement and the receipt. The impugned judgment clearly gives the impression that the learned trial Court has proceeded on the assumption that the agreement and the receipt stood validly executed and that it was for respondent No,1 to prove that some fraud has been played in the matter. Of course the duty of the appellants and respondent No,2 was to rebut any evidence that might have been led to prove execution of the two documents but this was primarily the burden of respondent No,l. We also find that it remains unquestioned that Din Muhammad, respondent No,2 when he entered the witness-box was 100 years of,age. He reiterated his version that there was no agreement of sale and no earnest money had been received by him. It is on record that he has two sons, including respondent No,1 from the first wife while the appellant is his second wife who had borne him three sons and three daughters. No reason is forthcoming on record as to why would a 100 years old man decide to sell his property and that too to his son at the fag end. It has not at all been suggested to him that he purchased the stamp paper otherwise also there is no evidence at all on record to the purchase of stamp paper. There is no thumb-impression of the purchaser of the stamp paper at the back of the document Exh.P.1. It is true that Din Muhammad, respondent No,2, D.W.3 did admit that the agreement and the receipt bear his thumb-impressions but at the same time he reiterated that he had not agreed to sell the property to respondent No,l. It may be stated here that it was suggested to him that he agreed to sell the property to respondent No,1 for Rs,2,50,000. There is no such transaction pleaded by respondent No,1 and it is not at all clear as to whether D.W.3 was in fact confronted with the documents Exhs.P.1 and P.2. Respondent No,3 also denied in the witness-box having received any money from respondent No,1.
4. Muhammad Siddique, P.W.1 is the scribe. According to his own showing he had been convicted at least twice for forging agreements. He has not at all explained as to how he knew Din Muhammad.
He was confronted with the two documents, particularly Exh.P.W., the receipt with the suggestion that he had attempted to fit in the contents of the documents so as to adjust the thumb-mark of respondent No,2 appearing on the same. His explanation was that since only a few words were to be scribed he wrote the document in the said manner. However, upon examination it does appear that the thumb-impression were already there and the document was so written to adjust the writing in accordance with said thumb-impressions.
5. We have already stated above that there is not a word on the record as to who purchased the stamp paper for Exh.P.1 and when it was purchased. Examination of this document also reveals that the scribe had attempted to adjust the writing in accordance with the placement of the thumb- impressions of respondent No,2 on the said document.
6. So far as Qaid Jalil, P.W.3 is concerned, he was unable to tell as to how many children Din Muhammad had although he claimed to know him for 20 years. He was not even able to say as to whether Din Muhammad is 125 years of age. It is thus evident that the witness did not know Din Muhammad.
7. Learned trial Court also failed to take note of the fact apparent on record that the poor old man was made a pendulum between his said son on the one hand and the wife on the other. This is evident from the copies of the plaints filed by respondent No,1 himself. The present suit was filed on 16-4-1984 while on 30-4-1984 the said plaint Exh.P.3 was filed in Court challenging the gift deed in favour of the appellants and at the same time stating that respondent No,2 had agreed to sell the property to respondent No,1 and that he is bound by the terms of the said agreement. This suit was filed through Mina Siddique Anwar, Advocate. Vide Exh.P.10 he engaged Ch. Muhammad Sharif, Advocate on 19-5-1984 and withdrew the suit vide order dated 28-5-1984. Again on 7-3-1985 a verbatim reproduction of the said plaint was filed through same Mian Siddique Anwar, Advocate.
This time he again engaged Ch. Abdul Aziz, Advocate, and withdrew the suit on 23-4-1985, yet another plaint was filed on 29-6-1985 through the same Mian Siddique Anwar, Advocate and the suit was dismissed as withdrawn on 6-7-1989.
8. Having thus examined the record we are of the opinion that a valid execution of agreement Exh.P:1 and receipt Exh.P.2 and the receipt of earnest money by respondent No,2 has not been proved on record. The findings of the learned trial Court on Issues Nos.7, 7-A and 7-B are accordingly reversed. Under Issue No,1 we hold that the suit would not have rendered infructuous upon the registration of the gift-deed in favour of the appellants. Under Issue No,8 we hold that a registered gift-deed world not be having any effect on the merit of the case as pleaded in the plaint subject to proof of facts which have not been proved. Findings on Issues Nos.2, 3 and 4 are affirmed. Under Issue No,5 we hold that upon proof of the allegations in the plaint, the plaintiff would be having a locus standi to challenge the gift. Findings on Issue No,6 are also upheld.
9. As a result of the above discussion, this R.F.A. Is allowed and the judgment and decree dated 16- 2-1991 of the learned trial Court is set aside leaving the parties to bear their own costs.