1. ' By this common order I intend to dispose of the above revisions as the same are arising out of the consolidated judgments and decrees of both the Courts below.
2. ' Through the above civil revisions under section 115, C.P.C. The learned counsel for the applicant has challenged the legality, propriety and correctness of the judgment, dated 15-5-2001 and decree dated 19-5-2001 passed by learned IInd Additional District Judge, Sukkur whereby he dismissed Civil Appeals Nos.33 and 34 of 2000 filed by the applicant against the judgment and decree, dated 31-8-2000 passed by the learned 1st Senior Civil Judge, Sukkur whereby he dismissed the F.C. Suit No,53 of 1991 and F.C. Suit No,141 of 1991 filed by the applicant against the respondent for specific performance of contract.
3. ' The facts as unfolded in the suit are that applicant filed F.C. Suit No,53 of 1991 for specific performance of contract against defendant/respondent Muhammad Ibrahim in which she has stated that she had entered into an agreement of sale on 4-3-1989 with the defendant/respondent, wherein the defendant sold his house consisting of two survey numbers bearing B-1221-22 situated at Macher Gali Mohallah Sat Charab, Rohri in the sum of Rs,60,000 and the plaintiff/applicant paid Rs,30,000 as earnest money to the defendant/respondent. The defendant/respondent delivered the possession of the house to the plaintiff/applicant and remaining balance of Rs,30,000 was required to be paid by the plaintiff to the defendant/respondent. The defendant/ respondent later on changed his mind and wanted to sell the property in dispute to an other person who issued threats to the plaintiff/applicant to pay Rs,70,000 more towards the sale consideration in spite of Rs,30,000. As remaining balance. The 'plaintiff has spent a huge amount of Rs,80,000 on the repair and construction of the house. The plaintiff approached the defendant/respondent time and again for execution of sale-deed but he refused, which constrained the plaintiff/applicant to file suit with the prayer that the defendant/respondent be directed to register sale-deed in favour of plaintiff at his own cost in terms of agreement, dated 4-3-1989 and in case of his refusal Nazir of the trial Court may be deputed to execute the sale-deed in favour of the applicant and for injunction that the defendant may be restrained not to sell, transfer, mortgage, alienate and interfere with the possession of the property bearing C.S. No,B-1221 and 22 in any manner whatsoever.
4. ' On service of notice upon the defendant/respondent, he filed his written statement in which he denied the allegations and stated that the plaintiff in fact was put in possession of House No,B-1221 as tenant on 1-6-1989 at the rate of Rs,250 per month. The plaintiff has encroached upon the premises bearing C.S. No,1222 by entering in the house illegally. The plaintiff has also removed the valuable articles illegally from the disputed premises and has damaged the property and articles lying in the Property No,B-1221 and B-1222. It was also stated by the' defendant that the plaintiff has filed the said suit with mala fide intention only to harass the defendant to get the premises through coercive methods as no cause of action has accrued to the plaintiff to file the suit. In further pleas the defendant has stated that he is owner of the property bearing C.S. No,1221 and B-1222 and his ownership continues till today. The suit property consists of two separate premises having separate structure buildings and entrances but are adjacent to each other and belong to same owner. The premises bearing No,C.S. No,B-1221 was rented to the plaintiff, whereas the other premises was in personal use of defendant but due to the law and order situation the defendant having no other alternate but to leave the house by locking and shifted to other Mohalla to save his families lives. The plaintiff few weeks prior to the filing of the suit encroached over the premises bearing C.S. No,B-1222 and has filed this suit to get legal cover from this Court by illegal methods.
5. The defendant has filed Rent Application No,6 of 1991 against the plaintiff and other in respect of C.S. No,B-1222 which is pending. No agreement of sell or any other document has ever been executed by the defendant in respect of suit property in favour of plaintiff or any other person, hence all is fraud,and incorrect as claimed by the plaintiff. The defendant has not received Rs,60,000 from the plaintiff in respect of sale of premises or even he has not agreed to receive Rs,30,000 or any more amount from the plaintiff. The defendant has not promised or agreed to execute the sale-deed in favour of plaintiff. The suit in the circumstances is not maintainable and is liable to be dismissed with special cost.
6. ' The respondent has also filed a suit bearing No,141 of 1991 for possession, damages and mesne profit against applicant Mst. Hameeda and others, in which he has stated the same facts as he stated in his written statement in F.C. Suit No,53 of 1991 and claimed that the defendant No,1 Mst.
7. Hameeda is his tenant in Property No,B-1221 and she has forcibly trespassed the property of defendant/respondent bearing C.S. No,B-1222 by breaking/opening the lock as the defendant (plaintiff in Suit No,141 of 1991) about two years back locked the door of disputed property and also left his household articles and many other things in the said property which has also been sold out by plaintiff (defendant in Suit No,141 of 1991) Mst. Hameeda with the help of others and misappropriated the same. The defendant/respondent, therefore, prayed for possession of the disputed property and mesne profit at the rate of Rs,500 per month from February, 1991 and damages.
8. ' The defendant in Suit No,141 .Of 1991 has filed her written statement and the defendant No,4 in the same suit has also filed her written statement. In the written statement Mst. Hameeda stated similar facts as stated by her in her plaint of Suit No,53 of 1991 while the defendant No,4 has admitted the claim of Muhammad Ibrahim.
9. ' Upon pleadings of the parties the learned trial Court has framed the following consolidated issues:-- "(1) Whether the House bearing C.S. No,1221 and 1222 was sold by Muhammad Ibrahim to Mst.
10. Hameeda under an agreement of sale dated 4-3-1991?
(2) Whether Mst. Hameeda paid Rs,30,000 to Muhammad Ibrahim as earnest money and received the possession of house in pursuance of agreement?
(3) Whether Mst. Hameeda is tenant of the House B-1221 and encroacher for the Premises No,B.-1222?
(4) Whether Muhammad Ibrahim is entitled to the possession of Premises No,B-1222 as well as the amount of damages and mesne profits as claimed?
(5) Whether Mst. Hameeda is entitled to the relief as claimed by her?
(6) Whether any of the suit is not maintainable?
(7) Whether the suit of either party is undervalued?
(8) What should the decree be?
11. ' In order to prove their respective cases both the parties led their oral and documentary evidence and after hearing learned counsel for respective parties the learned trial Court dismissed the Suit No,51 of 1991 of the applicant and decreed the Suit No,141 of 1991 of the respondent.
12. ' The applicant being aggrieved by the judgment and decree of the trial Court filed civil appeals which were dismissed by the learned IIIrd Additional District Judge, Sukkur and maintained the judgment and decree of the learned trial Court as referred above.
13. ' I have heard the learned counsel for the respective parties and perused the record.
14. ' It has been contended by the learned counsel for the applicant that the impugned judgments and decrees of both the lower Courts are against the facts of the case and contrary to law. It has further been contended by him that the findings of trial Court as well as lower Appellate Court are with the result of misreading and non-reading of evidence which is against the settled principles of law. It has also been contended by him that both the Courts below have acted in exercise of their jurisdiction with material illegality and irregularity, while passing the impugned judgments and decrees and the same are contrary to the facts and unwarranted by the law. The learned counsel argues that the learned trial Court has not recorded the finding on Issue No,3 and burden of proof was lying upon the respondent, therefore, the impugned judgments and decrees are not sustainable under law. Learned counsel for the applicant has relied upon the cases Badar Zaman v. Sultan 1996 CLC 202, Maj. Rashid Beg v. Rehmatullah Khan and 4 others PLD 2001 SC 443, Mst.
15. Rehana Begum v. Karam Hussain 2002 M LD 65, Board of Intermediate .And Secondary Education, Lahore through Secretary v. Miss Ghazala Roohi 2002 M LD 1966, Muhammad Bakhsh v. Ellahi Bakhsh 2003 SCM R 286 and Muhammad Yousuf and others v. Haji Murad Muhammad and others PLD 2003 SC 184 in support of his contentions.
16. ' On the other hand Mr. Riaz Ahmed Qureshi learned counsel appearing on behalf of the respondent has vehemently opposed the above revisions. It has been contended by him that the findings of both Courts below are based on material facts and evidence brought on record. He argues that the applicant pointed out that she has purchased the suit property by virtue of sale agreement by paying Rs,30,000 towards part payment of the sale consideration and in support of her statement she had produced receipt of payment and from perusal of these documents it would reveal that those were written at the same time by one Munshi Muhammad Ibrahim and attested by Notary Public namely Muhammad Ibrahim Memon and the same is with different pens/ink. Moreover, the applicant has failed to produce said Notary Public Muhammad Ibrahim Memon for his evidence in order to prove the said agreement to be true. The learned counsel also argued that the applicant's witness Gul Hassan has stated that it is correct that Iqrarnama was not attested by any Notary Public or from any Advocate, therefore, her evidence does not inspire confidence. The learned counsel further argued that the applicant had also not examined the witness of the alleged receipt. The burden, of proof was lying upon the plaintiff/applicant to prove its genuineness but it has not been done by her. The learned counsel stressed upon the dismissal of both the above revisions. ; I have given my anxious consideration to the arguments of learned counsel for the respective parties and perused the record which shows that Gul Hassan, witness of the plaintiff in his cross- examination Exh.104 admitted that the said Iqrarnama was not attested by any Notary Public or any Advocate. He also admitted that the Stamp Paper on which the alleged Iqrarnama was executed was purchased by the plaintiff herself. The said witness also admitted that Iqrarnama is forged one. The plaintiff Mst. Hameeda in her cross-examination Exh.90 has stated that she was with the defendant/respondent at the time of attestation of alleged sale agreement but could not say that who has attested the said sale agreement. The above assertions of applicant/plaintiff and her witness create doubt about the genuineness of alleged sale agreement/ Iqrarnama, therefore, both the learned Courts below were right to dismiss the suit and appeal of the plaintiff.
17. ' In view of the above circumstances, I find no illegality or irregularity in the impugned judgments and decrees of the trial Court as well as lower Appellate Court, which could justify this Court to reverse their findings under its revisional jurisdiction. Consequently, both the civil revisions are dismissed in limine.
18. ' Civil Revisions Nos.63 of 2001 and 64 of 2001 stand disposed of.