' This order shall dispose of R.S.A. No,49 of 1997 as also R.S.A. No,52 of 1997 as both these appeals proceed against a common judgment.
2. On 14-3-1981 respondent No,1 filed a suit against respondent No,2. In the plaint it was stated that respondent No,2 has agreed to sell the said shops to respondent No,1 for a consideration of Rs,1,00,000. Out of this amount a sum of Rs,20,000 was paid by means of a cheque and Rs,5,000 in cash by way of earnest money and respondent No,2 executed agreement dated 17-4-1980, agreeing to deliver the vacant possession of the shops to respondent No,1 and to execute its sale- deed before 16-10-1980; that on 16-10-1980 respondent No,2 did not turn up whereas respondent No,1 did present himself in the office of the Sub-Registrar, that on 25-10-1980 respondent No,2 informed the first respondent that since he has not been able to obtain possession the date for performance be extended. Consequently the date was extended to 25-2-1981, on 25-10-1980, an endorsement was made on the said agreement; that in January, 1981 possession of one shop was delivered and he is continuing in possession of said shop; that respondent No,2 had been repeatedly called upon to deliver the possession of the second shop and to execute the sale-deed but he has refused. With these averments a decree for specific performance of the agreement to sell was prayed for.
3. on 14-11-1981 the appellant filed an application in the said suit to be impleaded as a party which application was dismissed on 8-2-1983. Thereafter, on 11-11-1985 he also filed a suit for specific performance. After filing of the said suit he was impleaded as a party in the suit filed by respondent No,l.
4. Respondent No,2 in his written statement filed in Court on 14-11-1981 proceeded to admit that he did execute the agreement in favour of respondent No,1 and received the said amount of earnest money. He, however, proceeded to state that respondent No,1 had assured him that he would see to it that the present petitioner forgoes his right to enforce the agreement executed by him in his favour.
5. Appellant in his written statement pleaded that respondent No,2 had in fact executed an agreement on 13-12-1979 in his favour promising to sell the shop for a consideration of Rs,75,000 and had received Rs,50,000 as earnest money and had "partly" delivered possession of the property to him. It was further stated that respondent No,1 was fully aware of the said agreement.
6. In the suit filed by the appellant he made the said statement and sought specific performance of the same. Now according to his plaint the time for performance of agreement dated 13-12-1979 was fixed at six months from the date of execution. However, on 15-8-1980 the time was extended up to 1-3-1981 and thereafter a stay order was issued in the case filed by respondent No,l. Then it was stated that the time for performance was extended to 28-2-1982 and thereafter to 28-3-1983.
Respondent No,1 stated in his written statement that the suit is collusive and no genuine agreement exists between the petitioner and respondent No,l.
7. Both the suits were consolidated vide order dated 28-1-1989 and proceedings were conducted in the suit filed by respondent No,1 after framing of issues. Evidence of the parties was recorded. The learned trial Court vide consolidated judgment and decrees dated 23-11-1994 decreed the suit of respondent No,1 and dismissed the suit of the appellant. First appeals were filed by the appellant as well as respondent No,2. Both the said appeals were heard together by a learned Additional District Judge, Gujranwala who dismissed the same on 14-5-1997.
8. Learned counsel for the appellants contends that the evidence on record has been misread and that the learned Courts below have erred in dismissing the suit of his client and decreeing the suit of respondent No,1.
9. Records of the learned trial Court are available and I have perused the same with the assistance of the learned counsel. The agreement dated 17-4-1980 in favour of respondent No,1 is Exh.P.1 while the one dated 13-12-1979 in favour of the appellant is Exh.D.1. I have already referred to the pleadings of the parties in some detail above. Now respondent No,2 had not denied having executed the said agreement or having received earnest money thereunder. Be that as it may, respondent No,1 produced Inayat Ullah a scribe of the document as P.W.1 who stated that the document was read over to the parties and they signed the document. He also stated that the endorsement on the document tending date of performance was also scribed by him and was signed by the parties. The said statement was not questioned at all in the cross-examination of P.W.1 by respondent No,1. I may note here that this witness was examined when the appellant was not a party to the suit. By the time he became a party the witness had died. Rehmat Ali is a marginal witness of Exh.P.1 and has appeared as P.W.1 to state that the said agreement was scribed in his presence. Earnest money was paid and the document was signed. All that was suggested to him was that respondent No,2 had told respondent No,1 that there is an agreement with the appellant and he should get the same cancelled, the witness of course denied the said suggestion.
P.W.2 is Muhammad Ishaque. He was also not suggested that respondent No,2 had not executed the agreement.
10. Now in order to prove agreement Exh.D.1. The appellant produced Muhammad Amin, D.W.1. He was proceeded to state that agreement Exh.D.1 was scribed in his presence and Rs,50,000 was paid as earnest and the remaining amount was to be paid within six months and that the witness had thumb-marked the document. Now in his cross-examination this witness states that he does not know the petitioner (his name sake). He states that he does not remember as to why did he come to the market or to the scribe whose name was Anaya. He could not tells to when did scribe die. He says that respondent No,2 is known to him and it was he who told him to put his thumb- impressions. The witness does not know as to who, apart from him had thumb-marked the document. He further states that he was brought to the Court for his statement by respondent No,l.
He says that he had never met Muhammad Amin (petitioner) who lives abroad. Muhammad Ijaz Khan, D.W.2 is the attorney of the petitioner. In his examination-in-chief he has not even stated that respondent No,1 had executed the agreement Exh.D.1. In his cross-examination he states that he is not a witness of the agreement endorsement on the document. He was unable to produce a power of attorney allegedly executed in his favour by the petitioner. Then he states that Muhammad Ayub Khan, the general attorney of the petitioner, is his friend and that some of the facts were told to him by Muhammad Ayub and some he had discerned from the said document. Then he stated that he does not know anything about Muhammad Amin, petitioner. He says that he was told to him by the said Muhammad Ayub that Muhammad Amin had kept on coming to Pakistan from Saudi Arabia.
11. Having thus examined the evidence on record I find that the plea of respondent No,1 that the said document Exh.D.1 had been fabricated to defeat his suit does find support therefrom, D.W.1 admits that he does not at all know Muhammad Amin, petitioner and owes his allegiance to Muhammad Rafi, the vendor and he has managed to put in the alleged C special attorney who admits not having even met him. In this view of the matter I do not find any, misreading or non-reading of evidence on record by the learned Courts below while recording the impugned judgments and ,decrees. Both the R.S.As.Are accordingly dismissed in liming.