' This judgment purposes to decide four appeals (Regular Second Appeals Nos.35, 36, 67 and 68 of 1996) filed against one and the same judgment and decrees dated 28-5-1992 and 29-11-1995, passed by Civil Judge and Additional District Judge, Lahore respectively.
2. A short factual background of the case is that Muhammad Iqbal appellant filed two suits for specific performance of contracts against the respondents claiming two agreements dated 23-4- 1979 one from Mst. Bilqees Jehan and the other from Mst. Munni Begum, agreeing to sell their respective lands measuring 1 Kanal 11 Marlas and 1 Kanal 5 Marlas situated in village Bhekewal, Tehsil and District Lahore, for aconsideration of Rs.55,000 each by receiving earnest money of Rs.13,000 each at the time of execution of the agreements, Muhammad Iqbal appellant-plaintiff also claimed in his plaint that on 21-5-1979 he paid to the said owners another amount of Rs.41,900 each towards the sale price and two separate receipts in acknowledgement of this payment were executed by both the owners. Appellant further claimed that plots No.323 and 329 Block-B, Faisal Town, Lahore, were respectively exempted by the LDA in favour of Mst. Bilqees Jehan and Mst. Munni Begum and the development charges to the tune of Rs.30,000 each were paid by him to the LDA.
He further pleaded in his suit that both the owners in order to gain illegal advantage of exemption of plots in their names, negotiated for sale of their respective plots with Fakhar-ul-Islam, who agreed to purchase those plots in the name of his daughter Mst. Munawar Sultana and consequently sale deeds in her favour were executed on 6-4-1980 and 9-4-1980 regarding both these plots at an ostensible price of Rs.18,000 each. Muhammad Iqbal claimed in his suits that sale deeds during the currency of his agreements. To sell are void, inoperative, non-existent and ineffective against his rights because he had always been ready and willing to perform his part of contract by paying the balance amount of Rs.100 each and to get the sale deeds executed, but on refusal of the above referred owners, he was coerced to file two suits for cancellation of sale deeds and for specific performance of agreement to sell dated 23-4-1979.
3. Respondents Mst. Munni Begum and Mst. Bilqees Jehan (appellants in Regular Second Appeals Nos.67 and 68 of 1996) being defendants in the suits of Muhammad Iqbal contested those by filing their separate written statement and took up about five preliminary 'objections and on merits. Inter alia, it was contended that suits were not within time and plaintiff was estopped by his own conduct to file the suits in hand assale deeds were executed with his concurrence. Other respondents, who were also defendants in the suits, contested the same by filing their separate written statement. Divergent pleadings of the parties necessitated framing of as many as 14 issues, where over respective evidence of the parties was recorded and ultimately trial Court vide its judgment and decree dated 28-5-1992 dismissed the suit filed by Muhammad Iqbal appellant.
4. Muhammad Iqbal aggrieved of the decision of the trial Court dated 28-5-1992 filed two separate appeals before the Additional District Judge, Lahore which were partly accepted, to the extent of return of his earnest money paid by him under the agreements to sell, but specific performance of contract was refused to him, by the Appellant Court vide judgment and decrees dated 29-11-1995.
Regular Second Appeals Nos.35 and 36 of 1996 have been filed by Muhammad Iqbal (plaintiff) assailing findings of two Courts below refusing specific performance of agreements dated 23-4- 1979, whereas Regular Second Appeals Nos.67 and 68 of 1996 have been filed by Mst. Munni Begum and Mst. Bilqees Jehan, respectively, assailing findings of the Appellate Court directing return of earnest money, received by them under the agreements to sell above referred.
5. Learned counsel for Muhammad Iqbal appellant submits that Appellate Court has taken divergent view, by saying that agreements to sell by Mst. Bilqees Jehan and Mst. Munni Begum are proved to have been executed and they should return the earnest money to the appellant, but at the same time refused specific performance to him, without any just cause or reason. He further submits that once the agreements to sell were proved to have been executed by the owners, specific performance to the appellant should not have been refused and the sale-deed executed by them on 6-4-1980 and 9-4-1980 are liable to be adjudged as prayed by the appellant. Learned counsel for Muhammad 'ghat appellant strenuously urged that appellant had throughout been willing and ready to perform his part of contract, but respondents Mst. Bilqees Jehan and Mst.
Munni Begum had been illegally putting off the matter but ultimately they unauthorizedly executed the sale deeds subject of dispute in favour of Mst. Munawar Sultana daughter of Fakhar-ul-Islam respondent No.
1. He further challenging the findings of the Appellate Court asserted that Muhammad Iqbal appellant did not sign the sale deeds Exh. D.27 and D.28, as a marginal witness and thus Court can very well compare his signatures with those appearing on his plaint. He in this behalf relied on two judgments of the Honourable Supreme Court of Pakistan in the cases of Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCM R 1778) and Muslim Commercial Bank Ltd. Through General Attorney and another v. Amir Hussain and another (1996 SCM R 464).
6. Controverting the submissions of the counsel for the appellant Muhammad lqbal, learned counsel for the respondents supporting appellate judgment to the extent, it refuses specific performance, urged that both the sale deeds executed by Mst. Bilqees Jehan and Mst. Munni Begum, were executed by them at the behest of Muhammad Iqbal himself who has signed those deeds as marginal witness. He claimed that the appellant Muhammad Iqbal is a property dealer and only mediated for exemption, allotment and sale of those plots, as a matter of fact, he is not a purchaser. He further submits that since sale was with the consent of the appellant Muhammad Iqbal, return of earnest money as ordered by the Appellate Court is unwarranted. He also submitted that appellant is a clever and cunning person, who has intentionally signed both his plaints in Urdu, whereas on the sale deeds he signed in English. According to him, both the sale deeds have been proved to have been executed and signed by the appellant, but the evidence produced by the respondents and there is not an iota of evidence on the file to rebut impact of this evidence. Learned counsel for the respondents (appellants in Regular Second Appeals Nos.67 and 68 of 1996) also asserts that reappraisal of evidence in second appeal by this Court is not permissible under law. He in this behalf, referred to the judgments by the Honourable Supreme Court of Pakistan in the cases of Mst. Kapoori and 4 others v. Man Khan and 6 others (1992 SCM R 2298) and Mst. Haliman Hanif Moonnoo v. Mst. Ismat Kamal and 2 others (1996 SCM R 1729).
7. I have anxiously considered the arguments of learned counsel for the parties and have examined the original record summoned in these appeals. Tahir Mehmood a Junior Clerk from LDA appeared before the trial Court and deposed that Plots Nos.323 and 329 Block-B, Faisal Town, Lahore, were exempted in the names of Mst. Munni Begum and Mst. Bilqees Jehan respectively and an amount of Rs.3033.34 each was deposited. He also stated that on 17-7-1979 amounts of Rs.12,784,78 each were also deposited towards payment of development charges. He deposed that both the agreements have been signed by Muhammad Iqbal along attorney of the owners namely, Manzoor Elahi P.W.2 Tabarak Ali deposed that agreements Exh. P.1 and P.2 were signed by him as a marginal witness., Exh. P.1 was on behalf of Mst. Munni Begum and Exh.P.2 on behalf of Mst. Bilqees Jehan, who had signed in his presence. Agha Muhammad Yaqoob appearing as P.W.3 stated that power of attorneys Exh. P.3 and P.4 on behalf of Mst. Munni Begum and Mst. Bilqees Jehan, respectively, were attested by him as a local commission. He besides proving his signatures, deposed that Muhammad Iqbal plaintiff has with him a joint office at 118 McLeod Road, Lahore and these power of attorneys were written at the instance of the plaintiff. Muhammad Iqbal plaintiff while appearing as P.W.4 stated that he purchased two plots from Mst. Munni Begum and Mst.
Bilqees Jehan foran amount of Rs.55,000 each and got executed agreements vide receipts Exh. P.1 and P.2. He also claimed to have paid Rs.41,900 per plot to them. Muhammad Iqbal was confronted with his signatures on original sale deeds, but he denied those signatures. P.W.5 Shamim Murad was produced to show that he negotiated purchase of plot with Muhammad Iqbal. This is the entire evidence produced by the plaintiff Muhammad Iqbal.
8. Appellants in Regular Second Appeals Nos.67 and 68 of 1996 produced D.W.1, G.A. Zaidi, who is scribe of sale deeds Exh. D.27 and D.28. He deposed that these sale deeds were scribed by him in response to a chit issued by Sh. Muhammad Iqbal. This witness was also appointed a local commission for attestation of these sale deeds, which were proved by him to have been executed by Mst. Bilqees Jehan and Mst. Munni Begum. D.W.2 is Muhammad Ali, who stated that he was attorney on behalf of Munawar Sultana and Fakhar-ul-Islam pertaining to Plots Nos.323 and 329 of Block-B, Faisal Town, Lahore which were purchased by them from Muhammad Iqbal plaintiff. He further deposed that Muhammad Iqbal received the sale consideration of both the plots, which was Rs.1,75,000 He also stated that the amount paid to Muhammad Iqbal was given to him by the purchasers of those plots. D.W.3 is Fazal Azeem who stated that Mst. Munni Begum is his mother and Mst. Bilqees Begum is his wife, and he is their constituted attorney, who had sold their plots in favour of Muhammad Iqbal plaintiff and the price was paid by Manzoor Elahi. He deposed that plaintiff and Manzoor Elahi had been doing on their behalf the exemption work. He also stated that fictitious and fake documents Exh.P.5 and P.6 were prepared to bring the suit within limitation. D.W.4 is also a marginal witness of sale deeds Exh. D.27 and D.28.
9. Plaintiff was re-examined as P.W.4 on 9-10-1992 who stated that certified copies Exh. P.16 and P.17 of the sale deeds were executed without his consent. He admitted that he has studied up to B.A.
10. From the evidence discussed above, it is manifest that Muhammad Iqbal appellant did sign sale deeds Exh. D.27 and D.28, chit Exh.D.20, which was written by him and the agreements with LDA.
These sale deeds were executed in 1980 and were within his knowledge but no step for adjudgment of the same or for some criminal action against the persons who forged his signatures, were taken.
These documents are registered and have a presumption of correctness in them, though rebutable but there is nothing on the file to show that these signatures are not that of the appellant Muhammad Iqbal. Appellants in Regular Second Appeals Nos.67 and 68 of 1996 and purchasers have brought evidence on the file that Muhammad Iqbal did sign these documents whereafter onus was on his shoulders to show that those signatures are not in his handwriting. Mere denial of those were not enough to shatter the impact of evidence brought on the file to show as noted above. Muhammad Iqbal appellant could have very well applied to the Court for comparison of his, signatures over the sale deeds in question, but he did not deliberately opt this course. He has studied up to graduate level and being a property dealer, as deposed by the witnesses, was trained in the field. His signing of plaints in Urdu speaks volumes because a literate person, like him, in this age, will not sign in Urdu and it was intentionally done by him to avoid comparison of his signatures by some handwriting expert or the Court. From evidence it has rightly been noted by the Appellate Court that sale deeds Exh. D.27 and D.28 were executed with the consent of the appellant Muhammad Iqbal and he is estopped to now turn back and to seek cancellation of those sale deeds and pray for specific performance of the agreements, which have already matured into sale deeds in hand. I am of the view that these sale deeds were executed by the owners with the concurrence of the appellant Muhammad Iqbal who was just a negotiator and thus was not entitled to return of any earnest 'money because the sale deeds were matured on his agreements to sell and it is, in the evidence that he had received money at the time of execution of those deeds. Both the Courts below have rightly returned their findings refusing specific performance toMuhammad Iqbal, who is not proved to have been pursuing the suit in hand with clean hands. He is not entitled to the relief claimed. Refusal ofrelief of specific performance by both the Courts below is not taintedwith any illegality, misreading or non-reading of the evidence on the file, in absence of which no interference is called for in second appeal.Besides it, Courts below have not committed any illegality calling for interference, thus their findings to this extent are affirmed. As far as order of return of earnest money by the Appellate Court, is concerned. I set aside those findings as those run counter to the evidence on the file.
11. For reasons narrated above, I hold that though agreements to sell dated 23-4-1979 were executed but those matured into the sale deeds Exh. D.27 and D.28, to which Muhammad Iqbal appellant is signatory and having received consideration at the time of their execution, is not entitled to refund of anything, as the same is not due. Consequently, I accept both the appeals Regular Second Appeals Nos.67 and 68 of 1996 and dismiss the suits, as well as Regular Second Appeals Nos.35 and 36 of 1996 of Muhammad Iqbal appellant, having no merit in those. In view of the fact that judgments regarding refund of earnest money of both the Courts below were at variance, parties are left to bear their own costs.