Appellants' suit for specific performance was allowed by the learned Civil Judge, through judgment and decree, dated 29-1-1994; appeal filed by the respondents has been allowed and by setting aside the judgment and decree of the trial Court, the suit has been dismissed.
2. Briefly stated the facts of the case are that the appellants on 16-4-1989, brought a suit for specific performance with regard to 12 acres and 4 Kanals of land, situated in Chak No,235/JB, Tehsil Chiniot, District Jhang claiming that the respondents' predecessor-in-interest, Mst. Khadija, through her attorney Ahmed Shah, had sold the suit-land in favour of the appellants, for a consideration of Rs,1,30,000 out of which Rs,71,000 were paid to Ahmed Shah, through various drafts, whereas for Rs,59,000 the dues of the department was paid, because Mst. Khadija was the allottee in lieu of her land, which was acquired for Islamabad Capital and she being affectee, has been allotted the aforesaid land and not paid some dues. The suit was contested by the respondents Ahmed Shah and Mst. Kandija and in the defence, they denied the agreement of sale between the parties; besides they also took up the plea that through agreement, dated 12-1-1986, the land had been agreed, to be sold in favour of one Ali Ahmed. Anyhow, issues were framed; parties were put to trial and the appellants examined Ali Sabir Jaffari, Bank Manager of Amin Pura Branch Faisalabad, who produced in evidence Exh.P.1 to Exh.P.6, the drafts amounting to Rs,71,000 in the name of Ahmed Shah. P.W.2, Muhammad Shafiq Nisar, the clerk of the Colony Department and has placed on the record Marks "A", "B" and "C". The alleged application of Mst. Khadija before the Commissioner, admitting the sale agreement, which is stated to have been marked to the Deputy Commissioner, on which her statements was recorded, acknowledging the agreement to sell.
Zulfiqar Ali (P.W.3) is the scribe of Exh.P.7, the alleged agreement of sale-cum-receipt, dated 8-10- 1986. P.W.4 is Mian Muhammad Shafiq, who is stated to have sold a diesel engine to the appellant, which was installed at the site. P.W.S.Abdul Ghafoor, is the witness of installation of the engine, whereas P.W.6, Nazir Ahmad, claims to have bored the land, for that purpose. P.W.7 is one of the appellants himself.
3. Conversely, respondents examined D.W.1, Khan Bashir, who is the scribe of the agreement to sell, (Exh.D.1) between Khadija and Ali Ahmed. Ahmed Shah appeared as D.W.2, Mehmoor Khan is one of the marginal witnesses of the agreement to sell (Exh.D.1) between Khadija with Ali Ahmed, Umer Hayat is the attorney of Mst. Khadija appeared as D.W.4.
4. On the basis of the evidence on the record, the learned trial Court concluded that the appellants have been able to prove the agreement to sell and resultantly, decreed the suit; aggrieved of the above, respondents preferred an appeal and as mentioned above, the learned Appellate Court set aside the impugned judgment and decree and dismissed the suit.
4-A. Learned counsel for the appellants contends that the Court of appeal has misread the evidence on the record, the bank drafts have been admitted by Ahmed Shah while appearing as D.W.2; however, he states that this amount was returned to the respondents, because the transaction could not get through, but there is no proof on the record about the return of the amount, therefore, consideration to the extent of Rs,71,000 stands established corroborating the proof of agreement to sell as well. It is also stated that the balance amount of Rs,59,000 has also been acknowledged through agreement-cum-receipt Exh.P.7, which has been duly proved by Zulfiqar Ali Rana. It is also argued that the agreement to sell has further been proved through the statement of Shafiq Nisar, Clerk of Colony Department, who has brought on record, application, of Mst. Khadija Mark "A", her statement before the Deputy Commissioner Mark "B" and Mark "C" thus in the light of above, the agreement to sell having been established, the appellants in law and equity were entitled to a decree of specific performance of the agreement to sell, particularly, in the situation, when in the other agreement to sell, the possession had also been delivered to the appellants as is proved through the statements of P.W.4, P.W.6 and as also P.W.7 himself; besides, earlier respondents had moved to the Collector for seeking ejectment of the appellants, but this application was rejected on the score that the appellants are not in possession as tenants rather on the basis of agreement to sell and such order has not been challenged by the respondents any further.
5. Heard. The main thrust of the appellants is on Exh.P.7 but this document has not been proved in accordance with law; the document was neither [Mentioned in the plaint, nor appended alongwith the suit or relied upon. Even earlier, the appellants had filed a suit for permanent injunction, but this document was never mentioned therein. Moreover, the marginal witness of the document has not been examined for any good reason, Zulfiqar Ali, claims to be non-professional but document itself shows that it has been written by a person, who was well-conversant with the art of deed writing.
This document is unstamped; not registered with the Sub-Registrar or incorporated in any register of the professional licensed deed-writer. Above all, this document was referred by the Court, for the opinion of the Handwriting Expert the Expert reported and appeared before the Court as C.W.I, and deposed that the signature attributed to Ahmed Shah, are not in his handwriting; there is no rebuttal of this evidence. I myself compared the signatures of Ahmed Shah on the admitted general power of attorney Exh.D.2, but those do not tally with his signature on the receipt Exh.P.7.
Moreover, no evidence has been brought on record to prove, in which year, month, the day, the time and the venue, the agreement to sell was negotiated between the appellants and Mst.
Khadija or her attorney, the application and statements of Mst. Khadija before the Colony Department only for the reason that certified copy has been brought on record by itself does not stand proved these documents, through the statement of Shafiq Nisar, who is only a clerk in the Colony Department and does not personally know the lady. Even otherwise, application which the appellants moved before the Commissioner, is undated; there is no order if this application was referred by the Commissioner to the Deputy Commissioner for the purpose of recording statements of Khadija and under what authority or the orders of the superior her statements were recorded. Thus, these three documents mark "A" to Mark "C", are not sufficient to prove the case of the appellant.
6. It may be pertinent to state here, that right from the beginning the respondents have taken up the plea that Mst. Khadija had already agreed to sell the suit-land in favour of one Ali Ahmed, through agreement, dated 12-1-1986, which is prior in time, than the alleged agreement to sell of the appellant. But at no stage, any attempt was made to implead Ali Ahmed as party to the suit. As regards the question about the receipt of drafts is concerned, suffice it to say that as per Ahmed Shah, as transaction could not materialized, therefore, the amount was returned, but there is no evidence, if the amount was returned, either through cash or by cheques; etc. In any case, the preparation of the drafts and handing over those to Ahmed Shah, by itself is not a conclusive proof of the transaction having been entered and finalized when it is not supported by any documentary evidence as, discussed above. Moreover, there is no oral evidence as well to prove the agreement, especially, when the month, day, date and the venue of the transaction has not been proved.
Anyhow, if Ahmed Shah has received those drafts, which were otherwise not in the name of original vendor of the property, but has not returned the amount, at the most, the appellants are entitled to seek the recovery of this amount from Ahmed Shah. No case for interference in the second appeal is made out.
' In the light of above this appeal has no force and the same is hereby dismissed.