PLJ 2021 Lahore 577
Present: Ch. Muhammad Iqbal, J.
MUHAMMAD AMJAD etc.--Appellants
versus
ABDUL GHAFOOR etc.--Respondents
R.S.A. No. 162 of 2014, decided on 18.2.2019.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 9 & 12--Civil Procedure Code, (V of 1908), S. 100--Suit for possession through specific performance--Decreed--Appeal--Dismissed--Sale agreement--Deniel of sale agreement and receiving of amount--Possession of appellant on suit land--Non-producing of stamp vendor and deed writer in evidence by respondent--Non-proving of execution of sale agreement--Contradiction in statements of PWs--Non filing of any application by respondent for comparison of thumb-impression--Challenge to--When respondent paid a huge amount why he did not get possession of suit land--Admittedly appellants are still in possession of suit land--Liaqat Ali, real son of Muhammad Sharif deceased, while appearing as P.W.3 stated that bargain was completed in his 'bethak' whereas respondent stated that bargain was completed in 'bethak' of Muhammad Sharif--Respondent has no knowledge regarding whereabouts of land--One marginal witness namely, Abdul Majeed, appearing as P.W.2, stated in his cross examination that he has no knowledge that how much amount is still payable to defendants--Neither stamp vendor nor deed writer was a produced by respondent--Appellate Court dismissed appeal on sole ground that appellant has not put any suggestion to plaintiff witnesses to effect that alleged agreement is a false and forged document--Judgment passed by appellate Court judgment is clearly based on misreading and non-reading of evidence--Respondent failed to prove execution of execution of alleged agreement to sell through any solid, unimpeachable and concrete evidence--Evidence of respondent is also not in line with P.Ws--Respondent also did not file any application for comparison of thumb impression of Muhammad Salman, as such, respondent has failed to prove execution of agreement Exh P-l under law--Courts below, while passing impugned judgments & decrees, committed misreading and non-reading of evidence, illegality and material irregularity, as such, same are not sustainable in eye of law and can be upset--Appeal allowed. [Pp. 581 & 582] A, B, C, D, E, F & G
PLD 2015 SC 187, PLD 2011 SC 241, 2010 SCMR 1630 and
2016 SCMR 24 ref.
Mr. Muhammad Irshad Malik, Advocate for Appellants.
Rai Ashfaq Ahmad Kharal, Advocate for Respondent No. 1.
Mr. Abid Mehmood Mirza, Advocate for Respondents No. 2
and 4.
Mirza Khalid Mehmood, Advocate for Respondent No. 3.
Date of hearing: 18.2.2019.
Judgment
Through this Regular Second Appeal, the appellant has challenged the validity of judgment and decree dated 18.01.2013, passed by the learned Civil Judge, Nankana Sahib whereby suit for possession through specific performance of contract filed by Respondent No. 1 was decreed and the judgment and decree dated 16.05.2014, passed by the learned Additional District Judge, Shahkot District Nankana Sahib dismissing the appeal of the appellants.
2. Brief facts of the case are that Respondent No. 1/Abdul Ghafoor filed a suit for possession alongwith specific performance against the appellants and others alleging therein that he purchased land measuring 4-1/2 acre comprising Killa No. 5, 4, 6, 15 situated in Moza Chak No. 44 situated in Moza Kotla Kahluan Tehsil & District Sheikhupura at the rate of Rs. 375,000/- from Muhammad Sharif; agreement was written and at that time, an amount of Rs. 100,000/- was given as earnest money and it was settled that rest of the amount will be paid on 20.11.2004; that on 15.08.2004, after receiving the remaining amount of Rs. 15,00,000/- from Respondent No. 1, the receiving was endorsed on the back side of the agreement and the receipt was also executed; that remaining consideration amount of
Rs. 87,500/- would to be paid at the time of execution of the agreement/sale deed; that before the said date, Muhammad Sharif died; that the Respondent No. 1 asked the appellants and other legal heirs of Muhammad Sharif to execute the sale-deed in favour of Respondent No. 1 but they refused. Defendants No. 1, 2 and 7 filed conceding written statement whereas Defendants No. 3 to 6 filed contested written statement and stated that no agreement was executed by their father nor he received consideration; that the alleged agreement to sell is based on fraud and collusiveness. The learned trial Court framed issues, recorded evidence of the parties and vide judgment and decree dated 18.01.2013 decreed the suit of Respondent No. 1. Being dissatisfied, the present appellants filed an appeal which was dismissed by the learned appellate Court/Additional District Judge, Shahkot District Nankana Sahib vide judgment and decree dated 16.05.2014. Hence, this appeal.
3. Learned counsel for the appellants submits that the stamp paper (Exh.P.1), alleged agreement to sell, was neither got issued by Muhammad Sharif deceased nor he received any consideration; that it is a forged document; that the receiving of Rs. 15,00,000/- is also forged; that till today the appellant alongwith other co-sharers are in possession of the suit property; that Respondent No. 1 failed to prove the execution of alleged agreement to sell and payment of consideration but both the learned Courts below on the basis of misreading and non-reading of evidence, illegally and unlawful passed decree in favour of Respondent No. 1, as such, impugned judgments and decrees are liable to be set aside.
4. Learned counsel for the Respondent No. 1 submits that concurrent findings are in favour of the respondent; that Respondent No. 1 produced both the marginal witnesses of the agreement to sell and proved payment of consideration. Lastly prayed for dismissal of this appeal.
5. Heard. In this case, vital issue is Issue No. 1. Onus was upon the plaintiff/Respondent No. 1. To prove this issue, Respondent No. 1 produced Abdul Majeed, one of the marginal witnesses, as P.W.1 He stated that in his presence, bargain was struck off between the parties and rate of per acre was settled at the rate of Rs. 375,000/-; that agreement Exh.P.1 was written and on the agreement, his signatures are Exh.P.1/1; that at that time, Muhammad Sharif alongwith his son Salman was present; that after three months of execution of the agreement, Rs. 15,00,000/- were paid to Muhammad Sharif in his presence and this was recorded on the back side of the agreement (Exh.P.1); that in this way, Muhammad Sharif received Rs. 16,00,000/-that he also executed Exh.P.2. In cross-examination, he deposed that stamp paper was got issued by Muhammad Sharif; that when the stamp paper was written, it was winter season; that the age of Muhammad Sharif was 65/70 year. He further deposed that:
"۔۔۔ مجھے علم نہ ہے کہ کتنی رقم کی ادائیگی ہونا بقایا ہے۔ جگہ متدعویہ کا قبضہ مدعی کو نہ دیا گیا تھا۔"
Anwar Ali, other marginal witness of the alleged agreement, appeared as P.W.2 and reiterated the same story in his examination in chief but during cross examination stated that:
"۔۔۔ جب اشٹام تحریر ہوا تو گرمیوں کا موسم تھا۔ سودا کی رقم پونے چار لاکھ روپے فی ایکڑ میں ہوا تھا۔ کل رقم مجھے معلوم نہ ہے۔ طے یہ ہوا تھا کہ ایک لاکھ روپے بیعانہ دیا تھا۔ کچھ رقم 3/4 ماہ بعد دینی تھی۔ اشٹام شریف کے بیٹے کے ذریعے نکلوایا گیا تھا۔ شریف بھی موجود تھا۔ رقبہ شریف نے دینا تھا۔ مجھے علم نہ ہے کہ شریف نے کوئی اشٹام کیوں جاری نہ کروایا تھا ۔۔۔۔ کیلہ نمبران و مربع نمبر کا مجھے علم نہ ہے۔ بوقت سودا قبضہ رقبہ متدعویہ مدعی کو نہ ملا تھا ۔۔۔۔ اشٹام فروش کے پاس ادائیگی ہوئی تھی۔ اشٹام فروش کے پاس ادائیگی ہوئی تھی ۔۔۔۔ سودا بابا شریف کے گھر ہوا تھا۔ تکمیل معاہدہ کے لئے علم نہ ہے کتنی مدت طے ہوئی تھی۔ پندرہ لاکھ روپے کی ادائیگی کے وقت بھی قبضہ نہ دیا گیا تھا۔ 86/87 ہزار روپے بقایا رقم رہ گئی تھی۔ حتمی بقایا رقم کا مجھے علم نہ ہے۔ 15 لاکھ روپے کی رقم شریف اور لیاقت نے لی تھی۔ ایک لاکھ کی رقم شریف اور سلمان نے لی تھی۔"
Liaqat Ali appeared as P.W.3, who is real son of Muhammad Sharif deceased. He also repeated the same story in his examination-in-chief but during cross-examination stated that:
"سودا میری بیٹھک میں ہوا تھا۔ میرا والد پہلے میرے ساتھ پھر سلیمان کے ساتھ رہنے لگا۔ بوقت سودا سلیمان کے گھر رہتا تھا۔ بوقت سودا وا لد م کی عمر 60/70/80 سال ہو گی ۔۔۔۔ سلیمان نے بوقت سودا ایک لاکھ روپے بیعانہ لیا تھا ۔۔۔۔ بوقت ادائیگی پندرہ لاکھ روپے مجید انور اور غفور موجود تھے۔ سلیمان اُس وقت موجود نہ تھا۔"
Abdul Ghafoor plaintiff appeared as P.W.4 and reiterated the same story in his examination-in-chief but in cross-examination stated that:
"۔۔۔ سودا گائوں میں شریف کی بیٹھک میں ہوا تھا ۔۔۔ مجھے اراضی متدعویہ کا کھیوٹ یا کھتونی نمبر یاد نہ ہے ۔۔۔ اشٹام Exh.P.1 شریف نے جاری کروایا تھا۔ اشٹام فروش نے بھی اپنے رجسٹروں پر شریف کا انگوٹھا لگوایا تھا ۔۔۔ اراضی متدعویہ امجد اور سلیمان مدعا علیہم کے زیر قبضہ ہے۔ باقی اراضی ملکیتی شریف بھی اُسکے پسران و دختران کے قبضہ میں ہے۔"
6. PW-4 (Abdul Ghafoor) in his statement reproduced above stated that stamp paper Exh.P-1 was issued by Sharif and stamp vendor got his signature on the register but the record is otherwise. The stamp paper was allegedly issued by Salman. PW-2 stated that stamp paper was issued by Sharif through his son, as such, PW-4 is not a truthful witness and his statement cannot be reliable for just decision.
The onus was upon the Respondent No. 1/plaintiff to prove Issue No. 1. Admittedly Exh.P.1, the stamp paper, was not got issued by Muhammad Sharif deceased. Exh.D. 1 is the copy of the register of stamp vendor which shows that the stamp paper was received by Muhammad Salman. There are no signatures or thumb impression of Muhammad Sharif on the said register whereas Respondent No. 1 plaintiff stated that on the stamp vendor's register, Muhammad Sharif imposed his thumb impression. Exh.P.1 shows that the rate of land was settled between the parties at the rate of Rs. 37,5000/- per acre and the plaintiff purchased land 4-1/2 acres and in this way, total amount comes to Rs. 15,00,000/- whereas as per the stance taken by the respondent/plaintiff that he paid Rs. 15,00,0000/- and Rs. 87,500/-are still due, which itself is contradictory. It is interesting to note that when the payment of alleged amount of Rs. 15,00,000/- was paid it was written on the back side of stamp paper that:
"۔۔۔ بقیہ 87500 (ستاسی ہزار پانچ سو روپے) کورٹ فیصلہ کے بعد روبرو سب رجسٹرار بوقت رجسٹری وصول کرلوں گا۔"
7. Perusal of record shows that no case was pending at that time nor such proceedings were produced by the respondent/plaintiff. All these facts show that a false story has been created by the respondent/plaintiff with collusiveness of real son of Muhammad Sharif namely, Liaqat Ali/Respondent No. 2.
8. Abdul Majeed/P.W.1 stated that stamp paper was written by Muhammad Sharif in the winter season whereas Anwar Ali/P.W.2 stated that stamp paper was written in summer season. It means both witnesses were not present when the alleged agreement was prepared. It is out of imagination that when the respondent/plaintiff paid a huge amount (Rs. 16,00,000/-), why he did not get possession of the suit land. Admittedly the appellants/defendants are still in possession of the suit land. Liaqat Ali, real son of Muhammad Sharif deceased, while appearing as P.W.3 stated that bargain was completed in his 'bethak' whereas the respondent/plaintiff stated that bargain was completed in the 'bethak' of Muhammad Sharif. The respondent/plaintiff has no knowledge regarding the whereabouts of the land. One marginal witness namely, Abdul Majeed, appearing as P.W.2, stated in his cross- examination that he has no knowledge that how much amount is still payable to defendants.
9. Neither the stamp vendor nor the deed writer was produced by the respondent/plaintiff. Liaqat Ali/P.W.3 in his cross-examination stated that Salman received Rs. 100,000/- at the time of bargain but in his statement he did not disclose the date, time and place and names of the witnesses of the alleged agreement. The respondent/plaintiff, while appearing as P.W.4, has also not disclosed the date when the alleged agreement was executed between the parties. The learned appellate Court dismissed the appeal on the sole ground that the appellant has not put any suggestion to the plaintiff witnesses to the effect that the alleged agreement is a false and forged document whereas the learned counsel for the appellant/defendant, while cross-examining the respondent/plaintiff (P.W.4) put up suggestions:
"۔۔۔ غلط ہے کہ دستاویزات Exh.P.3, Exh.P1/2, Exh.P.1 میں نے سلیمان اور لیاقت اور دیگران سے مل کر جعلی طور پر بنائی تھیں۔ غلط ہے کہ شریف نے نہ اشٹام جاری کروایا نہ رسید لکھی اور نہ رسیدی ٹکٹیں جاری کروائیں۔ غلط ہے کہ شریف نے کوئی رقم وصول نہ کی ہے۔"
As such the judgment passed by the learned appellate Court judgment is clearly based on misreading and non-reading of evidence.
10. The respondent/plaintiff failed to prove the execution of the execution of the alleged agreement to sell through any solid, unimpeachable and concrete evidence. The evidence of the respondent/plaintiff is also not in line with P.Ws. Major contradictions are available in the statements of the P.Ws. Muhammad Salman appeared as D.W.3 and categorically stated that his father Muhammad Sharif did not sale the land to the respondent/plaintiff and the agreement as well as receipt are forged documents which have been prepared by Liaqat Ali and Ghafoor Ahmad. He also denied his signatures on the agreement Exh.P.1. and also denied the filing of conceding written statement. The respondent/plaintiff also did not file any application for comparison of thumb impression of Muhammad Salman, as such, the respondent has failed to prove the execution of agreement Exh P-1 under the law. Reliance is placed on the cases of “Farzand Ali & another vs Khuda Bakhsh & others” (PLD 2015 SC 187) and “Hafiz Tassadua Hussain VS Muhammad Din through legal heirs and others'' (PLD 2011 SC 241).
11. In view of the aforesaid facts and circumstances, it is apparent that the learned Courts below, while passing the impugned judgments & decrees, committed misreading and non-reading of evidence, illegality and material irregularity, as such, the same are not sustainable in the eye of law and can be upset. Reliance is placed on the cases of Sultan Muhammad & Another vs. Muhammad Qasim & Others (2010 SCMR 1630) and Nazim-nd-Din & Others vs. Sheikh Zia-ul-Qamar & others (2016 SCMR 24).
12. For what has been discussed above, this appeal is allowed, the judgment and decree dated 18.01.2013, passed by the learned Civil Judge, Nankana Sahib as well as the judgment and decree dated 16.05.2014, passed by the learned Additional District Judge, Shahkot District Nankana Sahib are set aside and the suit for specific performance filed by Respondent No. 1 is hereby dismissed. No order as to costs.
(Y.A.) Appeal allowed
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