Plaintiff has to prove due execution of agreement

 PLJ 2023 Lahore (Note) 78

[Multan Bench, Multan]

Present: Ch. Muhammad Masood Jahangir, J.

Mst. AZEEM KHATOON (deceased) through Lrs.--Petitioners

versus

GHULAM QADIR, and another--Respondents

C.R. No. 110-D of 2011, heard on 24.11.2021.

Specific Relief Act, 1877 (I of 1877)--

----S. 12--Suit for specific performance was decreed--Concurrent judgments--Sale agreement--Respondent No. 2 was never challenged mutation--Deed writer, stamp vendor sub-registrar and original record were never summoned--Petitioners were failed to prove execution of sale agreement--Challenge to--Respondent No. 2  herself never challenged mutation  by filing independent suit--Neither Stamp Vendor, Deed Writer and Sub-Registrar nor even Record Keeper having original record of registration of Exh.P1 were summoned despite their availability--They being independent persons, factually could be best witness to blot out allegation of Respondent No. 1--Plaintiff did not expose in her evidence date, month or year when transaction settled and Exh.P1, executed besides who witnessed it--No strong proof was brought on suit file to establish that a genuine sale inter se sisters effected and an authentic agreement (Exh.P1) was executed--In presence of husband, who was not a layman, rather Advocate by profession and also put his signatures, it was impossible for Revenue Officials to bring change contrary to whatever was deposed or acknowledged before them--When petitioners failed to prove due execution of agreement and transaction detailed therein per scheme of law, Courts below were quite justified to concurrently dismiss suit--Petition dismissed. [Para 1, 3, 6 & 7] A, B, C, D, E & F

Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Revisional jurisdiction--Concurrent findings returned by Courts below cannot be disturbed while exercising jurisdiction Code of Civil Procedure, 1908, unless those are found to have been arrived at either by misreading or ignoring some material piece of evidence on record besides its perverse appreciation.        [Para 7] G

Mr. Rafique Ahmad Malik, Advocate for Petitioners.

Mr. Tariq Zulfiqar Ahmad Ch., Advocate for Respondent
No. 1.

M/s. Malik Zafar Mehboob Langrial & Muhammad Pervaiz Akhtar Langrial, Advocates for Respondent No. 2.

Date of hearing: 24.11.2021.

Judgment

In essential detail apart, Mst. Bhiranwan, Respondent No. 2 (Civil Revisioner of connected C.R. No. 242-D/2011) was exclusive owner of 24 kanals 10 Marlas out of which 24 Kanals was alienated by her to Ghulam Qadir, Respondent No. 1 via Mutation No. 2573 dated 22.08.1987 (Exh. P5). Then, on 08.11.1987, Mst. Sablan (predecessor in interest of the petitioners), the real sister of the Vendor, Mst. Bhirawan/Respondent No. 2 instituted suit against the latter as well as transferee/Respondent No. 1 for specific performance of registered agreement dated 12.05.1987 (Exh.P1) asserting thereby that Mst. Bhirawan had already sold out entire holding viz 24 kanals 10marlas to her, thus prayed for decree of its enforcement besides cancellation of mutation (Exh. P5). The suit on one side was conceded by Mst. Bhirawan (sister of the plaintiff), but on the other hand also admitted that mutation (Exh.P5) in favour of Ghulam Qadir/Respondent No. 1 was sanctioned on her part, however disputed that she had endorsed sale to him only to the extent of 10 marlas, but he fraudulently managed its sanction against 24 kanals. The important and vital position was that Mst. Bhirawan herself never challenged mutation (Exh.P5) by filing independent suit. Any way, the suit as a whole in fact was contested by Respondent No. 1 while pleading that Respondent No. 2 in the company of her husband, who was an Advocate sold out 24 Kanals, thus to materialize, they both made statement by appearing before Revenue Officer to acknowledge the sale, consequently Exh. P5 was attested, and that the husband of Respondent No. 2 managed collusive sale contract in favour of his sister-in-law to frustrate Exh.P5. Facing with divergent pleadings of the parties, issues were framed, the parties led their respective evidence and after its appreciation, suit was dismissed by the learned Trial Court on 27.03.2006. Feeling dejected, the petitioner as well as Mst. Bhirawan/Respondent No. 2 filed independent appeals, which failed vide single judgment dated 27.10.2010 as well. These concurre Judgments of the fora below, were challenged by the petitioner by means of petition in hand, whereas Respondent No. 2 also preferred connected Civil Revision No. 242-D/2011 before this Court. Since both these matters inter se the parties arose out of single suit qua same subject matter, thus being interlinked involving common questions of fact and law appropriate to be decided jointly through this single judgment.

2. Arguments heard, record scanned.

3. Per pleadings of the parties, initial onus was upon the plaintiff to prove her document entailing financial liability and future obligation according to scheme provided under Articles 17 & 79 of the Qanun-e-Shahadat Order, 1984 especially when the subsequent vendee/Respondent No. 1 specifically denied the genuineness of Exh.P1, asserting it to be collusive and maneuvered document. Surprisingly, neither Stamp Vendor, Deed Writer and the Sub-Registrar nor even the Record Keeper having original record of the registration of Exh.P1 were summoned despite their availability. They being independent persons, factually could be the best witness to blot out the allegation of Respondent No. 1 that Exh.P1 was not an honest document to be believed. In such situation Courts below were perfect to draw hostile inference per Article 129 illustration (g) of the Order ibid. Although to discharge the onus, the marginal witnesses of Exh. PI viz Muhammad Iqbal (PW-4) and Muhammad Saleem (PW-5) were examined, but former in his examination-in-chief (available at page 34) straightaway conceded that sale price was not paid before him and same was the situation of PW-5, who in his examination-in-chief (available at page 62) deposed that no consideration was paid in his presence. In such situation, major component of the sale i.e. payment of consideration was not proved by either of the witnesses of hub document. Moreover, Respondent No. 2 (PW-1), who admitted execution of Exh.P1, in second line of her cross-examination (available at page 21) conceded that at the time of its execution, she did not appear before any officer. The most drastic aspect of the case was that the plaintiff (PW-3) did not expose in her evidence the date, month or year when the transaction settled and Exh.P1, executed besides who witnessed it. She even stated in her statement-in-chief that for accomplishment of the transaction no period inter se parties of Exh.P1 was settled, whereas per contents of the plaint as well as said document three years time was fixed. She further jolted her case by wording in her cross-examination that transaction was settled in Tehsil before the Officer and earlier thereto no conversation ever took place and that nothing till that time was paid rather three days after the registration of sale contract, consideration of ten thousand was paid. Thus, no strong proof was brought on suit file to establish that a genuine sale inter se the sisters effected and an authentic agreement (Exh.P1) was executed.

4. The argument of learned counsel for the promisee that Mst. Bhirawan (promisor) conceded execution of Exh.P1 and transaction reflected therein, thus there was no requirement for the beneficiary to prove the same strictly per scheme of law is not well founded because such admission having been made at the stage when she had already alienated major part of the subject property, cannot be applied to co-defendant(s), who never conceded the claim. This proposition has already been clinched by this Court in the judgment reported as Qasim Ali vs. Khadim Hussain through Legal Representatives and others (PLD 2005 Lahore 654). Paragraph No. 5 of the dicta referred above is relevant which is reproduced hereunder for ready reference:-

“5. I have heard the learned counsel for the parties. The two Courts below in fact have basically relied upon the admission of the Respondent Nazar Muhammad about the execution of the agreement to sell. But according to the settled law, an admission of a co-defendant is not binding upon the other. This rule, in my view, shall more stringently be applicable to the present case, because the petitioner had already purchased the suit property from Nazar Muhammad and a mutation in this behalf had been attested in his favour Though, Nazar Muhammad in his written statement, as a defendant, had denied the sale and asserted to challenge it in appropriate proceedings, but he never did so. Therefore, for all intents and purposes, throughout the petitioner possessed the legal title to the suit property and had every right to defend and protect his rights as lawful owner thereof. Nazar Muhammad when had ostensibly transferred his interest and rights in the suit, property in favour of the petitioner, and never challenged the alienation independently before any forum, except setting up the defence in this case, his admission about the execution of Exh.P.1, cannot be received as an admission binding the petitioner, being a co-defendant of the case. Reliance in this behalf can be placed upon Saleem and another v. Malik Jalal-ud-Din and 7 others PLD 1982 SC 457. Therefore, despite the admission of Nazar Muhammad in the circumstances of the case, when the petitioner has denied the execution and attestation of Exh.P.1 and claimed it to be the result of fraud and collusion between Nazar Muhammad and the respondent Khadim Hussain, it was incumbent upon the plaintiff to have proved the valid execution and attestation of Exit.P.1.”

5. The other surprising feature of the case was that per Exh.P1, the alleged sale in favour of the plaintiff was purportedly finalized for just Rs. 12,000/-, out of which Rs. 10,000/-were spontaneously paid, but to make good remaining only Rs. 2,000/-, time of three years was fixed. Had there been any genuine transaction, then by paying such meager balance amount, the sale deed also would be registered, especially when Exh.P1 went through the same process. To this effect, nothing plausible could be responded by learned counsel for petitioners. Moreover, if Exh.P1 had already been settled among the sisters qua entire holding viz 24 Kanals 10 marlas, then there was no occasion for Mst. Bhiranwan to have alienated 10 marlas out of the same to Respondent No. 1 through subsequent Mutation (Exh.P5). This aspect was even sufficient to disbelieve the defence set up by Respondent No. 2 thus, the evidence produced by the plaintiff was not only inconsistent, feeble and weak, rather insufficient to discharge the onus of Issues No. 11 to 17, thus rightly answered in negative by the fora below.

6. The mutation (Exh.P5) was attested in favour of Respondent No. 1 by Respondent No. 2, when husband of the latter was available with her and signed the said document as well. The spouses once admitted the execution of Exh.P5, then onus was upor them to prove that quantum of area detailed therein was managed by practicing foul play, but inaction on their part in not challenging it by filing any independent suit/appeal at their end was a drastic aspect, whereas the Patwari (DW2), Revenue Officer (DW-3), who entered and attested Exh.P5 categorically endorsed it to be genuine while deposing that the vendor along with her husband had appeared before them to acknowledge sale of 24 Kanals. The Courts below concurrently observed that with regard to strength of area or consideration so detailed, nothing wrong was found therein. In presence of the husband, who was not a layman, rather Advocate by profession and also put his signatures, it was impossible for the Revenue Officials to bring change contrary to whatever was deposed or acknowledged before them.

7. In the peculiar facts and circumstances of the case, when the petitioners failed to prove the due execution of the agreement (Exh.P1) and transaction detailed therein per scheme of law, the Courts below were quite justified to concurrently dismiss the suit. It is well established by now that concurrent findings returned by Courts below cannot be disturbed while exercising jurisdiction under Section 115 of the Code of Civil Procedure, 1908, unless those are found to have been arrived at either by misreading or ignoring some material piece of evidence on record besides its perverse appreciation. Although Mr. Rafique Ahmad Malik, Advocate for the petitioners while consuming maximum time argued the case to the best of his ability, but failed to make out a case of interference, thus the petitions in hand having no merit are dismissed with costs throughout.

(Y.A.)  Revision petition dismissed