Withholding of Evidence in case of Sale Agreement

 PLJ 2020 Lahore (Note) 109

Present: Ch. Muhammad Masood Jahangir, J.

MUHAMMAD BASHIR etc.--Petitioners

versus

MUHAMMAD NASRULLAH--Respondent

C.R. No. 3308 of 2016, decided on 9.5.2018.

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

----S. 12--Suit for specific performance--Dismissed--Appeal--Dismissed--Sale agreement--Burden of proof--Withholding of evidence--Concurrent findings--Direct evidence was led with regard to Exh.P1 as well as transaction reflected therein, onus shifted upon petitioners, but surprisingly only Muhammad Bashir, Petitioner No. 1 being DW1 appeared and no other supporting witness was examined--Latter conceded during cross-examination that possession of disputed property changed hands from day of its sale, but admittedly, till today no effort was made on behalf of petitioners for eviction of respondent--In such situation, Muhammad Hussain was best person to be examined, but he was withheld and adverse inference was to be drawn against petitioners under Article 129 illustration (g) of Qanun-e-Shahadat Order, 1984--In written statement as well as deposition made by Petitioner No. 1, burden of proof was shifted upon him to establish that he had thumb marked it being marginal witness, but no supporting and convincing evidence was adduced--Petitioner No. 1 neither had made any complaint against Deed Writer/Stamp Vendor nor initiated any proceedings against him for engineering a fake document, hence petitioners failed to prove their defence--Concurrent findings of facts recorded by two Courts below being based on well appreciation of evidence available on suit file are not open to any exception by this Court in exercise rcvisional jurisdiction ,when learned counsel for petitioners also failed to point out any misreading and non-reading of evidence as well as any irregularity or illegality committed by Courts below--Revision petition dismissed. [Para 1 & 2] A, B, C & D

Mr. Muhammad Sohail Bhatti, Advocate for Petitioners.

M/s. Kashif Aslam, Shahid Mehmood, Minhas and Rai Qaiser Abbas, Advocates for Respondent.

Date of hearing: 9.5.2018.

Judgment

Muhammad Bashir, Petitioner No. 1 and his brother Muhammad Hussain, predecessor of rest of the petitioners were owners of 16 Kanals land. On 22.07.2004, Muhammad Nasrullah, respondent approached the learned Civil Court with a suit for specific performance of agreement to sell dated 20.3.2003 (Exh.P1) contending therein that both the brothers had agreed to sell the land against a consideration of Rs. 220,000/- and after receiving Rs. 215,000/- before the witnesses, Exh.P1 was executed, whereas on making payment of remaining consideration of Rs. 5,000/- the vendors were bound to transfer the suit land, but when it was not acted upon, he approached the Court of first instance seeking a decree for specific performance of his agreement, which was resisted by the vendors/petitioners by filing an unsigned confusing written statement. On one side, it was admitted by them that agreement with regard to some other land was settled, but on the other hand, it was also averred that agreement (Exh.P1) was struck between plaintiff and Muhammad Hussain, whereas Muhammad Bashir, Petitioner No. 1 put his thumb impression being its attesting witness. The respondent/plaintiff examined both the marginal witnesses being PW-2 & PW-3 to prove that sale was effected among the parties, out of total sale consideration, Rs. 215,000/-were paid and pursuant thereto the vendee also stepped in the witness-box and reiterated his version in line with contents of the plaint. The moment, direct evidence was led with regard to Exh.P1 as well as transaction reflected therein, the onus shifted upon the petitioners, but surprisingly only Muhammad Bashir, Petitioner No. 1 being DW-1 appeared and no other supporting witness was examined. The latter conceded during cross-examination that the possession of the disputed property changed hands from the day of its sale, but admittedly, till today no effort was made on behalf of the petitioners for eviction of respondent. It was the main defence of DW-1 that agreement to sell was settled between the vendee-respondent and Muhammad Hussain, whereas he only thumb marked it being its marginal witness. In such situation, Muhammad Hussain was the best person to be examined, but he was withheld and adverse inference was to be drawn against the petitioners under Article 129 illustration (g) of the Qanun-e-Shahadat Order, 1984. Moreover, having admitted his thumb impression on the agreement, in the written statement as well as deposition made by Petitioner No. 1, the burden of proof was shifted upon him to establish that he had thumb marked it being marginal witness, but no supporting and convincing evidence was adduced. The Petitioner No. 1 neither had made any complaint against the Deed Writer/Stamp Vendor nor initiated any prorceedings against him for engineering a fake document, hence petitioners failed to prove their defence.

2. The concurrent findings of facts recorded by the two Courts below being based on well appreciation of evidence available on suit file are not open to any exception by this Court in the exercise revisional jurisdiction ,when learned counsel for petitioners also failed to point out any misreading and non-reading of evidence as well as any irregularity or illegality committed by the Courts below. The instant Civil Revision having no force and merit is dismissed.

(Y.A.)  Revision petition dismissed