Required to prove agreement through concrete convincing and unimpeachable evidence

 PLJ 2015 Lahore 1098

[Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

MATLOOB HUSSAIN and 6 others--Petitioners

versus

ALAMGIR and 2 others--Respondents

C.R. No. 1046-D of 2001, heard on 11.5.2015.

Agreement to Sell--

----Inheritance--Retransferred--Required to prove agreement through concrete convincing and unimpeachable evidence--Suit for specific performance on basis of agreement to sell is a discretionary relief with Court to grant a party who is coming to Court for specific performance and therefore Court is required to consciously scrutinize evidence and only in that case grant a decree when plaintiffs fully prove case and prove that they are entitled to a decree in their favour--If agreement to sell is proved, Court was not bound to grant a decree for specific performance in every suit as it is discretion of Court and when even there is a slightest doubt in mind of Court that agreement was not genuine one, Court can refuse to grant a decree--For proving an agreement to sell stamp vendor along with his record be produced to prove that stamp paper was issued on a specific date and who was purchaser of stamp paper, then petition writer along with his register of petition writing to prove that same was written on specific date--Register and record of petition writer is also helpful to prove writing of a document at specific date, then two marginal witnesses to prove agreement and struck of bargain and then execution of document--Contents of agreement to sell were read over to her and after she accepted true, thumb marked same, therefore, agreement is bad in law.         [Pp. 1100 & 1102] A, B, C & D

Ch. Khalid Ayaz, Advocate for Petitioners.

Malik Muhammad Latif Khokhar, Advocate for Respondents.

Date of hearing: 11.5.2015.

Judgment

Through this civil revision petitioners have challenged the judgment and decree dated 27.7.2001 passed by the learned Additional District Judge, Lodhran whereby appeal filed by the respondents-plaintiffs was accepted and the judgment and decree dated 10.11.2000 passed by the learned Civil Judge, Lodhran, dismissing the suit for specific performance was reversed.

2.  Brief facts of the case are that plaintiffs-respondents on 15.2.1995 filed a suit for specific performance on the basis of agreement to sell dated 9.8.1990. Respondents-plaintiffs claimed an agreement to sell of the suit property from Mst. Basri who was real sister of the plaintiffs. According to the agreement, the date for performance was 30.12.1992 and the suit has been filed on 15.2.1995 after the death of alleged seller. As per record she died in November, 1994. Written statement was filed. Suit was contested. Learned trial Court recorded the better statements and after that framed issues, invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Vide judgment and decree dated 10.11.2000 learned trial Court dismissed the suit. Appeal was preferred which was accepted by the learned Additional District Judge vide judgment & decree dated 27.7.2001. Hence, this civil revision.

3.  Learned counsel for the petitioners argues that Mst. Basri was real sister of the plaintiffs/respondents and suit has been filed on the basis of forged and fictitious agreement to sell to grab the property received by her in inheritance and further that there are material contradictions in the evidence of the plaintiffs-respondents and they have failed to prove the execution of agreement to sell, payment of consideration amount, therefore, learned trial Court reached to a right conclusion when the suit was dismissed and findings recorded by he learned first appellate Court while reversing the well-reasoned findings of the learned trial Court without any sufficient reason are not sustainable under the law. Prays for acceptance of this civil revision and setting aside the judgment and decree passed by the learned first, appellate Court.

4.  On the other hand, learned counsel for the plaintiffs-respondents states that two marginal witnesses as well as scribe have been produced and one of the plaintiffs appeared as a witness, therefore, findings of learned first appellate Court are in accordance with the record.

5.  I have heard learned counsel for the parties at length and gone through the record, evidence produced by both the parties oral as well as documentary, findings recorded by both the Courts below and the applicable law and the case law submitted by learned counsel for the petitioners.

6.  The alleged agreement to sell is dated 9.8.1990. Consideration amount is Rs. 2,00,000/- whereas as per agreement to sell an amount of Rs. 1,90,000/- has been shown to have been paid, which has been produced as Exh.P.1, the date for performance of the sale deed has been mentioned as 30.12.1992 whereas only a meager amount of Rs. 10,000/- is outstanding. I am unable to understand why such a long time was fixed for performance of agreement to sell when a meager amount of Rs. 10,000/- was outstanding and further there is no reason mentioned in this agreement that why direct sale transaction is not being arrived at between the parties and further the suit has been filed on 15.2.1995 when the alleged seller lady was already expired in November, 1994. A suit for specific performance on the basis of agreement to sell is a discretionary relief with the Court to grant a party who is coming to the Court for specific performance and therefore Court is required to consciously scrutinize the evidence and only in that case grant a decree when plaintiffs fully prove the case and prove that they are entitled to a decree in their favour. Even if an agreement to sell is proved, the Court is not bound to grant a decree for specific performance in every suit as it is discretion of the Court and when even there is a slightest doubt in the mind of the Court that the agreement is not genuine one, the Court can refuse to grant a decree. In this case the alleged seller is real sister of the plaintiffs and the suit property is the same which she received in inheritance and in our society we as a student of law everyday see that in the matters of inheritance the male members want to retain the property of the females with them and in most of the cases the intention remains that the female members be excluded from the inheritance or in some cases through various modes the property is re-transferred in favour of the male members. When in this case the plaintiffs have filed a suit for specific performance on the basis of agreement to sell, they were required to prove the agreement through concrete, convincing and unimpeachable evidence. For proving an agreement to sell the standard prevalent in our judicial system is that the Stamp Vendor along with his record be produced to prove that stamp paper was issued on a specific date and who was the purchaser of the stamp paper, then the Petition Writer along with his register of petition writing to prove that the same was written on specific date. This fact is proved when he produces the original record of petition writing i.e. his register to show chronological writing of deeds which are available date-wise in his register. The register and the record of the Petition Writer is also helpful to prove writing of a document at specific date, then two marginal witnesses to prove the agreement and struck of bargain and then execution of the document. In this case PW-1 the alleged Petition Writer appeared to prove Exh.P.1 the alleged agreement to sell and receipt Exh.P.2 but he did not bring his register to prove the specific time of writing of these documents. In the cross-examination he has admitted that the money was not paid before him. He does not know Mst. Basri and further that she was a “Pardah Nasheen” lady, therefore, his statement is not much helpful for the plaintiffs. One of the plaintiffs appeared as PW-2. he has admitted that the possession of the land is with them even before the writing of Exh.P.1. He has stated that Mst. Basri purchased the stamp of Exh.P.1 and she thumb marked in the register of Stamp Vendor. As per case of the plaintiffs at the time of execution of Exh.P.1 and Exh.P.2 Matloob Hussain/defendant, husband of Mst. Basri, was available but he was not made a witness. PW-3 also states that the stamp was purchased by Mst. Basri and he thumb marked the register of Stamp Vendor. This witness states that the payment was made to Mst. Basri in the plot of Tehsil office whereas PW-2 does not state that where the amount was paid. Perusal of Exh.P.1 agreement to sell shows that the stamp paper of Exh.P.1 was not purchased by Mst. Basri herself, there is no thumb impression to show that she purchased the same. Against the evidence of the plaintiffs, defendants produced DW-1 the Stamp Vendor, who came with his register to show that Muhammad Iqbal purchased the stamp, who is junior to the Petition Writer and Mst. Basri never came to him and stamp was never purchased by Mst. Basri. Even the front side of this document shows that no place for signatures or thumb impression of Alamgir and Muhammad Jamil has been fixed but at the end of this document without mentioning their names their signatures are available which shows that actually this document was prepared unilaterally on behalf of Mst. Basri and then to cure the legal defect plaintiffs have put their signatures at the end of this document.

7.  As I have discussed supra, the evidence of the plaintiffs is contradictory and further that I am unable to understand that why this document was written when almost 95% of the amount was being paid and there is no reason that why the sale was deferred and further when document is allegedly dated 9.8.1990 and for performance of agreement the date has been mentioned as 30.12.1992, whereas Mst. Basri died in November, 1994 and suit has been filed on 15.2.1995, series of the facts show that this document is not genuine one and further only this document was not to be proved by the plaintiffs, they were required to prove the struck of bargain, how it struck and payment of consideration, Exh.P.1 and Exh.P.2 which they failed to prove. They were required to prove the delivery of possession of the suit property in part performance of agreement to sell, this fact also has not been proved.

8.  Admittedly, Mst. Basri was a “Pardah Nasheen”, illiterate lady as has been admitted by one of the plaintiffs when appeared as PW-2/Muhammad Jameel and it is case of the plaintiffs that her husband was accompanying them when Exh.P.1 and Exh.P.2 were executed. Astonishingly he is neither marked anywhere present as a witness or identifier nor his presence is visible from these documents. It means that the story of presence of Matloob Hussain introduced by the plaintiffs is false. When Mst. Basri was having her husband and children, there was no reason why she sold her inherited property. To strengthen the findings I am fortified by the judgment of the Privy Council reported as A.I.R 1940 PC 147 “Bank of Khulna, Ltd. V. Jyoti Prokash Mitra and others”, wherein it has been held:--

“Where the execution of a mortgage deed by a pardanashin lady is found not to be her mental or conscious act, there being no room for a semi-conscious act, the whole deed is affected and must be set aside.”

Circumstances of the case show that no independent advice was available with the lady. I rely upon 2004 CLC 1026 “Muhammad Rasheed versus Mst. Saleema Bibi” and quote the dictum for ready reference:--

“Mere thumb-marking and especially of an illiterate lady is not sufficient to prove that the transaction contained in the document was understood by her. A person who is in a position to exert pressure or has got a relation of great confidence to wield influence upon the illiterate lady, if gets a transaction executed in his favour, that has to be seen with great doubt and in such case, the beneficiary of the document has to prove that the executant was emancipated from the above influence and had acted with an independent advice, with his free will and consent.”

Further it is not the case of the plaintiffs that contents of the agreement to sell were read over to her and after she accepted the true, thumb marked the same, therefore, the said agreement is bad in law in the light of judgment of august Supreme Court of Pakistan reported as PLD 1990 Supreme Court 642 “Janat Bibi versus Sikandar Ali and others''.

9.  For what has been discussed above, this appeal is accepted. The judgment and decree passed by the learned first appellate Court is set aside. The result is that the suit filed by the respondents-plaintiffs stands dismissed.

(R.A.)  Appeal accepted

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