ALLAH RAKHA through L.Rs, vs NASIR KHAN and 4 others

ORDER

' MIAN SAQIB NISAR, J.--- The petitioner brought a suit for the specific performance claiming that respondents Nos.1 to 4, through an agreement dated 20-4-1989, had agreed to sell the suit-land measuring 9 Kanals, 10 Marlas to them, for a total consideration of Rs,25,000, out of which Rs,5,000 were paid as earnest money. It is pertinent to mention here, that during the pendency of the present suit, Mehmood Khan/respondent No,5 moved an application under Order I, rule 10, C.P.C.

Which was accepted and he was impleaded as defendant No,5. The suit was contested by respondents Nos.1 to 4 as also by respondent No,5.

' On 7-12-1991, respondent No,5 also brought a separate suit for the specific performance against respondents Nos.1 to 4 on the claim, that through an agreement dated 9-3-1991, respondents Nos.1 to 4 had agreed to sell the suit-land to him for a consideration of Rs,28,000 out of which Rs,20,000 were paid as advance money; the suit was contested by respondents Nos.1 to 4 and have denied the agreement to sell, dated 9-3-1991 in favour of respondent No,5; the petitioner/defendant No,5, Allah Rakha also contested the suit. Both the suits were independently tried; the suit of the petitioner had failed at the trial stage and on appeal filed by the petitioner, which was accepted the matter was remanded to the Court below, with the direction that the suit of the petitioner and that of respondent No,5 be consolidated and decided together.

2. Thereafter, the consolidated issues were framed, parties were put to trial and the petitioner in order to prove his agreement to sell examined one Amanat Khan as P.W.1, but in his statement he in clear and unequivocal terms has stated as under:- {{URDU TEXT}} ' The other marginal witness namely Lal Din Lumberdar, has not been examined and no cogent reason for his non-examining has been given; besides, that Allah Rakha, the plaintiff, only appeared but he is not signatory of the agreement to sell Exh.P.1, dated 20-4-1989. It is pertinent to state here that the suit-land measuring 9 Kanals, 10 Marlas in fact is owned by Naseer Khan, Bashir Khan, Ghulam Rasul and their father Allah Dad, but they except Bashir Khan are not the signatory of the agreement to sell dated 20-4-1989 and have not executed this document. However, at the trial stage, all the four persons have conceded in favour of the petitioner, but such concession or admission by a co-defendant is not binding upon the other co-defendant, who has contested the matter. Therefore, in the light of the provisions as contained in Articles 17(2).And 79 of the Qanun-e- Shahadat Order, 1984, the document has to be attested by two witnesses and proved accordingly; this has not been so done. Even otherwise, the finding of the Courts below about the proof of the document, is that the document has not been proved, and I do nbt find that there is any misreading or non-reading of the evidence by the Courts.

3. As regards the agreement to sell of respondent No,5 is concerned, this is the concurrent finding of the Courts below, that it has been proved on the record by the examination of the witnesses including scribe as also the marginal witnesses etc., whereas in the case of the petitioner, even the scribe has not been examined to prove the execution of Exh.P.1, which is not on a stamp paper rather on a plain paper.

4. In the light of above, I do not find any merit in this writ IC petition, which is hereby dismissed.