Mst. RAZIA BEGUM Versus Sheikh HASSAN ALI
MIAN HAMID FAROOQ, J.‑‑‑ This single judgment shall decide the present appeal Regular First Appeal No.245 of 1993) and connected Regular First Appeal No.62 of 1994 as common questions of law and facts are involved therein and both the appeals have arisen out of one judgment.
2. The present appeal filed by Pervaiz Afzal etc. successor‑in‑interest of original defendant namely Sh. Fazal Hussain deceased, who died during the pendency of the suit, proceeds against judgment and decree dated 2‑11‑1993, whereby the learned Civil Judge decreed the suit, filed by Sh. Hassan Ali/respondent No.1, for specific performance of an agreement to sell dated 14‑5‑1975, favouring the said respondent.
3. Brief facts leading to the filing of the present appeals are that Sh. Hassan Ali, the plaintiff/respondent No.1, filed a suit for specific performance of an agreement to sell dated 14‑5‑1975, against Sh. Fazal Hussain, the predecessor‑in‑interest of the appellants and respondent No.2 alleging that Sh. Fazal Hussain entered into an agreement to sell dated 14‑5‑1975, Exh.P.2 in respect of Property No.18‑C‑1 Gulberg‑III, Lahore. comprising of two residential portions measuring 4 Kanals (hereinafter referred to as property in dispute), thereby contracting to sell the property in dispute to him for a total consideration of Rs.6,00,000 out of which a sum of Rs.3,13,400 was received by Sh. Fazal Hussain in cash, whereas rest of the consideration price of Rs.2,86,600 was agreed to be paid at the time of the registration of the sale‑deed, which was to be completed by 30‑6‑1977. It was the case of the said respondents that at the time of the execution of the agreement, Sh. Fazal Hussain delivered the possession of one portion of the disputed property to respondent No.1/plaintiff, who was already in possession of the said portion as a tenant. It was incorporated in the agreement that if the defendant fails to get sale‑deed executed, he would pay a sum of Rs.6,26,800 to the plaintiff and if the plaintiff fails to pay balance amount of Rs.2,86,600, he would only receive a sum of Rs.3,13,400 from Sh. Fazal Hussain paid by him as earnest money. It is the case of the said respondent that Sh. Fazal Hussain from time to time received another sum of Rs.1,85,000 towards sale price. As Sh. Fazal Hussain failed to obtain completion certificate from LDA, therefore, original agreement was extended up to 30‑9 1977, through execution of another agreement dated 29‑6‑1977 (Exh.P.1), with the mutual consent of the parties and in the second agreement Sh. Fazal Hussain acknowledged receipt of another sum of Rs.1,85,000. According to respondent No.1/plaintiff, the said sale‑deed could not be executed even uptil 30‑9‑1977, with the result that the time for completion of sale‑deed was further extended and in the meantime, on 18‑3‑1978, Sh. Fazal Hussain received another sum of Rs.25,000 against a receipt leaving balance of Rs.76,600. According to respondent No.1/plaintiff when Sh. Fazal Hussain did not execute sale‑deed, therefore, the suit for specific performance of an agreement, out of which the present appeals have arisen, was filed by the said respondent.
4. Sh. Fazal Hussain filed written statement, controverting the contents of the plaint and resisted the suit, inter alia, denied the execution of any of the aforestated agreements or having received an amount of consideration During the pendency of the suit, on 23‑6‑1989, Sh. Fazal Hussain died, and his legal heirs i.e. the appellants and respondent No.2 were impleaded as defendants in the suit in his place. The appellants being defendants Nos.1 to 7 filed written statement to the amended plaint while respondent No.2, being defendant No.8, widow of Sh. Fazal Hussain in her separate written statement took a plea that Sh. Fazal Hussain in his lifetime gifted away one portion of the disputed property in her favour and thus it was pleaded by her that Fazal Hussain, at the time of the execution of alleged agreement to sell was not the owner of the whole of the property, therefore, he was not competent to enter into a sale agreement.
5. Out of the divergent pleadings of the parties, the learned Civil Judge, on 14‑12 -1980, framed the certain issues.
However, the learned Civil Judge rejected the plaint vide judgment and decree dated 20‑1‑1981, which was called in question by respondent No.1 through filing an appeal (Regular First Appeal No.32 of 1981) before this Court, which was accepted through order dated 4‑10‑1983 and the case was remanded to the learned trial Court. In post remand proceedings, the learned Civil Judge re‑framed the issues and subsequently certain additional issues were framed. Finally the following issues were determined by the learned trial Court:‑
(1) Whether the deceased defendant Sh. Fazal Hussain executed agreements of sale dated 14‑5‑1975 and 29‑6‑1977 in favour of the plaintiff for the sale of Property No.18‑C‑I, Gulberg‑III, Lahore? OPP.
(2) If issue No.1 is replied in the affirmative, whether the deceased Sh. Fazal Hussain received a sum of Rs.3,13,400 in cash at the time of execution of agreement of sale dated 14‑5‑1975 as a token of acknowledgement, is so, to what effect? OPP.
(3) Whether the deceased Sh. Fazal Hussain further received a sum of Rs.1,85,000 from plaintiff by virtue of an agreement dated 29‑6‑1977 and extended the period for performance till 30‑9‑1977, if so, to what effect? OPP
(4) Whether the deceased defendant Sh. Fazal Hussain received a sum of Rs.25,000 on the receipt dated 18‑3‑1978 in favour of the plaintiff? OPP
(5) Whether the deceased defendant finally agreed for the execution of the sale‑deed on 28‑2‑1979, it so, to what effect? OPP
(6) Whether the plaintiff is entitled to specific performance of contract after the payment of Rs.76,000 as balance amount to the defendant? OPP
(6‑A) Whether the present suit cannot proceed in view of the fact that the matter has already been concluded between the parties before the Supreme Court of Pakistan on an objection petition filed by the plaintiff on the basis of agreement of sale? OPD
(6‑B) Whether the plaintiff is not entitled to relief for possession in the instant case despite the fact he has filed an application under Order XXI rules 100 and 101 of C.P.C? OPD.
(7) Relief.
6. After the framing of the issues, the evidence of respondent No 1, being plaintiff, was concluded on 14‑5‑1992 and the learned Civil Judge after recording some of the witnesses of the appellants closed the remaining evidence and proceeded to decree the suit in favour of respondent No.1 vide judgment and decree dated 30‑5‑1992, which was called in question by the appellants through filing an appeal (R.F.A. No.142 of 1992) and the learned Division Bench of this Court while accepting the said appeal set aside the said judgment and decree and remanded the suit to the learned trial Court with an opportunity to the appellants to produce their witnesses. In post‑remand proceedings, the evidence was recorded and the learned trial Court came to the conclusion that respondent No.1 has succeeded in proving that Fazal Hussain contracted to sell the property in dispute to Sh. Hassan Ali, had received Rs.3,13,600 at the time of execution of an agreement (Exh.P.2) and Rs.1,85,000 at the time of execution of second agreement (Exh.P‑1) and further received Rs.85,000 vide receipt (Exh.Q‑D). As regards respondent No.2, the findings of the learned Civil Judge were that she was pot able to prove that Sh. Fazal Hussain deceased gifted away portion of disputed property in her favour and the sole object of Mst. Razia Begum was to frustrate the specific performance of agreements Exhs.P‑1. and P‑2. With these findings, the learned Civil Judge decreed the suit for specific performance favouring respondent No.1 vide judgment and decree dated 2‑11‑1993, while observing that respondent No.1 had already deposited a balance sale price of Rs.7,66,000, therefore, there is no need to pass formal order regarding the deposit of remaining consideration price.
7. Aggrieved by the said judgment and decree, the present appellants, being defendants Nos. 1 to 7, filed the present appeal (R.F.A. No.245 of 1993). However, Mst. Razia Begum/respondent No. 1 filed a separate appeal (R.F.A. No.62 of 1994) against the same judgment and decree agitating her stance taken in the separate written statement. Both the appeals are being decided together.
8. Mr. M.A. Zafar, learned counsel for the appellants in R.F.A. No.245 of 1993 has contended that respondents could not prove either alleged execution of agreement to sell or payment of consideration price and the pleas regarding taking over of the possession of the disputed property in. part performance of the agreement is not supported by the evidence‑on‑record. In order to substantiate his aforesaid contention, he has submitted that the evidence‑on‑record is not sufficient to prove that in fact Sh. Fazal Hussain executed agreement to sell dated 14‑5‑1975 (Exh.P‑1). He has further submitted that the learned trial Court, while decreeing the suit in favour of respondent No. 1, has fallen into legal errors and proceeded to pass impugned judgment in complete oblivion of the facts of the case and law on the subject inasmuch as the documentary as well as oral evidence has completely been misread.
9. Mr. Zafar Iqbal Ch. learned counsel for the appellants in R.F.A. No.62 of 1994 has contended that the learned trial Court failed to frame an issue regarding the transaction of gift made by Sh. Fazal Hussain deceased in favour of Mst. Razia Begum, (the appellant in R.F.A. No.62 of 1994) regarding a, portion of the disputed property. He has further submitted that there is sufficient evidence available on record to hold that in fact Mst. Razia Begum is the owner of one half portion of the disputed property on the basis of gift made in her favour by her husband Sh. Fazal Hussain and thus at the time of the alleged agreement to sell, as he was not owner of the disputed property, therefore, he was not competent to enter into an agreement to sell regarding the whole of property with respondent No.1 as alleged by him.
10. Conversely learned counsel for Sh. Hassan Ali, respondent in both the appeals, has contended that it has been proved on record, as rightly held by learned trial Court, that Sh. Fazal Hussain executed two agreements (Exhs.P‑1 and P‑2), received sale consideration price from respondent No.1 and thus the suit was rightly decreed in favour of respondent No.1. He has further submitted that respondent No. 1, being the plaintiff, produced voluminous documentary and oral evidence to prove that he is entitled for the decree for specific performance and the learned trial Court has rightly passed the impugned decree in favour of Sh. Hassan Ali, which is in consonance with record of the case in accordance with law on the subject and the impugned judgment cannot be clothed with any legal infirmity.
11. To our mind the pivotal issue around which the whole controversy revolves are issues Nos.1 and 6 which in substance deals with the execution of two agreements to sell statedly executed by Sh. Fazal Hussain deceased and the entitlement of respondent No.1 for the specific performance of agreements to sell. The onus of issues Nos. 1 and 6 was on respondent No. 1 being plaintiff is to prove. In order to discharge onus of said issues, respondent No. 1 produced Sh. Niaz Ali, P. W.1, who is scribe of agreement Exh.P‑1 dated 14‑5‑1975, who deposed in examination‑in‑chief that he sold stamp paper, which was purchased by Sh. Hassan Ali on behalf of Sh. Fazal Hussain and that although the parties signed this agreement before him, however, the witnesses did not sign before him. However, in cross‑examination he admitted that Exh.P‑1 was not entered in his register, that Sh. Fazal Hussain did not himself purchase the said stamp paper upon which Exh.P‑1 was written and that this agreement was written on the asking of Sh. Hassan Ali. It would be advantageous to reproduce the portion of the statement of P.W.1 as under:‑--
Asad Ullah appeared as P.W.2, who is the son of Hafiz Ullah the scribe of agreement Exh.P.2. This witness identified the signature of his father at Exh.P.2, however, in his cross‑examination, he has showed his ignorance about the fact as to whether his father was a stamp vendor of not. He has further deposed that he does not know whether Exh.P.2 was entered or not in the register maintained by his father. Some of the portions of statements of P.W.2 are reproduced:‑
Ch. Nazir Ahmad, who is statedly a marginal witness of Exh.P.1 and Exh.P.2. appeared as P.W.3 and identified his signatures on these two documents. He also deposed that. Sh. Fazal Hussain signed in his presence. In cross‑examination he stated that he never went to the house of Sh. Fatal Hussain nor at his shop. Relevant portion of statement of P.W.3 are given as under:‑
P.W.4, is Javed Akbar Baig son of Akbar Baig, who reportedly sold the stamp paper on which Exh P.1 was written. This witness identified his father's signatures on Exh.P.1. However, he admitted in cross‑examination that. Exh. P.1 was not entered in the register maintained by his father. He further deposed that the entries in Exh.P.1 were not made in his presence. The said portion of the statement is reproduced below:‑
P.W.5 has stated that he is an architect and on the asking of Sh. Fazal Hussain, he estimated the value of House No.18‑C. Gulberg, which was estimated at Rs.6 lacs in the year 1975. P.W.6 is Abdul Sattar, Senior Clerk L.D.A., he produced copy of an application dated 23‑4‑1970, moved by Sh. Fazal Hussain and also produced application for the return of the prescription: He has also produced a copy of application submitted to LDA by Razia Begum. Muhammad Ashraf Malik appeared as P.W.7, who is stated to be a handwriting Expert, who filed his report as Exh.P.W‑7/C. He was cross‑examined at length. Respondent No.1 appeared as P.W.8 as his own witness and reiterated the contents of the plaint. He, inter alia, stated that after the document Exh.P.2 was written, it was read over to Fazal Hussain and he, Fazal Hussain Randhawa and Pervaiz Afzal signed this Exh.P.2. He reiterated the contents of the said agreement. Relevant portion of the statement of the plaintiff is reproduced below:‑--
12. The appellants produced Pervaiz Afzal as D.W.1 who is son of Sh. Fazal, Hussain. He has stated that his father died on 23‑6‑1989 at the age of 80 years; that he used to accompany with his father in all the matter that he used to go with him in the morning and come back in the evening with him. He also stated that Abdul Aziz son of respondent No.1 was the tenant in respect of a portion of Property No.18‑C/1 and Abdul AZIZ paid the rent uptil 30‑6‑1977. He also deposed that his father never entered into any agreement to sell regarding the sale of the disputed property. He also denied his father's signatures and his own signatures on Exh.P.2. The relevant portions of statement of the said witness are reproduced below:‑
D.W.2 is Sh. Muhammad Munir, who is nephew of Sh. Fazal Hussain. He stated that he has been working with son of the plaintiff that Sh. Fazal Hussain contacted him for the vacation of the property and he alongwith Fazal Hussain approached Abdul Aziz son of the plaintiff to vacate the property as rent for 7/8 months was due against Abdul Aziz. D.W.3 is Dr. Aamir Ali, who appeared as Handwriting Expert. D.W.5 is Sh. Muhammad Amin, Advocate who appeared as special attorney .of defendants Nos. 1, 3 to 7. He stated that Sh. Fazal Hussain never entered into any agreement to sell with the respondents and that Exh. P.1 and Exh. P.2 did not bear the signatures of said Fazal Hussain and thus signatures are forged. This witness has further deposed that on 20‑4 1975, Sh. Fazal Hussain gifted the second portion of 18‑C‑1 in favour of his wife Mst. Razia Begum and decree was passed by the learned Civil Judge in respect of transaction of gift. D.W.6 is Record keeper of L.D.A.
13. The most crucial issue in this case is as to whether Sh. Fazal Hussain executed any agreement to sell regarding the property in dispute in favour of the respondents. In order to prove execution, the agreement to sell and the payment of the portion of the consideration respondent No.1/plaintiff produced, witnesses which have been discussed in the preceding paras. After scanning through the evidence we are of the view that the respondent had not been able to prove the execution of agreement inasmuch as P.W.1. has categorically stated that Fazal Hussain did not purchase stamp paper from him, he scribed this document on the asking of Hassan Ali, that Fazal Hussain did not sign in his presence and that after scribing the same Hassan Ali took the agreement and completed his formalities. In this way the execution of the agreement Exh.P.2 could not be proved. The writing and the purchase of the stamp paper could not be proved by producing D.W.1 as noted in the preceding paras, as the original scribe could not be produced as he was dead at that time therefore, his son appeared but could not prove the execution of the said agreement too as there are very glaring discrepancies in his statement. One of the marginal witness is P. W.3, who is an Advocate but does not know Sh. Fazal Hussain and has also admitted that he hag only signed the said document when he was introduced by Raja, Muhammad Safdar, Advocate, who was his senior. He has admitted that he has been working as Junior Advocate, with Raja. Muhammad Safdar, Advocate and that Hassan Ali tiled this suit through said Raja Muhammad Safdar, Advocate. This Ch. Nazir Ahmed is the marginal witness of both the alleged agreements to sell. There is no other marginal witness to these agreements. If all the witnesses are read together, it leads to an irresistible conclusion that respondent No. 1 had not been able to prove the execution of the said agreement. Although both the parties to the suit produced two different Handwriting Experts who gave two different opinions, but the leafed trial Court has riot relied upon any of the said opinion.
14. Upon the examination of the impugned judgment we find that although the learned trial Court has discussed the evidence on record, yet the conclusions arrived at by learned trial Court are not inconsonance with the evidence on record and the findings arrived at by learned trial Court are not apt to the evidence, both oral as well as evidence on record. In view of the resume of the witnesses, we are constrained to hold that findings rendered by learned trial Court while decreeing suit of the respondents are not to be maintained and thus we reverse the findings of the learned trial Court on these issues. In these circumstances, we have no alternative except to accept the appeal and set aside the judgment and decree of the learned trial Court.
15. Now coming to R.F.A. No.62 of 1994, which has been tiled by Mst. Razia Begum, we find that originally suit was filed against Fazal Hussain and after his death the appellants and Mst. Razia Begum were impleaded as legal heirs of deceased Fazal Hussain. Although the appellants being defendants Nos. 1 to 7, filed joint written statements, but Mst. Razia Begum filed separate written statement. In the written statement tiled by Razia Begum she took different pleas from the one taken by Fazal Hussain in his original written statement. In her written statement, she pleaded that a portion of the disputed property was gifted to her by Sh. Fazal Hussain and thus she is owner of half portion of the property in dispute in her own rights in the capacity of donee. Another aspect of the case, which she tried to prove is that as at the time of alleged agreement to sell, Sh. Fazal Hussain was not the owner of the total property; thus, he was not competent to enter into any agreement to sell regarding whole of the property. We have examined the original written statement tiled by Sh. Fazal Hussain in his lifetime and find that, no such plea was taken by Sh. Fazal Hussain in the said written statement or even thereafter during his lifetime. Mst. Razia Begum was impleaded as one of the legal heirs of Sh. Fazal Hussain and under the law she was precluded from taking a different plea from the one taken by Fazal Hussain. Under the law the legal representatives of a deceased party must defend the suit on the basis and defence originally relied upon by the deceased in his written statement and cannot set up their new individual rights. Under Order 22 rule 4(2), C.P.C., legal representatives are only allowed to take a defence, but appropriate to his character as legal representatives of a deceased person and such a legal representative cannot be allowed to take a different plea from the pleas raised by their predecessor‑in interest. In this perspective, we find that the defence taken by Mst. Razia Begum was contrary to the aforenoted provisions of law and thus learned trial Court has rightly rejected his claim. In view of the above, the appeal tiled by Mst. Razia Begum is misconceived, not maintainable and is hereby dismissed.
16. The upshot of the above discussion is that R.F.A. No.245 of 1993 filed by the legal representatives of deceased Sh. Fazal Hussain stands accepted and judgment and decree dated 2‑11‑1993 passed by learned trial. Court, whereby suit filed by respondent No. 1 for specific performance was decreed is hereby set aside while reversing findings rendered by learned Civil Judge. However, on the basis of our findings recorded above, the appeal filed by Mst. Razia Begum (R.F.A. No.62 of 1994.), being devoid of any, merits, is hereby dismissed and to that extent the findings of the learned trial Court are up held. We are not inclined to grant costs of the suit in any of the appeals.
Q.M.H./M.A.K./P‑91/L Order accordingly.