NOSHER KHAN Versus NEK MUHAMMAD alias NEKI
This Second Appeal is directed against the judgment and decree dated 11‑5 1980, passed by the learned Additional District .Judge, Sheikhupura, whereby the appeal filed by the appellant from the judgment and decree passed by the learned Senior Civil .Judge, Sheikhupura, on 341‑5‑71)69, was dismissed leaving the parties to bearing their own costs.
2. The dispute between the parties pertains to agricultural land measuring 147 kanals and 3 marlas situated in Chak No 9 f R. B., Mataba, Tehsil and District Sheikhupura. The case of the appellant was that on 20‑7‑1966 the respondent by a written agreement agreed to sell him the above land for Rs. 25,5()0 and received from him a sum of Rs. 15,000 as earnest money. it was stipulated that the remaining sale‑price amounting to Rs.10,503 would be paid at the time of the registration of the sale‑deed to be executed within four months. Later on, the respondent resiled from the agreement in spite of the fact that he had been persuading him to execute the contract. He, therefore, instituted a suit for specific performance of the agreement to sell.
3. The respondent resisted the suit controverting the allegations of the appellant. He denied that he ever agreed to sell his land to the appellant or received from him the sum of Rs.15000 as earnest money. He averred that the agreement to sell was absolutely fraudulent, fictitious and in. valid.
4. Before framing issues, the learned trial Court recorded the statements of the parties. The respondent reiterated that he never executed any agreement to sell in favour of nor received any money from the appellant. He denied that the agreement to sell and the receipt relied upon by the appellant bore his thumb -impressions. According to him, his relations with the appellant were strained and lie had filed a criminal case against the appellant. On the other hand, the appellant in his statement reaffirmed his case that the respondent had entered into an agreement to sell his land to him and had received from him the sum of Rs 15,000. According to him the agreement was executed in the Mauza and it was scribed by Muhammad Aslam.
5. On the basis of the pleadings filed by the parties and their statements before issues, the trial Court formulated the following issues:‑
(1) Whether the defendant has executed the agreement dated 20‑7‑1966 in favour of the plaintiff?
(2) Whether the receipt dated 20‑7‑1966 is for consideration?
(3) Relief.
6. At the trial, the agreement Exh.P.1 and the receipt Exh.P.2 were sent to the Finger Print Bureau, West Pakistan Police, Lahore, and the Officer‑in‑Charge of the Bureau reported vide Exh.P.7 that the thumb‑impressions thereon were identical with the left thumb‑impression of the respondent on the sample paper. The Finger Print Expert was examined on interrogatories and his answers to the questions were exhibited as P.8. Besides, the appellant examined himself as P.W.2 and one witness, namely, Muhammad Shafi as P.W.1 in support of the issuc5. However, in rebuttal, the respondent examined only himself as D.W.1. After comprehensively appraising the evidence, the learned trial Court held that the agreement Exh.P.1 and the receipt Exh.P.2 were not executed in due. course of law and that the receipt was without consideration. On the basis of these findings, the suit instituted by the appellant was dismissed.
7. Feeling aggrieved, the appellant preferred an appeal which was heard by the learned Additional District Judge, Sheikhupura, who vide his judgment and decree dated 11‑5‑1980, impugned in this appeal, dismissed the same endorsing the findings of the learned trial Court.
8. I have perused the record and heard the learned counsel for the parties. The reasons which prevailed with the learned Courts below in finding; concurrently that the agreement to sell Exh.P.1 and the receipt Exh.P.2 were; without consideration are unassailable. Both these documents were purportedly scribed by Muhammad Aslam who was not a petition‑writer but even he was not examined to prove the same. There were two marginal witnesses in these twos documents and one of them was Ahmad who is the cousin as well as brother‑in- law of the appellant as admitted by him in his cross‑examination. He was called by the appellant as his witness but when he appeared in the Court he was given up. The non‑production of these two material witnesses undoubtedly reflected on the veracity of the claim put forth by the appellant. Of course, Muhammad Shah P.W.1 was also a marginal witness of the documents but his testimony, as rightly, observed by the learned Courts below, does not inspire confidence. They statement given by the appellant was sufficiently rebutted by the respondent.
9. According to the report Exh.P.7 of Finger Print Expert, the agreement Exh.P.1 and the receipt EXh.P.2 bore the thumb‑impressions of the respondent. The respondent is admittedly an illiterate person. He explained in his statement s D.W.1 that the appellant had assaulted hem and he filed a criminal case against him which remained pending for a period of two years. Ultimately, the parties compromised and in connection with this compromise the appellant had obtained his thumb‑impressions on various papers. This plea of the respondent was put to the appellant m his cross‑examination and he admitted that the respondent had filed a criminal case against him and others including Ahmad who too was a marginal witness of the documents in question but was not examined at the trial and that the parties had entered into a compromise in that case. This was briefly alluded to by the respondent in his statement before the issues as well. So, the plea of the respondent cannot be described as an after thought or a contrivance.
10. The learned counsel for the appellant has contended that in view of the report of the Finger Print Expert that the agreement Exh.P.1 and the receipt Exh.P.9 bore‑1he thumb‑impressions of the respondent, the onus lay on him to prove that these documents were fraudulent. In support of this contention, reliance is placed on Mst. Nur Nishan and others v. Fazal Dad (P L D 1949 Lahore 256) wherein it was observed that where a party admitted his thumb -impression on a document, it was for him to enlighten about the circumstances under which he put his thumb‑impression. As mentioned above, the respondent explained in his statement that during the trial of the criminal case filed by him I against the appellant they entered into a compromise and the appellant obtained his thumb‑impressions on various papers. This explanation is not devoid of plausibility.
11. The learned counsel for the appellant has further argued that since the respondent did not specifically state particulars of the alleged fraud in his written statement as required by Order VI rule 4, C.P.C., his plea of fraud cannot be taken into consideration. He has referred in this connection, to Faqir Muhammad and 5 others v. Sheikh Nasim Ahmad (P L D 1973 Lahore 356), Ghulam Shabbir v. Mst. Noor Begum and others (P L D 1977 S C 75), Muhammad Umar v. Maqarrab Khan and another (1968 S C M R 983) and Muhammad Azeem v. The Pakistan Employees Co‑operative Housing Society and others (P L D 1973 Note 34). The respondent clearly averred in his written statement that that the agreement and the receipt referred to by the appellant were fraudulent and 1 fictitious. He furnished explanation, although briefly; m his statement before the issues. In these circumstances, his plea of fraud cannot be excluded from consideration, especially, when, as usually observed, no meticulous care is taken while drafting pleadings m mufassil.
12. For the foregoing reasons, I do not find justification for interference with the impugned judgment and decree and dismiss this appeal as being without substance. There shall be no order as to costs.
M.Y.H./3285/L Appeal dismissed.