HAMAYUN KHAN Versus Haji MUHAMMAD IQBAL KHAN
MUHAMMAD DAUD KHAN, J.--- This revision petition is directed against the judgment and decree, dated 7-3-2013, passed by learned Additional District Judge-II, Bannu, vide which by accepting the appeal of respondent-1/plaintiff, set aside the judgment and decree of Civil Judge-XI, Bannu, dated 30-10-2012 and decreed the suit of the respondent-1/plaintiff.
2. Facts giving rise to the instant revision petition are that Haji Muhammad Iqbal, respondent-1/plaintiff (hereinafter called as respondent-1) instituted a suit bearing # 135/1 on 1-4-2011 against petitioner/defendant-1 (hereinafter called petitioner). The respondent sought a decree against the petitioner, for specific performance of an agreement to sell certain land measuring 12 marlas out of land measuring 02 kanals 06 marlas in khata # 206/401, khasra # 152 situated in Mauza Mala Khel Surani, Bannu. The sale consideration was alleged to be Rs.60,000 per marla. The respondent contended that an amount of Rs.6,40,000 had been paid to petitioner, as earnest money in the presence of witnesses. The remaining amount was agreed to be paid at the time of transfer of the disputed land. The respondent alleges that the petitioner is bound to receive the remaining amount and transfer the property in favour of respondent. The respondent also prayed for perpetual-cum-mandatory injunction that the petitioner be restrained from interference in the possession of respondent, forcible demolition of the construction raised in the land and further alienation of the disputed land to another person.
3. One Khurshid Khan, respondent-5 (hereinafter to be called as respondent-5) also filed suit bearing # 238 against petitioner for the same relief in his favour on the basis of sale. His suit rests on an Iqrarnama, dated 8-4-2012. It was alleged that as per the Iqrarnama, a sale consideration of Rs.8,12,500 was fixed and paid wholly to the respondent and that the possession of the disputed land was delivered to him.
4. Both suits were consolidated because same relief was sought in respect of the same land against one defendant. The parties contested the suits. On divergent pleadings of the parties, the learned trial court framed the following consolidated issues:--
(1) Whether the plaintiffs in Suit No.135/1 and 238/1 have got a cause of action to file their Suits?
(2) Whether plaintiff is suit # 135/1 is estopped to sue due to his conduct? OPD # 5.
(3) Whether plaintiff of suit # 135/1 has not come to the court with clean hands? OPD # 5.
(4) Whether plaintiff and defendant # 5 has not come to the court with clean hands? OPD # 1.
(5) Whether plaintiff has filed a suit with the connivance and mala fide intention of defendant # 1? OPD # 5.
(6) Whether plaintiff has filed a suit with the connivance of defendant # 5? OPD # 1.
(7) Whether the defendant # 1 has sold out the property to plaintiff at Rs.60,000 per marla and received amount of Rs.4,60,000 and promised to handover the possession of property after receiving of remaining amount? OPP
(8) Whether defendant # 5 has purchased the property from defendant # 1 in lieu of Rs.8,12,500 vide iqrar nama dated 8-4-2011, if so, its effects? OPD # 5.
(9) Whether Iqrar Nama dated 8-4-2011 is baseless and fraud? OPP
(10) Whether defendant-1 has not sold the property to plaintiff?
(11) Whether defendant-5 is entitled for compensatory cost of Rs.25,000 under Section 35-A C.P.C? OPD-5.
(12) Which of the plaintiffs are entitled to the decree as prayed for?
(13) Relief.
5. The learned trial court required the parties to produce their evidence as they wished. The plaintiff Muhammad Iqbal produced four witnesses along with himself and respondent-5, rival plaintiff, produced four witnesses but petitioner/defendant No.1 neither produced any witness nor did he record his own statement to rebut the claim of respondent and voluntarily submitted application on the rely of the evidence produced by the opposite parties.
After conclusion of trial, the learned trial court dismissed both the suits, vide its consolidated judgment and decree dated 30-11-2012.
6. Aggrieved from the said consolidated judgment and decree of the trial court, both the rival plaintiff, now respondents-1 & 5, preferred their appeals:--
(i) Haji Muhammad Iqbal v. Humayun Khan and others (Civil Appeal # 162/13 of 2012), and
(ii) Khurshid Khan v. Humayun Khan and others (Civil Appeal # 164/13 of 2012).
7. As both the appeals were against same consolidated judgment and decree of learned trial court vide which both the suit of plaintiffs were dismissed, the learned Appellate court consolidated both the appeals and after hearing the parties allowed the appeal # 162/13, while dismissed appeal # 164/13. The conclusion was as follows:--
"The result is that I allow appeal of Haji Muhammad Iqbal Khan, reverse the judgment and decree of the learned trial court to the extent by granting him the decree of specific performance of contract as prayed for in the plaint with the direction to the plaintiff/appellant to pay remaining of the amount within one month to the defendant, failing which, his appeal and suit should be deemed to have been dismissed. In case he deposited the remaining of the sale amount, the disputed property shall be transferred to him. The connected appeal filed by Khurshid Khan, stands dismissed with costs."
8. Dissatisfied with the judgment of the learned Appellate Court, Humayun Khan, defendant, as petitioner herein has challenged the said appellate judgment and decree before this court. Respondent No.5, rival plaintiff, did not question the same. However, he has been arrayed as respondent No.5.
9. Mr. Fazal Hadi, learned counsel for the petitioner, contended that the judgment and decree of the learned Appellate Court is manifestly against the law and facts, in deviation from the well settled principle and dictum of law on subject matter and a result of misreading and non-reading of the evidence and record.
10. On the other side, Mr. Umar Qayyum Khan, the learned counsel for the respondent No.1, opposed the arguments of learned counsel for the petitioner and supported the judgment and decree of the learned Appellate Court.
11. I have heard arguments of learned counsel for the parties and perused the record of the case.
12. To prove his case the respondent Muhammad Iqbal himself recorded his statement and produced three other witnesses. One Asif Khan, PW2 stated in examination-in-chief that respondent-1 paid Rs.300000 to defendant, Humayun Khan. He was cross examined by the defendants but his testimony could not be shattered. The positive suggestion of the respondent-5 Khurshid Khan is worth mentioning as it confirms the transaction between Muhammad Iqbal and Humayun Khan. For convenience, this evidence is reproduce as under:--
Tariq Khan, another witness of respondent-1, examined as P.W.3, stated that he had struck the transaction between Muhammad Iqbal and Humayun Khan. He also supported the facts narrated in the plaint. This witness was also faced lengthy cross examination by the opposite side, but his testimony, particularly on fundamental issues regarding sale of disputed property and payment of the sale consideration, could not be shattered. Moreover, positive suggestion put forth by the defendant/petitioner to the witnesses, and their answers confirmed the case of respondent/plaintiff. The respondent-1, Muhammad Iqbal appeared as P.W.4. He reiterated the same facts averred in the plaint and his testimony was also confirmed by positive suggestion in cross examination. For an easy reference, the answer of positive suggestion by petitioner and rival is reproduced as under:--
13. It is pertinent to mention here that petitioner Humayun Khan, neither produced evidence in support of his case, nor did he record his own statement. There is no evidence oral or documentary in rebuttal of the plaintiff's evidence. The petitioner/defendant himself, through application, prayed that he did not want to produce his evidence and that he relied on the evidence of the plaintiff. It is thus established that the plaintiff's evidence has gone un-rebutted and unchallenged. Thus, as a matter of law, it is to be deemed as correct and admitted on the part of petitioner. Such evidence does not require any further proof within the meaning of article 113 of the Qanun-e-Shahadat Order, 1984.
14. It is well settled principle of law that mere written statement cannot legally be treated as evidence. Reliance may be placed "Ms. Khair un Nisa and 6 others v. Malik Muhammad Isha'aq and 2 others" (PLD 1972 SC 25), "Faqir Muhammad and 8 others v. Abdul Momin and 2 others" (PLD 2003 SC 594), "Muhammad Bashir and others v. Iftikhar Ali and others" PLD 2004 SC 465), "Muhammad Akhtar v. Mst Minna and 3 others" (2001 SCMR 1700) and "Haji Din Muhammad v. Mst. Hajra Bibi" (PLD 2002 Peshawar 21).
15. At the trial of the other suit (bearing # 238/1), four witnesses, including the rival plaintiff Khurshid Ahmad Khan himself, were examined. The witnesses were Haji Sher Draz Khan, scribe (DW-1) produced iqranama which is placed on record as Ex DW 1/1. However, while under cross examination, he admitted that at the time of said iqranama Khurshid Khan told him that Muhammad Iqbal Khan has instituted a suit against Humayun Khan in respect of disputed property and that the court has issued a temporary injunction in that suit. He also volunteered that he had not instituted the suit till 17-2-2011. The witness also admitted that in his presence the transaction did not take place nor was the sale consideration paid. Perusal of the iqrarnama reveals that its writing of the substance and that of the entry in the relevant register do not, match with each other; a fact that the scribe has admitted. It is clear that Khurshid Khan has executed iqrarnama and instituted the suit during the pendency of the suit of Haji Muhammad Iqbal Khan. Moreover, the written statement of the rival plaintiff and statement and the manner of contesting the suit and appeal, shows that it is a mere counter suit based on connivance between respondent-1 and respondent -5/rival plaintiff. Its aim was nothing but to defeat the suit of Haji Muhammad Iqbal Khan. The non-challenging of the findings of the lower court further supports this view. It is thus established that both the courts have rightly dismissed the suit of rival plaintiff Haji Khurshid Khan. As far as the judgment of trial court to dismiss the suit of the respondent-1 is result of misconception of law and based on misreading and non- reading of the evidence to the extent of respondent-1 and not sustainable in law.
16. The learned Appellate Court has properly appreciated evidence and correctly applied the law while accepting the appeal of respondent-1 and set aside the judgment and decree to the extent of respondent-1. I find no misreading or non-reading, illegality, irregularity in the judgment and decree passed by the learned Appellate Court.
18. As a result of my above discussion, I dismiss the instant revision petition. There is no order as to costs.
MWA/159/P Revision dismissed.