MUHAMMAD NAWAZ Versus GHULAM MURTAZA
MUDASSIR KHALID ABBASI, J.--- This Regular Second Appeal is directed against judgments and decrees dated 07.10:2010 and 05.10.2009 passed by learned Additional District Judge, Kehror Pacca and learned Civil Judge 1st Class, Kehror Pacca, respectively.
2. Precisely, facts of the case are that respondent filed a suit for specific performance of contract against the appellant, issues were framed and evidence of the parties was recorded. Suit was decreed vide impugned judgment and decree dated 05.10.2009, by learned Civil Judge, Kehror Pacca. Feeling aggrieved, appellant has filed an appeal before learned Additional District Judge, Kehror Pacca which was dismissed vide impugned judgment and decree dated 07.10.2010.
3. Learned counsel for the appellant contends that impugned judgments and decrees are result of misreading and non-reading of evidence. Further contends that appellant has proved his case through evidence but learned courts below have overlooked this fact. Argued that admittedly alleged agreement to sell Ex.P-1 dated 21.12.2005 is a forged document, it was never signed/executed by the appellant which requires unimpeachable and corroborative evidence to prove the same but respondent badly failed to do so. Further argued that PW-3 and PW-4 produced by respondent to prove said agreement to sell was real maternal uncle and real brother, respectively of respondent. Moreover, impugned judgments and decrees are against the law and facts on the record, therefore, same are liable to be set aside.
4. On the other hand, learned counsel for respondent has opposed the contentions raised by learned counsel, for the appellant and argued that the agreement has been fully proved by the evidence produced by the respondent/plaintiff Marginal witnesses have corroborated the stance taken by the petitioner. Further argued that once the genuineness of the agreement was questioned by the appellant/defendant onus to prove had shifted to appellant/defendant which he had failed to do so. Moreover, in the written statement the petitioner has not challenged the validity of his signatures and genuineness of the agreement. States that the impugned judgments are in line with the judicial pronouncements by the higher courts with regard to the performance of agreement, therefore, RSA merits dismissal.
5. I have given my conscious thought to the arguments of learned counsel for the parties and perused the record.
6. Primarily, controversy between the parties revolves around the authenticity and genuineness of the agreement Ex.P-1 dated 21.12.2005. Appellant has out rightly denied the existence of any such agreement and has seriously challenged the genuineness of this agreement, it has been vehemently urged by the appellant that the signatures of appellant on Ex.P-1 are ingenuine and forged one.
7. Before adverting to any other aspect of the case, it would be beneficial to address a critically important legal aspect of the case that once the execution/thumb impression/signatures are denied by the appellant/defendant, onus shifted onto him to prove the ingenuineness of the same. Reliance is placed on 2007 YLR 1361 Lahore case titled "Waryam and others v: Muhammad Mehrab and 4 others" Instead of making such effort, surprisingly, it was aggressively opposed by the appellant/defendant when application for comparison of his signatures/thumb impressions was moved by the respondent/plaintiff. It speaks of volumes regarding the bona fide of the respondent/plaintiff. On the other hand, respondent/plaintiff has made a successful attempt to prove his case through oral testimony and documentary evidence. Stamp vender/writer appeared as PW-1 along with the stamp paper Ex.P-1. He identified the signatures on the stamp paper. Said witness also produced stamp purchase register Ex.P-2 stating that it bears his signatures and thumb impressions of the appellant/defendant. Ghulam Murtaza respondent/plaintiff himself appeared as PW-2 stating that the transaction was settled on 19.12.2005 and Rs.70,000/- was paid as earnest money after two days, appellant/defendant got executed the agreement in presence of witnesses and Rs.130,000/- were paid, possession was handed over to respondent/plaintiff. It was settled between the parties that remaining amount of Rs.350,000/- would be paid to appellant/ defendant in one month who shall transfer the land in his favour. Appellant/defendant was approached after one month along with the remaining amount but he refused to receive the same.
8. Marginal witnesses of Ex.P-1 Rab Nawaz/PW-3 and Ghulam Mustafa/PW-4 appeared in proof of execution of agreement and have affirmed the stance of the respondent/plaintiff in unambiguous and clear terms. Both these witnesses have fully satisfied the requirement of Articles 17 and 79 of the Qanun-e-Shahadat.
9. During the course of arguments, some discrepancies in the statements of PWs have been pointed out by the counsel for the appellant which are of not much significance, as the witnesses were examined after a considerable period, such discrepancies are natural and would not have any adverse effect on the evidentiary value of these witnesses. Reliance is placed on 1994 MLD 618 case titled as "Sanaullah Khan v. Feroze Din".
10. So far as the delivery of possession to the respondent/plaintiff is concerned, it has not only been established through the oral but through a documentary evidence Ex-P-6, this is an application filed by the respondent before the revenue authorities for correction of the record regarding possession of the property subject of the case. It was reported by revenue officials that the appellant defendant is in the actual physical possession of the suit property.
In view of foregoing discussion, I have no hesitation to observe that the judgments passed by courts below are neither contrary to law nor any material issue of law has been omitted, appellant could not identify any infirmity in the impugned judgments. Therefore, this appeal does not succeed and is dismissed as no orders as to cost.
MQ/M-113/L Appeal dismissed.