Mst. BABARA AND OTHERS vs ABDUL AKBAR AND Other

1. MUHAMMAD GUL, J.---By means of a registered deed dated 21-11-1928 Abdul Akbar, respondent No. 1 herein, sold land measuring 24 kanals to his brother Abdul Khaliq, since deceased and now represented by the petitioners and respondents Nos. 2 and 3 herein. On 13-11-1968 respondent No. 1 sued the petitioners end respondents 2 and 3 for specific performance of the agreement for the re- conveyance of the aforesaid land on the allegation that Abdul Khaliq, during his lifetime, had by an agreement dated 23-12-1960 undertaken to reconvey the land to respondent No. 1, in consideration for Rs. 3,000 out of which Rs. 1,600 were paid to him and the balance was made payable at the time of registration of the deed of re-conveyance. The agreement also provided for obtaining the necessary sanction for the sale of the land from the Commissioner, which became necessary because of the ban imposed on all sorts of transfers within the area commanded by the Warsak Project Scheme.

2. The suit upon being resisted by the petitioners and respondents 2 and 3 was dismissed by the trial Court. On appeal by respondent No. 1, the judgment of the trial Court was reversed by the learned District Judge who granted a decree for the specific performance of the agreement, the ban against the transfer having been withdrawn in the meantime. A further appeal to the learned Single Judge of the Peshawar High Court having failed in limine, the petitioners by this petition for special leave called in question the judgment of the learned Single Judge affirming that learned District Judge.

3. Petitioner's learned counsel argued that in the trial Court the petitioners had disputed the genuineness of the agreement alleged to have been executed by their predecessor- in-interest Abdul Khaliq and, therefore, the burden of proof lay upon respondent No. 1 to prove its genuineness.

4. He, however, failed to satisfy the trial Court in that behalf. But the first appellate Court on a re-- appraisal of the evidence came to a contrary conclusion. Learned counsel, however, complained that during the proceeding b--fore the first appellate Court the petitioners had requested that the thumb-impression of deceased Abdul Khaliq on the disputed document should be compared with his thumb-impression on Exhs. D. W. 1/1 and D. W. 1/2 which bore his genuine thumb--impression and which had been produced in the trial Court. This prayer however was not granted. Basing himself on the cases of Khuda Bakhsh v. Imam Ali Shah (I L R 9 All. 339) and Arjun Ramchandra Shet Karpe v. Shankar Vishram Shenvi Ghuraye, (I L R 22 Bom. 253) learned counsel urged that the Court ought to have allowed the petitioners an opportunity to call expert evidence for the comparison of the thumb-impression of the deceased on the disputed document with his thumb-impression on the two documents produced by them. Refusal of such opportunity according to learned counsel had vitiated the findings of the learned Single Judge and that of the first appellate Court. The two precedent cases noticed above are clearly distinguishable. In those cases the witnesses were present in the trial Court but the trial Court had declined to record their statements because it considered that to be unncessary. In the instant case there is nothing to show that the petitioners had applied in the trial Court for the comparison of the thumb--impression of the deceased on the disputed documents with his thumb-impression on Exhs D. W. 1 / 1 and D. W. 1/2. Having failed to examine the expert evidence in the trial Court, they had no right during the proceedings in the first appellate Court. Even then there was no formal application. Such being the case, it is too late now to complain about the lost opportunity.

5. There being a concurrent finding of the first appellate Court and a learned Single Judge, there is in our opinion hardly any justification to permit the re-opening of the case.

6. Potation dismissed.