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Second Civil Appeal No.313 of 1978, decided on 11th March, 1986.

---S.12--Civil Procedure Code (V of 1908), S.100--Specific performance of agreement of sale--Appellate Court reversing judgment and decree of Trial Court and dismissing suit of appellant-plaintiff--Assessment of evidence led by appellant-plaintiff in support of execution of agreement of sale coupled with original documents of title coming from his custody showing that preponderance of, evidence in the case was absolutely in favour of execution of document by late respondent- Reversal of finding of Trial Court by First Appellate Court, found neither based on logical reasonings nor valuable documentary evidence produced by plaintiff before Trial Court taken into consideration- Appeal accepted, judgment and decree of First Appellate Court set aside and those of Trial Court restored.

---Agreement of sale--Mere fact that stamp paper on which agreement of sale was written was purchased not from place where parties resided but from some other place, held, was not conclusive to reach conclusion that the agreement of sale was forged.

Yousuf Khatri for Appellant.

Sharif Khattak for Respondents.

Date of hearing: 11th March, 1986.

This second appeal under section 100 C P C is filed by the appellant/ Plaintiff against the judgment and decree of the Ist Addl. District Judge, Hyderabad, whereby he reversed the judgment and decree of the trial Court and dismissed the suit of the Plaintiff appellant filed against the respondents/ defendants.

The appellant instituted Suit No.7/67 for specific performance of an alleged agreement of sale dated 5-2-1964. It was alleged in the suit that deceased Mahardin entered into an agreement of sale in respect of lands situated in Dehs Pak Sanghar, Sutauri and Jaki and Deh Dhalu, all measuring 13.38 acres on 5-2-1964 and handed over possession of all the above mentioned lands alongwith original documents of titles. It was alleged in the suit that the registered sale deed in respect of the lands mentioned in the aforesaid Dehs was to be executed in favour of the appellant after clearance of alleged dispute with regard to 4 acres of land bearing Survey No.138, situated in Deh Dhalu which was claimed to be a non-evacuee land. It was further alleged in the plaint that the dispute with regard to the land situated in Deh Dhalu came to end in September, 1966 whereafter, the appellant approached the respondents/ defendants for execution of the sale deed and having failed in his attempt, he instituted the suit on 4-2-1967.

The respondents/ defendants resisted the above suit and denied that Mehardin (predecessor-in-interest of the respondents) ever executed any agreement of sale in favour of the appellant. They also denied that any sale consideration was paid in pursuance of the alleged agreement of sale. On the basis of the controversy between the parties the trial Court framed the following issues:-

Whether Mehardin did not enter into a valid agreement to sell the land in suit

2. Whether the consideration of Rs.4,000 was paid by the Plaintiff to Mehardin

3. Whether the alleged sale deed is legal, genuine and binding on defendants Nos.l and 2 and 3

4. Whether the plaintiff is in possession of the suit land as part performance of the contract or as tenant

5. Whether the suit is barred by Limitation Act

6. Whether the suit is barred by the provisions of Specific Relief Act or Rehabilitation Act

7. What should the decree be "

On Issue No.l which was the crucial issue in the case the trial Court reached the conclusion that the agreement of sale dated 5-2-1964 was executed by the late Mehardin and as a result of the finding in affirmative on issue No.l the subsequent issues were also held in favour of the appellant and a decree for specific performance was accordingly passed in favour of the appellant. On appeal learned first appellate Court did not agree with the conclusion of the trial Court on issue No.l and reversed the finding on issue No.l with the result the suit for specific performance was dismissed.

Learned counsel for the appellant contends that the reversal of "the finding of the trial Court on issue No.1 by the first appellate Court is based on mis-reading of evidence and non consideration of the material documents on record. It is contended by the learned counsel that the appellant plaintiff in his evidence produced all the original documents relating to the title of the land and he was not at all cross-examined in this regard by the respondents. It is also contended by the learned counsel that it was nowhere alleged by the respondents /defendants either in the trial Court or in the first appel late Court that possession of the documents of title relating to the land with the appellant was unauthorised or was the result of any fraud or mis-representation. A reading of the order of the learned first appellate Court will show that while reversing the finding of the trial Court on issue No.l the learned appellate Court did not advert to the possession of the original documents of title relating to the land in dispute with the plaintiff which were produced in evidence before the trial Court. The finding on issue No.l was upset by the learned first appellate Court only on the consideration that on examination of the oral testimony of plaintiff and his two witnesses he found certain discrepancies in oral statements of these witnesses which according to the learned first appellate Court did not satisfactorily prove the execution of agreement of sale dated 5-2-1964. Learned first appellate Court also referred by the fact that the stamp on which the agreement of sale was written was purchased from Hyderabad while there were stamp vendors available at Tando Allahyar where the alleged agreement was executed. It is true that there were some discrepancies in oral testimony of the plaintiff and his witnesses examined in support of the case but the discrepancies pointed out by the learned first appellate Court were not of such nature which would have weighed in disregarding the other valuable documentary evidence on record for which no explanation whatsoever was offered by the respondents/ defendants in their evidence. It is also true that the document was written on a stamp paper which was purchased at Hyderabad while the stamp vendors were also available at Tando Allahyar but it is significant that in this regard no question in the cross-examination was asked to the plaintiff /appellant when he was in the witness box. This question regarding purchase of stamp paper at Hyderabad was asked in the cross-examination to witness Hadayatullah when he appeared in the witness box. In addition to it mere fact that the stamp on which the agreement of sale was written was purchased not from Tando Allahyar but from Hyderabad, in these circumstances, was not conclusive to reach the conclusion that the agreement of sale produced by the plaintiff was forged. From the evidence of the plaintiff it is quite clear that the document of title relating to the land were handed over to him in pursuant, of the agreement of sale dated 5-2-1964. The respondent/defendants did not challenge this part of the testimony of him that the aforesaid document of title were in this possession as a result of any fraud, misrepresentation or undue influence exercised over late Mehardin. This important piece of evidence was completely overlooked by the learned first appellate Court while reversing the finding of the trial Court it may also be mentioned here that the respondents/defendants did not offer any explanation whatsoever with regard to possession if the original documents of title which were produced in court from the possession of the appellant/plaintiff. The witness Hadayatullah who was examined by the plaintiff in support of execution of the agreement dated 5-2-1964 stated in his examination in Chief that he was related to the deceased and the precise relationship with the deceased is disclosed as a 'Masaat' of the witness. This witness categrically stated that the agreement of sale was executed by the deceased in his presence and he signed the agreement as an attesting witness. In cross-examination the relationship claimed by this witness with the deceased was not at all challenged and there is nothing in his evidence to show that he was in any manner related to the plaintiff. The evidence of this witness in these circumstances could not be disregarded by the learned first appellate Court merely on the ground that he had stated that Rs.4,000 were paid to him first rid he passed it on to Bhool Muhammad who paid it to the deceased his variation in the evidence of this witness was immaterial for the purposes of proving the signature of the deceased and there being no reason suggested in the cross-examination for deposing falsely the learned appellate Court could not have disregarded the evidence of this witness. On an overall assessment of the evidence led by the plaintiff in support of execution of the document coupled with the original documents of title which came from his custody the preponderance of evidence in the case was absolutely in favour of B the execution of document by late Mehardin. The reasonings given by the learned first appellate Court for reversal of the finding of the trial Court on issue No.l are neither based on logical reasonings or it took into consideration the valuable documentary evidence produced by the plaintiff before the trial Court in port of his contention. I accordingly accept this appeal, set aside the judgment and decree of the first appellate Court and restore the judgment and decree of the trial Court. However in the circumstances of the case I will make no order as to costs.

S.Q./M-102/K Appeal accepted.

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