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First Civil Appeal No. 16 of 1981, decided on 8th December, 1985.

‑‑‑Arts. 117, 118 a 119‑‑Existence of agreement between parties‑‑Burden to prove‑‑Existence of agreement between parties on basis of which plaintiff instituted suit for recovery of amount, denied by defendant‑ Burden to establish existence of such agreement, held, was on plaintiff who was duty bound to establish same beyond doubt‑‑Clear contradiction between pleadings of plaintiff and his statement in cross‑examination; plaintiff failing to establish existence of agreement, particularly when no authentic evidence was produced by him‑‑Existence of document was doubtful.‑‑[Burden of proof].

‑‑‑0. XVIII, Rr. 1 & 2‑‑Evidence, production of‑‑Non‑corroboration of‑‑Effect‑‑Where facts were neither stated nor explained by plaintiff himself, statement of such facts by his witness, giving some additional and new facts which were neither corroborated nor proved by any independent evidence, held, could not be considered trustworthy and acceptable.

‑‑‑0. XVI, R. 7‑‑Witness appearing in Court of his own and giving testimony‑‑Value of such witness‑‑Testimony of independent eye‑witness whose evidence was necessary and helpful to arrive at good decision on issues involved in suit, held, could not be rejected merely because such witness was not aware previous date of hearing and appeared in Court of his own.

‑‑S. 54‑‑Sale of immovable property, agreement for‑‑Where in agreement of sale of immovable property vendee himself paid stipulated sale price from his own sources and same had been accepted in sale agreement and pro‑1 as sale consideration ‑‑Vendee's source of income, held. was not relevant in circumstances.

‑S, 96‑‑First appeal‑‑Observations of Trial Court, based on inference drawn from facts on record, whether valid or invalid, held, could not in any manner vitiate judgment of such Court.

G.H. Abbasi for Appellant.

Ahmed Khan Barkzaifor Respondent.

Dates of hearing: 29th, 30th October and 18th November, 1985.

The appellant filed a suit for recovery of Rs.54,262 and settlement of accounts against the respondent. One Rashid Riaz and others were the owner of land bearing Survey Nos. 273/1 and 273/2 of which the respondent was a Hari. The appellant had installed rice husking mill on Survey No. 273/1 which was adjoining to his agricultural land. The appellant claimed that the respondent approached him and offered that he (the appellant) should finance the respondent for purchasing land bearing Survey No. 273/2 which is adjoining to Survey No.273/1. According to the appellant the respondent stated that after purchasing this land he would divide it in small plots and sell them for commercial purposes and from the sale proceeds the cost price will be returned to the appellant and profit was to be distributed in equal shares between the appellant and the respondent. The appellant purchased Survey No. 273/2 from Rashid Riaz and others for Rs.59,000 by registered sale‑deed. The appellant paid Rs.17,000 at the time of agreement for sale by cheque, dated 15‑11‑1977 drawn on Muslim Commercial Bank in the name of Rashid Riaz. On the date of registration the appellant paid in the name of the respondent Rs.37,262 to Rashid Riaz through a cheque, dated 12‑1‑1978 drawn on Muslim Commercial Bank Ltd. The appellant thus paid Rs.54,262 towards the purchase price of land bearing Survey No. 273/2. The respondent in violation of the agreement did not pay Rs.54,262 nor paid the profit although he has been selling the plots after carving out from the land. The respondent denied that there was any agreement between the parties as alleged. It was averred that he has purchased the land himself and no money was advanced by the appellant on behalf of the respondent. It was also pleaded that the respondent is a Hari of both the adjacent lands he purchased Survey No. 273/1 from Rashid Riaz and paid Rs.20,000 cash at the time of agreement and the rest was paid at the time of registration of sale‑deed. It was averred that Rashid Riaz fraudulently exchanged Survey No. 273/1 for 273/2 assuring that he would sell 273/1 to the respondent. Afterwards it transpired that 271/1 has been sold in favour of Ahmed nephew of the appellant and a claim for pre‑emption was made by the respondent. The learned trial Court framed the following issues:‑

(1) Whether the defendant is not agriculturist and the provision of D.A.R. Act are not applicable to this suit

(2 Whether the defendant approached the plaintiff to finance him to purchase S. No. 273/2 for selling the same in the shape of shops and house and from the sale proceeds, the defendant promised to return the cost price of S. No. 273/2 to the plaintiff

and to ,tribute the profit on fifty‑fifty basis between them

(3) Whether the plaintiff on assurance of defendant purchased the S. No. 273/2 from Rashid Riaz and others for Rs.59,000 by Registered Sale‑Deed for the defendant, and paid Rs.54,262 to the owners of S. No. 273/2 by cheques, dated 15‑11‑1977 and 12‑1‑1978 on Muslim Commercial Bank, Moro and the balance amount was paid by the defendant

(4) Whether the defendant has purchased S. No. 273/1 from Mr. Rashid Riaz by Registered Sale‑Deed, dated 8‑1‑1978 and subsequently exchanged with him the S. No.273/1 with S. No. 273/2 by Registered Deed, dated 19‑3‑1978 fraudulently

(5) In what amount the defendant has sold some plots of S. No. 273/2

(6) Whether the plaintiff is entitled to any relief or reliefs claimed in the suit

(7) What should the decree be

The suit was dismissed by the impugned judgment and decree against which this appeal has been filed.

2. Mr. G.H. Abbasi, the learned counsel for the appellant has assailed the finding of the learned trial Court on the ground that the appellant has by documentary and oral evidence proved that Rs.54,262 were paid by the appellant towards sale consideration of the land which has not been returned nor profits from the sale proceeds have been paid.

The main question in this appeal arises whether under an agreement the appellant paid Rs.54, 262 towards the sale consideration and the respondent had agreed to refund it from the sale proceeds and pay profits earned from the sale of plots carved out from the land

3. The respondent has denied the agreement and payment alleged to have been made by the appellant. The burden is, therefore, on the appellant to establish these facts. In the plaint the appellant has stated that the respondent was quite intimate and friendly with him and for this reason he had approached the appellant to enter into the alleged agreement. However, in cross‑examination he has taken a completely different instance by stating that the respondent was not known to him prior to the transaction, he even did not know him from before and that he was not on friendly terms. The contradiction in the pleading and in the statement of the appellant clearly shows that he is inconsistent and is not prepared to tell the truth. If a person is not known how is it that he would enter into such a transaction and invest Rs.54,262 on promise made orally. The appellant had two opportunities to get the payments noted or agreement executed with the respondent but instead he only relied on the oral promise and delivery of two cheques to Rashid Riaz. In the normal course of conduct between the parties even d' they are known to each other, the terms and conditions are usually reduced in writing but in spite of the opportunities available to the appellant he did not obtain any documentary proof of the alleged agreement. The appellant has also examined Paryal Shah as his witness to the alleged transaction. In view of the fact that he has deep connections with the appellant in his commercial activities and business his testimony was rightly rejected by the learned trial Court. According to the appellant at the time of agreement Paryal Shah and Muhammad Ali Baloilch who may be an independent person, were present but he examined only Paryal Shah.

4 Mr. G.H. Abbasi the learned counsel for the appellant has contended that the respondent was a Hari of the land and the property could not have been sold as he had taken the stand that he would not vacent the land. It suggests that the respondent had adopted a hostile and negative attitude. In this background if the appellant had entered into an agreement to invest huge amount and share the profit, it was more necessary that the terms and conditions ought to have been reduced to writting. This should have been the conduct of a normal person and not the one exhibited by the appellant. In the absence of any authentic evidence the appellant has failed to establish that there was an agreement between the parties under which payment was to be made by him towards the sale consideration and profit was to be shared by them.

5. It seems that the appellant has heavily relied upon two cheques which were issued by him in favour of Rashid Riaz which was credit to his account. The main emphasis of the appellant is on the evidence of Rashid Riaz who is the co‑owner of the land and attorney of other co‑owners and the certificate of the bank to show that two cheques were credited in the account of Rashid Riaz issued by the appellant. The appellant has examined himself, Rashid Riaz and Paryal Shah. Admittedly the agreement to sell the land is between Rashid Riaz and the respondent. This agreement (Exh.51), dated 15‑11‑1977 is in respect of Survey No. 273/1 for total area of 4‑13 Acres with a sale consideration of Rs.60,550. It bears the signature of the appellant and Ali Nawaz as attesting witnesses. Abdul Jabbar Advocate has also attested it by making an endorsement that the contents of the agreement and its execution were admitted before him. There is no dispute about this agreement except that the appellant alleges to have paid Rs.17,000 and does not admit to have signed it as attesting witness although Rashid Riaz, Abdul Jabbar and the respondent have stated in clear terms that the appellant was one of the attesting witnesses and has signed the agreement. Under the agreement to sell Rs.20,000 were paid and Rashid Riaz has declared that 'I have today i.e. 15‑11‑1977 received a sum of Rs.20,000 from the vendee (respondent) and I will not claim this amount again. I will receive the balance amount from the vendee within two months and will get the permanent sale‑deed executed and registered. i will hand over the possession to the vendee at the time of the execution of the permanent sale‑deed. According to the appellant at the time of agreement Rs.17,000 was paid by him to Rashid Riaz through a cheque dated 15‑11‑1977. According to the certificate of Bank this amount was credited in the account of Rashid Riaz on 16‑11‑1977. The appellant has not explained why Rs.17,000 was paid to Rashid Riaz at the time of agreement when the agreement recited that Rs.20,000 have been paid. It is not the case of the appellant that in agreement Rs.20,000 was wrongly mentioned and in fact only Rs.17,000 were paid. In his first statement the appellant has not explained this discrepancy. It seems to have been clarified to Rashid Riaz aho stated that it was correct that Rs.20,000 was written in the agreement but at that time only Rs.17,000 was available in cash with the appellant and as it was sunset time he (Rashid Riaz) asked the appellant to give him a cheque for Rs.17,000 which he agreed and delivered to him. The remaining Rs.3,000 were to be received from one businessman of Moro whose name he did not know. The explanation given by Riaz is not convincing. If the appellant was to pay the sale consideration why he made available only Rs.17, 000 particularly when the balance was not to be paid by the respondent. No evidence has been produced to establish that Rs.3,000 were to be paid by the respondent or he had arranged its payment through a third party. The fact which has not been explained or stated by the appellant himself anywhere is being stated by this witness giving some additional and new facts which are neither corroborated nor proved by any independent evidence. The statement of Rashid Riaz is not trustworthy and cannot be accepted.

6. On the other hand the respondent examined himself and stated that he had paid Rs.20,000 to Rashid Riaz, Abdul Jabbar, Advocate has been examined by the respondent who has stated that he had drafted the agreement and the amount was paid in his presence and in fact he had counted the notes and delivered to Rashid Riaz. He further stated that he made a note of this fact in his notorial register. Abdul Jabbar is an Advocate and Notary Public and there is nothing to show that he would make a false statement. The learned counsel for the appellant contended that in view of the fact that Abdul Jabbar had appeared in Court of his own and he was not aware of the date of previous hearing, his testimony should be rejected. I am not inclined to accept this contention as these facts are so trivial that on this basis his statement cannot be rejected. He is an independent witness who has stated whatever he had witnessed. His testimony has not been shaken. No suggesion has been given to the respondent or abdul Jabbar that Rashid Riaz demanded cheque as it was sunset time and Rs.3,000 was to be paid by another businessman. It is to be noted that if Rs.20,000 were not available in cash a cheque for Rs.20,000 could have been issued to Rashid Riaz but no such step was taken. In the face of oral evidence and the agreement to sell it is clearly established that the respondent had paid Rs.20,000 to Rashid Riaz and that Rs.17,000 received by Rashid Riaz through cheque cannot be said to have been paid towards the sale consideration of Survey No. 273/2. The facts that the bank certificate has been produced and that the proceeds of cheque, dated 15‑11‑1977 for Rs.17,000 were transferred in the account of Rashid Riaz do not necessarily prove that this amount was paid towards the sale consideration.

7. After the agreement to sell the sale‑deed was executed and registered on 8‑1‑1978 in respect of land bearing Survey No. 273/1. In this registered sale‑deed sale consideration has been mentioned as Rs.59,000 and not Rs.60,550. It is also witnessed by the appellant, Ali Nawaz and Abdul Hafeez. Thereafter it seems that a deed of rectification was executed between the parties whereby the survey numbers were corrected from 273/1 to 273/2. Thus, the respondent, on the basis of documents produced, had purchased the land bearing Survey No. 273/2. Both the documents bears the signature of the appellant and none of these documents mention the fact that the sale consideration has been paid the appellant through a cheque on behalf of the respondent.

8, Now coming to the second payment of Rs.37,262 the appellant has relies' on cheque, dated 12‑1‑1978 which according to him was delivered to Rashid Riaz towards the balance sale consideration on 12‑1‑197 g . According to the appellant he had paid Rs.3, 262 to Rashid Riaz on 12‑1‑1978. Rashid Riaz on the other hand has stated that he received the cheque for Rs.37,262, on 8‑1‑1978, the date of registration of sale‑deed in favour of respondent. The discrepancy in these two statements cannot be reconciled. In the sale‑deed there is no reference to payment being made through cheque. If such payment was paid it ought to have been notified to the Registrar who should have made such endorsement. The appellant seems to be at pains to avoid his presence on the dates of the execution of agreement to sell and registration of sale‑deed. He has denied to have signed these documents as attesting witness although there is overwhelming evidence to prove otherwise‑. From the statement of the respondent, Ali Nawaz who is an attesting witness on the agreement and registered sale‑deed it is establishes that the respondent had paid the entire sale consideration of Rs . 59 , 000 .

9. The learned counsel for the appellant has also contended that the evidence of Rashid Riaz was not properly considered by the learned trial Court but in view of what has been observed earlier there is not much left to be discussed about it.

10. The learned counsel for the appellant further contended that the learned trial Court has not properly appreciated the evidence, nor properly applied the mind and the respondent's source of acquiring money has not been proved. It was also contended that the observation of the learned trial Court that the amount paid by the appellant could be in respect of some other transaction is perverse as there is not evidence to support it. The burden was on the appellant to establish that he had entered into an agreement and paid the money. In these circumstances the respondent's source for acquiring money was not relevant particularly when payment made by him was accepted in the agreement and payment of sale consideration has been proved. The l appellant did not ask any question in cross‑examination challenging the source from where the respondent had obtained the money. It is clear from the evidence that the appellant had purchased the land bearing Survey No. 273/1 in the name of his nephew and made payment to Rashid Riaz. This transaction was made a most during the same time. In these circumstances the observation of the learned trial Court that as the cheques were not issued towards the sale consideration of land bearing Survey No. 273/2 there was every possibility that such payments would have been made in respect of any other transaction. Such observation is valid on the basis of inference drawn from the facts on E record, which even if incorrect, cannot in any manner vitiate the judgment. The appeal is dismissed with costs.

H. B. T. /4985/K Appeal dismissed.

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