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Regular First Appeal No.9 of 1983, decided on 25th April, 1987.

---S.53-A--Agreement to sell--Proof--Mere possession of property copies of title documents thereof in a case where alleged agreement in respect of disputed property was found to be a forged document held, could not lead to presumption that possession of appellant over property was under agreement to sell, particularly when rent de, executed by him in favour of respondent was un-rebuttedly prove.

Khawaja Saeed-uz-Zafar for Appellant.

Alam for Respondents.

Date of hearing: 25th April, 1987.

--A suit for specific performance of contract was filed on 23rd July, 1978 by Abdul Ghani plaintiff appellant on the basis of an agreement to sell dated 13th May, 1975 regarding property No.S-78-R-11, commonly known as 11-Birdwo, Road, Lahore, against Mst. Farrukh Taj, Mehr Ghulam Dastgir a his two minor sons Muhammad Munir and Muhammad Awais. It was pleaded that Mst. Farrukh Taj alias Mst. Farrukh Raft :agreed to s. ,the property in question for Rs.1,00,000 out of which Rs.45,01 were paid at the time of execution of the agreement and the balance was to be paid at the time of registration of the sale deed within period of two years.

Mst. Farrukh Taj during pendency of her petition for ejectment in the court of Rent Controller, Lahore against Abdul Ghani, h sold this property to Mehr Ghulam Dastgir and his two sons vide registered sale deed dated 18th March, 1977. They all filed written statements and resisted this suit on the ground that Mst. Farrukh I did not execute the agreement to sell dated 13th May, 1975; that Abdul Ghani entered in possession of the property in question 17th February, 1975 as tenant regarding which petition for ejectment was already pending and that the suit had been filed the basis of a forged document.

The suit initially filed in the court of Civil Judge, Lahore. The parties were put to issues. The suit was then transferred to the Court of learned Additional District Judge, Lahore who vide impugned judgment and decree dated 22nd December, 1982 dismissed the same with costs. Hence this appeal. Issues 1 to 4 were not pressed and were accordingly answered. Issues 5 and 11 were taken up together and decided against the plaintiff. It was held that the agreement dated 13th May, 1975, was not executed by Mst. Farrukh Taj in favour of Abdul Ghani plaintiff. In view of this finding, the learned trial Judge under issue No.6 held that the plaintiff did not come to court with clean hands. It was held that there was no misjoinder of parties in the suit and that the plaintiff was not entitled to special costs. Issues 7 and 8 were," therefore, decided accordingly. It was held that Mehr Ghulam Dastgir and his two sons were bona fide purchasers of the property in question with consideration. Issue No.9 was, therefore, decided in favour of the defendants. It was held under issue No-10 that the suit was not barred under rule 2 of order 2 of C.P.C.

Before us arguments: were addressed by learned counsel for the parties only on findings under issues 5 and 11. We have carefully gone through the evidence on record and have heard the learned counsel at some length.

2. 'This appeal involves only a short question i.e. as to which of the two documents was genuine and executed by the parties. According to Mst. Farrukh Taj defendant No.1, Abdul Ghani plaintiff entered in possession of the house in question under rent deed Ex.D.W.2/1 dated 17th February, 1975 and that she did not execute the agreement to sell EX.P.W.1/1 dated 13th May, 1975. On the other hand, it is contended on behalf of the appellant that he did not execute the rent deed and got in possession of this property under agreement to sell.

Abdul Ghani plaintiff examined three witnesses in support of his case besides appearing himself as a witness in this case. Qadeer Ahmad P.W.1 is a deed-writer. It was stated by him that he had purchased the stamp papers for writing agreement to sell on the asking of Bashir Ahmad P.W. who had brought Mst. Farrukh Taj at the time of writing of the agreement. Mst. Farrukh Taj was not known to him prior to that, he was unable to remember as to from whom he had purchased the stamp paper. He admitted that he did not record the national identity-card number of Mst. Farrukh Taj in the deed; that his deed register does not contain page marking and that he did not write any receipt for payment of Rs.45,000.00 by Abdul Ghani plaintiff. He further admitted that he did not record the detailed particulars of the marginal witnesses of this document. Bashir Ahmad P.W.2 stated that the bargain was settled between Mst. Farrukh Taj and Abdul Ghani with his good offices; that he had signed agreement to sell EX.P.W.1/1 as marginal witness and that Rs.45,000.00 were paid by Abdul Ghani to Mst. Farrukh Taj. He stated that the stamp papers might have been purchased by Abdul Ghani. He corrected by saying that he was not aware as to who had purchased the stamp papers. This statement was in conflict with the statement of Qadeer Ahmad P.W.1 who has stated that he had purchased the stamp papers on the asking of Bashir Ahmad P.W. It was further stated bye Bashir Ahmad P.W.2 that the stamp papers might have been purchased about six years earlier. He then corrected that it were purchased on that very day. He admitted that he had no license as a property dealer. He expressed his ignorance as to whether Abdul Ghani was a tenant under Mst. Farrukh Taj or not. In the end of his cross-examination, this witness stated that Dr. Raft, husband of Mst. Farrukh Taj had, given a cheque to Amjad Ali for the sum of Rs.500 out of which he got Rs.200.00 from Amjad Ali. He also stated that the details of the agreement were settled by Amjad Ali Shah.

A perusal of the statements of the above noted two witnesses would show firstly, that the purchase; of the stamp papers was doubtful; secondly, the bargain was not, struck with the good office of Bashir Ahmad but by Amjad Ali Shah property dealer who was examined as witness in court; thirdly, no receipt regarding payment of Rs.45,000.00 was written at that time: and fourthly, that Qadeer Ahmad P.W.1 did not write down detailed description of the marginal witnesses on the agreement EX.P.W.1/1. A perusal of this document would show that the marginal witnesses signed this agreement in an 'ink different from its main text. The parentage of the marginal witnesses is also not given in this document. It also seems odd that a period of two years should be fixed for execution of the sale deed after payment of the balance price. We are, therefore, rot prepared to place any reliance on the evidence of these two witnesses.

Mst. Farrukh Taj denied having executed/signed the agreement EX.P.W.l/1. The plaintiff examined Mr. A.G. Pasha. P.W., Handwriting Expert who stated that the signatures on EX.P.W.l/1 were of list. Farrukh Taj. His opinion is Ex.P.W.3/1. On a perusal of his evidence, it appears that he is only a Matriculate. There is no evidence that he was a Handwriting Expert. In cross-examination, he stated that he has been under study in an institute in New York (U.S.A.) but he was unable to state as to how long he studied in that institution. His evidence does not inspire confidence. Even on a bare perusal of the signatures of Mst. Farrukh Taj on EX.P.W.l/1 and her specimen signatures, it becomes abundantly clear that she did not sign the agreement to sell dated 13th May, 1975. Abdul Ghani P.W.4 appeared as his own witness in support of his case. It was stated by him that at the time of execution of the agreement to sell, he had paid Rs.45,000.00 to Mst. Farrukh Taj. There is, however, no receipt of the payment of this amount excepting a recital in the deed itself. He admitted in cross-examination that at that time he had only Rs.20,000.00 with him and had borrowed Rs.25,000.00from his brother for payment. There is no evidence of receipt of this Rs.25,000.00 by Abdul Ghani. It was stated by the plaintiff that besides payment of above amount, he also had paid Rs.14,000 as part payment of the price of this property to Mst. Farrukh Taj but no receipt was obtained for that payment. There is also no evidence as to when this amount was paid and who had witnessed the said payment. He denied to have executed rent deed Ex.D.W.2/1. We are not prepared to place any reliance on his evidence. It has already been held above that Mst. Farrukh Taj did not execute the agreement to sell EX.P.W.l/1. It is surprising to note that Mr. S.M. Raft husband of Mst. Farrukh Taj though present at the time of execution of the agreement to sell did not sign the same. This fact also makes the execution of said agreement doubtful.

The defendants examined Mr.A.A. Nomani D.W.1 who also was Handwriting Expert. It was stated by him that he had compared the signatures of Mst. Farrukh Tai on EX.P.W.l/1 and also on letters Ex.P.W.4/1 and Ex.PW.4/2. Through a detailed report EX.D.W.l/18, he opined that agreement and the letter did not bear signatures of Mst. Farrukh Taj. We have carefully examined this report which is well reasoned. We, therefore, do not find anything to exclude the evidence of Mr. A.A. Nomani D.W.1 from consideration. Mst. Farrukh Taj D.W.2 proved rent deed Ex.D.W.2/1. She denied having signed the agreement Ex.P.W.l/1. She also denied having written the two letters and receipt, of Rs.45,000.00. S.M. Rafi D.W.3 is husband of Mst. Farrukh Taj. He has also denied execution of the agreement to sell.

The learned counsel for the appellant contended that the fact that Abdul Ghani plaintiff was admittedly in possession of the property in question and also the fact that he was in possession of copies of the P.T.O. and P.T.D. raises a presumption that he was in possession under agreement to sell. This argument is without any merits. Mere possession of property or copies of some. documents cannot lead to presumption that the said possession was under the agreement to sell. Any one can get copies of P.T.O. and P.T.D. We have already held that the agreement to sell was a forged document and that Mst. A Farrukh Taj did not execute the same. It was next contended that excepting Mst. Farrukh Taj, no other witness was examined in support of the rent deed Ex.P.W.2/1. It will be observed that the rent deed was proved through the evidence of Mst. Farrukh Taj. It was exhibited and admitted in evidence without any objection from the plaintiff. This contention is also without any force and is accordingly repelled.

3. In view of the above discussion, we find no merits in this appeal which is accordingly dismissed with costs.

H . B . T. /A-181/L Appeal dismissed.

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