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Regular First Appeal No. 201 of 1981, decided on 6th December, 1986.

‑‑‑S. 12‑‑Suit for specific performance of contract of sale‑ Plaintiff‑respondent placing reliance on agreement and not on, receipt allegedly secured from defendant‑appellant‑‑Photo copy of receipt produced but same not an authentic and reliable document as having not been obtained by defendants in a legal manner with permission of Court‑‑Defendant‑appellant disputing his signatures on agreement of sale but failing to examine handwriting expert in support of his allegation that his signatures on deed were forged‑‑Defendant‑appellant himself also not getting his signatures on deed compared with his any other admitted signatures by a handwriting expert‑‑Such omission clearly belying his contention that his signatures were forged‑‑Execution of agreement to sell land in dispute by defendant‑appellant, held, was established and suit for specific performance was rightly decreed by Court below.

Iqbal Hussain for Appellant.

Munawar Hussain for Respondents.

Date of hearing: 6th December, 1986.

.‑‑Facts necessary for decision of this appeal are as follows:‑‑--

Hassan Din defendant‑appellant and his son Khairat Ali defendant‑respondent on 26th April, 1978, agreed to sell 327 Kanals 12 Marlas of land in revenue estate Gullu Khurd, Tehsil and District Lahore to Malik Sharif and Ali Ahmad plaintiff‑respondents. An agreement to sell Exh. P.2 was accordingly executed. It was provided that the land will be sold at Rs.2,000 per Kanal and that the sale deed will be executed within 11 years. Hassan Din and his son backed out from the said agreement as a result of which Malik Sharif and Ali Ahmad filed the present suit on 30th April, 1979, which was resisted by the defendants. It was pleaded in the written statement by the defendants that they did not execute the receipt, dated 16th April, 1978 and the agreement to sell, dated 26th April, 1978. The parties were put to issues.

The plaintiffs examined Ijaz Ahmad P.W. 1 who stated that on 16th April, 1978, he wrote receipt Exh. P.1 when Hassan Din defendant received Rs.10, 000 regarding sale of land measuring 327 Kanals 15 Marlas. He further stated that on 26th April, 1978, an agreement to sell Exh. P.2 was executed by Hassan Din in favour of Malik Sharif and Ali Ahmad promising to sell 327 Kanals 15 Marlas at Rs.2,000 per Kanal. He signed the agreement Exh. P.2 as marginal witness. Farzand Ali P.W. 2 stated that he got the bargain between the plaintiffs and defendants settled for the sale of 327 Kanals 15 Marlas at Rs.2,000 per Kanal between Hassan Din and Sharif. An agreement to sell Exh. P.2 was executed on 26th April, 1978 which he signed as marginal witness. He further stated that he had purchased the stamp paper valuing Rs.4 for writing agreement Exh. P.2 at the instance of Hassan Din. According to this witness, it was written by Muhamm .d Akram, deed‑writer who has since died. He stated that the deed‑writer scored out his name because at that time his register was not available. These two witnesses admitted that Khairat Ali defendant 2 did not sign or thumb mark the receipt Exh. P.1 and the agreement Exh. P.2 Malik Sharif plaintiff appeared as P.W. 3 in support of his case. He tendered in evidence copy of register Haqdaran for the year 1972‑73 Exh. P.3 to prove that Khairat Ali defendant was owner of 37 Kanals 14 Marlas of land through Mutation No. 1241, dated 24th November, 1976.

The defendants examined Liaqat Ali D.W. 1 a nephew of Hassan Din. He stated that no bargain was struck between the parties; that he was well‑versed with the signatures of Hassan Din, that the agreement Exh.P.2 did not bear signatures of Hassan Din; and that the said document has been forged by the plaintiffs. He was shown some documents by the plaintiff in cross‑examination. He expressed ignorance as to whether the sale‑deed shown to him had the signatures of Hassan Din or not. Muhammad Rafiq D.W. 2 stated that he did not know Sharif plaintiff; that he never visited their village; and that he never heard of any bargain between him and Hassan Din. In cross‑examination he stated that he was employed in the Packages Limited where he worked from 7‑30 a.m. to 4‑00 p.m. Muhammad Hayat D.W. 5 stated that the receipt Exh. P.1 bears his signatures. However, he added that the same was not written in his presence nor any bargain was struck between the parties at that time. In cross‑examination he stated that he had signed the receipt Exh. P.1 in the Court compound; that his village Balar was about 2J miles from the village of defendants and that he signed the receipt without reading the same. D.W.3 is Khairat Ali defendant who stated that he did not sign receipt Exh. P.1 or the agreement Exh. P.2. He denied having received any amount from the plaintiffs. He denied to have entered in any bargain with the plaintiffs.

He did not specifically state that his father had not entered in any agreement with the plaintiffs. Hassan Din D. W. 4 supported the averments of his written statement. It was stated by him that the agreement Exh. P.2 and the receipt Exh. P.2 do not bear his signatures which have been forged. He also made supplementary statement as D.W. 6 to state that he was not now owner of the land in dispute and that he had gifted the said land to his children about two years earlier. He produced the registered‑deeds which were not exhibited and admitted in evidence and only marked as 'A' and 'D' on account of objection on behalf of the plaintiffs.

No other evidence was produced by the parties.

2. The learned Civil Judge 1st class, Lahore, vide impugned judgment and decree, dated 8th December, 1981 decreed the suit for specific performance of contract against Hassan Din defendant 1 only. The suit against Khairat Ali defendant 2 was dismissed. It was directed that the sale‑deed to the extent of land measuring 290 Kanals out of the suit property will be got registered within a period of one month on payment of Rs.5,80,000.

We have been informed that it was later found that the land owned by Hassan Din defendant 1 measured 228 Kanals 18 Marlas and not 290 Kanals and as such, the sale‑deed in terms of the judgment and decree, dated 8th December, 1981 was executed for 228 Kanals 18 Marlas in lieu of Rs.4,57,800. The learned Civil Judge under issues 4 and 5 held that the suit was maintainable in its present form and that the defendants were not entitled to special Courts of the suit. Issues 1, 2 and 4 were decided in favour of the plaintiffs and against the defendants. It was held that Hassan Din defendant 1 on 26th April, 1978, agreed to sell his land to the plaintiffs; that the plaintiffs were entitled to specific performance of the said agreement; and that they had the cause of action to bring the present suit.

Before us the findings under issues 1 and 2 only have been challenged. The learned counsel, who repeatedly remained complaining that the case on behalf of the defendants was not properly conducted in the lower Court, contended that though receipt Exh. P.1 was executed by Hassan Din but he never executed the agreement to sell Exh. P.2 and that the agreement Exh. P.2 was a forged document. The precise argument of the learned counsel was that at the time of institution of the suit, the plaintiffs had filed the receipt Exh. D.1 which was later removed from the file of the suit without permission of the Court and instead receipt Exh. P.1 was inserted therein. The learned counsel pointed out that through some parts of the receipt Exh. P.1 and receipt Exh. D.1 were similar but there were two marked differences in the two, firstly the receipt Exh. P.1 does not contain the writing of the letter‑head pad as is indicated in receipt Exh. D.1 and secondly, the receipt Exh. P.1 contained some Khasra numbers which do not figure in the receipt Exh. D.l. We asked the learned counsel as to from where he got the copy of the receipt Exh. D.1 to which he replied that his client got a photostat of the receipt filed by the plaintiffs alongwith the suit without permission of the Court and without getting a certified copy of the said document. The learned counsel conceded that this was an illegal act on the part of the defendants but asserted that the receipt initially executed by Hassan Din firstly did not contain the Khasra numbers; secondly, the area in that receipt was 227 Kanals 15 Marlas which was later changed to 327 Kanals 15 Marlas with addition of specific Khasra numbers. We have considered this contention. The receipt Exh. P.1 is of no consequence because the present suit is not based on this receipt. The suit is based on the agreement Exh. P.2. Secondly, the execution of receipt by Hassan Din is not disputed. We have carefully examined the signatures of Hassan Din on Exh. P 1 which are identical to his signatures on Exh. P.2. As the copy of the receipt Exh. D.1 is not an authentic document and was not secured by the defendants in a legal manner with permission of the Court no' reliance can be placed on it.

The learned counsel for the appellant in support of his contention that the agreement Exh. P.2 was a forged document pointed out firstly, that the Khasra numbers in this deed have been written with different pen and ink than the one used for writing the other part of this deed; secondly that the words EK SAL at Exh. P . 2/ C seem to have been added at a later stage and final that the words:--

appear to have been written at some later stage. We have considered these contentions. An examination of the agreement Exh. P.2 would show that Hassan Din and his son Khairat Ali agreed to sell land out of Khatas 21‑12‑25‑130 Waghaira. After writing two lines in the agreement, some space was left out which clearly indicates that the parties were not in possession of the revenue record and it was agreed that the Khasra numbers would be written in the vacant space left after the first two lines of the agreement. Similar appears to be the case with the addition marked as Exh. P.2/C and Exh. P.21D. This agreement was proved by Ijaz Ahmad P.W.1 and Farzand Ali P.W:2 who signed the same as marginal witnesses, Muhammad Akram Shah, deed‑writer is admittedly not alive. As explained by Farzand Ali P.W., he scored out his name because at that time his register was not there. Both these witnesses stated that Hassan Din signed in their presence. The stamp paper was purchased by Farzand Ali. Both Ijaz Ahmad and Farzand Ali P.Ws were independent witnesses. We do not find any reason to exclude their evidence from consideration.

It was argued by the learned counsel that the plaintiffs forged these documents to support their case but this assertion is not supported by any evidence on record. Khairat Ali defendant D.W. did not say a word about the alleged forgery. He did not state that the said agreement was not executed by his father. Hassan Din defendant stated that on the agreement Exh. P.2 was not signed by him. It may be stated that of 17th September, 1980, Hassan Din defendant had filed a list of his witnesses in Court. At serial No. 7, he mentioned handwriting expert. This list is a typed document. Against item No. 7, there is a handwritten note.

"According to Court and if ordered, the plaintiff shall give the name."

This list indicates that firstly Hassan Din defendant proposed to examine a handwriting expert in support of his allegation that his signatures on the deed Exh. P.2 were forged; secondly that he undertook to give the name of the handwriting expert if ordered by the Court He never applied to the Court for getting his signatures examined by a handwriting expert. He himself also did not get his signatures on deed Exh P. 2 compared with his any other admitted signatures by a handwriting expert. He could have produced the said evidence but failed to examine any handwriting expert to prove the alleged forgery. This omission clearly belies his contention that his signatures on Exh. P.2 had been forged. Another fact to be noted is that although in the written statement it was pleaded that the plaintiffs had removed documents from the Court file which they had appended with the plaint but while appearing as his own witness. P. 2 did not say a word about the said removal of the documents. We are satisfied that Hassan Din did execute the agreement to sell Exh. P.2 in favour of the plaintiffs. The said agreement was not signed by Khairat Ali and as such, the lower Court rightly dismissed the suit to the extent of his land. Liaqat Ali D.W.1 is a nephew of Hassan Din. He has just stated that no bargain was struck between the parties. It is not necessary that he must always remain present with Hassan Din to know any transaction that he might enter with anyone in the village. Muhammad Rafiq D.W.2 is employed in Packages Limited. It was stated by him that he never heard of any bargain between the parties. Similarly, Muhammad Hayat D.W.5 stated that no bargain was struck in his presence. The evidence of the witnesses do not, in any way, rebut the evidence led by the plaintiffs. Their evidence is of no avail to the defendants.

3. In view of the above discussion, we find no merits in this appeal which is accordingly dismissed leaving the parties to bear their own costs.

M. Y. H./689/L Appeal dismissed.

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