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Regular Second Appeal No. 86 of 1985, decided on 13th January, 1987.

‑‑‑S. 100‑‑Second appeal‑‑Dispute over sale of land‑‑Appellant claiming that under an agreement he had purchased suit land from one N. B. for a sum of Rs.9,000 out of which Rs.8,000 were shown to have already been paid and that possession of said land was also delivered to him‑‑Vendor having himself died, appellant‑plaintiff bringing suit against his legal representatives alleging that they were not honouring the agreement despite his offer of paying balance of Rs.1,000‑ Respondents‑defendants resisting suit, denying the agreement or receipt of Rs. 8, 000 or delivery of possession to appellant and describing the agreement to be a hoax obtained after demise of deceased in order to grab the property‑‑Testimony of scribe of the agreement looking to be unassailable, his credibility however, assailed on ground of relationship but he instead showed that he had deeper connections with respondents than appellants‑‑No reason elicited why he supported the appellant as against respondents who were more near and dear to him Contention that the agreement was cooked up after the demise of deceased appearing to be inconsistent with the fact that the appellant had asserted it before Tehsildar when mutation of his inheritance was being attested‑ Evidence, particularly of the scribe, having emerged unscathed, held, was sufficient to uphold the agreement to sell‑‑Second appeal accept, judgment and decree of District Judge set aside and appellant‑plaintiff's suit decreed.

Sh. Naveed Shahryar for Appellant.

Arshad Ali Chaudhry for Respondents.

Date of hearing: 13th January, 1987.

This regular second appeal is directed against the judgment/ decree, dated the 24th of April, 1984, passed by the learned Additional District Judge‑II Okara, whereby dismissal of the appellant's suit by the trial Court was upheld.

2. The land in question belonged to one Nabi Bakhsh who allegedly agreed to sell it in favour of the appellant‑plaintiff Ghulam Rasool by virtue of agreement, dated the 14th of December, 1970, for a sum of Rs.9,000 out of which Rs.8,000 were shown to have already been paid and the balance was to be paid after a year when a formal sale‑deed was to be executed. He claimed that even possession had been delivered to him in pursuance of the agreement. Nabi Bakhsh himself died issueless and without wife on the 9th of August, 1971, therefore, the appellant- plaintiff brought the present suit against his legal representatives alleging that they were not honouring the agreement despite his offer of paying the balance of Rs.1,000.

3. The suit was resisted denying the agreement, or the receipt of Rs.8,000, or delivery of possession to the appellant. They described the agreement to be all a hoax obtained after the demise of the deceased in order to grab the property.

4. The following issues were reframed by the trial Court;

(1) Whether the suit is not maintainable in its present form O. P. D.

(2) Whether the suit has not been properly valued for the purposes of court‑fee and jurisdiction O . P. D.

(3) Whether the plaintiff has got no cause of action against the defendants O . P. D .

(4) Whether the alleged agreement dated 14‑12‑1975 is result of fraud and forgery by the plaintiff and the plaintiff cannot get benefit of his own O. P. D.

(5) Whether the plaintiff is entitled for specific performance of an agreement dated 14‑12‑1970 executed between him and Nabi Bux deceased O.P.P.

(6) Whether the plaintiff has paid Rs.8,000 to deceased Nabi Bux as earnest money O.P.P.

(7) Relief. '

5. Initially the suit was decreed on the 24th of October, 1975, but in appeal it was remanded for fresh disposal and lately the trial Court dismissed it vide its judgment, dated the 30th of July, 1979. ,The appellate Court upheld the same.

6. In support of the Regular Second Appeal, Mr.Naweed Shahryar, Advocate contended that the entire judgment of the learned Additional District Judge consisted of general discussion without making any pointed reference to the statements of any of the witnesses. He added that the testimony of Noor Mohammad P.W.2 who was the scribe of the impugned agreement was misread particularly in holding that he was one‑sidedly related to the appellant. He maintained that, in fact, he was more nearly related to the respondents and ordinarily should have been believed in proving execution of the agreement. Still further, he urged that the appellant had not failed to assert his title under the foot of this agreement before the Tehsildar when he was attesting mutation in regard to the deceased's inheritance in favour of the respondents and lastly, that the admitted fact of sale of the Ihata by the deceased suggested that he had agreed to sell the property in dispute.

7. On the other hand, counsel urged that on a plain reading of the appellant's own version, after having paid a sum of Rs.8,000 in cash, the sale was almost complete and nothing prevented him to get it registered forthwith. He assailed the story of deferring a small fraction of the entire consideration amount, namely, Rs.1,000 for a year with a view to give it a style of a mere agreement. He added that even possession was not delivered to the appellant under the agreement and last but not the least, the stamp paper did not bear the deceased's thumb‑impression or signatures at its purchaser.

8. Be that as it may, the testimony of Noor Muhammad P. W.2 who was the scribe of the agreement looked to be unassailable especially when no question was put to him in regard to the agreement itself. His credibility was no doubt assailed on the point of relationship but he instead showed that he had deeper connections with the respondents than the appellant. No reason was elicited why he supported the appellant as against respondents who were more near and dear to him. The contention that the agreement was cooked up after the demise of the deceased appeared to be inconsistent with the fact that the appellant had asserted it before the Tehsildar when the mutation of his inheritance was being attested. It was conceded by the respondents that the deceased had sold away at least his Ihata. If he could sell the same, why he could not arrange the alienation of his other property. The same agreement included the sale of Ihata and, therefore, any attempt to take out the land from him was really incompatible. No doubt, the deceased died only six months after the agreement leaving no wife or children, yet the evidence particularly of the scribe Noor Mohammad having emerged unscathed sufficed to uphold the agreement to sell.

9. There were two courses open to this Court, namely, (1) either to remand it to the learned Addl. District Judge for re‑writing judgment keeping in view the unshaken testimony of the scribe, or (2) to decide the appeal here itself in order to avoid any further litigation. I have chosen the latter course as already the case was remanded once. As a result, the regular second appeal is accepted, the judgment/decree of the learned Addl. District Judge are set aside and instead the appellant‑plaintiff's suit is decreed. He shall be entitled to get a sale deed from the respondents about the land in question on payment of Rs.1,000 representing the balance of the consideration amount. If they refuse to execute the sale‑deed, it will be open to the appellant/ decree‑holder to ask for compulsory registration of the sale‑deed. Parties to appear before the trial Court for further action, The record be sent to it forthwith.

S. Q. /G‑4/ L Appeal accepted.

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