PLJ 2024 Lahore (Note) 83
[Multan Bench Multan]
Present: Anwaar Hussain, J.
Mst. RUBINA KANWAL, etc.--Petitioners
versus
MUHAMMAD TARIQ PERVAIZ, etc.--Respondents
C.R. No. 875-D of 2020, decided on 26.2.2024.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Suit for specific performance--Decreed--Appeal--Allowed--Agreement to sell--No comparison of disputed thumb-impression-- mala fide of stamp vendor, notri public and record keeper was not alleged by petitioner--Attesting witnesses were fully supported by version of respondents--Challenge to-- No effort was made by petitioners to effect comparison of disputed thumb impression on agreement with admitted thumb-impression of deceased--Stamp vendor, notary public and record keeper re independent witnesses and petitioners did not allege any malafide against them--Attesting witnesses of agreement, appeared as PW-2 and PW-3 respectively--They also fully supported version of respondent--Best evidence had been withheld by petitioners being beneficiary and adverse presumption was to be drawn against petitioners--Nothing had been brought on record by petitioners’ side to establish that mother of their predecessor was not available when evidence was recorded or if she was unavailable why secondary evidence was not led to prove that object of transferring property was not to strengthen status of predecessor of petitioners for his contest for position of Lumberdar--Counsel for petitioners could not point any illegality, irregularity, jurisdictional defect or procedural impropriety in impugned concurrent findings of Courts below--Civil revision dismissed. [Para 5, 6, 8 & 9] A, B, C & D
Ch. Aslam Hakim, Advocate for Petitioner.
M/s. Ch. Muhammad Anwar-ul-Haq and Zain Ahmad Khan, Advocates for Respondent No. 1.
Respondents No. 2 to 7 Proceeded ex-parte on 20.01.2022.
Date of hearing: 26.2.2024.
Judgment
A suit for specific performance of agreement dated 21.11.2012 (“the agreement”) was instituted by Respondent No. 1, namely, Muhammad Tariq Pervaiz (“the respondent”) against predecessor-in-interest of the petitioners as also Respondents No. 2 to 5, who are admittedly legal heirs of one Muhammad Tahir Javaid who was also real brother of the respondent. The dispute relates to land situated in Chak No. 190/9-AL Tehsil and District, Sahiwal that was part of the estate left by deceased father of the respondent and late Muhammad Tahir Javaid. Once the respondent and deceased Muhammad Tahir Javaid received their inheritance, the respondent gifted the suit property, through Tamleek Mutation No. 1236 dated 16.05.1990 to his mother, who on the same day transferred the same belonging to the respondent to deceased Muhammad Tahir Javaid through impugned Mutation No. 1237. It is the case of the respondent that the purpose of said transfer was to increase the land holding of deceased Muhammad Tahir Javaid enabling him to be elected as lumberdar of the Chak and once the purpose was achieved, the agreement was executed between the respondent and deceased Muhammad Tahir Javaid in the terms that deceased Muhammad Tahir Javaid acknowledged that the suit property was to be retransferred in the name of the respondent but since the same could not be earlier done because it was mortgaged with Habib Bank Limited, Jinnah Town Harappah Branch, Sahiwal, therefore, the predecessor of the petitioners promised to do the needful after redeeming the suit property. When the respondent demanded the performance of the agreement, deceased Muhammad Tahir Javaid refused, which constrained the respondent to institute the suit and during the pendency of the same, Muhammad Tahir Javaid died and his legal heirs were impleaded as party, which includes the petitioners as well as Respondents No. 2 to 5. The petitioners before this Court contested the suit by filing written statement and denied the execution of the agreement, inter alia, on the ground the agreement is without consideration and hence, not enforceable, and that deceased Muhammad Tahir Javaid was a person of advanced age and was unwell and had not affixed his thumb-impression and/or signature on the agreement. Respondents No. 2 to 5 conceded the claim of the respondent. The suit of the respondent was decreed vide judgment and decree dated 01.10.2019 passed by the learned Senior Civil Judge (Civil Division) Sahiwal, which has been upheld by the learned Additional District Judge, Sahiwal vide impugned judgment dated 22.09.2020. Hence, present revision petition.
2. Learned counsel for the petitioners submits that the respondent/plaintiff has led the evidence beyond pleadings as there is no mentioning in the plaint that the suit property was transferred by the respondent through his real mother in favour of predecessor-in-interest of the petitioners to strengthen the position of the said predecessor to contest for the post of Lumberdar. Further contends that first page of the impugned agreement has not been signed by predecessor-in-interest of the petitioners, and hence, has no value. Adds that the signature of the respondent is also missing on the agreement; that no witness has been produced to substantiate that the original transaction between the respondent and predecessor-in-interest of the petitioners was on account of some understanding enabling the predecessor-in-interest to contest for the post of Lumberdar; that special attorney of the respondent has merely narrated a hearsay story; and that the agreement is void on account of uncertainity.
3. Conversely, learned counsel for the respondent supported the impugned judgments and decrees passed by the Courts below.
4. Arguments heard. Record perused.
5. The entire controversy revolves around the nature of the agreement between the parties. Therefore, it will be in fitness of things to reproduce the same:
" اقرار نامہ
منجانب : محمد طاہر جاوید ولد کلیم اللہ ذات آرائیں ساکن چک نمبر 190/9-AL تحصیل و ضلع ساہیوال شناختی کارڈ نمبر 36502-3482876-1
بحق، محمد طارق پرویز ولد چو ہدری کلیم اللہ ذات آرائیں ساکن 190/9-AL ساہیوال (حال(UK-منکہ محمد طاہر ولد کلیم اللہ ذات آرائیں ساکن چک نمبر 190/9-AL تحصیل و ضلع ساہیوال شناختی کارڈ نمبر 1-3482876-36502 کا ہوں۔
جوکہ من مقر کے نام مربع نمبر 56 کیلہ نمبر 11تا25 برقبہ 100 کنال واقع چک 190/9-AL تحصیل و ضلع ساہیوال ہے لیکن رقبہ مذکورہ میں من مقر کے برادر حقیقی محمد طارق پر ویز ولد چوہدری کلیم اللہ1/2 حصہ کا مالک ہے جو کہ سال 1989 میں محمد طارق پر ویز نے بلا معاوضہ میرے نام منتقل کر وایا ہوا ہے۔ اب من مقر نے رقبہ مذکورہ میں سے 1/2 حصہ بقدر پچاس کنال (K-50) محمد طارق پرویز کے نام منتقل کروانا ہے لیکن رقبہ مذکورہ حبیب بینک لمیٹڈ (HBL) برانچ جناح ٹاؤن ہڑپہ میں مکفول ہے۔ علاوہ از یں رقبہ مذ کورہ کے متعلق بعد الت جناب یا سر حیات صاحب سول جج ساہیوال سے حکم امتناعی جاری شدہ ہے اس لئے فوری طور پر محمد طارق پرویز کے نام منتقل کروانے سے قاصر ہوں۔ لہذا من مقر بحالت صحت نفس و ثبات عقل بلا جبر واکر اہ دیگرے برضامندی و بخوشی خود اقرار کرتا ہے اور لکھ دیتا ہے کہ من مقر رقبہ مذکورہ بینک ہذا سےفک ہونے اور عدالت موصوف سے حکم امتناعی ختم ہونے کے بعد رقبہ مذکورہ محمد طارق پر ویز کے نام منتقل کروانے کا پابند ہوں گا۔ کسی صورت انحراف اقرار نامہ ہذا سے نہ کرنے کا پابند ہوں گا اور رقبہ مذکورہ بغیر کسی عذر بحق محمد طارق پر ویز بلا معاوضہ منتقل کروانے کا پابند ہوں گا۔ لہذا اقرار نامہ تحریر کروادیا ہے تاکہ سند رہے اور بوقت ضرورت کام آوے۔
العبد
محمد طاہر جاوید ولد کلیم اللہ ذات آرائیں ساکن چک نمبر 190/9-AL تحصیل و ضلع ساہیوال
گواه شد گواه شد
محمد شفیق ولد نیاز احمد ذات آرائیں صفدر جنگ ندیم ولد محمد شریف ذات آرائیں
ساکن جناح ٹاؤن ہڑ پہ اسٹیشن تحصیل و ساکن 160/9-Lتحصیل چیچہ وطنی ضلع ساہیوال"
ضلع ساہیوال
Petitioners categorically denied the agreement, which is executed on two stamp papers (Rs.50/- each). First page bears the signatures and thumb-impression of predecessor-in-interest of the petitioners on the backside, whereas, the second page has been signed as well as thumb marked by the said predecessor of the petitioners. No effort was made by the petitioners to effect comparison of the disputed thumb impression on the agreement with the admitted thumb-impression of deceased. Muhammad Tahir Javaid to refute the assertion of the respondent that the agreement is forged. Malik Taaj Muhammad, who is stamp vendor, appeared as PW-6 and stated that he issued two stamp papers to the deceased Muhammad Tahir Javaid and obtained the thumb-impression and signatures of the deceased on the back of the stamp papers whereafter he also obtained the thumb-impression and signature of deceased Muhammad Tahir Javaid on the register of stamp vendor, which was also brought on record as Exh.P-4. This testimony, which remained unshattered and unrebutted clearly proves the issuance of the stamp papers.
6. Moreover, learned Courts below have correctly appreciated the evidentiary resume of the case by holding that the stamp vendor (PW-6), Notary Public, namely, Farzana Latif (PW-4) and Muhammad Hanif, Record Keeper from D.C. Office, Sahiwal (PW-5) are independent witnesses and the petitioners did not allege any mala fide against them. Furthermore, the attesting witnesses of the agreement, namely, Muhammad Shafiq as well as Safdar Jang Nadeem appeared as PW-2 and PW-3 respectively. They also fully supported the version of the respondent. Much emphasis was laid before the Trial Court that deceased Muhammad Tahir Javaid was a person of advanced age who suffered brain hemorrhage and was hospitalized and hence, he was not in a position to execute the agreement. This aspect has been disbelieved by the Courts below. Controversy in this regard has been aptly encapsulated by the Appellate Court below by putting forth cogent reasons in following terms:
“14. The appellants/defendants took the plea that the defendant was suffering from illness therefore, he was not in his senses and he was not in a position to execute the agreement dated 21.11.2020 (sic) which is Exh.P2. Today, the appellant No. 1 appeared in person and on Court question she stated that the defendant Muhammad Tahir Javed died on 02.01.2016 whereas this agreement was executed on 21.11.2012. In cross-examination PW.1 admitted that about one and half years before his death the defendant Muhammad Tahir Javed suffered from brain hemorrhage and he was hospitalized. It means that he was suffering from illness in the years 2014 & 2015, whereas, the above mentioned agreement Exh.P2 was executed by him in the year 2012, much earlier before his death. Further the Respondent No. 1/plaintiff produced mutations No. 13 to 17 in his evidence. Mutation No. 1869 was attested by him in the year 2012 and the other mutations were attested by Tahir Javed lamberdar in the year 2013. It means that at that time he was performing his duties as lamberdar with good health. Thus appellants failed to prove their version that at the time of execution of agreement Exh.P2, Tahir Javed deceased was suffering from illness and he was not in his senses.”
7. Moreover, contentions of the petitioners that the agreement was without consideration and hence, void has also been dealt with by the Appellate Court below while interpreting Section 25 of the Contract Act, 1872. The operative part of the impugned judgment rendered by the Appellate Court below reads as under:
“15. Now coming to the third question, learned counsel for the appellant argued that the agreement Exh.P2 is without consideration and the same is void in the eye of law. In my humble opinion this contention of learned counsel for appellants has no force because this agreement Exh.P2 is covered by the provisions of Section 25 (2) of the Contract Act, 1872. However, for the sake of reference Section 25 of the Contract Act, 1872 is reproduced as under:-
..........
16. In this case since the Respondent No. 1/plaintiff got his land measuring 50-kanal transferred in favour of Tahir Javed predecessor-in-interest of the appellant voluntarily and according to the statement of PW1 Muhammad Saleem special attorney of the Respondent No. 1/plaintiff the suit land was transferred in favour of Tahir Javed because Tahir Javed was a contesting candidate for the post of lamberdar and there is no denial to this fact that Tahir Javed deceased was lamberdar and he also attested mutations Exh.P13 to Exh.P17 as lamberdar. Though this fact was not mentioned in the plaint but from the evidence it is evident that the Respondent No. 1/plaintiff got his land transferred in favour of the predecessor-in-interest of the appellants namely Tahir Javed deceased through his mother for some consideration voluntarily and his voluntariness to transfer the land in favour of Tahir Javed is very much visible from the Mutations No. Exh.P9 & Exh.P10 as discussed in the above lines. Therefore, Tahir Javed executed agreement to compensate him which is not void in view of the statutory provisions of Section 25 of Contract Act.”
This Court agrees with the reasons put forth by the Appellate Court below.
8. The matter can be examined from another angle. Respondents No. 2 to 5 are also legal heirs of deceased Muhammad Tahir Javaid, who are children born from wedlock of deceased Muhammad Tahir Javaid with Mst. Parveen and said respondents have conceded to the claim of the respondent. Meaning thereby that the said respondents do acknowledge that the suit property was given by the respondent to their predecessor-in-interest (Muhammad Tahir Javaid) voluntarily and was meant to be returned for which the agreement was executed. Even otherwise, it belies logic that why a person will transfer his entire inherited property to his mother as gift and on the same day the said mother will transfer the property to her second son (predecessor-in-interest of the petitioners) without consideration. This fact also indicates that the transaction was meant to enable the deceased Muhammad Tahir Javaid to be elected as Lumberdar. During the course of arguments before this Court, much emphasis has been laid upon the fact that the respondent has not arrayed his mother (also mother of predecessor of the petitioners) as party and hence, the suit was bad on account of misjoinder. Argument is misconceived inasmuch as once it was admitted that the respondent transferred the suit property to the mother without consideration and on the same day the mother transferred the property to the predecessor of the petitioners, the petitioners being beneficiaries of the suit property could have easily produced the mother of their predecessor-in-interest to refute the contention that the suit property was not given to the mother who transferred the same to the deceased predecessor-in-interest of the petitioners to strengthen the position of the said predecessor for the post of Lumberdar of the Chak but for some other objective. In this manner, the best evidence has been withheld by the petitioners being beneficiary and adverse presumption is to be drawn against the petitioners. Nothing has been brought on record by the petitioners’ side to establish that the mother of their predecessor was not available when evidence was recorded or if she was unavailable why secondary evidence was not led to prove that the object of transferring the property was not to strengthen the status of predecessor of the petitioners for his contest for the position of Lumberdar.
9. Despite arguing the case at full length, learned counsel for the petitioners could not point any illegality, irregularity, jurisdictional defect or procedural impropriety in the impugned concurrent findings of the Courts below. As a natural corollary, this petition, having no merits is dismissed. No order as to costs.
(Y.A.) Civil revision dismissed
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