RSA NO.171 of 2009.

RSA No.171 of 2009.

Muhammad Yaqoob. Muhammad Idrees.

28.09.2010. Rao Abdul Jabbar Khan, Advocate for the appellant.

Ch. Ijaz Akbar, Advocate for the respondent.

This appeal arises out of judgment and decree

dated 19.05.2008 passed by the learned Civil Judge at

Pasroor, which was upheld in appeal vide judgment and

decree dated 05.09.2009 passed by the learned Addl.

District Judge at Pasroor.

2. The respondent instituted a suit for possession on

the basis of an agreement to sell dated 17.06.2002. It was

contended in the plaint that the appellant, who was owner

of land measuring 24 kanals, agreed to sell the same vide

agreement to sell dated 17.06.2002 at a price of

Rs.800,000/-. At the time of execution of agreement to

sell a sum of Rs.305,000/- was paid by way of earnest

money in the presence of witnesses. The appellant

allegedly undertook to execute the sale deed/mutation in

favour of the respondent after receiving the balance sale

consideration of Rs.495,000/- by 17.09.2002. The

appellant and the respondent in the presence of witnesses

got recorded a report before the Halqa Patwari

whereupon mutation No.852 was recorded which was

RSA NO.171 of 2009. 2

thumb marked by the appellant and the Patwari informed

the parties that the mutation would be attested on

27.09.2002. Thereafter the appellant allegedly tore the

agreement to sell in the presence of the Halqa Patwari in

view of the fact that mutation in this respect had already

been recorded.

3. It appears that subsequently, the appellant resiled

from his promise and refused to get the mutation attested

and the sale completed. The respondent, therefore, sent a

notice dated 13.09.2002 calling upon the appellant to

complete the sale on receipt of balance sale

consideration. The notice was not responded.

Subsequently, the respondent alongwith witnesses

appeared before the concerned Tehsildar on 27.09.2002

but the appellant did not appear in consequence of which

mutation No.852 recorded by the Halqa Patwari was

cancelled. The respondent therefore filed a suit for

possession through specific performance of contract with

permanent injunction.

4. The suit was contested. The appellant filed written

statement admittedly that he had agreed to sell the

property in question but the sale price mutually agreed

between the parties was Rs.1,000,000/-. The defence

taken was that the said amount of Rs.1,000,000/- was

recorded in mutation No.852, however, the respondent

RSA NO.171 of 2009. 3

subsequently resiled from the agreement whereupon the

appellant moved an application before the Tehsildar

Pasroor on 10.09.2002. The mutation was cancelled on

account of non-deposit of mutation fee by the respondent.

He further alleged that the respondent had maneuvered

manipulation in the mutation, insofar as the amount of

Rs.1,000,000/- was tampered with and changed to

Rs.800,000/-. The appellant also denied receipt of earnest

money.

5. Out of the divergent pleadings of the parties, the

learned trial court framed as many as seven issues. The

parties were called upon to produce evidence. Both

parties produced documentary as well as oral evidence.

After recording evidence and hearing both sides, the

learned trial court was pleased to decree the suit of the

respondent. Aggrieved of the said judgment and decree,

the appellant filed an appeal, which was dismissed.

6. The learned counsel for the appellant submits that

the appellant had specifically denied receipt of earnest

money in para 3 of the written statement. He points out

that neither the trial court nor the appellate court framed

an issue in this regard nor was any evidence recorded in

order to reflect that the parties were at variance on the

said question. He, however, admits that no application

RSA NO.171 of 2009. 4

was moved at any stage by the appellant seeking framing

of additional issues.

7. The learned counsel further submits that the

documents which were admittedly exhibited and relied

upon by the learned subordinate courts suffer from

defects insofar as they were not signed by the learned

presiding officer. He submits that the impugned orders

suffer from legal defects being violation of the provisions

of Order XIII Rule 4 CPC read with High Court Rules &

Orders Chapter I Part G Clause 14.

8. Attention of the learned counsel has been drawn to

the fact that the said defect was subsequently cured by

the presiding officer. Further, it is settled principle of law

that act of the court would not prejudice anybody. While

the learned counsel does not have much to say about the

aforesaid queries, he insists that this fact would constitute

basis for remand of the case to the learned trial court in

order to remove the said defect.

9. It is further submitted that the mutation No.852,

which constituted the basis of arrangement between the

parties, suffers from a patent defect insofar as there was

overwriting/cutting on the figure of Rs.1,000,000/- which

was changed to Rs.800,000/-. He points out that two of

the witnesses namely Rafiq and Ibrahim produced by the

respondent were interested witnesses and their evidence

RSA NO.171 of 2009. 5

was not worthy of reliance. Referring to Ex.P1, which is

a copy of agreement to sell, the learned counsel submits

that the document was not properly proved insofar as

requirement of Article 79 of Qanun-e-Shahadat Order,

1984 were not complied with. He submits that only one

of the two marginal witnesses was produced which is

insufficient to prove a document. He adds that the

evidence of the deed writer Mian Javed Akhtar, PW2 was

wrongly relied upon insofar as his evidence could not

equated with the evidence of attesting witness. He points

out that Rana Sajjad, Notary Public should have been

produced, whose evidence would have carried more

credibility. He, therefore, prays that this is a fit case for

remand to remove the defects in the judgments and

decrees recorded by the subordinate courts.

10. The learned counsel for the respondent on the

other hand submits that most of the grounds raised by the

learned counsel for the appellant fall beyond the scope of

Regular Second Appeal. He submits that all factual

matters agitated by the learned counsel for the appellant

have already been dealt with and adequately discussed

and thrashed out by the learned subordinate courts. He,

therefore, submits that the said matters cannot and should

not be looked at afresh in exercise of jurisdiction of this

Court sitting as a second appellate court. He submits that

RSA NO.171 of 2009. 6

the only material issue raised by the learned counsel for

the appellant is that despite the fact that he had denied

receipt of earnest money, no specific issue was framed in

this regard. The learned counsel, has however, drawn my

attention to issue No.5 framed by the learned trial court,

which was couched in the following language:-

“Whether the defendant entered into an agreement

to sell of the disputed property for a sum of
Rs.8,00,000/- and after receiving Rs.3,05,000/- has
executed sale agreement dated 17.05.2002? OPP.”

11. In this regard the learned counsel submits that the

petitioner himself appeared as DW1 and categorically

admitted that he had entered into an agreement to sell

with the respondent through his son. He, therefore, points

out that the agreement to sell stands admitted and once

the document is admitted, its contents need not be

proved. He further points out that it is clearly stated in

the agreement to sell that the earnest money had indeed

been received by the appellant. The learned counsel

further submits that two witnesses produced by the

respondent, in order to prove the agreement to sell, were

sufficient to prove the document in question. The learned

counsel submits that even if, as in this case, a scribe is

produced as a witness and he proves the contents of the

document, his testimony can be considered for the

purpose of proving a document. He, therefore, submits

RSA NO.171 of 2009. 7

that the argument of the learned counsel that the

agreement could not be proved does not hold good.

12. I have heard the learned counsel for the parties and

have also examined the record with their assistance. A

perusal of the record indicates that the learned

subordinate courts have given due consideration to the

factual matters agitated by the learned counsel for the

appellant and have recording findings which are neither

factually nor legally incorrect. The learned counsel for

the appellant has been unable to demonstrate any factual

inaccuracy or misreading of evidence by the learned

subordinate courts. As far as the question regarding

framing of a specific issue regarding receipt of earnest

money is concerned, the language of issue No.5

adequately covers the said controversy. In case the

earnest money was not paid, the appellant should have

adduced evidence in rebuttal which was not done. On the

other hand, the respondent produced sufficient

documentary as well as oral evidence to establish that the

aforesaid sum of Rs.3,05,000/- was received by/on behalf

of the appellant. I, therefore, do not agree with the

learned counsel for the appellant that there was need for

framing of a specific issue in this regard.

13. As far as the question of failure on the part of the

learned trial court to place its signature on the exhibited

RSA NO.171 of 2009. 8

documents is concerned, suffice it to say that the matter

has properly been dealt with by the learned trial court. A

perusal of the documents indicates that these have been

signed by the presiding officer and the matter has

adequately been dealt with in the order of the learned

trial court. Even otherwise it is not the case of the

appellant that any of the documents in question is fake or

fabricated. Hence the objection is found to be hyper

technical only. No prejudice has been shown to be caused

to the case of the appellant. Even otherwise, it is settled

law that any act or omission on the part of the court

cannot cause prejudice to the right of any of the parties.

14. As far as the question regarding overwriting in the

mutation is concerned, the matter was adequately

explained by the Halqa Patwari in his evidence. He

categorically stated that it was an error committed at the

time of recording the mutation. The same was corrected

with the consent and in the presence of both parties on

the basis of contents of the agreement to sell. As far as

production of interested witness is concerned, the learned

counsel has not been able to show how Rafique was an

interested witness. No suggestion was put to him in this

regard in his cross-examination nor was any independent

evidence produced to show that he was an interested

witness. Where a person alleges that a witness is

RSA NO.171 of 2009. 9

interested, the onus to prove such interest is on the person

making the allegation. Such onus was never discharges

by the appellant. Further Ibrahim, who is son of

Rafique’s brother, does not, in my opinion, fall in the

definition of interested witness, if Rafique has not been

shown to be an interested witness.

15. Ex.P1 was the agreement to sell, which constituted

the basic document in the disputed transaction. It was

admittedly torn by the appellant in the presence of the

parties in view of the fact that the amount and transaction

had been recorded in mutation No.852. Subsequently,

when the appellant resiled, a copy of the document was

exhibited during trial and has been placed on record by

way of secondary evidence. Even otherwise, it was

proved by production of two witnesses, whose evidence

could not be shaken in cross-examination. As far as,

proof of the said document is concerned, Liaquat and

Mian Javed Akhtar were produced as witnesses, one of

whom is a marginal witness and the other is admittedly

the scribe, who also testified regarding the contents of the

documents. As such I am of the opinion that sufficient

and adequate oral evidence was produced to prove the

document in question. Further the document was not

denied by the appellant and strictly speaking, did not

need to be proved.
 RSA NO.171 of 2009. 10

16. For the aforenoted reasons the learned counsel for

the appellant has not succeeded in convincing me that the

judgments and decrees recorded by the learned

subordinate courts are contrary to law, fails to determine

any material issue of law or that there is any substantial

error or defect in the procedure provided by the Civil

Procedure Code or any other law which may possibly

have produced any error defect in the decision of the case

upon the merits.

17. For the aforesaid reasons, I do not find any merit

in this appeal. It is accordingly dismissed.

(IJAZ UL AHSAN)
JUDGE
[Link].

Approved for reporting.

JUDGE