Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Civil Revision No. S – 05 of 2014
Date of hearing: 13-09-2021
Date of decision: 13-09-2021
Mr.
Akhtar Hussain Malik, Advocate for the Applicants.
Mian Abdus Salam Arain, Advocate for respondent No.1.
Mr.
Ahmed Ali Shahani, Assistant Advocate General Sindh.
.-.-.-.-.-.-.-.-.-.-.
J
U D G M E N T
Muhammad
Junaid Ghaffar, J. – Through this Civil Revision, the Applicants
have impugned judgment dated 30-11-2013 passed by the Additional District
Judge, Ubauro in Civil Appeal No.45 of 2012, whereby the
judgment passed by the Senor Civil Judge, Ubauro in F.C. Suit No.62 of 2007 dated 25-09-2012, through which the
Suit of respondents was dismissed, has been set aside and the Suit has been
decreed.
2. Learned
Counsel for the Applicants submits that the Appellate Court has failed to
appreciate the evidence while setting aside the judgment of the Trial Court,
through which the Suit of respondents was dismissed; that the sale agreement
was never proved in accordance with law; that the witnesses were not available;
that the details of the property were also lacking; that the case of
respondents was that they had a lease agreement prior to this sale, and therefore,
the Appellate Court has failed to appreciate this aspect; hence, the judgment
of the Appellate Court is liable to be set aside.
3. On the other hand, respondent’s Counsel
submits that the agreement was proved in accordance with law, whereas, a
registered general power-of-attorney was also executed in favour of the
respondents by the predecessor-in-interest of the Applicants; that despite
repeated efforts, sale deed was not executed and therefore, Suit was filed;
that the mother and brother of the Applicants, who were the legal heirs of the
seller, came forward and accepted the fact that their husband / father had sold
the property; that they never supported the case of the Applicants; that no
evidence was led by the Applicants inasmuch as the only witness who came
forward was an attorney of the Applicants, and as against that, the brother and
mother of the Applicants had supported the case of the respondents; that best evidence
was withheld, whereas, attorney’s evidence was hearsay; hence, in the given facts,
no case is made out. In support, he has relied upon Daulat
Ali through Legal Heirs and 2 others v. Ahmad through Legal Heirs and 2 others
(PLD 2000 Supreme Court 792), Karim Nawaz and another v. Habib Ullah Khan (2013 SCMR 1408), Muhammad Hussain and others v.
Muhammad Nawaz and others (PLD
1991 Lahore 262), Dost
Muhammad v. Pakistan Steel Mills and another (1996 CLC 530), Mst. Rehmat
and others v. Mst. Zubaida Begum and others (2021 SCMR
1534) and Khadim Hussain Shah v. Judge Family Court, Multan and another (1997 MLD 2151).
4. I have heard both the learned Counsel and perused the record.
5. It appears that the case of Respondent as set up in the plaint was that on 30.8.1986 late father of the Applicant (Pehlwan S/o Allah Wadhayo) along with the Applicant entered into a sale agreement in respect of the Suit property against sale consideration of Rs. 250,000/- and handed over possession as part performance; also executed a registered General Power of Attorney. It was further averred that the Applicant (Defendant No.1) as per agreement executed the sale deed on 18.2.2000 to the extent of his share and ownership of part of the suit property, whereas, due to death of his father, the rest of the property was not transferred, compelling the Respondent to file a Suit for specific performance. In the written statement the case of the Respondent was supported by Applicants brother and mother affirming that a sale transaction did took place between the Respondent and their later husband / father. Though the Suit for specific performance filed by the respondents was dismissed by the Trial Court vide its judgment dated 25-09-2012; however, the Appellate Court through its impugned judgment was pleased to appreciate the evidence and came to the conclusion that the judgment and decree of the Trial Court was not in accordance with law and was liable to be set aside, and while doing so, has decreed the Suit of the respondents. It would be advantageous to refer to the relevant findings of the learned Appellate Court, which reads as under:
“On the other hand evidence lead on behalf of the
respondents/defendants No.1,2,4 and 5 is hearsay,
hence not reliable, nor sufficient to rebut the evidence of plaintiffs side,
because none of the defendants themselves appeared and deposed about the facts
of the case, but only one attorney Jawed Hussain was examined, who is un-aware,
even about his own special power of attorney. I would like to re-produce the
relevant portion of his evidence as under:-
The
examination in chief of attorney “Mohammad Pehlwan is
my maternal grand father. Said late Mohammad Pehlwan leased out the said land to one Rehmat
Khan plaintiff for period of (99) years. My maternal grand
mother receive said leased money from plaintiff till one year back prior
to filing of present suit. I say late Mohammad Pehlwan
never sold out the suit property to Rehmat Khan, as
well as, defendant No.1 through any sale agreement. I not in a knowledge
regarding selling of some agricultural land by defendant No. 1 through
registered sale deed to the plaintiff”. In the cross examination to Mr. Mian Abdul Salam Arain advocate
for appellant/ plaintiff, he stated as under:-
“I
was in service in year 1986 at Sukkur. It is fact that neither I am a witness
in agreement at Ex;29/A, nor I am attesting witness. It is fact that neither I
am party, nor I witness in agreement produced by me at Ex;88/B. During life
time Mohammad Pehlwan, he disclosed me these facts
that he has never sold out the suit land to any body,
as well as my maternal uncle disclosed these facts. It is fact that my maternal
grand mother namely Mst: Ghulam
Fatima sold out her share to plaintiff few time back. I do not know the actual
measurement of each S.No. It is fact that at the time
of writing of any agreement, I was not available in a person. I also do not
know the sale consideration amount and how much amount was given by plaintiff
to the defendants. It is fact that I was not also present at the time of general
power of attorney at Ex;29/B. I do not know the name of attesting person.
I do not remember the name of attesting witnesses of special power of attorney.
I also do not remember the date on which said special power of attorney was
prepared. It is fact that under our instruction my learned advocate prepared
special power of attorney”.
In view of above solitary
evidence of attorney, it is observed that he has no knowledge about the real
facts of the present case about bargain of sale, as well as, payment of
consideration and writing of sale agreement. Therefore, his evidence is neither
believable, nor trust worthy, particularly, when none of the defendants
themselves appeared and deposed about the actual and real facts of the case.
Moreover, the learned trial Court has wrongly given weight to the fact that the
appellant/plaintiff and his witnesses were not present, when the sale agreement
was attested, for which I am of the view that agreement to sell infact need not necessary to have been signed by parties or
witnesses in presence of attesting authority. In the present case/appeal, the
appellant/plaintiff in good faith stated that the agreement was given to Pehlwan for got it attested and
hand over to him and on the next day, he received sale agreement from Pehlwan and because of good faith, he had not read over the
agreement after receiving the same. This portion of evidence of
appellant/plaintiff has not been challenged by the learned trial counsel for
the respondents/defendants No. 1,2,4 and 5, therefore, in such a situation,
when vendor himself got attested the sale agreement Ex;29/A, therefore,
presence of appellant/plaintiff and his witnesses also not necessary on this
count.
Perusal of judgment of
trial Court reveals that the issues No. 1 to 5 decided by the Presiding Officer
on the basis of alone hearsay say evidence of the attorney of
respondents/defendants NO.1,2,4 and 5 by ignoring the material evidence
produced by the appellant/plaintiff, therefore, his findings on the above
issues are result of mis-appreciation of evidence, in
fact appellant/plaintiff and his witnesses fully explained the condition
regarding possession of the suit land and contents of the contract,
particularly, when their evidence, as well as documents produced by the
appellant/plaintiff remained un-rebutted. Not only this, but the trial
Court also decided issues No.3,5 and 6 by ignoring un-rebutted and
un-contracted evidence of the appellant/plaintiff and documents brought on
record by him by wrongly relied upon hearsay evidence of attorney of
respondents/defendants No.1,2,4 and 5.
As regards, the findings of the
learned trial court that "the suit of the plaintiff is barred under
article 113 of Limitation Act", for which I am of the view that the said
Article has been misapplied by the presiding officer of learned trial Court,
because Article 113 of Limitation Act is divided its
into two parties. In first part, the suit for Specific Performance is to be
filed within three years from the date of refusal fixed in agreement, while
second part of Article 113 of Limitation Act provides that suit for Specific
Performance is to be filed within three years from the date of refusal. From
the perusal of sale agreement Ex;29/A, reveals that no date of performance is fixed
in the sale agreement. Therefore, suit of the plaintiff falls within the second
part of Article 113 of Limitation Act. Besides the learned trial Court ignored
the admission of respondent No.3/defendant No.3 (Brother of
respondent/defendant No. 1) in his written statement, in which he admitted the
Para No.1 to 6,9,11,15,16 and 17 of the plaint and recorded his no objection on
the decree of the suit in favour of the appellant/plaintiff. Not only this, but
he also clearly mentioned that the respondent No.1/defendant No.1 transferred
his own share in favour of the appellant/plaintiff, after receiving full
consideration of the two survey numbers viz, 612 and
63 and only due to the death of their father, his share remained to be
transferred.
Perusal of judgment of trial Court further reveals that on the issues No.6 to 8 also decided by the Presiding Officer on the basis of pleadings of respondents/defendant 1,2,4 and 5, while by relied upon the un-believable evidence of their attorney Jawed Hussain, therefore his findings on the above issues are wrong, erroneous, hence the same are not sustainable under the law, in as much as, the respondent/defendant No.3 filed his written statement, in which he admitted the entire claim of the appellant/plaintiff and given no objection for decree of the suit in favour of the appellant/plaintiff. In further plea he has clearly stated that infact their father late Pehlwan sold out the suit land to the plaintiff, received full consideration of the sale price, due to his death sale deed could not be executed and at present he and his mother defendant No.6 executed sale deed in respect of their share 0-34 paisas in the suit land without took/receiving further sale consideration as the whole sale consideration for the suit land already received by his father late Pehlwan Khan, but the learned trail Court deliberately ignored these admissions, even he has not discussed the same in the entire judgment, besides, the above admitted pleadings have been fully supported/corroborated by a genuine document Ex:29/D, produced by the appellant/plaintiff Ex;29/B during his evidence. Moreover, in such a situation, the trial Court has wrongly held that the time is essence of contract and original allotees were not competent to execute the sale agreement. This point of law about decided by the Honourable Supreme Court in its decisions that "agreement to sell not barred during the running grant subject to compliance of conditions", reliance is can be placed SCMR 1989 P. 604, SCMR P.604, SCMR 1989 P. 135, SCMR 1992 P. 1510, SCMR 1993 P.145 and SCMR 2002 P. 1821, therefore, I am clear in my mind that trial Court has not given good, valid, legal and cogent reasons, while dismissing the suit of the plaintiff/appellant.”
6. On perusal of the aforesaid observations of the Appellate Court, it appears that the Appellate Court was fully justified in examining and scrutinizing the evidence led by the Applicants through their attorney as it is clearly reflected from his cross-examination that he was not privy to the entire facts of the case. He had no knowledge about the sale transaction and the agreement on which the respondents were relying in their Suit; therefore, such piece of evidence was rightly discarded in defence of the Applicants stance. Moreover, it is also a matter of record that the respondents in their evidence had categorically stated as follows:
“…………
I paid sale considartion to Muhammad Ayaz who in my presence handed over the same to his father Pehlwan Khan. All the notice were in shape of each Rs.500/-
and 100/- two lacs were also Rs.
each 500/- so for 50,000/- were concerned the same were Notes Rs.100/-………… it
is fact that on 28-08-1986 the agreement was written in between me and Pehlwan Khan and his son Ayaz for
lease for the period of 99 year. Voluntarily says as the Pehlwan
Khan and his son Ayaz were granted land on the Harp
basis and they can not sale the suit land at that
time hence it was written on lease for the period of 99 year………… It is
incorrect to suggest that Muhammad Ayaz have not sold
me the suit land as per sale agreement but he has contracted separate sale
agreement………… It is incorrect to suggest that the deceased Muhammad Pehlwan and Muhammad Ayaz has not
executed the sale agreement as well as General power of attorney………… It is
incorrect to suggest that there is no any fresh agreement between Muhammad
Nawaz and Ghulam Fatiman
with me.”
7. Perusal of the aforesaid evidence of the respondents clearly reflects that it was their case that at the time of signing of agreement and the sale of the property, the deceased father was paid the amount along with Muhammad Ayaz, his son, who is presently the Applicant before us. As noted earlier, Muhammad Ayaz, the Applicant, never turned up into the witness box so as to deny this very assertion, wherein it was pleaded that he was also present. He chose to lead his evidence through an attorney, who was not privy to such facts. If the Applicant Muhammad Ayaz had come forward and denied the very assertions of the respondents on oath, then perhaps the situation would have been different. However, this is not the case. Moreover, his brother and mother came forward to own the sale agreement and the transactions entered into with their deceased father / husband, and therefore, when such piece of evidence is examined in juxtaposition with the evidence led through attorney, then perhaps the Appellate Court was fully justified in discarding the evidence of the attorney as the best evidence was withheld and the benefit of the same can only go to the respondents. The Applicants without any lawful excuse have withheld the best evidence to prove their stance. As noted, the Respondents witness PW Rehmat Khan (Plaintiff) Ex 29 had entered into the witness box and had stated on oath that the sale was executed with the deceased father of the Applicant in presence of the Applicant and money was paid in his presence. In that case it was incumbent upon the Applicant to come forward and lead his own evidence to rebut the Respondents contention; but he did not do so and instead led his evidence through an Attorney who was not in a position to counter such piece of evidence as he was not privy to any of the facts. It is settled law that withholding of best evidence always leads to an inference of an adverse view against the person withholding it[1]. It is also a settled proposition that when better evidence than that which is offered is withheld, it is only fair to presume that the party has some sinister motive for not producing it, which would be frustrated if it were offered. In Civil cases what is required or considered sufficient is preponderance of probability while weighing the evidence of both the parties and while doing so in the present facts it appears that the Applicant has failed to lead any convincing evidence to rebut or challenge the claim of the Respondent who did his best to prove his claim. If facts, which are required to be proved, are exclusively in personal knowledge of the principal, then evidence of attorney holder on those facts will be in nature of hearsay evidence carrying no weight[2].
8. In view of hereinabove facts and circumstances of this case, I am of the view that the Appellate Court was fully justified in setting aside the judgment and decree of the Trial Court by decreeing the Suit of the respondents, hence, no case for indulgence, is made out, and therefore, by means of a short order dated 13-09-2021, this Civil Revision Application was dismissed and these are the reasons thereof.
J U D G E
Abdul Basit