PLJ 2008 SC 158

[Appellate Jurisdiction]

Present: Javed Iqbal, Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ.

ABDUL HAMEED--Appellant

versus

Mst. AISHA BIBI and anothers--Respondents

Civil Appeal No. 523 of 2002, decided on 25.1.2007.

(On appeal from the judgment dated 14.1.2002 passed by Lahore High Court, Lahore in RFA No. 32 of 1991).

Constitution of Pakistan, 1973--

----Art. 185(3)--Suit for specific performance--Denied the execution of agreement to sell--Obtained thumb impression on blank paper--Suit was decreed--Assailed--Agreement and receipt of earnest money were not proved and reversed to trial Court--Question requiring determination--Whether admission of vendor of his thumb impression on the agreement to sell was sufficient to prove its execution--Document create a right in the property must be proved to have been executed by the person who allegedly executed such document--Vendor having no knowledge of the contents of document affixed his thumb impression that document pertained to settlement regarding encroachment of the house was natural and denial to have put thumb impression on blank paper, would seriously reflect upon the genuineness of agreement--Held: Equitable relief of specific performance could be granted to appellant or findings arrived at by High Court was suffering from any misreading or non reading of evidence or any legal defect in judgment calling for interference of Supreme Court--Appeal was dismissed. [Pp. 160 & 161] A, B & C

Mr. Ihsanul Haq Ch., ASC for Appellant.

Mr. Muhammad Sharif Chohan, ASC for Respondents 1-2(ii-vi).

Ex Parte for Respondents 2 (i).

Date of hearing: 25.1.2007.

Judgment

Muhammad Nawaz Abbasi, J.--This direct appeal has been preferred against the judgment dated 14.1.2002 passed by a learned Division Bench of Lahore High Court Lahore in a RFA arising out of a suit for specific performance of the contact.

2. The brief facts leading to this appeal are that the appellant Abdul Hameed having filed suit against Din Muhammad, his father and Mst. Aisha Bibi widow of Din Muhammad, respondents herein, pleaded that Din Muhammad, owner of the suit property measuring 200 Sq. ft situated within the municipal limits of Faisalabad, agreed to sell the said property to him vide agreement dated 16.8.1993, for a consideration of Rs. 3 lacs out of which he having paid an amount of Rs. 50,000/- as earnest money, obtained possession of a portion of the property in part performance of the agreement. The balance sale price amounting to

Rs. 2,50,000/- was to be paid at the time of transfer of the property in his name through registered sale-deed by or before 15.4.1984 and vendor also executed a power of attorney in his favour but subsequently, it transpired that Din Muhammad gifted the suit property to his wife Mst. Aisha Bibi respondent herein vide registered gift-deed dated 10.4.1984. The appellant, with these averments in the plaint, sought a decree for specific performance of the agreement and cancellation of the gift-deed. Din Muhammad and Mst. Aisha Bibi filed a joint written statement wherein they having denied the execution of the agreement to sell, pleaded that the appellant obtained thumb impression of Din Muhammad on the blank paper on the pretext of compounding the encroachment on the property with the concerned authorities and that Mst. Aisha Bibi was in possessin of th esuit property unde rthe gift. The learned trial Judge in the light of pleading of the parties and the evidence brought by them on record, decreed the suit vide jdugment dated 16.2.1991. The respondents assailed the judgment and the decree passed by the trial Court before the Lahore High Court by way of filing Regular First Apeal and leanred Division Bench of the High Court after detail scrutiny of the evidence on record having formed the opinion that the agreement (Ex. P1) and receipt of earnest money (Ex. P2), were not proved to have been executed by Din Muhammad, reversed the judgment of the trial Court and allowed the appeal vide impugned judgment.

3. Learned counsel for the appellant has mainly contended that the vendor without denying the thumb impression on the agreement, denied its execution and that there was ample evidence on the record to prove the execution of the agreement but the High Court reversed the findings of the learned trial Judge on the pivotal issue the misreading the evidence. Leanred counsel added that the vendor in his statement in the cross-examination has admitted the filing of the suit for cancellation of the gift-deed in which he having acknowledged his thumb impression on the agreement to sell stated that appellant was in possession of the property since 1982-83 as owner and also admitted the execution of receipt for payment of earnest money. The learned counsel thus concluded that the bare denial of the contents of the documents would be of no significance as the execution of the agreement and the payment of earnest money stood established on record with the stipulation that remaining amount would be paid at the time of registration of sale-deed. In nutshell learned counsel argued that the findings of the trial Court regarding execution of the sale agreement by the vendor and receipt of Rs. 50000/- as earnest money with the delivery of possession of the property was based on the admission of the vendor therefore, the decree passed by the trial Court in the suit was not questionable.

4. The learned counsel for the respondents on the other hand, has submitted that mere admission of thumb impression on the document is not sufficient to prove its contents and in the present case, the vendor has categorically denied the execution of agreement of sale in the written statement as well as in his statement on oath before the Court and consequently, the plaintiff was under heavy burden to prove the execution of the agreement through cogent and convincing evidence failing which suit could not succeed. Learned counsel submitted that the appellant having taken advantage of his possession on a portion of the suit property as son of Din Muhammad (vendor), prepared s false document with ulterior motive to deprive other legal a heirs of the Din Muhammad from the legitimate right of inheritance in the property.

5. After hearing the learned counsel for the parties and perused the record with their assistance, we find that sole question requiring determination would be whether the admission of vendor of his thumb impression on the agreement to sell was sufficient to proved its execution and contents, the answer is in the negative as the document purporting to create a right in the property must be proved to have been actually executed by the person who allegedly executed such document. It appears from the record that Din Muhammad was an illiterate person and without being aware of the contents of the document put his thumb impression on it at the instance of his son in good faith with the understanding that it was compound deed. This is a matter of common sense that in the normal circumstances, father would certainly trust his son and may act on his advice and thus in these circumstances, the inference drawn by the High Court that the vendor having no knowledge of the contents of the document, affixed his thumb impression at the instance of his son with the impression that document pertained to the settlement regarding encroachment of the house was quite natural and denial of Din Muhammad to have put his thumb permission on blank paper, would seriously reflect upon the genuineness of the agreement in question. In view thereof, the admission of Din Muhammad of his thumb impression on the agreement in question, would not ipso facto prove its contents to raise the presumption of it being a genuine document to have the legal force. This may be seen that High Court having discussed the evidence in detail has held that the agreement to sell was not proved to have been executed by Din Muhammad and we in the given facts have no reason to differ with the conclusion drawn by the High Court. The learned counsel for the appellant has not been able to satisfy us that on the basis of evidence brought on record and in the facts and circumstances of the case, an equitable relief of specific performance could be granted to the appellant or the findings arrived at by the High Court was suffering from any misreading or non-reading of evidence or there was any other legal defect in the impugned judgment calling for interference of this Court.

6. In the light of forgoing reasons, we do not find any substance in this appeal, which is accordingly dismissed with no orders as to costs.

(R.A.) Appeal dismissed.