Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Muhammad Ashraf (deceased) through L.Rs., and etc. VS Respondent: Muhammad
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title:Muhammad Ashraf (deceased) through L.Rs., and etc. vs Muhammad
JUDGMENT
Reported As: PLJ 2023 Lahore 39 Result: Civil revision allowed Judgment JUDGMENT Through this Civil Revision, petitioners/legal heirs of Muhammad Ashraf son of Abdullah assailed the judgments and decrees dated 05.02.1989 and 15.01.2002 whereby suit for specific performance of agreement to sell instituted by Respondent No. 1/plaintiff namely Muhammad Yousaf was decreed, concurrently, by the learned Courts below. 2. Inessential details apart, Respondent No. 1/plaintiff namely Muhammad Yousaf son of Muhammad Ismail (hereinafter referred to as plaintiff) instituted a suit for specific performance of an agreement to sell dated 10.01.1979 against Abdullah (hereinafter referred to as Abdullah), Muhammad Ali (hereinafter referred to as Defendant No. 1) and Muhammad Ashraf predecessor of the petitioners (hereinafter referred to as Defendant No. 2) on 01.09.1979 with the contention that suit property measuring 32 kanals belonged to Abdullah, who appointed Defendant No. 1 as his general attorney via registered general power-of-attorney dated 01.08.1962, whereby, he gave him full authority to transfer the suit property; that the suit property was already mortgaged with him through registered mortgaged deed No. 1992 dated 30.06.1977; that Defendant No. 1 being general attorney of Abdullah made contract with him regarding sale of the suit property for a total consideration of Rs. 112,000/- vide agreement to sell dated 10.01.1979 whereby it was settled that after deducting Rs. 40,000/- as mortgage money remaining consideration amount of Rs. 72,000/- was to be paid; that Rs. 60,000/- were paid in presence of the witnesses through receipt dated 10.01.1979 and remaining consideration amount Rs. 12,000/- was agreed to be paid at the time of attestation of sale deed; that date for performance of the agreement to sell was settled as 05.08.1979; that plaintiff remained ready to fulfill the settled conditions of agreement to sell and he
---
## Page 2
also gave a notice in this regard on 01.08,1979 to Abdullah Defendants No. 1; that the defendants have conspired with each other to damage his rights and Abdullah allegedly transferred the suit property through Tamleek in the name of Defendant No. 2; that the said Tamleek is against facts and law, result of fraud and mis-representation liable to be cancelled; that the plaintiff always remained ready to perform his part of contract but defendants failed to abide by their commitment which constrained him to institute the suit in hand. Abdullah son of Kalo (Defendant No. 1 in the initial plaint) and Defendant No. 2 (Muhammad Ashraf son of Abdullah) filed joint contesting written statement on 21.11.1979 whereby they raised preliminary objections that suit had been instituted by the plaintiff on the instigation of Defendant No. 1 (Muhammad Ali) with mutual collusiveness; that plaintiff has no locus standi to institute the suit as Abdullah transferred the suit property through registered Tamleek deed dated 07.07.1979 in favour of his mins and daughters i.e. Defendant No. 2, Ghulam Nabi and Karim Khatoon; that plaintiff with connivance of Defendant No. 1 got prepared the said agreement to sell after 07.07.1979 which is ante-dated and stamp paper used for this purpose was also obtained after execution of the Tamleek deed which is also ante- dated; that suit is bad for non-joinder of Ghulam Nabi and Karim Khatoon. While giving repl to the facts, maintained that Abdullah, who was owner of the suit property, transferred the same through Tamleek in favour of Defendant No. 2, Ghulam Nabi and Mst. Karim Khatoon; that Abdullah appointed Defendant No. 1 as his attorney in the year 1962 for allotment of land and recovery of share produce and he was not given any authority for alienation of the suit property; that he cancelled the said general power-of-attorney through cancellation deed (Abtal nama); that agreement to sell is forged, fictitious, without authority, result of collusiveness, therefore, has no force; that all receipts of money are forged and fictitious and no consideration amount was passed on/paid to Abdullah and prayed for dismissal of the suit. After submission of said written statement Mst. Karim Khatoon moved an application on 26.11.1979 for her impleadment as a party in the suit, whereas, plaintiff also moved an application for impleading of Ghulam Nabi and Mst. Karim Khatoon as a party. Learned trial Court allowed said application on 20.01.1980. Plaintiff with the leave of Court impleaded Ghulam Nabi and Mst. Karim Khatoon as party in the array of defendants and filed amended plaint on 04.02.1980. Meanwhile, Abdullah (Defendant No. 1 in the original plaint and amended plaint dated 04.02.1980) was died and fresh amended plaint was filed on 15.09.1980 by impleading all his legal heirs i.e. Muhammad Ali as Defendant No. 1, Muhammad Ashraf as Defendant No. 2. Ghulam Nabi as Defendant No. 3, Haider Ali as Defendant No. 4 and Mst. Karim Khatoon as Defendant No. 5 in the plaint as a party. Through this amended plaint confusion ensued as number allocated to the defendants were changed by plaintiff. To avoid any further confusion, Abdullah (Defendant No. 1 in the initial plaint) was referred by his name and rest of defendants were referred to as numbered in the last amended plaint dated 15.09.1980. Defendant No. 1 (Muhammad Ali), Defendant No. 4 (Haider Ali) and Defendant No. 5 (Mst. Karim Khatoon) filed contesting written statement on 25.11.1980 with a preliminary objection that plaintiff is estopped to institute the suit by his own words and conduct, however admitted the execution of agreement to sell with the assertion that the plaintiff himself violated the terms and conditions of the same and he himself cancelled it, and maintained that Abdullah transferred the suit property to Defendants No. 2, 3 & 5 through Tamleek, prayed for dismissal of the suit. Defendant No. 2 (Muhammad Ashraf) and Defendant No. 3 (Ghulam Nabi), beneficiary of the Tamleek filed contesting amended written statement on 25.11.1980 whereby they reiterated the same averments as pleaded by Abdullah and Defendant No. 2 in their earlier joint written statement dated 21.11.1979. The learned trial Court keeping in view the divergent pleadings of the parties framed necessary issues as follows: - ISSUES: 1. Whether the suit is collusive and is filed at the instance of Defendant No. 2? If so, its effect? OPD. 2. Whether the plaintiff has no locus standi in view of the preliminary objection No. 2? OPD.
---
## Page 3
3. Whether the suit is bad for non-joinder of necessary parties? OPD. 4. Whether the Defendant No. 2 was a general attorney of Defendant No. 1? OPP. 5. If issue No. 4 is proved whether Defendant No. 2 has power to alienate the suit land?OPP. 6. Whether Defendant No. 2 as "Mukhtar Aam" of Defendant No. 1 has validly executed an agreement to sell dated 10.1.79 in favour of plaintiff by receiving Rs. 60,000/-? OPP. 6-A Whether plaintiff is estopped to sue due to his acts and conduct? OPD. 6-B. Whether the plaintiff is entitled to a decree for Specific Performance? OPP. 7. Relief Parties were invited to produce their respective evidence. Plaintiff got examined Ghulam Nazak son of Mian Azeem Bukhsh scriber of agreement to sell (Exh.P.1) as PW-1, Ghulam Farid one of the attesting witness as PW-2 and Muhammad Yousaf plaintiff examined himself as PW-3. He also produced agreement to sell dated 10.01.19-79 as Exh.P-1, receipt dated 10.01.1979 as Exh.P-2, copy of record of right for the year 1971-72 as Exh.P-3, copy of Khatoni as Exh.P-4, copy of cancellation deed (Abtal Nama) as Exh.P-5 and copy of registered Tanleek deed as Exh.P-6 and in rebuttal evidence, produced copy of khasra girdwari from Kharif 1983 to Rabi 1987 as Exh.P-6 (wrongly allocated the same number of Exh.P-6 as it was already allocated to copy of registered Tamleek deed), and copy of general power-of-attorney from Abdullah in favour of his son Defendant No. 1 dated 02.08.1962 as Exh.P-7. On the other hand, the defendants got examined Qasim Hussain Casher/Treasurer as DW-1, Muhammad Ashraf (Siah Navees/Moharrir) as DW-2. Thereafter, learned Trial Court recorded evidence of Riaz Hussain son of Muhammad Ramzan and Muhammad Ashraf Defendant No. 2 but inadvertently numbered them as D.W.1 & D.W.2 respectively instead of D.W.3 & D.W.4, Defendant No. 1 got recorded his statement on 16.09.1987 (inadvertently shown as Defendant No 3 whereas he was Defendant No. 1, without assigning him any number as DW). Defendants No. 2 & 3 moved an application for summoning of Azeem Baldish alleged stamp vendor as Court witness (CW) on 15.09.1982 which was allowed on 22.01.1983. The Court summoned him and recorded his statement as CW-1. After conclusion of trial, the learned trial Court vide judgment and decree dated 05.02.1989 partially decreed the suit after deducting 03 kanals 08 4/7 marlas from the total suit property measuring 32 kanals. Feeling aggrieved, Defendant No. 2 preferred an appeal whereas plaintiff also filed cross-objections. The learned appellate Court vide order dated 19:10.1991 concluded that mortgage deed No. 1992 dated 30.06.1977 is a material document which is available on record in original but it should be brought on record through proper-procedure and after framing of additional issue in this regard (Whether Muhammad Ali as general attorney of Abdullah deceased defendant validly mortgaged the land belonging to Abdullah in favour of Muhammad Yousaf plaintiff after receiving Rs. 40,0001-, if so, its effect?), set- aside the impugned judgment and decree and remanded the matter to the learned trial Court for decision afresh after recording further evidence on the newly framed issue. Feeling distressed, plaintiff filed first appeal against order (F.O.A. No. 56 of 1999) which was allowed by this Court vide judgment dated 13.04.2000 and set-aside the order dated 19.10.1991, resultantly appeal as well as cross-objection deemed to be pending before the Appellate Court who shall be directed to decide the same afresh in accordance with law. The learned appellate Court vide judgment and decree dated 15.01.2002 dismissed the appeal of the Defendant No 2, whereas allowed the cross-objection of plaintiff and decreed his suit in toto. Feeling dissatisfied, the petitioners-legal heirs of Muhammad Ashraf Defendant No. 2 filed instant revision petition by challenging the aforementioned judgments and decrees. 3. This Court vide order dated 18.05.2015 proceeded ex-parte against the respondents except Respondents No. 2(h), 4 & 6. Through C.M. No. 2217-C/2021 a permission was sought to bring on record legal heirs of Respondents No. 1. 2-H, 3,4 & 6 which was allowed on 20.09.2021. Notices were issued to the newly added legal heirs of above referred respondents. Mr. Muhammad Iqbal Gabol,
---
## Page 4
Advocate submitted power-of-attorney on behalf of Respondents No. 1(a) to 1(i)/legal heirs of plaintiff, however, no one appeared on behalf of rest of the respondents despite their due service, therefore, ex-parte proceedings are going to be initiated against rest of respondents. The suit of the plaintiff was decreed in his favour and after his demise his legal heirs were brought on record, duly represented through their counsel, who are the main contestants, therefore absence of the rest of respondents and ex-parte proceedings does not effect the merit of the case and there is no bar to hear the revision petition on merit which is pending since 2002. 4. I have heard the learned counsel for the parties at full length and perused the record with their able assistance. 5. The plaintiff and. Defendant No. 1 are not at issue with regard to execution of the agreement to sell, therefore, it is well entrenched proposition of law that admitted facts need not to be proved. The controversy is that whether said agreement to sell is free from any collusion, executed on the date shown upon it and the Defendant No. 1 has authority to execute the said agreement to sell in favour of plaintiff. Now I discuss both the controversies one by ones 6. Abdullah and his son Defendant No. 2 in their written statement raised a preliminary objection to the effect that plaintiff and Defendant No. 1 by conniving with each other prepared the agreement to sell after 07.07.1979 which is ante-dated. Stamp paper used for writing of said agreement to sell was also obtained after 07.07.1979, wrongly shown its ante-dated purchase and alleged that said agreement to sell is result of collusion, prepared ante-dated and suit was instituted collusively at the instance of Defendant No. 1. The exact wording of the written statement is as under:
Whereas the plaintiff asserted that agreement to sell was rightly executed by Defendant No. 1 on 10.01.1979. The learned trial Court in the light of said controversy framed Issue No. 1 (Whether the suit is collusive and is filed at the instance of Defendant No. 2? If so, its effect? OPD) and placed its onus of proof upon defendants. Although, learned Trial Court failed to frame any issue with regard to the said agreement to sell, whether it is ante dated or not but as the parties were well aware in respect of the controversy present between them and produced their entire evidence in support of their version, so, no need to frame any additional issue at this stage and put the parties to a denovo trial by remanding the matter as Issue No. 1 covers the controversy to some extent. The learned trial Court decided issue No. 1 against the defendants which finding was upheld by the learned appellate Court. 7. The stamp paper used for writing of agreement to sell was shown to be purchased from Azeem Bakhsh stamp-vendor on 10.01.1979, whereas Defendant No. 2 claimed that said stamp paper was obtained from Jamal Khan stamp-vendor as Azeem Bakhsh was not stamp-vendor at that time. Qasiin Hussain, Treasure Ali Pur appeared as DW-1 who deposed that according to their record Azeem Bakhsh stamp-vendor did not purchase stamps since 10.09.1977. During cross-examination he deposed that the stamp-vendor can keep stock of already purchased stamps and has shown possibility that stamp paper dated 10.01.1979 may be already purchased stamp with the stamp vendor, however, on Court's question he deposed that there is neither any record of stamp paper of Exh.P-1 nor any entry is present in this regard in the register. Muhammad Ashraf (Siah Navees/Moharrir) appeared as DW-2 and deposed that no money/amount was deposited in the treasury by Azeem Bakhsh stamp vendor for obtaining or purchase of stamp papers since 10.09.1977. On Court query he clarified that the stamp vendor's register can tell that when he lastly purchased the stamp paper and when his purchased stock was finished. He further clarified on Court's question that Azeem Bakhsh left the profession of stamp vending in the year 1977 due to ailment. Stamp vendor Azeem Bakhsh got recorded his statement as CW-1 and deposed that he remained stamp vendor for few days, then voluntarily said, for eight to nine months. He also maintained that when his license was finished he immediately deposited his register. Voluntarily
---
## Page 5
said that his license was not finished but he himself resigned. He also deposed that in the year 1966 he got the license and resigned in 1967 and after 02/03 days of resignation he deposited the register. He deposed that he did not made any entry of stamp paper in the register with his own hand-writing, and it was entered by his agent. He clarified that after completion of register, the same was submitted in the office. During cross-examination, he denied the suggestion as incorrect that he was stamp vendor in the year 1979 and used to sell stamp paper. While answering to a question he deposed that after resignation he deposited all the un-used stamp papers and no stamp paper was left with him. He admitted that his son Nazak works as deed writer in Alipur Courts. He said that as on Exh.P-1 signature of Nazak is present, therefore, it may be in his hand- writing. 'He showed his ignorance that any other person can prepare stamp or not. He said that he had no need to keep the stamp after resignation. He also deposed that Nazak resided with him in his house. He also suggested it incorrect that he used to sell the stamps after resignation. He deposed that he did not remember, whether his agent had deposited any remaining stamp paper after his resignation or not. Voluntarily said what was the point of keeping it by him. He also deposed that the date of Exh.P-1/G, shown to him as 1979, cannot be in his hand-writing. He also said that it is correct that when his approved agent asked him to make signatures, he put his signatures. The exact deposition in verbatim is as under:
The learned Courts below were much impressed on his admission whereby on a suggestion he said that it is correct that the signatures shown to him on Exh.P-1 as Exh.P-1/D and Exh.P-1/E are his own signatures, but failed to consider his age who was 87 years old at the time of said cross- examination and his deposition that in the year 1982 he got operated his eyes and since that time his eye-sight is weak. 8. Riaz Hussain (DW-1) deposed that he knew Mureed Hussain deed writer as he works with him. He deposed that he knew Muhammad Ali and Muhammad Yousaf who came before Mureed Hussain in his presence and asked him for writing of an agreement to sell. Murred Hussain, who was patient of asthma said that since he was not free, so, to get it write from any one else and then they went to Nazak. It was month of July. During cross-examination, he clarified that it was last week of July and date was 25. Stamp paper was obtained from Jamal Khan. He answered to a question that Jamal Khan is alive. He was not put any suggestion that stamp paper was not purchased from Jamal Khan and it was not month of July. During cross-examination he deposed that agreement was written by Nazak as he saw them in his chamber. He admitted it correct that father of Nazak was remained stamp vendor at one time Defendant No 2 (DW-2) deposed that after cancellation of power-of-attorney agreement to sell was got written antedated fraudulently. Stamp was purchased from Jamal Khan and made entry of antedate on it He specifically deposed that said agreement to sell was prepared antedated. He also deposed that Azeem Bakhsh alleged stamp vendor while recording his statement admitted that he did not issue the stamp paper for writing of agreement to sell and he resigned from stamp-vendoring in the year 1966. During cross- examination deposed, it was told by plaintiff that Defendant No. 1 purchased stamp paper from Jamal Khan. Ghulam Farid one of the attesting witnesses of agreement to sell appeared as PW-2. During cross-examination he deposed that stamp was purchased from Siah Navees. Plaintiff (PW- 3), during cross-examination, deposed that he and Muhammad Ali both had gone to Siah. Navees for obtaining the stamp paper. He himself gave stamp paper to them and said stamp paper was not obtained from treasury. Then he inquired who is called Siah Navees, and subsequently replied that stamp paper was obtained from stamp vendor. He admitted that stamp paper was purchased from Jamal stamp vendor. He deposed that he is knowing and watching Jamal Khan
---
## Page 6
for last 02/3 years in the Tehsil. After purchase of stamp paper, they came to Nazak for writing of agreement to sell. His exact deposition in verbatim is as under:
Ghulam Nazak deed writer (PW-1) did not say anything that from whom stamp paper was purchased. However, he denied the suggestion that he had got written the stamp paper Exh.P-1 after getting his father's signature ante dated. He denied the suggestion incorrect that eight and half month before 10.01.1979 his father left stamp vendoring. Defendant No. 1 during cross- examination deposed that Nazak (deed writer) sent his son for bringing the stamp paper from home and his son brought it from his grandfather because he was ill and present at home at that time. He further said that he also accompany him for bringing the stamp paper and he put his thumb impression upon the register. Further deposed that he got stamp paper valuing Rs. 30/- whereas stamp papers of agreement to sell are value of Rs. 20/- and Rs. 10/- and on the back side of it showed value of Rs. 15/-and Rs. 15/- usual stamp paper valuing Rs. 4/- was used for writing of an agreement to sell. Exact deposition in verbatim is as under:
Plaintiff (P.W.3) stated that he along with Defendant No. 1 purchased stamp paper from Jamal Khan whereas Defendant No. 1 deposed that stamp paper was purchased from Azeem Baksh. Plaintiff stated that he paid price of stamp paper whereas Defendant No. 1 claimed that he paid the price. Plaintiff stated that he and Defendant No. 1 went together for purchase of stamp paper whereas Defendant No. 1 said that he and son of Nazik had gone to purchase the stamp paper. Alleged stamp vendor Azeem Baksh denied issuance of stamp paper but also maintained that he was not stamp vendor in the year 1979. The story narrated by Defendant No. 1 was not corroborated by the witnesses appeared on behalf of the plaintiff which suggest that he concocted a false story regarding purchase of stamp paper which seems to be an afterthought and it proved his collusiveness with plaintiff. Register of stamp vendor was neither tried to be summoned nor produced in evidence, which established that stamp paper was not entered in any register. Said depositions of the witnesses clearly suggests that a blank stamp paper was used for preparing the agreement to sell which was purchased from Jamal Khan and for making it ante-dated name and stamp of Azeem Bakhsh was used who was not stamp vendor in the year 1979. The learned Courts below ignored the fact that when Azeem Bakhsh was not stamp vendor in the year 1979 how can he issued stamp paper for execution of an agreement to sell and how his admission with regard to his signatures upon the stamp paper made it a validly issued stamp paper. The learned Courts below mis-read and non-read the evidence of both parties and had drawn a wrong conclusion. 9. Abdullah gifted the suit property to Muhammad Ashraf, Ghulam Nabi and Mat. Karim by excluding Muhammad Ali and Haider Ali. From scanning the whole record, it appears that due to this grudge Muhammad Ali joined hands in gloves with Muhammad Yousaf plaintiff for preparing an ante-dated agreement to sell to deprive the donees from the fruit of gift made by their father. The suit was not contested by Muhammad Ali, Haider Ali and Mst. Karim rather they admitted the execution of agreement to sell in their written statement. Displeasure and angriness came on the surface during cross-examination, when Defendant No. 1 deposed that Defendant No. 2 brought his father to Tehsil and got transferred the suit property in his name through Tamleek. Further deposed that he and his brother Haider Ali were also entitled but they had not given their share. This deposition clearly suggests that he was not happy with the Tamkek of the suit property to Defendants No. 2, 3 & 5 wherein he and his brother Haider Ali were deprived from the suit property. The exact deposition is as under:
---
## Page 7
Now question arises, Muhammad Ali and Haider Ali were angry being deprived from the suit property by their father Abdullah but why Mst. Karim Khatoon admitted the claim of plaintiff and he made admission against her interest by conceding execution of the agreement to sell. This question was answered during the pendency of appeal when Defendant No. 2 moved an application for impleading Mst. Noor Bibi daughter of Muhammad Shahzad wife of Muhammad Yousaf as party in the appeal. In the said application, he maintained that during the proceedings of suit, Mst. Karim Khatoon alienated the properties which she obtained through tamleek Mutation No. 3004 and inheritance Mutation No. 3007 via agreement to sell dated 19.06.1980 to Mst. Noor Bibi and thereafter got executed sale deed No. 1392 on 08.06.1981. On the basis of said sale deed Mutation No. 306 was sanctioned on 28.06.1984. Meaning thereby, Mst. Karim Khatoon Defendant No. 5 agreed to alienate the properties obtained through tamleek and inheritance to the wife of plaintiff Muhammad Yousaf before filing of her written statement. This transaction of sale from Defendant No. 5 in favour of plaintiff's wife showed that plaintiff not only accepted/admitted the execution of tamleek in favour of Mst. Karim Khatoon, Muhammad Ashraf and Nabi Bakhsh but he himself negated the factum of agreement to sell allegedly executed in his favour by purchasing the same property from Defendant No. 5 in the name of his wife. If any agreement to sell (Exh.P-1) with regard to suit property was genuinely existed…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.