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Petitioner: POOS KHAN VS Respondent: NOOR AHMEDHonorable Justice Tanvir Bashir AnsariCh. Naseer Ahmed,Ijaz Ahmed Chuadhry
2002 Y L R 3085
2002 Y L R 3085
[Lahore]
Before Tanvir Bashir Ansari, J
POOS KHAN and others‑‑‑Petitioners
Versus
NOOR AHMED and others‑‑‑Respondents
Civil Revision No.235‑D of 1990/BWP, heard on 1st October, 2001.
(a) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.12‑‑‑Suit for specific performance of agreement to sell‑‑‑Trial Court decreed the suit, but Appellate Court reversed the decree passed by the Trial Court holding that alleged agreement to sell was not sufficiently proved‑‑‑Appellate Court compared signatures of the defendant vendor with his signatures on other documents and concluded that said signatures did not tally with each other‑‑Appellate Court not only found the signatures to be tampered and overwritten, but also found that there was no similarity of signatures‑‑‑Parties to the agreement to sell and marginal witnesses resided where the suit property was situated, but sale agreement .was executed at a different place and no cogent reason was given for the same‑‑ Appellate Court fully competent to appraise evidence had drawn its own inference on the, basis of evidence on record and nothing was to suggest that inference so drawn could not be prudently drawn-‑Findings of the Court upon fact would enjoy finality and could not be interfered with in circumstances.
(b) Administration of justice‑‑‑
‑‑‑‑Authority which was competent to receive evidence, was empowered to draw such inference from the evidence as could be made by a prudent person‑‑‑Unless such a conclusion was totally perverse or incomprehensible, right of the judicial authority to come to its own conclusion could not be curtailed.
(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Art. 61‑‑‑Comparing handwriting by the Court itself‑‑‑Validity‑‑‑No legal bar existed for the Court to compare the disputed handwriting itself‑‑‑Court could even take a view contrary to the opinion of a Handwriting Expert, if it was of the view, after its own comparison, that departure was warrantee from the report of the Handwriting Expert‑ Appreciation of evidence by a judicial forum included the power of the Court to itself examine and compare the disputed signatures.
Sarbuland v. Allah Lok 1996 SCMF 575 ref.
(d) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.12‑‑‑Civil Procedure Code (V of 1908) S.115‑‑‑Specific performance of agreement to sell‑‑‑Revisional Jurisdiction of High Court--‑ Scope‑‑‑Decree for specific performance o agreement to sell is a discretionary relief and after the final Court of fact had exercised its discretion, the revisional Court would be loath to interfere with the same.
Ch. Naseer Ahmed for Petitioner.
Ijaz Ahmed Chuadhry for Respondents.
Date of hearing: 1st October, 2001.
JUDGMENT
The petitioners are the successors -in‑interest of Tall Khan who brought a suit for specific performance of an agreement to sell against the respondents. According to the plaint, Noor Ahmad respondent No.1 was the original owner of the suit‑land who agreed to sell the same in favour of the predecessor‑in‑interest of the petitioners vide sale agreement dated 31‑5‑1981 for a consideration of Rs.21,500. The suit was filed on 14‑6‑1981. As respondent No.1 had alienated the suit property in favour of respondents Nos.2 and 3 during the pendency of the suit, they were also impleaded as defendants.
2. The suit was resisted on the plea that Noor Ahmad never entered into any agreement with Tal Khan and that the alleged sale agreement and the receipt dated 31‑5‑1981 were forged documents.
3. From the pleadings of the parties, the following issues have been framed:‑
Issues
4. The petitioner produced Ghulam Hussain Petition Writer as P. W.1, Ghazi Marjan as P. W. 2 while Poos Khan appeared as his own witness as P.W. 3. He also tendered in evidence, agreement to sell Exh.P.1, receipt Exh.P.2, copy of Mutation bearing No.1135 Exh.P.3, copy of Percha Zamindaran Ishtimal Exh.P.4 and copy of Khasra Girdawari Exh.P.5.
On the other hand, the respondents produced Muhammad Ibrahim as D. W.1, Amir Khan as D.W.2 and Noor Ahmad respondent No.1 appeared as his own witness as D.W.3.
5. The learned trial Court found that the agreement to sell was established on the record and that the petitioners had paid Rs.5,000 as earnest money and obtained possession under the sale. It was also held that the transfer of the suit property in favour of respondents Nos.2 and 3 through Mutation No. 1135 was ineffective upon the rights of the petitioners. Consequently, vide judgment and decree dated 6‑12‑1987, the suit for specific performance was decreed in favour of the petitioners.
6. Aggrieved of the same, the respondents preferred an appeal which was accepted vide judgment and decree dated 25‑3‑1990 whereby the decree in favour of the petitioners was reversed. While coming to this conclusion, the learned appellate Court found the evidence of P.W. 1 and P.W.3 to be mutually discrepant. The statement of P.W.2 was also found to be in variance with the statement of Poos Khan himself. The learned appellate Court proceeded to compare the signatures of respondent No.1 and came to the conclusion that the signatures on different documents under comparison were not identical. As a result the execution of the sale agreement in favour of the petitioners was found in the negative and as a consequence, the sale by respondent No.1 in favour of respondents Nos.2 and 3 was upheld by the learned appellate Court vide judgment and decree dated 25‑3‑1990.
7. The learned counsel for the petitioners has assailed the judgment passed by the learned appellate Court on various grounds. According to him, the agreement to sell was fully proved by the production of scribe and a marginal witness. The decision of the learned appellate Court was, according to him, a result of misreading and misconstruing the evidence on the record. He further submitted that the comparison of the signatures by the Court itself without any expert advice was improper and no reliance could be placed upon the result of such comparison particularly when it is belied by the evidence on the record. He further contended that the statement of respondent No.1 when confronted with the identity of his signatures upon the agreement and other documents was not consistent. It was lastly submitted that the alienation by respondent No.1 in favour of respondents Nos.2 and 3 was made during the pendency of the suit and was hit by the principle of lis pendens.
8. On the other hand, the learned counsel for the respondents has supported the impugned judgment. He submitted that the learned appellate Court is the final Court of fact and the inference drawn by the learned appellate Court from the evidence on the record, is not perverse and concluded the factual controversy. According to him, the appraisement of evidence was dispassionately conducted by the learned appellate Court and there was no misreading of evidence as alleged. Replying to the contention regarding the value of comparison of the signatures by the learned appellate Court itself, he stated that it was the respondent who had made an application under Order 41 Rule 27, C.P.C. and offered that his signatures on the disputed documents be compared with his other signatures either by the Court itself or by a Handwriting Expert. This application was ironically resisted by the petitioners. The subsequent comparison and conclusion made by the learned appellate Court was not violative of any principle of law or equity. As the agreement to sell was not proved on the record, there was no restriction upon respondent No.1 to alienate the suit property in favour of respondents Nos.2 and 3.
9. Arguments have been heard and record perused.
10. The contradictions in evidence of the petitioners pointed out by the learned appellate Court in its judgment have been evaluated with reference to the statements of three witnesses produced by the petitioners. Whereas, Ghulam Hussain P.W.1 stated that two witnesses of the agreement had identified the respondent Noor Ahmad, this witness did not know the parties or the witnesses of the agreement to sell personally. On the other hand, this is belied by Poos Khan himself who stated that Noor Ahmad identified by the Petition Writer himself whose name he did not remember. Ghazi Marjan P.W.2 is the nephew of Tall Khan and he admitted that the predecessor‑in‑interest of the petitioners was in possession for the last 6/7 years as a tenant. As against this, Poss Khan P. W.3 stated that possession was transferred to him at the same time when the earnest money was paid. The contradictions and the evidentiary value of the statements of the witnesses produced by the petitioners were enough to enable the learned First Appellate Court to draw the inference that the agreement to sell was not sufficiently proved. It is a cardinal principle of law that an authority which is competent to receive evidence is empowered to draw such inference from the evidence as can be made by a prudent person. Unless such a conclusion is totally perverse or incomprehensible, the right of the judicial authority to come to its own conclusion cannot be hinged.
11. The learned appellate Court proceeded to compare the signatures of respondent No. 1 on the agreement to sell Exh.P.1 with his signatures on receipt Exh.P.2. The learned appellate Court came to the conclusion that the said signatures do not tally with each other. The learned appellate Court not only found the signatures to be tampered and overwritten, it also found that there was no similarity of the signatures with each other.
12. The learned appellate Court also found that the suit property was situated in Tehsil Khanpur, the parties to the agreement to sell and Ghazi Marjan P.W.2 were also residents of Tehsil Khanpur and that there was no cogent reason forthcoming on the record for the execution of the sale agreement at Rahim Yar Khan.
13. After reviewing the evidence on the record, the appreciation of the evidence carried out by the learned appellate Court does not warrant any interference in the revisional jurisdiction. The learned appellate Court was entitled to appraise the evidence and was fully competent to draw its own inference from the same. There in nothing to suggest that the inference so drawn could not be prudently made.
14. As regards the comparison of the signatures by the learned appellate Court, suffice it to say that there is no legal bar for the Court to compare the handwriting itself. Reference is made to the rule laid down in the case of Sarbuland v. Allah Lok 1996 SCMR 575 in this respect. The Court can even take a view contrary to the opinion of a Handwriting Expert, if it is of the view after its own comparison that departure is warranted from the report of the Handwriting Expert. The appreciation of the evidence by a judicial forum includes the power of the Court to itself examine and compare the disputed signatures. The contentions of the learned counsel for the petitioners that such comparison between the signatures on the disputed 'documents was not proper, is without force. In the present case, the comparison has been made of the signatures appearing on the two disputed documents themselves i.e. Exh.P.1 and Exh.P.2. If the signatures on these two documents are, not found to tally with each other, it is completely futile to urge that the comparison should have been made of the disputed signatures with the admitted signatures of respondent No. 1.
15. It is also worthy of note that the learned appellate Court is fully empowered to re‑appraise the evidence on the record and its findings upon fact also enjoy finality. The specific performance is a discretionary relief and after the final Court of fact has exercised its discretion, the Revisional Court shall be loathe to interfere in the same.
16. For the aforementioned reasons, the civil revision is without merit and is hereby dismissed. No order as to cots.
H.B.T./P‑79/L Revision dismissed.