P L D 2016 Lahore 130 (PLP)

SHAMS MEHMOOD MIRZA, J.--This regular second appeal is directed against judgment and decree dated 29.06.2005 passed by the first appellate court whereby the judgment and decree passed by the trial court in favour of the appellant was set aside and the suit filed by the appellant was dismissed.

2. Brief facts of the case are that the appellants-plaintiffs filed a suit for specific performance of agreement to sell dated 20.02.1994 alleging therein that Muhammad Bakhsh, the predecessor of the respondent-defendant, had agreed to sell land measuring 80 Kanal situated in Tehsil Dunyapur to them for a sum of Rs.1,000,000/-. In this regard an agreement to sell dated 20.02.1994 (Exh.P-1) was executed and the appellants-plaintiffs paid a sum of Rs.900,000/- to the respondent-defendant for which a receipt (Exh.P-2) was executed between the parties. The refusal on the part of the respondent-defendant to complete the sale transaction prompted the appellants- plaintiffs to file the suit for specific performance before the trial court. Muhammad Bakhsh contested the suit by filing the written statement.

3. The following issues were framed by the trial court out of the pleadings of the parties. (1) Whether the defendant entered into an agreement of sale dated 20.02.1994 with the plaintiffs, for a consideration of Rs.10,00,000/- OPP (2) Whether the defendant also received a sum of Rs.9,00,000/- as earnest money from the plaintiffs under the said agreement? OPP (3) Whether the defendant also transferred symbolic possession of the suit land in favour of the plaintiff as part performance of the said agreement? OPP (4) Whether the plaintiffs were/are willing to perform their part of the contract? OPP (5) Whether the suit is vexatious, collusive, mala fide, and is the defendant entitled to any special costs under section 35-A of C.P.C., if so to what extent? OPD (6) Relief.

4. After recording of evidence by the parties, the suit was dismissed by the trial court whereupon an appeal was filed by the appellants-plaintiffs which appeal was allowed and the appellate court after framing the following additional issues, remanded the case to the trial court. 2-A. Whether the plaintiffs are entitled to get a decree for specific performance of agreement to sell on the basis of agreement dated 20.02.1994? OPP 2-B Whether the plaintiffs are entitled to a decree for recovery of amount of Rs.9,00,000/- as alternative relief in case of refusal of specific performance of contract? OPP 2-C. Whether the impugned agreement to sell and receipt are forged, result of fraud and without consideration? OPP

5. Even after remand of the case, both the parties did not adduce any further evidence in respect of the additional issues framed by the first appellate court. After hearing the arguments of the parties, the trial court decreed the suit in favour of the appellants-plaintiffs on 08.09.2004. Feeling aggrieved, the respondent-defendant filed an appeal before first appellate court which was allowed on 29.06.2005. The first appellate court, while setting aside the findings of the trial court, dismissed the suit filed by the appellants-plaintiffs.

6. The learned counsel for the appellants-plaintiffs submitted that the judgment and decree passed by first appellate court suffered from misreading and non-reading of evidence in as much as it was not appreciated that the appellant had duly proved not only the agreement to sell (Exh.P-1) but also the receipt (Exh.P-2) by producing the marginal witnesses and the scribe thereof. It was further stated that during cross-examination the testimony of both the witnesses remained consistent and could not be shakened. It was also submitted that having proved both Exh.P-1 and Exh.P-2, the trial court rightly passed the decree in favour of the appellant and that the first appellate court on mere assumptions and surmises set aside the judgment and decree of the trial court and dismissed the suit filed by the appellants-plaintiffs. The learned counsel for the appellants-plaintiffs also drew the attention of this Court towards the testimony of DW-2 who was the son of the respondent to state that the execution of Exh.P-1 by his father was admitted by him.

7. Learned counsel for the respondent-defendant, on the other hand, argued that the appellants-plaintiffs ought to have asked the trial court for sending the questioned documents to the hand writing expert for his opinion on the thumb impressions of the respondent-defendant on Exh.P-1 and Exh.P-2. Learned counsel for the respondent-defendat also supported the reasons furnished by the first appellate court in setting aside the judgment and decree of the trial Court.

8. The rival contentions of the parties have been heard and the record has been perused with their able assistance.

9. The reasons that weighed with the first appellate court for not believing the evidence led by the appellants-plaintiffs and to differ from the findings of the trial court were as follows: (a) the appellant-plaintiff concealed the fact that they were tenants of the respondent-defendant; (b) the stamp vendor/deed writer, PW-1, did not have the license and he did not get the respondent-defendant identified from an independent source at the time of purchase of stamp paper and also did not see his identity card; (c) Although Allah Yar, the son of the respondent-defendant was present at the time of execution of the Exh.P-1 and Exh.P-2, his presence was not marked. (d) PW-1 during cross-examination gave the wrong date (20.02.1996) when the agreement to sell (Exh.P-1) was entered in his register whereas Exh.P-1 was executed on 20.02.1994; (e) the reason given by PW-1 in evidence for not executing the agreement to sell, Exh,P-1, on the day when stamp papers were purchased was not mentioned in the plaint. Based on the above reasons, the first appellate court observed that 'Any impartial analyzer can easily come to the conclusion that in fact the plaintiffs have tried to grab the land of the defendant who is their "phopha" and upon which land they were the tenants of the defendant.'

10. The respondent-defendant apart from entering in the witness box as DW- I also produced his son, Allah Yar, as DW-2 who in cross- examination stated as follows: While attaching no weight to the admission of execution of agreement to sell (Exh.P-1) as per the above statement, the lower appellate court explained that DW-2 in his evidence denied being present at the relevant time and stated that this fact was told to him by his father (the defendant). Accordingly, the first appellate court remarked that "His explanation that his father put his thumb impression on the agreement to sell without receiving the consideration is only a heresay. The defendant Muhammad Bukhsh was never asked in cross-examination that he affixed his thumb impression on the said documents, thus the said explanation of the witness Allah Yar DW-2 is of no importance."

11. This Court is not convinced by the reasons given by the first appellate court for accepting the appeal and dismissing suit of the appellants-plaintiffs. In terms of Article of 17(2) of the Qanun-e-Shahadat, 1984 any document regarding a financial transaction has to be attested by two truthful witnesses. Similarly, Article 79 of the Qanun-e-Shahadat, 1984 states that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least has been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence. Article 78 of the Qanun-e-Shahadat, 1984 stipulates that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

12. In the present case, the appellant-plaintiff produced two attesting witnesses of Exh.P-1 and Exh.P-2 whose testimony remained consistent in cross-examination and nothing could be extracted from them which might have prejudiced the case of the appellants-plaintiffs. In addition to the marginal witnesses, the appellant-plaintiff also produced the scribe/deed writer (PW-1) of Exh.P-1 by way of corroboration. It appears that the first appellate court only focused on the testimony of PW-1 and on the fact that the appellants-plaintiffs did not disclose the fact that they were tenants of the respondent-defendant to non-suit them. The fact that PW-1 did not have the license of deed writer did not prejudicially impinge upon his testimony and had no bearing on the fate of the case more so when the lower appellate court did not give any reasons for disbelieving the testimony of PW-3 and PW-4, the marginal witnesses. Similarly, the pleadings need to contain only the basic and material facts and not the evidence (see Order VI, Rule 2, C.P.C.) and, therefore, the fact that the appellants-plaintiffs did not mention that they were tenants of the respondent-defendant in their plaint was of no consequence. The appellants-plaintiffs had produced the best possible evidence in the shape of original documents and the marginal witnesses. There were absolutely no contradictions or discrepancies in the testimony of the witnesses produced by the appellants-plaintiffs and none was cited by the first appellate court. There was thus no occasion for the first appellate court to disbelieve the evidence produced by the appellants-plaintiffs. The first appellate court also could not take out of consideration the statement of DW-2 whereby he admitted that his father had indeed signed the agreement to sell (Exh.P-1) by terming it as hearsay. DW-2 was brought in the witness box by the respondent-defendant as a witness of truth. If at all the statement of DW-2 was to be disbelieved, it showed contradictions in the evidence led by the respondent-defendant.

13. In civil cases, the court has to see the cumulative effect of all the material placed on the record and a mere preponderance of probability is sufficient basis for a decision. If the material creates preponderance of probability in favour of a party that party must win the case (see Mst. Zainab v. Majeed Ali and others 1993 SCMR 356). In Jameel Ahmed v. Saifuddin PLD 1994 SC 501, the Hon'ble Supreme Court while referring to the definition of "Evidence" held as follows: The world "evidence" has been defined in Article 2 (1) (c) of the Qanun-e-Shahadat, 1984 (Section 3 of the Evidence Act, 1872):-"evidence" includes- (i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; and (ii) all documents produced for the inspection of the Court; such documents are called documentary evidence." This definition clearly contemplates that evidence means and includes such statements of witnesses which are produced in a Court in relation to the case tried by such Court and also documents which are produced in the Court. From this definition it is also clear that the word "evidence" cannot be restricted merely to the statement of a party or to any one specific witness. It will include the statements of all the witnesses recorded by the Court and the documents produced during trial. (emphasis supplied) In the present case, if the evidence of the parties is seen in totality, one comes to the inescapable conclusion that the appellants- plaintiffs had proved their case by fulfilling the requirements of law and by producing confidence inspiring evidence. 13-A. The argument advanced by the learned counsel for the respondent-defendant that the Exh.P-1 and Exh.P-2 ought to have been sent to the handwriting expert for his opinion also has no merit. Article 78 of the Qanun-e-Shahadat, 1984 does not prescribe any particular mode of proof for proving a document. In case of denial of execution by the executant, the best course for proving his signatures would be to call the attesting witnesses in whose presence the document was executed, if such witnesses were alive and capable of giving evidence. Marginal/attesting witnesses are produced not merely to identify the signatures of the executant of a document but are examined also to prove that executant had put his signatures within the view of marginal/attesting witnesses. In the present case, Exh.P-1 and Exh.P-2 were attested by two marginal witnesses who were produced in evidence as PW-3 and PW-4. The scribe of Exh.P-1 also entered in the witness box as PW-1. The testimony of the marginal witnesses and the scribe remained consistent that Exh.P-1 and Exh.P-2 were executed by the respondent-defendant. The appellants-plaintiffs had thus fulfilled the requirements of proof of Exh.P-1 and Exh.P-2. Under the scheme of Qanun-e-Shahadat, 1984, there are many methods for proving a document and sending the document to the hand writing expert is one of the modes for proving the signatures and the thumb impression of a person on a document. It may however be stated on good authority that such a mode of proof has never been held to be convincing method of proving the due execution of a document. Expert evidence is in the nature of confirmatory and explanatory of direct or other circumstantial evidence and is not of much significance in the presence of direct and creditworthy evidence (see Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR

359. The direct evidence in the present case was produced by the appellants-plaintiffs in the shape of marginal witnesses and scribe of Exh.P-1 and as such there was no need for the appellant to have moved the trial court for sending the documents to the handwriting expert more so when testimony of PW-3 and PW-4 remained unshakened in the cross examination. Be that as it may, whenever the evidence legally required to be provided to prove execution of a document has been produced, it is for the other party denying the execution of a document to produce handwriting expert in proof of his denial of execution. Failure to ask the court to refer the matter to the handwriting expert would raise inference against the party (see Meraj Din and another v. Kh. Mahboob Elahi and 4 others 1992 CLC 2457). In the present case, the respondent-defendant did not move the necessary application before the trial court for sending Exh.P-1 and Exh.P-2 to the handwriting expert. In Hafiz Muhammad Ramzan and others v. Muhammad Kahlique 1991 CLC 417, a learned Judge of the Sindh High Court after exhaustively citing judgments from the Indian as well as our jurisdiction came to the conclusion that where none of the parties to the suit moved the court for referring the document in question to handwriting expert, remand of the case to the trial court for the said purpose was not legal.

14. In Maddan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617, the Hon'ble Supreme Court laid down the following test for comparative analysis of the judgments of the trial court and the first appellate court if they are at variance. If the findings of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent findings. Such a finding by the lower appellate court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavored in the contrary finding. The findings being at variance that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the findings of the first appellate Court cannot be supported on the evidence on record of it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the findings of the trial Court, or it otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal. Viewed in the ratio of the above judgment, it is clear that the findings of the first appellate court cannot be sustained on the basis of the evidence led by the parties. Issues Nos.1 and 2 are interlinked and can be decided together. In view of what has been stated above, it is clear that the appellants-plaintiffs were able to prove both the issues, which are accordingly decided in their favour. As the land in dispute was already in possession of the appellants-plaintiffs, Issue No.3 is also decided in their favour. The appellants-plaintiffs have categorically stated that they are willing to perform their part of the bargain by making the balance payment. Under the circumstances, issue No.4 is also decided in their favour. The learned counsel for the respondent-defendant did not address any arguments under issue No.5, which is accordingly decided against the respondent-defendant. The learned counsel for the parties did not address any argument on the additional issues and as such these issues were not pressed.

15. In the result, the judgment and decree passed by the lower appellate court is set aside and the judgment and decree of the trial court is restored. SL/B-34/L Appeal accepted.