2013 PLP 903 (YLR)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of judgment and decree dated 11-4-2012 passed by the learned Additional District Judge, Daska whereby an appeal preferred by him against the judgment and decree dated 11-5-2011 of the learned Civil Judge Ist Class, was dismissed.

2. The facts in brief as emerged on perusal of the record are that the petitioner filed a suit for declaration and perpetual injunction or a decree for specific performance of the contract in the alternative. It was stated that defendant/ respondent No.1, who is his real brother, was owner of land measuring 4-Kanals fully described in para No.2 of the plaint. He entered into an agreement to sell the said property for a sum of Rs.1,20,000 through agreement deed dated 3-2-1994 with the petitioner and received a sum of Rs.1,05,000 in presence of marginal witnesses of the deed and undertook to execute the sale-deed on receipt of Rs.15,000 till 3-2-1995. It is further contended that defendant/respondent No.1 received a sum of Rs.13,000 through his wife vide deed dated 22-3-1997 and then received remaining sum of Rs.2,000 in cash without execution of any receipt and as such nothing is due from the plaintiff/ petitioner. He alleged that through registered sale-deed dated 23-6-2007 the defendant/respondent No.1 secretly transferred the property in favour of defendants/respondents Nos.2 and

3. He contended that the said registered sale-deed is void and ineffective qua his rights. With these averments, a decree for declaration to the effect that sale-deed dated 23-6-2007 is void and ineffective qua his rights was sought. It was further prayed that in the alternative a decree for specific performance of the contract may be passed in his favour and against the respondents.

3. The defendants/respondents con-tested the suit. It was contended that the alleged agreement deed is forged and fake document and that the suit is false and vexatious. It is also urged that the power of attorney and the agreement deed were not executed and no consideration was ever received.

4. After framing the issues and recording the evidence, the learned trial court dismissed the suit. The appeal filed by the petitioner/plaintiff met the same fate.

5. The learned counsel for the petitioner has contended that the learned trial Court and learned appellate court both failed to appreciate the evidence properly; that the agreement to sell is not required to be attested so non-production of the marginal witnesses of the agreement to sell was not fatal to the case of the petitioner; that the petitioner could have established the signatures and thumb-impressions of defendant/respondent No.1 through report of the Handwriting Expert/Finger Print Bureau but his application in this regard was wrongly dismissed and that the minor discrepancies were not sufficient to ignore the strong evidence produced by the petitioner. In support of the contentions raised, reliance is placed on 2004 YLR 1882 (Lahore) and 1990 CLC 1014 (Lahore).

6. The alleged agreement deed appears to have been attested by Muhammad Yousaf son of Imam Din and Muhammad Ismail son of Muhammad Hussain. None of them was produced in the witness-box. The contention that Muhammad Yousaf has joined hands with respondent No.1 and Muhammad Ismail had died so they were not produced cannot be accepted because there is no proof on the file regarding demise of Muhammad Ismail or connivance between Muhammad Yousaf son of Imam Din and the respondents. Allegedly the earnest money was paid in presence of these two persons i.e. marginal witnesses as is contended in the plaint but have not been produced in the witness-box. It is true that agreement to sell can be entered into without reducing the same into writing but once a deed is duly executed, the same must be attested by two men or one man and two women as provided under Article 17(a) of the Qanun-e-Shahadat, 1984 because an agreement to sell bears a future obligation to transfer the property. In this case, the respondent No.1 is shown to have given an undertaking to execute the sale-deed by 3-2-1995 so the document was required to be attested by two persons and it was shown to have been so attested but none of the witnesses was produced in the witness-box. Under Article 79 of the Qanun-e-Shahadat, 1984 if agreement is attested by two witnesses, the same can be used as evidence only if the attesting witnesses, who are alive and subject to the process of the court and capable of giving evidence are produced for the purpose of proving its execution. With all respect at my command to my learned brothers who had authored the above mentioned judgments, I may observe that once an agreement to sell containing the future obligation to transfer the property is reduced into writing it must be attested by two witnesses as required under Article 17(a) of the Qanun-e-Shahadat, 1984 and cannot be used as evidence unless both of them are produced in the witness-box to prove the execution of the deed. The production of these witnesses was also imperative because according to the contents of Para No.3 of the plaint the earnest money was also paid in presence of these two persons. The scribe of the deed was also not produced. The learned trial court and learned Additional District Judge properly appreciated all questions of fact and law involved in the matter and appraised the evidence available on record in its true perspective. The concurrent findings recorded by both the courts of competent jurisdiction do not suffer from any illegality or infirmity and no interference is called for in exercise of revisional jurisdiction. The revision petition is without merits and the same is dismissed in limine. KMZ/A-95/L Revision dismissed.