2014 PLP 715 (MLD)

ABDUS SATTAR ASGHAR, J.

By virtue of this single judgment I propose to dispose of this Civil Revision as well as Civil Revision No.2364 of 2000 between the same parties arising out of the same consolidated judgment and decrees dated 26-3-1996 passed by learned Civil Judge Khushab whereby petitioners' suit for declaration etc. lodged against respondents Taj Bhatti, etc. was dismissed and suit for specific performance etc. lodged by Taj Bhatti respondent No.1 against the petitioners and others was decreed in their favour. Petitioners also assailed consolidated judgment and decrees dated 6-3-2000 passed by learned District Judge Khushab whereby their appeal against the above said consolidated judgment and decrees dated 26-3-1996 passed by learned Civil Judge was also dismissed.

2. Succinctly the facts leading to these civil revisions are that petitioners lodged a suit for declaration etc. on 15-1-1992 asserting that they are owner in possession of suit land detailed in head-note of the plaint and respondent No.1 Taj Bhatti has no concern whatsoever with the same and that impugned agreement to sell dated 2-2-1989 is against law and facts, based on mala fide, fraud and ineffective qua their rights; that respondent No.1 had shown his willingness to get the suit land on lease and in this connection he asked for execution of lease deed; that petitioners had put their signatures on the blank papers as they had to go to Faisalabad in connection with some urgent work; that in the year 1990 petitioners asked the respondent No.1 for payment of lease amount but he declined and filed a suit for permanent injunction which was later on withdrawn on 19-1-1991. Respondents Nos.2 to 4 lodged their consenting written statement. Whereas respondent No.1 resisted the suit on the grounds that petitioners had agreed to sell the suit land in his favour for consideration of Rs.1,35,000 out of which he has paid Rs.70,000 as earnest money through agreement to sell dated 2-2-1989; that as per terms and conditions of agreement to sell dated 2-2-1989 the sale was to be completed on payment of the remaining consideration amount Rs.65,000 but they declined. On the same facts as contended by him in written statement of the suit for declaration he also lodged a suit for specific performance of agreement to sell dated 2-2-1989 showing his willingness to pay the remaining consideration amount Rs.65,

000. The said suit was resisted by the petitioners and respondents Nos.2 to 4 through separate contested written statements. Both the suits were consolidated by the learned trial Court and out of divergent pleadings of the parties following consolidated issues were framed:- (1) Whether the plaintiffs and defendants Nos.2 to 4 are owners in possession of the suit property? OPP (1-A) Whether the agreement, affidavit and receipt dated 2-2-1989 have not been executed by the plaintiffs and the same have been obtained by fraud and are void as against the plaintiffs and are liable to be cancelled? OPP (2) Whether the suit has been wrongly valued for the purposes of court fee and jurisdiction? OPD (3) Whether the suit is not maintainable in its present form? OPD (4) Whether the suit is bad for mis-joinder of the party? OPD (5) Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD (6) Whether the defendants are entitled for special costs under section 35-A of C.P.C.? OPD (7) Whether the defendant/plaintiff of the consolidated suit has got no cause of action and locus standi to file this suit? OPD (8) Whether the consolidated suit is time barred? OPP (9) Whether the description of the property in dispute of consolidated suit has been incorrectly mentioned in the plaint? If so, its effect? OPP (10) Whether the defendant/plaintiff of the consolidated suit is estopped by his words and conduct from filing this suit? OPP (11) Whether the agreement to sell in favour of the plaintiff/defendant of consolidated suit was compulsorily registerable document? If so its effect? OPP (12) Whether the consolidated suit has not been correctly valued for the purposes of court fee and jurisdiction what is correct valuation? OPP (13) Whether the defendant/plaintiff of the consolidated suit has made unauthorized amendment in para No.12 of the plaint? If so its effect? OPP (14) Whether the plaintiff Mickle has executed the agreement dated 2-2-1989 in favour of defendant/plaintiff of the consolidated suit? If so, on what terms? OPP (15) Whether the plaintiff Mickle Masih has received a sum of Rs.70,000 as earnest money? OPD (16) Whether the defendant-plaintiff of the consolidated suit is entitled to the decree for specific performance of the contract? OPD (17) Whether the defendant/plaintiff of the consolidated suit is entitled to recover a sum of Rs.140000 (Rs.70000 earnest money and Rs.70000 damages) as alternative relief? OPD (18) Relief.

3. After recording of evidence of the parties and providing opportunity of hearing to learned counsel for the parties, the learned trial Court vide consolidated judgment and decree dated 26-3-1996 dismissed the suit for declaration etc. lodged by the petitioners against respondents Taj Bhatti, etc. and decreed the suit for specific performance of agreement to sell dated 2-2-1989 lodged by Taj Bhatti respondent No.1 against the petitioners and others, in his favour. Petitioners assailed the consolidated judgment and decrees dated 26-3-1996 passed by learned trial Court through two separate appeals before the learned District Judge Khushab which were also dismissed vide consolidated judgment and decrees dated 6-3-2000, hence, these civil revisions.

4. It is argued by learned counsel for the petitioners that learned Courts below have failed to appreciate the ocular as well as documentary evidence available on the record, therefore, the impugned judgments and decrees passed by learned Courts below are against law and facts causing miscarriage of justice and liable to set aside. It is further argued by learned counsel for the petitioners that in terms of Article 79 of the Qanun-e-Shahadat Order, 1984 it was incumbent upon the respondent No.1 to prove the agreement to sell dated 2-2-1989 by producing two attesting witnesses whereas he has produced only one attesting witness namely Ghulam Sarwar (DW-2) and the other attesting witnesses namely Allah Rakha Masih has not been brought before the learned trial Court; that Ghulam Nasir Deed Writer (DW-1) scriber of the impugned agreement to sell cannot be treated as an attesting witness; that respondent No.1 has not been able to discharge the burden of proof of issues; that payment of the consideration amount of the impugned agreement to sell is also not established therefore petitioners have a good case to call for interference of this Court in exercise of revisional jurisdiction.

5. On the other hand learned counsel for the respondent No.1 has contended that he has fully proved the execution of agreement to sell dated 2-2-1989 in accordance with the law as envisaged under Articles 17(1)(a) and 79 of Qanun-e-Shahadat Order, 1984 through reliable confidence inspiring evidence; that the learned Courts below while appreciating the ocular and documentary evidence available on record has rightly decreed his suit for specific performance, etc. and dismissed the petitioners' suit for declaration, etc and appeal; that there is no legal or factual infirmity and jurisdictional error in the impugned consolidated judgments and decrees passed by learned Courts below, therefore, both these civil revisions deserve dismissal.

6. I have given patient hearing to learned counsel for the parties and carefully gone through the record with their able assistance.

7. Perusal of record transpires that impugned agreement to sell dated 2-2-1989 (Exh.D1) bears names of two marginal witnesses i.e. Ghulam Sarwar son of Khushi Muhammad and Allah Rakha Masih son of Piran Ditta Masih. It also contains thumb impression of both the said marginal witnesses. In terms of Article 79 of the Qanun-e-Shahadat Order, 1984 it was incumbent upon the respondent No.1 to prove the alleged agreement to sell dated 2-2-1989 by producing its two attesting witnesses. The word 'attestation' means the act of witnessing the actual execution of a document subscribing ones name as witness to that effect. It also means signing of the document to testify that the attester is a witness to the execution of the document. One who signs the document in the presence of the executant after seeing the execution of the document is called an 'attesting witness'.

8. In this case although impugned agreement to sell (Exh.D 1) bears signatures of two marginal witnesses but out of them only one marginal witness namely Ghulam Sarwar (DW-2) was produced before the learned trial Court. Bare reading of statement of Ghulam Sarwar (DW-2) transpires that he has not particularly referred impugned agreement to sell (Exh.D1) and receipt (Exh.D2) in his examination in chief. The document not duly verified by the marginal witness during examination in chief cannot be termed as duly acknowledged by the said witness. Allah Rakha the other marginal witness of the agreement to sell (Exh.D1) has not been produced for the reasons best known to the respondent No.1 rather he has appeared from the petitioners' side as (P.W.1) and categorically stated that the petitioners have never ever sold out the suit land to respondent No.1 who obtained their thumb impressions on blank stamp papers meant for the execution of lease deed; that respondent No.1 is in possession over the suit land as tenant. Therefore plea of respondent No.1 that possession of the suit land was given to him in part performance of the agreement to sell is not established. In the attending circumstances petitioners proved their plea that they are owners of the suit land through reliable confidence inspiring evidence. Respondent No.1 has not alleged that Allah Rakha has been won over and has not summoned him in evidence through the process of the Court. Respondent No.1 has produced Ghulam Nasir Deed Writer as DW-1. Admittedly he is not attesting witness rather he only scribed the said document, therefore, he cannot be termed as attesting witness of the transaction. His testimony is of no avail to the respondent No.1 with regard to attestation of transaction of sale. Reliance is made upon Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 Supreme Court 241). The Hon'ble apex Court in this cited case held that the scriber cannot be termed as attesting witness. The relevant extract whereof is reproduced hereunder for ready reference:- "

8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specific, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.

9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for the attesting witness; the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative."

9. In the light of the above dictum of the Hon'ble apex Court it is settled that in presence of two original marginal witnesses of the document the scribe of the document cannot be treated as attesting witness. Therefore, in this case execution of impugned agreement to sell dated 2-2-1989 is not proved on account of non-production of two attesting witness as required under Article 79 of the Qanun-e-Shahadat Order 1984. Respondent No.1 has also failed to establish payment of any consideration amount to the petitioners through any reliable confidence inspiring ocular or documentary account and has failed to establish his case of specific performance of agreement to sell.

10. On the other hand petitioners have also denied the execution of impugned agreement to sell in favour of respondent No.1 alleging that respondent No.1 was their tenant over the suit property and that they are exclusive owners in possession over the suit land. Michle Masih one of the petitioners while appearing as P.W.2 has reiterated the contents of plaint in his testimony. Allah Rakha Masih (P.W.1) supported the petitioners' version. They have also produced copy of Khasra Gardawari from Kharif 1987 to Rabi 1991 (Exh.P1), copy of register Haqdaran for the year 1988-89 (Exh.P2), copy of khasra gardawari Kharif 1991 (Exh.P3), Aks Shajra (Exh.P4) and copy of ownership of land (Exh.P5). Perusal of copy of khasra gardawari for the year 1989-90 (Exh.P1) reveals that in the year 1989-1990 one of the petitioners namely Michle was himself cultivating the suit land. In the year 1990-1991 Taj Bhatti respondent No.1 is shown cultivating the suit land as tenant. In the attending circumstances, the petitioners through reliable and confidence inspiring evidence have established their plea that they are owners of the suit land.

11. The learned courts below while passing the impugned judgments and decrees had fallen in grave error due to misreading and non-reading of the above quoted ocular and documentary evidence as well as contrary to the dictums laid down by the Hon'ble apex Court on the subject. The impugned judgments and decrees therefore being against law and fact causing serious miscarriage of justice are untenable and liable to set aside.

12. For the above reasons, both the civil revisions are allowed, the impugned judgments and decrees passed by learned Courts below are set aside and the suit for specific performance lodged by respondent No.1 against the petitioners is dismissed and suit for declaration lodged by petitioners against respondent No.1 and others is decreed as prayed for. AG/301/L Order accordingl