2017 PLP 33 (YLRN)

MAHMOOD AHMAD BAHTTI, J.

This revision petition is directed against the judgments and decrees dated 10.10.2011 and 11.05.2015 passed by the learned Civil Judge, Kamalia and an Additional District Judge, Kamalia, District Toba Tek Singh, respectively, whereby a suit for declaration along with specific performance instituted by the petitioner was dismissed and an appeal preferred thereagainst was dismissed as well.

2. The facts necessary for the disposal of this revision petition are that the petitioner instituted a suit for declaration along with specific performance of an agreement to sell dated 12.08.1991 and cancellation of sale deed dated 23.12.2000 as well as for rescinding mutation No.6850 attested on 08.01.2001 in favour of Ghulam Shabbir, predecessor-in-interest of respondents/defendants Nos. 1 to

7. It was averred in the plaint that Shafqat Hussain, defendant/respondent No.9 was allottee of an Ihata No.2061/562, measuring 5 Marlas comprising Khewat No. 1905/1347, Khatuni Nos. 21, 98, 47 min, situated in Lower Colony, Peer Mahal, District Toba Tek Singh, who entered into an agreement to sell dated 12.08.1991 with the plaintiff for a consideration of Rs.56,000/-. The agreement was got registered with the Sub-Registrar Peer Mahal on 15.08.1991. It was further maintained by him in the plaint that the entire sale consideration was paid by him. In order to safeguard his rights and interests with regard to the suit property, Muhammad Akram, defendant/respondent No.8, who was his confidant and business partner, was appointed as general attorney of Shafqat Hussain. This arrangement was made by the vendor at the instance of the plaintiff. In order to dispel his misgivings, the vendor got both the agreement to sell and the general power of attorney registered with the Sub-Registrar Peer Mahal on one and the same date i.e., 15.08.1991. The petitioner/plaintiff went on to allege in the plaint that Muhammad Akram, general attorney of Shafqat Hussain, who happened to be a close relative of Ghulam Shabbir, predecessor-in-interest of respondents/defendants Nos.1 to 7 made a transfer of the suit property to him vide a registered sale deed dated 23.12.2000, followed by mutation No.6850 attested on 08.01.2001. On the basis of these averments, he sought the specific performance of the agreement to sell dated 15.08.2001, while the sale deed as well as mutation attested on its strength in favour of Ghulam Shabbir were sought to be declared null and void and ineffective upon his rights.

3. It would not be out of place to mention herein that Ghulam Shabbir, the aforementioned also instituted a suit for possession against Abdul Majeed, the present petitioner, seeking possession of the suit property on the basis of the registered sale deed dated 23.12.2000 as well as sale mutation No.6850 dated 08.01.2001. It goes without saying that Abdul Majeed controverted the averments made by Ghulam Shabbir, in his written statement. However, Shafqat Hussain did not file a written statement.

4. As it is, the learned trial Court consolidated both the suits and framed the following consolidated ISSUES:--

1. Whether the defendant No.3 agreed to sell disputed property in favour of Abdul Majeed plaintiff in a sum of Rs.56,000/- OPP

2. Whether the defendant No.3 received sale consideration of Rs.56,000/- and in return thereof delivered possession to plaintiff and also executed registered sale agreement dated 15.05.1991 in his favour? OPP.

3. Whether the defendant No.3 at the instance of plaintiff Abdul Majeed executed general power of attorney in favour of defendant No.2? OPP

4. Whether the defendant No.2 general attorney fraudulently transferred the disputed property in favour of defendant No.1 through registered sale deed which was subsequently incorporated in revenue record vide mutation No.6850 dated 08.01.2001? OPD

5. Whether plaintiff Abdul Majeed is entitled to get decree for specific performance of sale agreement as prayed for? OPP

6. Whether defendant No.6 is bona fide purchaser of disputed property without notice for consideration? OPP

7. Whether the suit is hit by doctrine of section 10 of C.P.C.? OPD

8. Whether suit is counter blast of the suit filed by Ghulam Shabbir against Abdul Majeed plaintiff? OPD

9. Whether suit of the plaintiff is barred by time? OPD

10. Whether Ghulam Shabir defendant No.1 is entitled to get decree for possession of disputed property? OPP.

11. Whether Ghulam Shabbir has no cause of action to file this suit? OPP

12. Whether Ghulam Shabbir has come in the Court with unclean hands? OPP

13. Whether suit of Ghulam Shabbir defendant No.1 is undervalued for the purposes of Court fee and jurisdiction, if so what is the correct valuation? OPD

14. Whether the suit of the defendant No.1 is not maintainable in its present form? OPD.

15. Whether Ghulam Shabbir defendant No.1 is estopped to file suit by his words and conduct? OPP

16. Whether defendant No.1 has instituted the suit only to harass the plaintiff and as such he is entitled to get special costs under section 35-A, C.P.C.? OPD

17. Relief.

5. In order to prove his case, the petitioner appeared as his own witness as P.W.1. He also examined Sultan Ahmad son of Muhammad Sharif as P.W.2, who identified his signatures on the general power of attorney Exh.D.2, as Exh.D.2/1. Copy of the registered agreement to sell dated 12.08.1991 was produced as Exh. P.1. However, he did not examine Ijaz Hussain son of Kabeer and Ghazanfar Abbas son of Abdul Qadir, who were alleged to be the marginal witnesses to Exh. P.1. Certified copy of an order dated 09.09.2002 was got exhibited as Exh. P.3, whereas electricity bills for the month of December, 1995 and December, 2009 were produced as Exh. P.4 and Exh. P.5, respectively. Sui Gas bill for the month of June, 2009 was tendered as Exh. P.6. Marks were assigned to certain documents. However, due to their inadmissibility in evidence, they need not be mentioned.

6. In order to rebut the case of the plaintiff, defendants examined Mian Nisar Ahmad Noorpuri Advocate as D.W.2, Muhammad Akram son of Ghulam Muhammad as D.W.3 and Muhammad Yaseen son of Raza Muhammad as D.W.4. Late Ghulam Shabbir appeared as D.W.1. He also produced copy of the registered sale deed as Exh. D.1 and copy of general power of attorney executed in favour of Muhammad Akram as Exh. D.2. Copy of register Haqdaran-e-zameen for the year 1999-2000 was tendered in evidence as Exh.D.3.

7. The learned trial Court proceeded to dismiss the suit of the petitioner vide judgment and decree dated 10.10.2011. Feeling aggrieved, the petitioner preferred an appeal, which was dismissed by an Additional District Judge, Kamalia Camp at Peer Mahal, District Toba Tek Singh vide judgment and decree dated 11.05.2015. Hence this revision petition.

8. In support of the revision petition, Malik Saeed Hassan, learned counsel for the petitioner has argued that presumption of truthness is attached to the registered agreement to sell, Exh. P.1 under the provisions of section 60 of the Registration Act, 1908. This presumption gained added significance, when Shafqat Hussain, the executant of Exh. P.1 did not contest the suit and chose to stay away from the proceedings. It is further contended by him that Muhammad Akram and Ghulam Shabbir were brothers-in-law inter se. Muhammad Akram, the general attorney of Shafqat Hussain could not make alienation of the suit property to Ghulam Shabbir without seeking express permission from Shafqat Hussain, his principal. It is urged by him that Shafqat Hussain executed general power of attorney in favour of Muhammad Akram for the benefit of Abdul Majeed, the petitioner. At the time, proprietary rights were not conferred upon him by the Colony Department, Government of the Punjab. Therefore, at the instance of Abdul Majeed, Muhammad Akram was appointed as a general attorney. He betrayed the trust of the petitioner and transferred the property to his brother-in-law, Ghulam Shabbir in utter disregard of the instructions imparted to him by Shafqat Hussain, his principal and owner of the suit property. He has also made the argument that it was brushed aside by both the Courts below that the agreement to sell, Exh. P.1 and general power of attorney, Exh. D.2 were got registered on one and the same date i.e. 15.08.1991. Had the Courts below pondered over its implications, they might have arrived at a conclusion different from the one they reached through the impugned judgments and decrees. He has also put forward the argument that no issue wise findings were recorded by the learned appellate Court and its judgment was liable to be set aside on this ground alone. Lastly, it was postulated by him that Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 have to do with the "financial obligations" and they cannot by any stretch of imagination be made applicable to a sale transaction, reflecting in an agreement to sell.

9. I have heard the learned counsel for the petitioner at some length and perused the documents appended to the revision petition with his assistance.

10. I am unable to agree with contentions raised by the learned counsel for the petitioner. The alleged agreement to sell dated 12.08.1991 (Exh. P-1) was not proved in accordance with law. Allegedly, it was attested by Ijaz Hussain son of Kabeer and Ghazanfar Abbas son of Abdul Qadir but both the marginal witnesses to the said document were not produced. As such Exh. P.1 was inadmissible in evidence and it fell short of the requirements of law laid down by the legislature in Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. In a plethora of judgments, non-production of even the second marginal witness to an agreement to sell has been held to have rendered it unenforceable at law. Reliance is placed upon the judgments reported as 'Farid Bakhsh v. Jind Wadda and others' (2015 SCMR 1044), 'Farzand Ali and another v. Khuda Bakhsh and others' (PLD 2015 Supreme Court 187), 'Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others' (PLD 2011 Supreme Court 241), 'Rafaqat Ali and others v. Mst. Jamshed Bibi and others' (2007 SCMR 1076), 'Rafaqat Ali v. Muhammad Farid and others' (2007 SCMR 1083), 'Mst. Rasheeda Begum and others v. Muhammad Yousaf and others' (2002 SCMR 1089), 'Muhammad Nazir and 2 others v. Mst. Wazir Begum' (1999 SCMR 2594), 'Abdul Khaliq v. Muhammad Asghar Khan and 2 others' (PLD 1996 Lahore 367 (DB) and 'City Education Board (registered) Sialkot through Director v. Mst. Maqbool Nasreen' (PLD 2008 Lahore 51).

11. A Division Bench of this Court also held so in the case reported as 'Muhammad Yaqoob and others v. Naseer Hussain and others' (PLD 1995 Lahore 395). The relevant head note reads as under:-- "Arts. 17 & 79

Execution of document

Proof

Essentials

Document creating financial liability has to be attested by two witnesses

In order to prove such document plaintiff has to call at least two attesting witnesses and if the document is not proved in accordance with law it has to be excluded from consideration."

12. A similar contention as raised in the instant case was repelled in the case reported as 'Abdul Khaliq v. Muhammad Asghar Khan and 2 others' (PLD 1996 Lahore 367), wherein a Division Bench of this Court held that:-- "Now reverting back to the facts of the appeal in hand the admitted position is that the agreement Exh.D.W.1 dealt with future obligations. The same was attested by two witnesses namely Qaiser Iqbal and Riaz Khalil. This way requirement of Article 17 was complied. The appellant to prove this document should have examined at least two of attesting witnesses whereas he only examined one attesting witness namely Qaiser Iqbal D. W.I. The document, therefore, was not proved in accordance with law. The same has to be excluded from the consideration."

13. In the case of 'Rafaqat Ali and others v. Mst. Jamshed Bibi and others' (2007 SCMR 1076), it was held as under:-- "According to Articles 17 and 79 of Qanun-e-Shahadat Order, 1984, petitioners had to produce two attesting witnesses of the agreement in question. As mentioned above, petitioners had produced only one witness to prove the agreement to sell, therefore, all the Courts below were justified to non-suit the petitioners as law laid down by this Court in various pronouncements. See Suleman Ali's case 2000 YLR 1983, Maqsood Ahmad's case PLD 2003 SC 31, Qazi Muhammad Saqib Khan's case 2003 MLD 131."

14. In the case of 'Rafaqat Ali v. Muhammad Farid and others' (2007 SCMR 1083), it was held as under:-- "It is admitted fact that as mentioned above petitioner had failed to produce two attesting witnesses to prove the contents of the agreement to sell, therefore, Courts below were justified to non-suit the petitioner in view of Article 17 read with Article 79 of Qanun-e-Shahadat Order, 1984 as law laid down, in various pronouncements. See Qazi Muhammad Saqib Khan's case 2003 MLD 131, Suleman Ali's case 2000 YLR 1938 and Maqsood Akhtar's case PLD 2003 SC 131."

15. In the case of "Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others" (PLD 2011 Supreme Court 241), it was observed as under:-- "From the clear and unambiguous language of the Article, in order to bring a case within its purview in the context of present case, two ingredients must co-exist, firstly there must be an instrument, secondly, it should pertain or relate to a matter either of a financial or future obligations. If the above two conditions are met, it is mandated that the instrument must be attested in terms of the Article. There can be no cudgel that an agreement of sale or to sell immovable property being a written document is an instrument within the meaning of law." "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 specified, 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."

16. In the case of Farzand Ali and another v. Khuda Bakhsh and others' (PLD 2015 Supreme Court 187), it was held as under:-- "Considering the proposition if the agreement of the appellants was required to be proved by the examination of two attesting witnesses, it is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the Order ibid"

17. In quite a recent judgment reported as 'Farid Bakhsh v. Jind Wadda and others' (2015 SCMR 1044) the law on the subject was summed up and reiterated in paragraph No.8 in the following words:- "There is no denying the fact that a deed witnessing an agreement to sell being a document involving financial obligation has to be proved in accordance with the requirements of Article 79 of the Qanun-e-Shahadat Order. What are its requirements for proving a document of this type can well be known by reading it which runs as under:- "If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses(at) least have 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:- Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908. (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."

18. The requirement of a marginal witness has been highlighted by the Hon'ble Supreme Court of Pakistan in the case reported as 'Mst. Kulsoom Bibi and another v. Muhammad Arif and others' (2005 SCMR 135) in the following words. " .marginal witnesses of a document are produced not merely to identify the signatures of an executant but are examined to prove, in addition to the above fact, that the executant had put the signatures within their view "

19. The alleged agreement to sell (Exh.P.1) is void for another reason as well. Apart from the bald assertion of the petitioner, he has not examined any other witness, in whose presence the sale consideration was paid to Shafqat Hussain, the owner of the property. Suffice it to make reference to section 25 of the Contract Act, 1872.

20. It is striking that the alleged agreement to sell and the general power of attorney executed in favour of Muhammad Akram, defendant/respondent No.8 were of even date. A subtle argument of the learned counsel for the petitioner was that the very fact that both these documents are dated 12.08.1991 is sufficient to prove that the general power of attorney was secured by the petitioner for his own benefit, but was misused by the general attorney. The flip side of this argument is that the general power of attorney (Exh.D.2) contained no reference whatsoever to the alleged agreement to sell (Exh. P.1) allegedly executed in favour of the petitioner. An argument made on the similar lines was dealt with by a Division Bench of this Court in the case of 'Abdul Khaliq v. Muhammad Asghar Khan and 2 others' (PLD 1996 Lahore 367), observing as under:-- "

there is no mention of agreement to sell in the general power of attorney. This fact alone is sufficient to make the document doubtful."

21. A great deal of emphasis was laid by the learned counsel for the petitioner on the fact that Shafqat Hussain had not filed any written statement to controvert the pleas of the petitioner/plaintiff regarding the execution of Exh.P.1 and the receipt of the sale consideration amounting to Rs.56,000/-. Another limb of his argument was that presumption of truthness is attached to the registered documents under section 60 of the Registration Act, 1908. True, Shafqat Hussain chose to stay away from the proceedings, but this fact by itself would not prove the validity of Exh. P.1. It is well-established law that he who alleges a fact must prove it and that a plaintiff is to stand on his own legs and not to take any benefit from the weakness of the case of the defendant, as was held in two judgments of the Supreme Court of Pakistan relating to the agreements to sell, reported as 'Mian Iqbal Mahmood Banday v. Muhammad Sadiq' (PLD 1995 SC 351) and 'Sultan Mahmood v. Muhammad Qasim (2010 SCMR 1630).

22. There is another aspect of the case. Since the property stood transferred to Ghulam Shabbir vide registered sale deed dated 23.12.2000, followed by mutation 6850 attested on 08.01.2001, Shafqat Hussain became a stranger to the suit property for all intents and purposes. It needs to be emphasized that Ghulam Shabbir (now being represented by respondents/defendants Nos. 1 to 7) took issue with the petitioner regarding the validity of Exh. P.1. Regardless of the fact that Shafqat Hussain, the original owner of the property did not file written statement, the tie was between the petitioner and Ghulam Shabbir. Even the questioning of the validity of Exh. P.1 on the part of Ghulam Shabbir was to put the petitioner on the spot and he was to prove the execution of Exh.P.1. This very question came up for consideration before the Hon'ble Supreme Court of Pakistan in the case reported as 'Farzand Ali and another v. Khuda Bakhsh and others' (PLD 2015 Supreme Court 187). The discerning and perceptive observations were made therein to resolve such a controversy. The relevant paragraph therefrom is reproduced for ready reference:-- "The repeated argument to overcome this legal impediment is that the vendors have accepted and acknowledged the agreement to sell in the written statement; in this context the constant answer is that an admission of a co-defendant is not binding upon the other co-defendant and as the respondent had denied the agreement to sell of the appellants and issue was also framed, therefore, the appellants were duty bound to prove the same in terms of the law enunciated in the judgment (PLD 2011 SC 241) (supra) and Article 79 ibid."

23. The argument of the learned counsel for the petitioner that Muhammad Akram, the general attorney of Shafqat Hussain could not have made a transfer of the suit property to Ghulam Shabbir, without obtaining express permission from Shafqat Hussain is fallacious, to say the least. Undoubtedly, Shafqat Hussain could have made an issue of the fact that Muhammad Akram, his general attorney could not make an alienation of the suit property to one of his close relatives, but this ground is not available to the petitioner. Furthermore, this question would have arisen only if the petitioner had first succeeded in proving that he struck a bargain with Shafqat Hussain and that Exh. P.1 embodied the oral transaction made between them. As held above, Abdul Majeed, the petitioner failed to discharge the onus put on him regarding the validity and execution of Exh.P.1. Therefore, he cannot take up the cudgels for Shafqat Hussain, who did not challenge the correctness and legality of the sale deed dated 23.12.2000 executed in favour of late Ghulam Shabbir.

24. The argument of the learned counsel for the petitioner that the learned appellate Court did not give issue.wise findings in contravention of the provisions of Order XX, Rule 5 read with Order XLI, Rule 31, C.P.C., is not tenable. I have perused the judgment of the learned appellate Court. It took into account each and every aspect of the case set up by both the parties and dealt with the contentions raised by them in considerable detail. Even otherwise, unlike a trial Court, an appellate Court is not required to give issue wise findings, as has been held by the Hon'ble Supreme Court of Pakistan in the cases reported as 'Umar Din v. Ghazanfar Ali and another' (1991 SCMR 1816) and 'Muhammad Amir through Legal Heirs v. Muhammad Sher and others' (2006 SCMR 185).

25. The learned counsel for the petitioner has not been able to show any misreading or non-reading of evidence on the part of the learned Courts below, warranting interference of this Court under section 115 C.P.C. The concurrent findings recorded by them cannot by any stretch of imagination be regarded as perverse. Both the judgments and decrees passed by the learned Courts below being unexceptionable, this petition is without substance and merits dismissal in limine. ZC/A-110/L Petition dismissed.