1990 PLP 1112 (CLC)

5. The only question which requires adjudication and determination in this appeal is whether the agreement to sell (Ex.P.1) was duly proved document on the file or in other words whether Noor Muhammad deceased original owner and predecessor‑in‑interest of respondent Nos. 1 to 9 had agreed to sell the disputed plot and received sale consideration of Rs.12,500 from the present appellant.

6. I have heard the learned counsel for the parties at length perused the impugned judgments inestimably and scanned the record with the assistance of the learned counsel for the parties. Muhammad Abdullah PW.1 Petition‑writer, who is a scribe of Ex.P.l while appearing as PW.I categorically made the following disclosures in his examination‑in‑chief and cross‑examination; (i) That agreement to sell dated 30‑9‑1975 (EX.P.1) which was in his handwriting was a correct document and it was got scribed by Noor Muhammad in favour of Muhammad Ismail on admitting the receipt of Rs.2,000 as earnest money. (ii) That scribing of document (Ex. P.1) was done at the house of Malik Noor Muhammad executant in the presence of Allah Bakhsh (PW.2) who also put his signatures thereon as an attesting witness. (iii) That Noor Muhammad executant, had also put his signatures in his register. He denied the suggestions that agreement to sell and his register did not bear the true signatures of Noor Muhammad deceased executant and that it was a forged document. (iv) That contents of agreement of sell (Ex. P.1) were duly read over to Noor Muhammad in his baithak after the completion of the aforesaid document. (v) That Noor Muhammad had further deputed his own son namely Malik Mansoor defendant‑respondent No.1 to get prepared EX.P.1. the agreement to sell and said Malik Mansoor himself put his signatures thereon as an attesting witness.

7. The plaintiff further produced Allah Bakhsh PW.2 an attesting witness of EXS.P.1 and P2 who deposed the following facts:‑ (i) That Noor Muhammad had agreed to sell the plot in dispute to the appellant in lieu of Rs.12,500 and had received Rs. 2,000 as earnest money. (ii) That agreement to sell (Ex.P.1) was executed in his presence and he himself had put his signatures thereon as an attesting witness. (iii) That remaining outstanding consideration amounting to Rs.10,500 was also paid by the appellant vide receipt Ex.P.2 in his presence. (iv) That Ex.P.2 receipt regarding the payment of Rs.10,500 was scribed by Abdul Hamid Patwari respondent No.10 and was signed by Noor Muhammd executant, and was witnessed by him and Manzoor respondent Nol (v) That Abdul Hamid Patwari respondent No.10 had the prior knowledge of bargain in dispute. (vi) That agreement to sell (EX.P.1) was executed at the house of Noor Muhammad. (vii) That Rs.10,500 were paid to Noor Muhammad at his residence at 8‑30 a.m. after 20 or 21 days from the date of execution of agreement to sell (Ex. P.1)

8. Muhammad Ismail plaintiff, himself appeared as PW. 4 and fully corroborated the statement of PW.1 and PW.2. On the other hand there is nothing in rebuttal except the bare denial made by Manzoor and Abdul Hamid respondents. It is evident from the evidence referred to above that PW. 1 and PW.2 not only proved the signatures and handwriting but also deposed as to the correctness of the contents of the documents and had a personal knowledge about the contents. Section 67 of the Evidence Act lays down that if a document is alleged to be signed or to have been written wholly or in part by any person, the signatures or the handwriting of so much of the documents as is alleged to be in that person's handwriting must be proved to be in his handwriting. The section does not however lay down any specific mode of proving the signatures or the writing, it merely requires the signatures or the writing to be proved. In the circumstances of this case Manzoor and Abdul Majid defendants‑respondents being antagonists to the appellant were not supposed to be produced by him as his own witness to prove the execution of Exs.P.l and P.2. Therefore, the appellant, in the given circumstances of the case, was left with no option except to produce P.W. 1 and P.W.2 the remaining concerned witnesses out of whom one is a scribe while the other is a marginal witness of aforesaid documents. Not only P.W. 1 and P.W.2 saw Noor Muhammad deceased sign the agreement but also they themselves scribed and signed the same respectively in the presence of Noor Muhammad deceased and his son Malik Manzoor respondent. The evidence of PW.1 and PW.2 is not such as carry conviction in the mind of the Court that they did not see the deceased sign the document and each of them did not append his signatures to the agreement to sell, (EX.P.1) in the presence of the deceased.

9. Manifestly, the plaintiff‑appellant wholly discharged the initial onus of proving a prima facie case which would entitle him to relief prayed for. In civil matters, the initial onus of proving a case is always on the plaintiff and if he discharges that onus, then it shifts on to the defendant to prove otherwise as to disentitle plaintiff to relief claimed for. In the instant case the defendants- respondents on the other hand absolutely failed to prove circumstance as to smash the plaintiff's case. The net result, therefore, is that it can safely be held, that EX.P.1 and Ex.P.2 were duly proved documents on the file which furnished I an unrebutted and undoubted legal basis of title to the plaintiff with regard to plot in suit. As a result of this conclusion, the findings concurrently arrived at by the learned Courts below, being based on misreading and non‑reading of evidence, are not sustianable in the eye, of law and are apt to reversal in this appeal.

10. As regards the other contention that specific performance of contract cannot be enforced against respondent No.1.0, Abdul Majid Patwari, being a I f transferee for value in good faith and without notice of the original contract, has no substance as well. There is convincing evidence on the record to prove that aforesaid transferee had notice of the prior contract. For example being proved to be a scribe of Ex.P.2, he was fully aware of the prior existing contract in favour of the appellant. Moreover, according to his own admission made in cross examination he was dismissed by the Revenue Department on account of this alleged transaction of sale. He further admitted that the present appellant had constructed the plot in dispute and he could not himself occupy any part thereof uptil now pursuant to the alleged transaction of sale in his favour. The appellant's open and clear user and physical possession over the plot in dispute itself amounted to a sufficient notice in that regard to respondent No.10. 1, therefore, hold that the respondent No.10 is an alienee by registered deed with notice of the previous agreement and as such the prior contract may be specifically enforced against him under section 27 of the Specific Relief Act.

11. For the reasons aforesaid, I set aside the impugned judgments and decrees passed by the learned Courts below, accept the appeal and decree the plaintiff's suit in its entirety with costs throughout. H.B.T./M‑1835/L Appeal accepted.