' MUHAMMAD SAIR ALI, J.---This judgment shall deal with and decide Civil Revisions Nos.432 and 433 of 1997 which involve identical questions of law and facts. The petitioner in both the civil revisions is the same and disputed agreement to sell was executed by predecessor-in-interest/issueless deceased sister, Mst. Anwar Fatima, of the petitioner and respondents Nos.2 to 6.
2. Mst. Anwar Fatima was owner of the suit property and entered into agreement to sell six Marlas (the suit property). This agreement was registered on 25-8-1987. Allegedly substantial amount of consideration was paid as earnest money while the balance (in-substantial part of the price) was payable at the time of execution and registration of the sale-deed. In about two months from the date of the agreement, Mst. Anwar Fatima died on 27-10-1987. She died issueless wherefor the petitioner and respondents Nos.2 to 6 (being her brothers and sisters) became entitled to inherit the suit property in their shares as joint owners.
3. Respondent No.1 claiming to be the vendee through registered agreement to sell dated 25-8- 1987, (Exh.P.1) alleging refusal of performance against the petitioner and respondents Nos.2 to 6, filed a suit. Petitioner filed a contesting written statement while his other brothers and sisters, i.e., respondents Nos.2 to 6 filed a conceding written statement. The conceding respondents in their written statement claimed to be owners of 4/5th of the suit property, consented to execute a sale- deed in favour of respondent No.1 as vendee on receipt of balance of the sale price. On the basis of contest between respondent No.1 and the petitioner, issues were framed by the learned trial Judge.
Evidence was recorded. The learned Civil Judge through judgment and decree dated 7-5-1995, dismissed the suit by holding that agreement to sell (Exh.P.1) remained unproved and so did the receipt of earnest money by deceased Mst. Anwar Fatima. Appeal was preferred thereagainst by respondent No.l. The learned Additional District Judge through the judgment and decree dated 6- 11-1996 ' accepted the appeal, set aside judgment and decree of the learned trial Judge and further proceeded to decree the suit of respondent No.1. Hence the present civil revision.
4. The learned counsel for the petitioner contended that:--
(i) In the suit for declaration dated 27-11-1988 between the brothers and sisters, i.e., legal heirs of deceased Mst. Anwar Fatima, respondent No.1 conceded joint ownership of the petitioner and respondents Nos.2 to 6, wherefor respondent No.1 was estopped to claim specific performance of his agreement to sell dated 25-8-1987 (Ext. P 1).
(ii) In another suit dated 21-5-1989 filed by the petitioner for partition of the suit property, in the joint written statement by the respondents, agreement to sell dated 25-8-1987 (Exh.P.1) was advanced as a defence but payment of substantial price was claimed to have been made on a number of occasions though in Exh.P.1 the major amount was stated to have been received as earnest money on the date of the agreement.
' And
(iii) Respondent No.1 neither produced the scribe of the agreement nor did he produce evidence of the two marginal witnesses though one marginal witness was produced to prove the agreement wherefor registration of agreement lost its presumption.
5. Contrarily the learned counsel for the respondents supported the impugned judgments and decrees.
6. I have considered the submissions of the learned counsel for the parties and have also examined the record. To my mind, the most important question involved in the present civil revision for decision of this Court is as to whether respondent No.1 as plaintiff discharged the onus of proving existence and execution of agreement to sell (Exh.P.1) or not? It is the joint case of the parties that respondent No.1 as plaintiff only produced one marginal witness namely Liaqat Ali Khan (P. W.2). It is noteworthy that P.W.1, Ahmad Ali Toor, the scribe, was produced and P.W.1 clearly, concisely and categorically stated that the agreement to sell (Exh.P.1) was written by him upon identifying Mst. Anwar Fatima through her Identity Card and that the same was duly entered by him in his register at serial No.479 dated 12-8-1987. This factum was not disproved by the petitioner.
Under these circumstances Ahmad Ali (P.W.1), apart from being a scribe was also a witness of the writing, making and execution of Exh.P.1 and also of the exchange of price between the vendor and the vendee. The other witness, i.e. Liaqat Ali (P.W.2) was admittedly the marginal witness. He also credibly supported the making execution and registration of the agreement as well as the exchange of earnest money between Mst. Anwar Fatima and respondent No.
1. In my opinion non-production of the second marginal witness looses its significance because respondents Nos.2 to 6 (legal heirs of deceased vendor entitled to 4/5th of the share) filed a conceding written statement and admitted execution and registration of Exh.P.1 as well as the exchange of the earnest money between the deceased vendor and respondent No. 1 . Under these circumstances, the requirements of Qanune-Shahadat were fully met by respondent No.1 improving existence, execution and registration of the agreement as well as exchange of money through production of evidence.
7. Adverting to the other two submissions of the learned counsel for the petitioner, I am afraid I do not subscribe to the view of the learned counsel for the petitioner that conceding statement of respondent No.1 in suit for declaration dated 27-11-1988 regarding ownership of the petitioner and respondents Nos.2 to 6 was fatal for his suit for specific performance. By agreement to sell (Exh.P.1), respondent No.1 did not acquire title to the suit property which, upon death of the vendor, admittedly devolved upon the petitioner and respondents Nos. 2 to 6 as co-owners. They obviously continued to be the co-owners of the property till execution of the sale-deed in favour of respondent No.1 or upon pronouncement of a judgment and decree in favour of respondent No.1 who could only acquire title from the legitimate legal heirs of the deceased vendor. In the present case, there is no contest that petitioner and respondents Nos.2 to 6 were not the joint owners of the suit property being legal heirs of the deceased Mst. Anwar Fatima/vendor. Furthermore, in written statement (Exh.D.2) to the suit dated 21-5-1989 for partition, respondent No.1 pleaded the execution of the agreement (Exh.P.1). It does not at all disprove payment of the earnest money although in this general written statement receipt of substantial earnest money is stated to have been done at various times as against stipulation in Exh.P.1 that the earnest money was paid to the deceased vendor at the time of the execution of the agreement. To my mind this is not a material contradiction to reflect upon the non-execution of the agreement and non-payment of the earnest money.
8. The Additional District Judge arrived at the findings of facts on the basis of due and proper analysis and appreciation of evidence. I do not find any misreading or non-reading. Neither did the learned first Appellate Court commit any excess of authority or irregularity in pronouncement of the impugned judgment and decree dated 6-11-1996. Under these circumstances, I do not find any merit in the present civil revision, which is dismissed with no order as to costs.