' Muhammad Sadaq, the appellant/ plaintiff, through the filing of the present second appeal, has called in question judgment and decree, dated 10-5-2000, 'whereby the learned Addl. District Judge accepted respondents' appeal, dismissed appellant's suit and set aside the judgment and decree, dated 27-1-1999, passed by the learned trial Court, through which it decreed suit for specific performance of an agreement, filed by the appellant.
2. The appellant filed a suit for specific performance of an agreement to sell, dated 22-7-1987, allegedly executed by Ghulam Muhammad deceased, predecessorin-interest of the respondents in respect of the disputed land measuring 100 Kanals, pleading therein that through the execution of the agreement to sell, dated 22-7-1987, Ghulam Muhammad agreed to sell the questioned land to the appellant for a consideration of Rs.2,00,000 out of which a sum of Rs.70,000 was paid to him as earnest money at the time of the execution of the agreement to sell. According to the plaintiff, subsequently total sum of Rs.80,000, on different dates, was received by Ghulam Muhammad and after his death by his legal heirs, and thus a total sum of Rs.1,50,000 was paid. The appellant deposited a sum of Rs.50,000 under the directions of the learned trial Court, thus, as per the case of the appellant, he has paid the total consideration price and refusal on the part of the respondents necessitated the filing of the suit. Two sets of defendants filed separate written statement, inter alia, denying the execution of the disputed agreement and receipt of any consideration price from the plaintiff under the agreement to sell.
3. From the pleadings of the parties, the learned trial Court framed the following issues:-- "ISSUES.
(1) Whether the plaintiff has not come to the Court with clean hands, therefore, he is not entitled to any discretionary relief? OPD.
(2) Whether the plaintiff has no cause of action? OPD.
(3) Whether the suit is frivolous? OPD.
(4) Whether the suit has been filed just to harass the defendants, if so, are the defendants entitled to specical costs under section 35-A, C.P.C.? OPD.
(5) Whether the defendants Nos. 3, 4, 8 and 9 are not legal heirs of Ghulam Muhammad deceased and the suit is bad for misjoinder of necessary parties? OPD.
(6) Whether the suit is time-barred? OPD.
(7) Whether the suit is not maintainable in its presence form? OPD.
(8) Whether the deceased Ghulam Muhammad executed an agreement to sell, dated 22-7-1987 and received earnest money from the plaintiff? OPP.
(9) Whether the plaintiff is entitled to a decree for specific performance of agreement to sell, dated 22-7-1987 in respect of the suit-land, if so, on what terms and conditions? OPP.
(10) Relief."
' The learned trial Court after recording the evidence of the parties, proceeded to decree the suit vide judgment and decree, dated 27-1-1999. The respondents filed the appeal before the appellate forum and the learned Addl. District Judge accepted their appeal, set aside the judgment and decree of the learned trial Court and dismissed plaintiff's suit vide judgment and decree, dated 10- 5-2000, hence the present second appeal.
4. The learned counsel for the appellant has submitted that the appellant by producing one marginal witness and the scribe was able to prove the execution of the agreement to sell and the payment of consideration price, but the learned appellate Court did not take into consideration the evidence on record. In this regard, he has relied upon Nazir Ahmad v. Muhammad Rafiq (1993 CLC 257) and Zafar Ullah Khan v. Mst. Hakim Bibi and another (2000 YLR 2789). Conversely, the learned counsel for the respondents, while supporting the impugned judgment, have submitted that the appellant' could not prove the execution of agreement to sell and the payment of consideration price, inasmuch as the alleged scribe did not put his signature on the agreement to sell. They have further submitted that the , impugned judgment is in accordance with the evidence on record, thus the same does not require any interference by this Court.
5. In view of the arguments of the learned counsel, I have examined the available record and find that the real controversies between the parties were as to whether the agreement to sell was executed by Ghulam Muhammad deceased and whether the plaintiff is entitled to decree for specific performance of the said agreement to sell, which controversies were rightly reduced into Issues Nos.8 and 9. Under the law, in order to prove the agreement to sell, the beneficiary of the said agreement has to prove the execution of the said document in accordance with the provision of Article 79 of Qanun-eShahadat Order, 1984, which provides that if a document is required by law to be attested, it shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. Reference can be made to Mst. Rasheeda Begum and 3 others v. Muhammad Yousaf and others (2002 SCM R 1089). 1 have examined the agreement to sell (Exh.P1) and find that the same is not only signed by Muhammad Sadaq and thumb-marked by Ghulam Muhammad, but also attested by three attesting witnesses, namely, Ghulam Fatima wife of Ghulam Muhammad, Muhammad Ishaque son of Boota and Haji Abdul Rasheed son of Ch. Hayat. Exh.P1 bears the stamp of Muhammad Sharif Bhatti, the Stamp Vendor, showing that the stamp paper was sold to Ghulam Muhammad on 22-7-1987. Admittedly, in order to prove the said document, the appellant/plaintiff produced only one marginal witness, namely Haji Abdul Rasheed, who appeared as P.W.2 and other two marginal witnesses were not produced. Instead thereof, the plaintiff examined the alleged scribe, namely, Muhammad Sharif Bhatti, who appeared as P.W.1 and stated that the agreement to sell was scribed by him on the asking of the parties to the suit and the attesting witnesses signed the said document in his presence. Minute perusal of Exh.Pl shows that Exh.Pl was neither signed nor thumb-marked by the scribe. Even in his statement, P.W.1 did not state that he signed the document i.e. Exh.P1. Learned counsel of both the parties have admitted the above stated position.
6. The learned Additional District Judge, while adverting to the respective contentions of the parties, regarding proof of the execution of agreement to sell, has properly appreciated the documentary as well as the oral evidence on record, and has rightly, concluded that the findings of the learned trail Court, on Issues Nos. 2, 8 and 9 are the result of misappraisal and non-appraisal of evidence and thus reversed the said findings. It would be appropriate to reproduce a portion of para.10 of the impugned judgment, which clinches the total controversy:-- "Under Article 79 read with Article 17 of Qanun-e-Shahadat such documents can only be proved by its two attesting witnesses. The plaintiff has examined one attesting witness of these documents P1, P4, P5, P6, out of which P1 is the alleged basic agreement to sell. Exh.P4 is receipt for part payment.
Exh.P5 and Exh.P6 are also receipts for part payment under the said agreement. No other attesting witness of these documents Exh.P1, Exh.P4, Exh.P5 and Exh.P6 is examined as a witness. P.W.1 said that he has written those documents. His deposition at par with the attesting witnesses can only be considered if the documents are signed by him as a scribe. Perusal of these documents shows that his name as scribe of these documents is not written. In view of the above the basic agreement Exh.P1 and receipt of part payment Exh.P4, Exh.P5, Exh.P6 are not proved as required under Article 79 read with Article 17 of Qanun-e-Shahadat. The other documents relating to the disputed transaction is Exh.P2 allegedly executed by Ghulam Fatima appellant No.1 as widow of deceased and Rehana Kauser appellant No.2 as widow of the deceased Ghulam Muhammad original owner of the property, alleged 'executant of Exh.P1 is an agreement to sell relating to the property plus acknowledgement of Exh.P1 and receipts of earnest money. Exh. P3 is receipt of part payment of earnest money, Exh.P2 is witnessed by Zulfiqar Ali and Muhammad Siddique, while Exh.P.3 is not witnessed by anyone. The plaintiff has not examined any of the attesting witnesses of Exh.P2 while Exh.P.3 was not even attested by any witnesses. P.W.1 has not signed these documents as scribe.
Resultantly, the same documents also not proved under Article 79 read with Article 17 of Qanun- eShahadat. Only the defendants have denied the execution of these documents in their written statement and their denial is strengthened by their oral deposition of one of the defendants Muhammad Siddique appellant/ defendant as D.W.2, Ghulam Fatima appellant/defendant as D.W.3. They have not given any clue of acceptance of execution of any of the document in their cross-examination. As a result. In my opinion the findings of the trial Court on Issues Nos.2, 8 and 9 are the result of misappraisal and non-appraisal of evidence and are based on the documents not proved in accordance with law and the same are thus set aside and reversed by holding that the execution of the basic agreement to sell, dated 22-7-1987 Exh.P1 by Ghulam Muhammad and receipt of earnest money under it is not proved and the subsequent document Exh.P2 relating to the acknowledgement of Exh.P1 and payment of earnest money and documents Exh.P3, Exh. P4, Exh.
P5 and Exh. P6 relating to receipts of part payment of the sale price are not proved and the plaintiff/respondent is not entitled for decree for specific performance of agreement to sell, dated 22-7-1987. Exh.P1 in respect of the suit-land and the plaintiff has no cause of action to file this suit..."
7. Now coming to the judgment, relied upon by the learned counsel for the appellant, suffice it to say that both the cases are distinguishable on the facts of the present case, inasmuch as in the said cases, the agreement to sell was not only written by the scribe, but the same was also signed by him. In view of the absence of the signature or thumb-impression of the alleged scribe on the agreement to sell, it can neither be argued nor legitimately held that P.W,1 actually scribed Exh.P1. In view whereof P.W.1 is not a reliable witness and he could not be treated as an attesting witness.
Moreover, the case of Mst. Rasheeda Begum (ibid), is a complete answer to the judgments of Nazir Ahmad and Zafar Ullah Khan (supra), wherein it has been held that "The bald statement of the petition writer Nazar Mohyuddin (P.W.4), who had allegedly scribed the agreement to sell is not enough to prove execution of document in question."
8. In the above perspective, I am of the considered view that the appellant, by not producing two attesting witnesses of the agreement to sell (Exh.P1), has comprehensively failed to prove the execution of agreement to sell within the parameters of Article 79 of Qanun-eShahadat Order, 1984 and thus the findings of the learned Additional District Judge on Issues Nos.8 and 9 are not open to exception, thus the same are maintained.
9. I have examined both the judgments and find that the judgment passed by the learned trial Court is not sustainable in law and the findings rendered therein, are not supported by the evidence on record. The judgment of the learned trial Court suffered from grave legal errors, which have been rectified by the learned Appellate Court by reversing the findings of the learned trial Court and substituting its own findings, which are supported by reasons and evidence on record. I am not inclined to restore the judgment of the learned trial Court, which has rightly been reversed by the learned lower Appellate Court.
10. In my view as the impugned judgment is neither contrary to the evidence on record nor in violation of the principle of administration of justice, thus the judgment of the learned Appellate Court should ordinarily be preferred. If any case is needed, judgments reported as Mir Muhammad alias Miral v. Ghulam Muhammad (PLD 1996 Karachi 202), Illamuddin through, legal heirs v. Syed Sarfarz Hussain through legal heirs and 5 others (1999 CLC 313) and Aasa v. Ibrahim (2000 CLC 500) can be referred.
11. It is settled law that second appeal lies on the grounds mentioned in section 100 of C.P.C. And not on the question of facts. The learned counsel for the appellant has not been able to show that how the second appeal falls within any of the grounds mentioned in section 100 of C.P.C. No error of law has been committed by the first Appellate Court, while rendering the impugned judgment, thus, the same is maintained.
12. Upshot of the above discussion is that the present appeal is devoid of merits, hence stands dismissed, leaving the parties to bear their own costs.