' This civil revision assails the judgments and decrees dated 13-12-2001 and 22-9-2003 passed by the learned Civil Judge and the learned Additional District Judge, Chiniot, whereby the suit and the appeal of the petitioner were dismissed, respectively.
2. Precisely relevant facts are that the petitioner filed a suit for specific performance of an agreement to sell dated 23-2-1993 regarding land measuring 17 Kanals and 16 Marlas, owned by respondent with the averments that the respondent agreed to sell his land for an amount of Rs.1,30,000 and after receiving the entire sale price executed the asserted agreement to sell whereunder possession of the land was allegedly delivered to the petitioner. Sale-deed was deferred till 22-10-1992 in order to settle the dispute among the brothers and sisters of the respondent. It was also pleaded that the respondent was required to abide by the terms and conditions of the agreement to sell but he after reluctance for some time, ultimately refused to perform his part of contract, which necessitated filing of suit. It is contended that the petitioner had moved an application for comparison of thumb-impression of the respondent over the disputed agreement to sell but this prayer of the petitioner was opposed by the respondent which shows that the respondent had thumb-marked the asserted agreement. Respondent being defendant in the suit contested it and denied the execution of the alleged agreement to sell. Controversial pleadings of the parties necessitated framing of issues and recording of the evidence. The learned trial Judge who was seized of the matter after doing the needful, dismissed the suit vide his judgment and decree dated 13-12-2001.
3. The petitioner aggrieved of the decision of the trial Court dated 13-12-2001 filed an appeal before the learned Additional District Judge but remained unsuccessful, as it was dismissed on 22-9-2003.
The petitioner, thereafter filed the instant revision petition wherein, the respondent in response to notice, has appeared through his counsel.
4. The learned counsel for the petitioner submits that the petitioner had proved the due execution of the agreement to sell dated 23-2-1992 by producing its marginal witnesses who also proved transfer of possession under the agreement and payment of the sale price to the respondent but a contrary view taken by the two Courts below is opposed to the evidence on the file. He further submitted that after proof of agreement to sell, according to law, the suit of the petitioner could not have been dismissed and thus findings returned by the two Courts below deserve to be reversed. It was further submitted that the dismissal of petitioner's suit, on the basis of minor discrepancies in the evidence is not justified because such contradictions are bound to occur by lapse of time and being not material, should have been ignored.
5. The learned counsel appearing on behalf of the respondent, refuted the agreement of the petitioner, supported the concurrent judgments and decrees of the two Courts .Below and urged that the . Execution of the agreement to sell was specifically denied by the respondent after which onus to prove, not only of the agreement but also that of the transaction, shifted on the shoulder of the petitioner but he failed to discharge this onus. According to him, there is not an iota of evidence to show that the parties ever entered into any transaction of sale and struck the alleged bargain.
He further submitted that the evidence brought in support of the alleged agreement is highly discrepant and thus, has rightly been not relied by the two Courts below. He further elaborated his arguments by saying that the parties were already in litigation and there is no reason shown as to how they entered into the asserted transaction. He further urged that the petitioner claims to have paid the entire sale price of the land and transfer of possession under the agreement, but it is not explained as to why a sale-deed was not got executed. According to him reasons mentioned for suspending the execution of the title document, in the agreement to sell, are imaginary. Had the respondent entered into any transaction and delivered possession to the petitioner, there was no legal bar for execution and registration of the sale-deed but this exercise having not been undertaken without any just reason, it negatively reflected on the claim of the petitioner.
6. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record appended herewith. It is settled proposition that after denial of the execution of a document, onus to prove it besides proof of transaction/bargain reflected in this document, shifts on the shoulder of the beneficiary, as mandated by the Honourable Supreme Court in the case of Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832) and by the High Court in the cases of 1991 MLD 2389, Mst. Rasul Bibi v. Nasrullah Khan (1994 CLC 1774) and Niaz Ali and 16 others v. Muhammad Din through Legal heirs and 13 others (PLD 1993 Lahore 33). The petitioner in order to discharge this onus produced 3 witnesses, including his own statement as P.W.2. The petitioner while appearing as his own witness stated that respondent had a dispute with his mother and sister, on account of which a sale-deed could not be executed at the time of payment of the sale price. This stand though was not taken in the plaint yet is beyond comprehension, reality, against law and usual practice. No doubt respondent is an owner of a share in the joint khata and he having delivered the possession to the extent of his share in the joint khata and having received the entire sale price, could also execute the 4 title documents and any verbal dispute among the co-sharer had no meaning to suspend the execution of the sale-deed. I am clear in my mind that a co-sharers in possession of any part of joint holding could lawfully, transfer his share through a registered sale-deed. The petitioner as P.W.2 had not deposed in his examination-in-chief anything regarding the transfer of possession but in reply to cross- examination by the respondent, he stated that at the time of agreement Lal Kumhar was in possession of the property as tenant from whom the possession was delivered to him by ploughing the land. The possession of the land with the tenant is admitted by other witnesses of the petitioner but Lal Kumhar the tenant was not produced in evidence and at the same time no Revenue Record was brought on the file to show that the possession of any land out of joint holding was given to the petitioner.P.W.3 and P.W.4 who are marginal witnesses of the agreement Exh.P-1 and receipt Exh.P-2 deposed that they thumb-marked those documents but P.W.3, contrary to statement of the petitioner himself, stated that Bakhsha was the tenant of the land. None of his witnesses uttered a single word regarding bargain between the parties. P.W.4 besides his contradiction regarding material aspect touching execution of the agreement Exh.P-1 admitted that a number of case were pending between them and this litigation could not be denied by the P.W.2 himself who admitted that another suit against the defendant was also filed.
7. The respondent while appearing as D.W- I had specifically denied the execution of the agreement and receipt. He also denied that he never received any sale consideration from the petitioner. D.W-2 Mian Khan gave a material support to the case of the respondent. The respondent also produced a copy of Khasra Girdawari (Exh.D-1) which shows that land is jointly owned by Mst.
Bakhi etc. And in possession of Lal Din "Kumhar" son of Mali and Maula Dad son of Mali as tenants.
The evidence of the parties shows that the petitioner could not prove the transaction of sale between the parties, and the transfer of possession hereunder or payment of the sale consideration to the respondent.
8. Agreement to sell Exh.P-1 and receipt Exh.P-2 have cuttings and over writings making these document, doubtful which were claimed to have been executed by an illiterate villager, who is not shown to have access to any independent or legal advice before parting with his immovable property. It is also not proved that these documents if at all were executed by the respondent, were executed of his own free will, without any misrepresentation or coercion. By merely producing 2 marginal witnesses of an agreement, without proof of bargain and transaction between the parties, hardly furnish a lawful basis for grant of a decree for specific performance; especially when the statements of the marginal witnesses are discrepant and self-contradictory. It is clear from the evidence on the file, as discussed above, that the parties were already under the litigation and in absence of evidence that how they happened to transact the sale of land in question without resolving their other disputes, is not believable.
9. For what has been discussed above, I am of the considered view that both the Courts below have drawn correct conclusions, out of evidence on the file and the findings thus returned, are absolutely in consonance with the record. No part of the evidence was misread or non-read and at the same time they did not commit any illegality or irregularity, in absence of which, no interference is permissible in revisional jurisdiction of this Court. This revision petition has no merit in it and is accordingly dismissed leaving the parties to bear their own costs.