SARDAR MUHAMMAD ASLAM, J.--- This Regular Second Appeal by plaintiff is directed against the judgment of the learned Appellate Court whereby it dismissed the appeal in affirmance to the judgment of the learned Trial Court recording dismissal of plaintiff's suit for possession through Specific Performance of an agreement of sale dated 19.8.1987.
2. Plaintiff rued suit for possession through Specific Performance in, respect of land fully described in the plaint. The predecessor of the defendant Said @ Said Jumal agreed to sell the land against a consideration of Rs. 86,000/- and received a sum of Rs. 60, 000/- as earnest money. The land was mortgaged with Agricultural Development Bank of Pakistan and sale deed was to be executed on its redemption. Non- execution of which forced the plaintiff to bring this suit.
3. The defendant contested the suit. He denied the execution of agreement, dated 19.8.1987. It was claimed that thumb impressions of the predecessor were obtained on a blank paper, for the purposes of preparing power-ofattorney tc negotiate with the Manager of National Bank of Pakistan, in order to secure remission of interest, but to his misfortune the blank stamp paper was converted into the agreement. The learned Trial Court framed the issues. Both the parties produce their respective evidence. Learned Trial Court decreed the suit on 13.12.1993. The appeal was preferred which was dismissed by the learned Additional District Judge on 22.2.1997. Civil Revision No. 828-D of 1997 was filed by the predecessor of the respondent, which was allowed on 11.11.1997, and the matter was remitted back to the learned Trial Court for fresh decision.
4. The learned Trial Court in post-remand proceedings recorded further evidence. The suit was dismissed on 22.1.1998, which was affirmed in appeal on 26.9.2001.
5. I have, heard the learned counsel for the appellant as well as the respondent and perused the evidence with their able assistance.
6. Agreement of sale Ex P-2/1 indicates receipt of Rs.60,000/- as earnest money by Said @ Said Jamal.
This was marginally witnessed by Safdar Khan and Khushi Muhammad. Haji Rafique Ahmad is the stamp vendor, who sold out the stamp paper on 19.8.1987. Fayyaz Hussain, Assistant Manager, National Bank of Pakistan stated that the appellant maintained his account in their bank and had drawn Rs. 35,500/- on 19.8.1987. Rafique Ahmad, Waseeqa Navees (PW2) stated that agreement. Ex P-2/1 was authored by him and it was thumb marked by the predecessor of the defendant. In cross-examination, he stated that he had obtained the signatures of the parties before writing the contents. According to him, at the time of payment a quarrel has taken place and on account of confidence in him, signatures were obtained. Malik Khushi Muhammad is PW-3. He is a marginal witness of the agreement Ex P-2/1. He deposed in his examination-inChief that plaintiff gave him Rs.60,000/- which he paid to the defendant. In cross-examination, he, however, stated that the entire consideration amount Rs. 60,000/- on the day of agreement and Rs.26,000/- was paid earlier. PW-4 Nazir Ahmed son of Shamas-ud-Din is not a witness to the agreement of sale, however, deposed that he negotiated the sale agreement. He was not present at the time of striking of the bargain but was informed by the defendant of sale-in favour of the appellant- plaintiff. Appellant has examined himself as PW-5. He stated that the predecessor of the defendant agreed to sell the suit land against a consideration of Rs.86,000/- and paid, Rs.60,000/- as earnest money through agreement of sale. The statement of the appellant is contradicted by his marginal witness Khushi Muhammad stated that entire consideration of Rs. 86,000/- stood paid while the plaintiff stated that only a sum of Rs. 60,000/- was paid. The other marginal witness Shafqat Khan was not produced by: the plaintiff. DW-1, Said Jamal stated that he signed blank stamp paper on pursuance and assurance by the plaintiff to get his interest remitted on account of his close relations with the bank manager. Later on, he converted the said document into an agreement of sale. In cross-examination, he stated that when he visited Waseeqa Navees, he was accompanied by Liaqat and Shafi alone. The stamp paper was not written. His signatures were obtained tiwcely.
DW-2 and DW-3 supported the stance taken by DW-1.
7. In post remand proceedings, Rafique Ahmad was again examined as PW2 on 19.08.1998. He produced a copy of entry from the stamp vendor Register Ex P-2/3. He admitted that at serial No.2621 of the register, he has recorded entry Said, son of Moosa and written the name of Jumal above the words Said later on.
8. Agreement of sale is to be proved, at least by examination of two marginal witnesses. One marginal witness has appeared. The deed writer has admitted that before writing the contents of the agreement, he had obtained the signatures on blank paper. The arguments that the other marginal witness was won over by the defendant will render no help. In deed, it was the duty of the plaintiff to prove the signatures of the other marginal witness, a councilor, through a person acquainted with his signatures.
Non-production of second marginal witness and statement of the deed writer of having obtained signatures on the blank stamp paper causes a serious blow to the plaintiff's case. The two learned Courts below on appreciation of evidence concurrent finding of fact which cannot be challenged in the absence of any misreading or non-reading of evidence or an illegality floating on the surface of the record.
9. For what has been discussed above, this RSA is without force and the same is dismissed.