' ABDUL SHAKOOR PARACHA, J.---This order shall dispose of Civil Revisions Nos.1960 and 1961 of 1997 as the same have arisen out of the consolidated judgment and decree passed by the learned Additional District Judge, Faisalabad, dated 25-11-1997, whereby the two Civil Appeals Nos.44-13 and 43-13 of 1997, filed by Khurshid Ahmad Pervaiz, respondent herein, against Muhammad Iqbal etc, petitioner, were accepted and judgment and decree dated 3-4-1997 passed by the Civil Judge, Faisalabad, was set aside, the suit of Muhammad Iqbal, petitioner-plaintiff bearing No,122-i of 1993 for specific performance of the sale agreement was dismissed and the Suit bearing No,258- i of 1996 filed by Khurshid Ahmad, respondent, for possession of the suit property was decreed with costs.
2. On 12-7-1993 Muhammad Iqbal, petitioner, filed Civil Suit No,122-1 of 1993 for specific performance of the agreement to sell of the plot measuring 5 Marlas and 5 Sarsahi, the description of which has been given in para.1 of the plaint and hereinafter would be referred as the suit property, against Khurshid Ahmad etc. It was stated in the plaint that the vendor-respondent being owner of the suit property agreed to sell the same to the plaintiff for consideration of Rs,80,000 vide agreement to sell dated 27-6-1987 and received an amount of Rs,50,000 as earnest money; the possession of the suit property was handed over to the plaintiff in part performance of the agreement and the registered sale-deed was to be completed on 5-8-1987 on payment of the remaining sale price.
The registered sale-deed could not be executed as the suit property was mortgaged with defendant No,2 National Bank of Pakistan, for Rs,18,200 and therefore time was extended to complete the sale till 15-9-1987; the defendant No, 1-respondent promised to complete the sale after getting the suit property redeemed from the Bank; the plaintiff-petitioner constructed a hall on the suit property in the year 1987 and installed two flour-grinding mills, one press machine, one expeller and a platform of Kanda for which he obtained the industrial and commercial connection in the name of his brother Muhammad Ramzan; he also obtained licence of expeller from the market committee in this own name; he obtained sui gas connection in the suit property and property tax was being paid by him; the plaintiff ever remained ready to pay the remaining sale price and get the sale-deed executed; he asked the defendant No,1 (respondent) to complete the sale after redeeming the suit property from the bank but he refused to do so, on which he filed the suit.
3. The suit was resisted by the defendant No, 1/respondent by filing a written statement, wherein preliminary objection was raised and the alleged agreements were not admitted to be true and correct as the documents were not produced for scrutiny and verification; the plaintiff did not produce any such agreement except an affidavit the genuineness of which was not admitted to be true and correct and the signatures on the same were also not admitted; delivery of possession of the suit property to the plaintiff was denied; availing of the facility of bank loan by mortgaging the property was also denied and pleaded that the entry to this effect was a sham entry. It was stated that the construction over the suit property was raised by the plaintiff without any authorization and during the absence of the defendant.
4. On 24-6-1996, Khurshid Ahmad Pervaiz, respondent herein, also filed a suit for possession of the suit property against Muhammad Iqbal, petitioner herein, wherein it was contended that the plaintiff in the suit for specific performance of the agreement to sell had encroached upon the suit property about eight years before in his absence; he was asked to hand over the vacant possession but he was delaying the matter on one or the other pretext and thereafter Muhammad Iqbal filed the suit for specific performance of the agreement.
5. Both the suits were consolidated and the learned trial Court framed the following consolidated issues:--
(1) Whether both the suits are within time? OP Parties
(2) Whether this suit is not maintainable in its present form? OPD
(3) Whether this suit is not maintainable for misjoinder of necessary parties? OPD
(4) Whether the plaintiff has not come to the Court with clean hands? OPD
(5) Whether the defendant is entitled to special costs under section 35-A, C.P.C.? OPD
(6) Whether the defendant No,1 agreed to sell the suit property to the plaintiff for consideration of Rs,80,000 and executed an agreement of sale dated 27-6-1987 and received an amount of Rs,55,000 as earnest money? OPP
(7) Whether the defendant No,1 received further amount of Rs,8,000 vide agreement of sale dated 3-8-1987 and promised to execute sale-deed till 15-9-1987? OPP
(8) If Issues Nos.6 and 7 are proved in the affirmative, whether the plaintiff is entitled to the decree for specific performance of agreement of sale as prayed for? OPP
(9) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
(10) Whether the plaintiff is in the suit for possession has no cause of action and locus standi to file the suit? OPP
(11) Whether the plaintiff in the suit for possession is estopped by his words and conduct to file the suit? OPP
(12) Whether the other / suit for possession is deficiently valued for the purposes of court-fee, if 'so, what is its correct valuation? OPP
(13) Whether the defendant in the suit for possession is entitled to special costs under section 35-A, C.P.C.? OPP
(14) Whether the plaintiffs in the suit for possession are entitled to the decree of possession as prayed for? OPP
(15) Relief.
6. The learned trial Court in para.No,16 of his judgment has recorded the findings on the above stated Issues Nos.6 and 7 in favour of Muhammad Iqbal, petitioner- plaintiff by observing that:- "-that the defendant is a graduate person and is a Bank Officer and it is not expected from him to sign on a blank stamp paper unless and until he executed the same. He also did not give any explanation regarding his signatures on the foot of Exh.P.4 and under the note on the margin of the same. He has also not specifically denied the agreement of sale rather he has evasively denied the same."
' The learned Court further observed that, "the defendant agreed to sell the suit property to the plaintiff for consideration of Rs,80,000 vide agreement Exh.P.5 and received the earnest money amounting to Rs,55,000. He further received an amount of Rs,8,000 and executed the agreement Exh.P.4" Regarding Issue No,1 of limitation, the trial Court concluded that:-- "In the instant case also, as per agreement Exh.P.5, the sale was to be completed on 3-8-1987 which was extended till 15-9-1987 vide agreement Exh.P.4. The time was not made to be the essence of the contract between the parties. The defendant neither took the plea nor led any evidence that time was the essence of the contract. As already stated that the suit property was mortgaged with the National Bank of Pakistan and the sale could not be completed without redeeming the same, therefore, the case would fall under the second part of the Article 113 of the Limitation Act.
' The suit property was redeemed on 17-3-1993. This suit was filed on 12-7-1993, therefore, the same is within time."
7. The learned Additional District Judge while maintaining the finding on Issue No,1 regarding question of limitation, held that by virtue of Article 113 (Second Part) of the Limitation Act, the suit for specific performance was within time. However, he reversed the findings of Issues Nos.6 and 7 and observed that:-- "The so-called agreement to sell Exh.P.5 was pertaining to financial and future obligations and has been reduced into writing the same was required to be attested by two marginal witnesses. This document would not be used in evidence unless at least two attesting witnesses were examined for such purpose. Muhammad Saeed one of the marginal witnesses has not been examined despite the fact that he was alive and subject to the process of Court. There is nothing on record to show that he was not capable to record his evidence. His testimony was withheld on the flimsy and absurd ground that his whereabouts were not known and he was placed under suspension somewhere. No such report is available on the record. Non-production of this marginal witness is very material and presumption could be raised under the law that had he been produced he would have not supported the plaintiff/ respondent."
' The learned Additional District Judge did not rely on the statement of other marginal witness namely, Muhammad Riaz Zia, P.W.5. According to the learned Judge, "The so-called agreement to sell Exh.P.5 was pertaining to financial and future obligations and has been reduced into writing the same was required to be attested by two marginal witnesses. This document would not be used in evidence unless at least two attesting witnesses were examined for such purpose".
8. Both the Courts below have recorded divergent findings on the crucial Issues Nos.6 and 7 regarding entering of agreement to sell of the suit property to the plaintiff-petitioner for consideration of Rs,80,000 on 27-6-1987 and receiving the amount of Rs,55,000 as earnest money and receiving of further amount of Rs,8,000 vide agreement of sale dated 3-8-1987 and extension of time till 15-9-1987.
9. Before I proceed to discuss the evidence produced by the parties in this case, so that the controversy may be resolved I would like to examine the question of law whether the agreement of sale pertains to financial and future obligations and was reduced into writing and the same was required to be attested by two marginal witnesses. The learned counsel for the petitioner, on the strength of the case reported as Manzoor Hussain Khan v. Mst. Asia Begum and 21 others (1990 CLC 1014), contends that the agreements to sell would not require to be attested by two marginal witnesses and in this view of the matter there was no requirement of producing at least two attesting witnesses to be examined for such purpose. Bare reading of section 2 of the Transfer of Property Act (IV of 1882) would show that the agreement to sell was not required to be attested by two marginal witnesses.
10. In the case of Manzoor Hussain Khan (1990 CLC 1014) (supra), while interpreting Article 79 of the Qanun-eShahadat (10 of 1984) it has been ruled that, "Agreement to sell does not require to be attested by witnesses and in this view, provision of Article 79, does not apply." The words 'Instrument' and 'attested' have been defined in section 3 of the Transfer of Property Act as under:- "Instrument" means a non-testamentary instrument. "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen executant sign or affix his mark to the instrument or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant, but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
11. The agreement to sell is a document which does not require attestation by the witnesses. In this view of the matter, the provision of Articles 17 and 79 of the Qanun-e-Shahadat Order do not apply.
If the mortgage deed is not attested in accordance with section 59 of the Transfer of Property Act, it cannot be treated as mortgage deed. There is no authority for the proposition that a mortgage deed, properly attested but not proved in D accordance with Article 79 of the Order can be received in evidence to prove the personal obligation created thereby. See cases reported as Shib Chandra Singha v. Ghour Chandra Paul (1922 Calcutta 160) and Veerappa Lavundan v. Ramasami Kavundan (30 Madras 251). A will governed by the Succession Act must be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will, or has seen some other person sign the Will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of the witnesses must sign the Will in the presence of the testator. There are very few documents which are required to be attested. Mortgages, where the principal sum secured is Rs,100 or upward, or gifts of immovable property must be written, registered and attested at least by two witnesses. A Will of a Christian is a document required by law to be attested. See cases reported in Talluri Peda Manikyam v. Vantabattina Perigaddu (135 I.C. 532 and 1932 M 148). An account book is not required by law to be attested. From all the above discussion, I am constrained to hold that the agreement to sell is not required by law to be attested by two marginal witnesses and the finding of the learned. Additional District Judge that the agreement to sell was required to be attested by two marginal witnesses is erroneous and is not sustainable.
12. This brings me to advert to the question of execution of the agreement to sell and its proof. A document does not prove itself. In case of denial of a document, party relying on it must prove its execution in accordance with Article 78 of the Qanun-e-Shahadat Order, 1984, which provides that if a document is alleged to be signed or to have been written by any person, signature or writing must be proved to be in that person's handwriting. This Article by itself does not lay down any particular mode for proving the signatures and the writing. It merely requires the signature or writing to be proved to be in the hand of the person to whom it purportedly belonged. Any mode of proof recognized by law may suffice. A litigant is required to observe the rule of best evidence and if the best evidence is available and withheld from the Court, then, it legitimately may attract adverse comments against the proof offered. Under Article 78 of the Qanun-e-Shahadat Order, 1984 there are different modes of proving the documents, and the said modes are as under:--
1. By calling the person who signed or wrote the document.
2. By calling person in whose presence the document was signed or written.
3. By calling a Handwriting Expert.
4. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written.
5. By comparing in Court the disputed signatures or writing with some admitted signature or writing.
6. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it.
7. By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person.
8. A signature is proved to have been made if it is shown to have been made at the request of a person by some other person, e.g., by the scribe who signed on behalf of the executant.
9. By other circumstantial evidence.
13. On the touchstone of the above stated law, I have read the evidence of the parties. The petitioner-plaintiff has asserted that the defendant-respondent agreed to sell the suit property for Rs,80,000 on 27-6-1987 and received an amount of Rs,55,000 as earnest money and executed affidavit Exh.P.5, which is an agreement to sell for all intents and purposes. The date for completion of the registered sale-deed was fixed as 3-8-1987. Since the land was mortgaged with the National Bank of Pakistan, defendant No,1 could not execute the registered sale-deed on the fixed date and the time was extended through the agreement Exh.P.4 dated 3-8-1987 and the defendant- respondent further received Rs,8,000. The evasive denial of the execution of the agreement dated 27-6-1987 Exh.P.5 and the agreement Exh.P.4 through which the time was extended from 4-8-1987 had been made by the respondent. He has admitted his signatures on the document Exh.P.5. He has also not denied his signatures on the agreement Exh.P.4. The rule of law is that, denial should be specific. (See Order VIII, rule 3, C.P.C.). Rule 5 of Order VIII of the C.P.C. Further provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, should be taken to be admitted. In case reported as Inam Naqshbandi v. Haji Sheikh Ijaz Ahmad (PLD 1995 SC 314) it has been ruled that, "Allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability." Muhammad Iqbal, P.W.4 has stated that he knows the parties; respondent No,1 was employed in the National Bank of Pakistan Chak No,41/JB Branch, Faisalabad and he was employed in Ayub Research Institute Branch; Khurshid defendant signed the said document in his presence.
He further stated that Muhammad Riaz and Saeed witnesses also signed the same; Muhammad Ramzan paid an amount of Rs,55,000 to Khurshid defendant No,1 before the execution of the agreement Exh.P.4.; Muhammad Iqbal, plaintiff is the real brother of Muhammad Ramzan deceased; the stamp paper regarding payment of Rs,55,000 was also separately written which was signed by the defendant in his presence. In cross-examination, he stated that the agreement to sell was entered into in his house situated in Mohallah Khurshidabad. Muhammad Riaz, P.W.5 stated that he signed the agreement to sell Exh.P.5, and the other witness Muhammad Saeed also signed the same. Muhammad Riaz, P.W.5, did not state that the document Exh.P.5 was signed when the same was blank. The defendant has taken the plea that Muhammad Iqbal, P.W., obtained his signatures on the blank stamp paper on the pretext of taking loan. This plea has not been taken in the written statement. The defendant is a graduate person and bank employee. It is strange that he had signed on a blank stamp paper without execution of the same. No explanation whatsoever has been given by him regarding his signatures on the foot of Exh.P.4. There is also reference of the document Exh.P.5 in the document Exh.P.4 regarding extension of time. The plaintiff-petitioner has been in possession of the suit property since 1987. He has raised substantial construction on the site. He was able to get connection of electricity and suigas but the respondent-defendant was not H conscious about the filing of the suit till 24-6-1996. By appreciating the evidence adduced by the petitioner-plaintiff and the conduct of respondent Khurshid Ahmad Pervaiz, it reveals that in fact the agreement to sell dated 27-6-1987 was entered between the parties for consideration of Rs,80,000 and the defendant received an amount of Rs,55,000 as earnest money. Defendant- respondent further received an amount of Rs,8,000 vide agreement to sell dated 3-8-1987 and promised to execute the sale-deed till 15-9-1987. The fact of the mortgaging the property with the Bank has also been proved as the same was redeemed on 17-3-1993 vide document Exh.P.7. All these facts were enough to prove the case of the' plaintiff, and in this view of the matter, the learned Civil Judge rightly recorded a finding on Issues Nos.6 and 7 in favour of the plaintiff- petitioner and decreed the suit. The learned Additional District Judge by misinterpreting the law that the document agreement to sell requires attestation .By two marginal witnesses and as Muhammad Saeed, one of the marginal witnesses, was not examined the said document has not been proved in accordance with Article 79 of the Qanun-e-Shahadat Order, set aside the well- reasoned judgment and decree of the trial Court through the impugned judgment. The finding of the first Appellate Court on Issues Nos.6 and 7 are not sustainable. He has exercised the jurisdiction not vested in him under the law. Consequently, the same are set aside.
' For all the above discussed reasons, both the civil revisions are accepted, the judgments and decrees dated 25-11-1997 passed by the learned Additional District Judge are set aside. In consequence, the Suit No,122-1 of 1993 of the plaintiff-petitioner Muhammad Iqbal for specific performance of the agreement is decreed with costs and the Suit No,258-1 of 1996, filed by respondent Khurshid Ahmad Pervaiz shall be deemed to have been dismissed with costs.