Hamid Ali Mirza, J.--This civil petition for leave to appeal is directed against judgment dated 18.4.2005 in Civil Revision No, 844-D of 1987 passed by learned Single Judge of the Lahore High Court, Multan Bench, Multan, whereby the said civil revision was allowed setting aside the judgment and decree dated 1.11.1987 of the learned Additional District Judge, Khanewal and restoring the judgment and decree dated 16.7.1987 passed by Civil Judge, Khanewal, whereby the suit of the petitioners/plaintiffs for specific performance of agreement to sell of the suit property was dismissed, hence this petition for leave to appeal.
2. Brief facts of the case are that the predecessor-in-interest of the petitioners filed suit for specific performance of agreement to sell dated 2.9.1966 in respect of the half of Western side of Shop No, 4/4-A situated in Main Bazar Mian Channu. The predecessor-in-interest of the petitioners, Shaam Din entered into an agreement to sell to the predecessor-interest of the respondents Sharf Din son of Sheikh Baban a Shop No, 4/4/1 in consideration of Rs, 15,000/- out of which Rs, 12,000/- was paid as earnest money and the rest of the amount was to be paid at the time of the execution of the sale-deed which was to be executed after obtaining the PTD by Sharaf Din, the predecessor-in- interest of the respondents. Possession of the shop was alleged to have been delivered. The suit so filed was contested by the respondents/defendants which after framing of issues and recording of evidence of the parties and hearing their counsel, was dismissed vide judgment and decree dated 16.7.1987 by the Civil Judge, 2nd Class, Khanewal. The petitioners/plaintiffs Muhammad Rafique & others preferred an Appeal No, 128/13 of 1987 before the District Judge Khanewal which was passed on to the Additional District Judge, Khanewal who heard the appeal and allowed the same vide judgment and decree dated 1.11.1987. The respondent/defendant Sharaf Din through his L.Rs preferred Civil Revision No, 844-D of 1987 before the Lahore High Court, Multan Bench, Multan which was heard by learned Single Judge and was allowed vide impugned judgment, thereby restored by judgment and decree of the trial Court dated 16.7.1987.
3. We have heard learned counsel for the parties and perused the impugned orders and the record.
4. Learned counsel for the petitioners submitted that learned Single Judge of the Lahore High Court without appreciating the evidence on record and assigning any reason set aside the well- reasoned judgment passed by First Appellate Court on the basis that the marginal witnesses of the agreement to sell were not produced by the present petitioners in evidence when one marginal witness Abdul Wahab had already died at the time of recording of evidence and other marginal witness was infirm and aged 90 years, hence could not be produced by the petitioners/plaintiffs in evidence. She further submitted that remaining evidence produced by the petitioners/plaintiffs, the scribe of document Ex.P-1, PW-2 Abdul Rahim the councilor who identified the parties, PW-3 Abdul Ghani, the marginal witness of Ex. P-2, receipt in respect of sum of Rs, 3,000/- allegedly bearing signature of Sharaf Din, predecessor-in-interest of respondent, PW-4 Ali Muhammad, alleged tenant of the petitioners/plaintiffs and the rent deed Ex. P-4 to P-5, proved that the agreement to sell Ex. P-1 was duly executed by the predecessor-in-interest of the respondents Sharaf Din. She further submitted that learned Single Judge has erred in holding that evidence' on record was not sufficient to prove the case of the petitioners/plaintiffs when parties had entered into an agreement to sell and sum of Rs, 12,000/- was paid and thereafter sum of Rs, 3,000/- was passed on to predecessor-in-interest of respondents the PTO holder who later on joined his brother Ibrahim in the PTD when the possession of half partitioned shop was also delivered to the petitioners' predecessor-in-interest Shaam Din who allegedly gave the shop to his tenant Ali Muhammad on rent. She further submitted that agreement to sell was executed in the year 1966 and suit was filed on 8.10.1979 whereas PTD was issued to the predecessor-in-interest of the respondents on 14.3.1979 and the agreement to sell was to be executed after six months of obtaining PTD. She further submitted that marginal witnesses in the instant case were not necessary to be examined as Article 79 of the Qanun-e-Shahadat would not apply in the instant case considering that the agreement to sell was executed long before the enforcement of Qanun- e-Shahadat as it was to come into force from 28.10.1984 the date of publication of notification in the official gazette.
5. Learned counsel for the respondents submitted that agreement to sell Ex. P-1 and the alleged receipt Ex. P-2 were not provided to have been executed by Sharaf Din, the predecessor-in-interest of the respondents so also consideration was also not proved to have been paid to the predecessor-in-interest of the respondents; and further that learned Single Judge has rightly on proper appreciation of evidence allowed the civil revision, thereby rightly set-aside the judgment and decree of the Additional District Judge restoring the judgment of the Civil Judge, whereby suit of the petitioners/plaintiffs was dismissed.
6. We do not find merit and substance in the contentions and submissions of the learned counsel for the petitioners.
7. Admittedly the petitioners/plaintiffs had filed suit for specific performance on the basis of agreement to sell Ex. P-1, therefore onus heavily laid upon him to prove sale agreement. It may be mentioned that proof of such agreement would be sine quo non for decreeing the suit. It may further be observed that though Article 79 of the Qanun-e-Shahadat would not be applicable as the agreement was allegedly executed in the year 1966 but in view of Article 78 of the Qanun-e- Shahadat the document of sale agreement allegedly said to have been signed by the respondents' predecessor-in-interest will have to be proved to be in his hand writing under the said provision of Qanun-e-Shahadat. In the said respect learned counsel for the petitioners/plaintiffs has examined PWs Faqir Hussain, Abdul Rahim, Abdul Ghani and Ali Muhammad, whereas the respondent/defendant Sharaf Din has examined himself as DW-4, DW-1 Sheikh Abdul Rashid, DW-2 Mazaruddin, DW-3 Muhammad Ilyas and DW-5 Muhammad Ibrahim.
The petitioners/plaintiffs have to prove agreement of sale Ex. P-1 to have been signed by the respondents' predecessor-in-interest Sharaf Din and further that amount of consideration was also paid to him. We have gone through the entire evidence on record minutely. PW Faqir Hussain is said to be scribe of Ex. P-1, the sale agreement, who deposed that the said sale, agreement was written under the instructions of the respondents Sharaf Din who had signed the document and register but the main question in the instant case on denial of execution of the alleged executant Sharaf Din would be as to whether the said document was in fact executed by the said Sharaf Din and who identified him. In the said respect, PW-1 scribe in the cross-examination admitted that he did not know the said respondents' predecessor-in-interest Sharaf Din or any witness to the document Ex. P-1, who further stated that no one identified the said respondents' predecessor-in- interest Sharaf Din. He also stated that no amount was paid in his presence and further no document of title was shown in respect of the property in dispute by the respondents' predecessor-in-interest to him. PW-2 Abdul Rahim in cross-examination stated that he had identified the respondents' predecessor-in-interest Sharaf Din deceased as it was asked by the petitioners' predecessor-in-interest, deceased, who had brought him from Mian Channu. He in the cross-examination could not give the name of the father of respondents' predecessor-in-interest Oharaf Din and stated that he knew him only as a refugee and nothing more and did not know any thing about their children or family. He has no business dealing with him. He also stated that no money was passed on by the petitioners/plaintiffs in his presence. These are the only two witnesses examined by the petitioners' predecessor-in-interest in support of Ex. P-1 sale agreement. From the perusal of the testimony of the two witnesses it would be observed that both PWs were not knowing personally the respondents' predecessor-in-interest/defendant which fact they have admitted in their cross-examination and further consideration of amount of Rs, 12,000/- stated in the alleged agreement was also denied to have been passed on to Sharaf Din, the predecessor-in-interest of the respondents, therefore both witnesses falsify the testimony of the petitioners/plaintiffs' predecessor-in-interest that agreement Ex. P-1 was executed by Sharaf Din and that an amount of Rs, 12,000/. as paid to the predecessor-in-interest of the respondents. One could presume from the above evidence either the predecessor-in-interest of the petitioners has deposed falsely and has produced the forged and fabricated agreement or that PW-1 Faqir Hussain and PW-2 Abdul Rahim were not present at the time of alleged agreement and have deposed at the instance of the petitioners' predecessor-in-interest.
8. It is true that provision with regard to examination of marginal witnesses as contained in Article 79 of the Qanun-e-Shahadat would not be applicable in the instant case, considering the date of the execution of the alleged agreement to sell but in view of Article 78 which reads: "78. Proof of signature and handwriting of person alleged to have singed or written document produced.--If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his hand-writing?
In view of above provision of law the onus was on the petitioners predecessor-in-interest to have proved the execution of alleged sale agreement Ex. P-1 to have been signed by the predecessor- in-interest of the respondents consenting Sharaf Din as a consenting party thereto. The execution of document Ex. P-1 consists in signing, written out and read over and understood and would not consist in merely signing a name upon a blank paper sheet, so the petitioners' predecessor-in- interest had to prove the Ex. P-1 was executed as required by law in order to prove the document i,e, agreement to sell Ex. P-1 identify of the executant must be known to the person before whom the document is alleged to have been executed. PW-1 and PW-2 do not depose that they knew the executant predecessor-in-interest of the respondents and further no consideration was paid in their presence to the respondents' predecessor-in-interest. The document does not prove itself; nor is an unproved signature on it prove of its having been written by the person whose signature it purports to bear. According to provision of Article 78 of the Qanun-e-Shahadat if a document is alleged to have been signed or have been written by any person, the signature or writing must be proved to be in that person's handwriting or signature. The petitioners' predecessor-in-interest, the plaintiff, was expected to produce best evidence available to prove Ex. P-1, the alleged sale agreement. The statement made in the cross-examination by the above PWs falsify the contents of alleged agreement Ex. P-1 to sell as they denied that money sum of Rs, 12,000/- to have been paid by the petitioners' predecessor-in-interest to the respondents' predecessor-in-interest Sharaf Din.
9. Ex. P-2 is the alleged receipt of sum of Rs, 3,000/- in support of which PW-3 Abdul Ghani was examined by the petitioners/plaintiffs. It may also be stated that admittedly the PTD was in the name of Sharaf Din and his brother Muhammad Ibrahim, the respondents' predecessor-in-interest but the alleged agreement Ex. P.-1 is allegedly signed by only Sharaf Din, the predecessor-in- interest of the respondents. It is settled principle of law that buyer should be beware. It was the duty of the petitioners' predecessor-in--interest that he should have before buying seen the title of the respondents' predecessor-in-interest Sharaf Din, whether he had a valid legal title to sell the disputed property solely. It may also be stated that PTO even if assumed to have been issued only in the name of respondents' predecessor-in-interest, but copy of which has not been produced by the petitioner/plaintiff's predecessor-in-interest on record to show that if was solely in the name of Sharaf Din, the predecessor-in-interest of the respondents. Presumption under law would be as the PTD was issued in the names of same persons in whose favour PTO was issued but this fact of the case has not been attended to by the petitioners' predecessor-in-interest, the plaintiff had to bring reliable evidence to prove the fact that on the basis of PTO he had agreed to purchase the suit property from the only PTO holder Sharaf Din which fact petitioners' predecessor-in-interest failed to prove, whereas PTD produced indicated that it was issued in favour of both bothers while Ex. P.1 was admittedly not executed by co-owner Muhammad Ibrahim who being not party to Ex. P1 was not bound by it which also falsified the evidence of the petitioners.
10.On perusal of the testimony of the PWs examined would show that their testimony is not worthy of credence and reliable so also confidence inspiring considering statements made in their cross- examination where they have shown ignorance about the executant whom they should have known before putting signature on the alleged sale agreement in respect of person said to have executed the document in favour of the predecessor-in-interest of the petitioners.
11.Besides above, as observed, that reliable and confidence inspiring material has not been brought on record by the petitioners to show that Ali Muhammad, the alleged tenant was inducted by them after entering into agreement to sell the disputed property considering, evidence of the respondents' predecessor-in-interest that Sharaf Din had inducted the son of the petitioner Muhammad Rafique as tenant who had subsequently sublet the said shop to Ali Muhammad and all the documents produced in support of tenancy could not corroborate or prove the contents of Ex. P.1 the alleged sale agreement.
12.It may also be observed that PTO is a provisional one and it has not conferred permanent right or title in favour of the person in whose favour it was issued, therefore, the said agreement was contingent upon the issuance of PTD. The PWs examined showed their ignorance on material questions as observed by the learned Single Judge in its judgment, which lead to conclude that their testimony is not reliable and they do not carry any credence to be believed.
13.We find that the learned Single Judge of the Lahore High Court has rightly arrived at the conclusion that the learned Additional District Judge has misread the evidence on record which has led to wrong finding therefore learned Single Judge was competent and possessed jurisdiction to reverse the finding of the Additional District Judge, Khanewal which was based on misreading and non-appreciation of evidence on record in accordance with law. We do not find any legal or factual infirmity with the impugned judgment, therefore this petition has no merit, consequently leave to appeal is declined and the petition is dismissed.