JUDGMENT MUHAMMAD MUZAMMAL KHAN, J.- This civil revision assailed the appellate judgment/decree dated 14.6.2001, passed by the learned Additional District Judge, whereby respondent's appeal was accepted and decree of dismissal of suit in favour of the petitioners was reversed.
2. Succinctly, relevant facts are that the respondent filed a suit for possession through specific performance of an agreement to sell dated 26.10.1987, allegedly executed in favour of the respondent and one Muhammad Din, by deceased Akbar who was owner of the suit land, for the claimed sale price of Rs. 80,00(^- out of which an amount of Rs.75,000/- was said to have been advanced as earnest money. As per terms , of agreement, sale-deed was to be executed on 15.1.1990 i.e. After three years of the agreement to sell. The respondent pleaded in his plaint that Akbar deceased at the time of execution of the agreement to sell received the earnest money and handed over the possession of the land under the agreement but subsequently resiled from his part of contract, coercing the respondent to file the suit.
3. The petitioners, who were heirs legal representatives of the deceased Akbar, owner of the suit land, being defendants in the suit, contested the same by filing their written statement and denied execution of the agreement on the basis of which the suit had been filed and also denied receipt of any earnest money, thereunder, It was pleaded by them that Akbar deceased had no male issue on account of which he had been living with the father of the respondent who was not only a close relation of the deceased but was also cultivating his land on "Hissa Padawar". According to the petitioners, deceased Muhammad Akbar was 90 years old and was not in a disposing health, besides the fact that he had no monetary problem for sale of his land whereas in fact respondent, manoeuvred thumb impressions of the deceased when he was on deathbed, It was also in the written statement that in the year 1990 Akbar deceased intended to gift his land in favour of his daughters when the impugned agreement to sell was fabricated to restrict this transaction.
Controversial pleadings of the parties necessitated framing of issues and recording of evidence.
The learned Civil Judge who was seized of the matter, after doing the needful, dismissed the suit of the respondent vide his judgment/decree dated 20.12.2000.
4. The respondent aggrieved of decision by the learned Civil Judge, Kasur, dated 20.12.2000, filed an appeal before the learned Additional District Judge, where he succeeded as his appeal was accepted and the judgment/decree by the Trial Court was set aside, decreeing the suit of the respondent to the extent of his share after paying remaining sale price within three months vide appellate judgment/decree dated 14.6.2001. The petitioners thereafter, filed instant revision petition, which was admitted to regular hearing and has now been fixed for final hearing. The respondent in response to notice by this Court has appeared and was represented through his counsel.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. No doubt the petitioners admitted thumb impression of deceased Akbar over the agreement to sell Ex. P.l but they had specifically denied its execution, receipt of any earnest money and transfer of possession to the respondent under the claimed sale. The respondent who was beneficiary of the agreement Ex. P.l and being close relation of the owner who was admittedly living with them, and thus had a relation of active confidence qua the deceased, after denial of execution of the agreement, wa^ obliged under law to not only prove due execution of the agreement Ex. P.l but also the bargain, transaction inter them, payment of earnest money and delivery of possession under the agreement. Reference in this behalf can be made to the celebrated judgment of Honorables Supreme Court in the case of Janat Bibi Versus Sikandar Ali and others (PLD 1990 Supreme Court 642), Sana Ullah and another Versus Muhammad Manzoor and others (PLD 1996 Supreme Court 256), Hakim Khan Versus Nazeer Ahmad Lughmani and 10 others (1992 SCM R 1832), Mst. Rashida Begum and 3 others Versus Muhammad Yousaf and others (PLJ 2002 SC 706). The ' respondent in order to discharge onus shifting towards him simply produced two marginal witnesses of the agreement and the stamp vendor of Ex. P.l who rendered support to the case of the respondent but could not deny the relation of Akbar with the respondent that of grand-father who had only two daughters, without any male issue. Respondent himself appeared as PW.l and deposed that marginal witnesses of the agreement were Muhammad Mansha and Siraj Din in whose presence bargain was struck and payment was made in the shape of one thousand notes. According to him, Akbar and the marginal witnesses used the same inkpad for their thumb marks on the agreement. He denied the age of Akbar as 90 years, which was said to be of 75 years of age. PW1 admitted that Akbar was not ready to execute the sale- deed instantly and for this reason, period of three years was mentioned in the agreement for its performance, PW.2 Muhammad Mansha is brother-in-law of the respondent and marginal witness of the agreement. He stated' that Akbar received Rs. 75,000/- as earnest money and handed over" possession of the land to the respondent. PW.4 Muhammad Siraj who is a chance witness had deposed that at the time of bargaining he was present. The respondent and one Muhammad Din purchased the suit land who paid Rs. 75,000/-to Akbar.
Petitioners in order to rebut the stance of the respondent produced two witnesses. DW.1 Muhammad Yaqoob was their special attorney whereas ' DW.2 Muhammad Hayat rendered support to the case of the petitioners that Akbar was of 90 years of age and he was sick with his weak eye sight and was at the mercy of Nawab etc. i.e. Father of the respondent who was cultivating the suit land. This was the entire evidence on the file from which it is clear that father of the respondent was cultivating the land of Akbar and he being without any male issue, washing with him. Both the parties attempted to prove the age of the deceased as per their own case but even if age given by the respondent is accepted even then a man with ailing health, weak physic/eye sight, in the normal course of events, will not be considered, a man who could take any decisive step of his own and that too, regarding parting away with his immovable property.
Respondent did not produce any independent evidence about his bargain with the deceased Akbar and statements of the marginal witnesses Muhammad Mansha and Siraj who were related to the respondent, was not enough to conclude that the said old man who was dependant on the meals of respondent and his family, really entered into any transaction of sale. Both PWs 2 and 4 narrated different demand allegedly made by deceased Akbar at the time of bargain and their depositions are self- contradictory and are in conflict to the case set up by the respondent in his plaint. Deceased Akbar was an old/ailing man with weak eyesight but he was not proved to have provided any independent advice. His daughters or sons-in- law were not associated in the claimed bargain. Deceased was living at the mercy and meals of the respondent but no independent witness of the village was produced to show transparency of the asserted bargain, In the circumstances of this case, it was not beyond comprehension that thumb impression of late Akbar might had been taken when he was not in senses because ink used for the thumb impressions of the marginal witnesses and that of Akbar is different. I am of the considered view that PW.4 was a tutored witness who came in the witness-box out of his relation with the respondent and as a matter of fact, no deal ever took place or the alleged agreement to sell was executed/inscribed in his presence. PW.3 Sh. Muhammad Ayub is the stamp vendor, who in spite of being himself a petition writer, did not inscribe the same, leaving it for Sh. Riaz Ahmad, Petition Writer, to inscribe it without any explanation. PW.3 admitted that he had issued the stamp paper of Ex. P.l, in the name of respondent and the entry on its back with words "etc." was not in his handwriting. Sh. Riaz Ahmad the scribe of Ex. P.l was not produced, thus, I have no doubt that by only statements of PWs.2 and 4, Ex. P.l, was not proved to have been executed by Akbar deceased.
6. File is absolutely thirsty of the proof as to why the co-vendee of the respondent i.e. Muhammad Din soh of Dara who had allegedly purchased a part of the land, measuring one kanal and two marlas out of the suit land alongwith the respondent, was not produced in order to prove that a fair deal was struck with the deceased Akbar. Withholding of Sheikh Riaz Ahmad scribe and Muhammad Din co-vendee from examining them as witnesses on behalf of the respondent, was not meaningless and presumption under law, would be that had they come to witness-box, they must have deposed against him. There is also no explanation of any kind to the effect that bulk of the sale pride i.e. Rs. 75,000/- out of Rs. 80,000/- was claimed to have been paid to Akbar and then why execution of sale- deed was deferred for long three years and then as to why respondent felt satisfied on execution of mere an agreement which was said to have been inscribed in Courts premises and was not got registered though it was not compulsory but should have been got for giving authenticity and legal colour to the transaction. The respondent also could not satisfy Court's judicial conscience about the fact that Akbar deceased was putting up with his family and after receiving a bid amount of Rs. 75,000/- in the year 1987 where did he invest that amount or deposit the same. At the same time, necessity of sale by Akbar deceased was also not brought to light. As against statement of PW.l, agreement Ex. P.l was thumb marked with different inkpads.
8. As regards stance of the respondent that Akbar deceased after receiving the earnest money handed over to him the possession of the suit land under his asserted sale transaction, as part performance of the agreement, documentary evidence on the file, in form of khasra girdawari Ex.
D.2 and Ex. P.2, revealed that the land owned by Akbar was in cultivating possession of Nawab and Sarwar as his tenants since 1987. These entries continued till Kharif 1991 when possession of the respondent was shown in Ex. P.2. Besides the. Fact that one of the tenants Nawab was father of the respondent, possession of the respondent in Kharif 1991,- clearly negated his claim of taking over of possession of the suit land under the agreement, in its part performance. These discussed documents, left no room to hold that Akbar ever delivered possession after entering into sale agreement with the respondent but a contrary view taken by the learned Additional District Judge is not only presumptive/conjectural but is also opposed to the documentary evidence on the file.
Appellate Court in the impugned judgment while dealing with the points evolved by the learned Civil Judge, answered each of those by saying that those have no material effect but all these questions regarding relationship of the marginal witnesses with the respondent, tampering of entry at the back of the stamp paper, non-delivery of possession under the sale as per entries in Ex. D.2 and Ex. P.2 and treating the PW.3 Sh. Muhammad Ayub as scribe of the documents, were material questions, touching the merits of the case and had substantial reflections on the conclusions so drawn. Appellate Court fell in error in assuming that the execution of Ex. P.l was proved through evidence of PW.2 Muhammad Mansha and PW.4 Muhammad Siraj. I am unable to contribute to the appellate view for the simple reason that evidence on the file was grossly misread and the assumptions drawn were opposed to the record. I have already observed in the fore-going paragraphs that PW.2 the marginal witness of Ex. P.l was husband of respondent's sister and thumb mark of Akbar thereover was alleged to have been secured while he was not in senses. Law regarding proof of documents, escaped notice of the Appellate Court and it also did not examine the responsibility of the respondent to prove the document and the transaction reflected there, on the basis of which he had filed suit of which he was beneficiary thus, its judgment which was found to be un-necessarily at variance to that of the trial Court, cannot be maintained.
9. For the reasons noted above, the impugned appellate judgment dated 14.6.2001 is illegal/void being tainted with material irregularity/illegalities, hence, by accepting instant revision petition, the same is set aside with the result that the judgment/decree dated 20.12.2000, by the learned Senior Civil Judge, Kasur, will stand revived resulting in dismissal of the suit of the respondent with costs, through-out.