JUDGMENT JAWWAD S. KHAWAJA, J.- Mst. Noor Jan (respondent No. 3) has been served but none has appeared on her behalf despite service. She is, therefore,' proceeded against ex-parte. In any event, respondents Nos. 1 and 2, who were the plaintiffs in the case, have not assailed the appellate decree dated 17.10.2001, whereby their suit has been dismissed to the extent of Mst. Noor Jan.
2. The facts of the case are straightforward. The respondents/plaintiffs are the sons of Muhammad Rashid. They filed a. Suit seeking specific performance of an agreement (Exh. P-1) dated 2.4.1962, purportedly executed by the petitioner Muhammad Yaqoob and his mother Mst. Noor Jan (respondent No. 3). The suit was filed on 18.3.1990 i.e. Almost 18 years after the alleged execution of the agreement (Exh, P-1).
3. The reason given in the plaint and in the agreement for not conveying the land, was that inheritance mutation in respect of the estate of Ishaq, deceased brother of the. Petitioner and son of respondent No. 3, had pot been sanctioned. Learned counsel for the petitioner has pointed out that the said mutation of inheritance bearing No. 54 was duly sanctioned on 17.4.1962. Muhammad Rashid (predecessor-in-interest of the plaintiffs) was a Patwari and also uncle (chacha) of the petitioner. He is the one in whose presence the inheritance mutation was sanctioned, In the circumstances, it is quite obvious that even if the agreement (Exh. P-1) had been proved, the suit for specific performance was time-barred.
4. Even otherwise the agreement has not been proved because none of the marginal witnesses to the same were examined by the respondents/plaintiffs. It was stated that the marginal witnesses to the agreement, other than Meharban Khan Lumberdar, had died. However, no attempt was made to prove the attestation by the witnesses, who had died. Even Mehraban Khan, who was alive, was not produced. The reason for this omission was that Meharban Khan had become inimical to the respondents/plaintiffs on account of litigation between them. This still did not preclude the respondents/plaintiffs from having him produced as a Court witness and in the event of. His failure to own his signatures, the respondents/plaintiffs could have resorted to other means for proving the same.
5. In the absence of any marginal witness and the failure of the respondents/plaintiffs to prove the attestation of Exh. P-1 through other evidence, it is clear to me that the respondents/plaintiffs have failed to discharge the onus of proof placed on them.
6. The learned Court below, as noted above, has dismissed the suit of the respondents/plaintiffs against Mst. Noor Jan (Respondent Nos. 3), but has decreed the suit against the petitioner.
Considering that there is no evidence on record to prove execution of the agreement (Exh. P-1), it follows that the suit could not have been decreed even against the petitioner. The reason, prevailing with the learned Courts below for passing the impugned decree against the petitioner, is wholly untenable. As a consequence, the suit of the respondents/plaintiffs stands dismissed in its entirety. The petitioner shall also be entitled to his costs throughout.