MUHAMMAD SAIR ALI, J.--- The appellants as the successors in interest of late Talib Hussain s/o Rehmat Ali were sued by the respondent Raja Mushtaq Ahmad to claim possession of the suit property through specific performance of the agreement to sell dated 25.04.1989 (Exh.P-1) purportedly made by late Talib Hussain in favour of the respondent. It was pleaded that in receipt of Rs.95,000/- through a written receipt dated 25.04.1989 (Exh.P-2) as the earnest money out of the agreed sale price of Rs.1,20,000/-, late Talib Hussain executed the above agreement to sell the land measuring 8 kanals and 18 marlas to the respondent with the stipulations as to the registration of the sale deed by 20.11.1989 upon receipt of the balance. And that Talib Hussain passed away on 04.06.1989 where after the appellants as his successors in interest avoided and then refused to honour the agreement.
2. The appellants in their contesting written statement denied the agreement (Exh.P-1) and the receipt of money (Exh.P-2) by late Talib Hussain. Nine issues were framed by the learned trial Judge. Issues No. 6 to 8 respectively related to the execution of the agreement and the receipt, plaintiffl's willingness to perform his part of the agreement and his entitlement to the decree prayed for.
3. The respondent as the plaintiff produced PW-1 to PW-4 as the witnesses and Exh.P-1 to Exh.P-9 including the agreement to sell (Exh.P-1) and the receipt (Exh.P-2) as the documentary evidence.
Contrarily, the appellants as the defendants produced DW-1 to DW-3 as the witnesses and Exh.D-1 to Exh.D-12 as the documentary evidence to support their case.
4. The learned 'trial Judge, Faisalabad through -1 judgment and decree dated 23.02.1993 dismissed respondent's suit primarily finding issues No.6 to 8 against the respondent-plaintiff.
5. Respondent's appeal was accepted by the learned Addl. District Judge, Faisalabad through the judgment and decree dated 16.07.1995. The judgment and decree of the learned of the trial Judge was set aside.
Respondent's suit was decreed. Hence the present second appeal in which the record was requisitioned.
6. The learned counsel for the appellants contended that the learned first Appellate Court not only misread and excluded from consideration the evidence in record but also failed to deal with and meet the cogent reasons recorded by the learned trial Judge. Further that bare reading of the depositions of PWs alongwith the cross-examination proved non-existence and non-execution of the purported agreement to sell by late Talib Hussain and forgery of his signatures upon the alleged agreement and receipt and despite claiming to have paid the heavy earnest money, the respondent failed to obtain possession or registration of agreement to sell (Exh.P-1). Further that as admitted by the purported marginal witnesses (PW-1 and PW-2), the agreement was not made in their presence nor did they know late Talib Hussain. And that even the stamp vendor was not produced while the scribe appearing as PW3 clearly deposed that he did not know late Talib Hussain. And also that all the PWs wrongly described late Talib Hussain. Further that PW-1 (a student) and PW-2 were unable to specify the time, date and place of the execution of the agreement but instead categorically admitted their ignorance about the `sodda'. Further contended that PW-3; the scribe also admitted that he was not a licensed petition writer and that the 'sodda' did not take place in his presence and he also mis-described the age etc. Of late Talib Hussain and admitted that he would not be able to recognize Talib Hussain. Further that he did not produce the document register to prove entry of the agreement (Exh.P-1) and the receipt (Exh.P-2) which he purportedly wrote. And that the plaintiff while appearing as PW-4 admitted appellant No.1 Munir Hussain to be purportedly present alongwith his late father at the time of execution of the agreement yet Munir Hussain's signatures were not obtained on the agreement as a witness though the strangers were added as the marginal witnesses. And also that it was an urban land falling within the city of Faisalabad which was shown to have been sold for a meager consideration though revenue documents produced in evidence disproved the credence of the price claimed by the respondent plaintiff.
7. In the contrary arguments, the learned counsel for the respondent-plaintiff submitted that in absence of any misreading or non-reading of evidence or commission of a material irregularity, this Court could not enter into reappraisal of evidence and was bound to accept the findings of the learned first Appellate Court even if the same were erroneous. And that as observed by the learned first appellate Court, the production of marginal witnesses and the scribe proved the agreement and the receipt beyond any doubt and the minor errors or omissions and discrepancies or contradictions were negligible. Further that the documentary evidence read alongwith the evidence of PWs was enough to prove the existence and execution of the agreement and the receipt of money by late Talib Hussain. And that the criminal case of the agreement qua the forgery of the agreement to sell and receipt was cancelled at investigation stage and non- production of stamp vendor was unimportant in presence of the scribe and the marginal witnesses. And that the impugned judgment of the learned first Appellate Court did not suffer from any legal infirmity or jurisdictional error to deserve interference in the second appeal.
8. The submissions of the learned counsel for the parties as well as the record have been examined. The principal litigated issue was Issue No.6 which was also determinative of Issues No.7 and 8. The learned trial Judge decided all the three issues against the respondent plaintiff. The learned first Appellate Court setting aside the findings of the learned trial Judge re-decided these issues in favour to the respondent-plaintiff and thus decreed his suit. These issues read as under:- "6. Whether Talib Hussain deceased agreed to sell the suit land against consideration of Rs 1,20,000/-, received 95,000/- as earnest money and executed agreement to sell and receipt dated 25.04.1989? OPP
7. Whether the plaintiff has been ready and willing to perform his part of agreement to sell? OPP
8. Whether the plaintiff is entitled to decree for specific performance of agreement to sell dated 25.04.1989, if so on what condition? OPP"
9. The learned first Appellate Court in the impugned judgment and decree decided the above issues in favour of the respondent-plaintiff, precisely on the basis that:-
(i) Mashooq Ali; PW-1 and Amjad Rashid; PW-2 were the marginal witnesses of the impugned agreement (Exh.P-1) and also of the receipt (Exh.P-2) and they admitted to have signed the same, wherefor, the existence and execution of the agreement to sell (Exh.P-1) and the receipt (Exh.P-2) stood proved beyond any doubt. And the omissions or contradictions in the statement of both these witnesses occurred because of four months' delay in the examination in chief and the cross-examination respectively held on 16.09.1991 and 19.01.1992, wherefor, the learned trial Judge committed illegality in relying these contradictions;
(ii) PW-1 and PW-2 admitted during the cross- examination that only the earnest money of Rs.95,000/- was paid to late Talib Hussain by the respondent-plaintiff in their presence "and the agreement was never settled in their presence." This admission persuaded the learned trial Judge to consider evidence of PW-1 and PW-2 as untrustworthy as to the agreement to sell (Exh.P-1). But "it is fantastic to observe that if the agreement was not settled in their presence then what prompted the plaintiff to pay Rs.95,000/- in their witness to the vendor. The grounds given by the learned Court below to disbelieve the testimony of both PW-1 and PW-2 in illogical, contrary to reason and prudence";
(iii) Zaman Alvi; the scribe of Exh.P-1 and Exh.P-2 was produced as PW-3 and photo copy of the identity card of late Talib Hussain was annexed with the agreement to sell, wherefor, both the agreement to sell and the receipt were duly proved by the respondent plaintiff. The recitals of agreement (Exh.P1) and the receipt (Exh.P2) also manifestly proved the sale;
(iv) "The plaintiff has proved the execution of the document by, primary evidence as envisaged under section 79 of the Qanun-e-Shahadat, 1984, by producing the marginal witnesses... ... .."; and
(v) The statement of the scribe in the cross- examination regarding Talib Hussain's age of 36 to 38 years was not enough to disbelieve, his testimony and to presume that a person other than Talib Hussain was produced before the scribe at the time of execution of the agreement to sell.
10. The learned Additional District Judge while pronouncing the impugned judgment and decree appears to have been impressed by the fact that the respondent-plaintiff produced the alleged marginal witnesses and the scribe -as PW-1 to PW-3 wherefor the disputed agreement to sell (Exh.P-1) and the receipt for the earnest money (Exh.P-2) stood proved and the legal requirements of proof of the execution of a document were fulfilled in terms of Article 79 of Qanaun-e-Shahadat Order, 1984.
This observation needs to be examined upon rereading of the provisions of Article 79 ibid prescribing that:- "79. Proof of execution of document required by law to be attested.--- If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will. Which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
11. In the present case, the documents i.e. The agreement (Exh.P-1) and the receipt (Exh.P-2) were denied by the appellants to have been executed by the executant I .e. Late Talib Hussain. Issue No.6 was thus struck. Burden thereof was placed upon the plaintiff-respondent. To discharge the burden, the respondent-plaintiff produced PW1 and PW-2 being the purported attesting witnesses of the documents and also the scribe as PW-3. The respondent-plaintiff thus calling these witnesses met the first legal requirement of the above referred Article that "a document required by law to be attested, shall not be used as evidence until two attesting witnesses have been called". The production of the attesting witnesses therefore made the disputed documents admissible and usable as evidence. This did not however absolve the plaintiff of the onus to prove the actual execution of the said documents by the executant. Mere admissibility of the documents as evidence was not ipso facto the proof of their execution. Admissibility of the documents in evidence or their usability as evidence carried legal connotation, meaning and exercise different from proof of the execution of such documents through evidence. On admission by the attesting witnesses of their signatures or marks on the documents, the contested documents became usable as evidence. The due execution of such documents was however to be proved by the attesting witnesses through their depositions i.e. The examination-in-chief as well the cross- examination etc. The statements made by the attesting witnesses were therefore the most relevant evidence to establish the execution of such documents and not the mere production of the attesting witnesses.
12. The learned first Appellate Court considered production of PW-1 and PW-2 in the witness-box as the adequate evidence of the existence and execution of Exh.P1 and Exh.P-2. It was thus observed in the impugned judgment that "the plaintiff has proved the execution of the document by primary evidence as envisaged under Article 79 of he Qanun-e-Shahadat, Order 1984. He has put in the witness-box two attesting witnesses." This observation was an outcome of the superficial and mistaken reading of Article C.L.R.
79 ibid. The learned first Appellate Court was thus content not to examine and analyze the depositions of the alleged two attesting witnesses and the scribe (PW-1 to PW-3). It in-fact ignored the second mandatory requirement of Article 79 of Qanun-e-Shahadat Order, 1984 that the two attesting witnesses were to be called for purpose of proving the execution of the document(s). The Court was not to blindfoldedly accept only presence of the attesting witnesses as proof of the existence and execution of the contested documents because under Article 79, the object of producing the two attesting witnesses was two fold:-
(i) To make the document usable and admissible as evidence; and
(ii) To prove the execution of such document.
15. The omission of the learned Addl. District Judge to discuss the depositions of the attesting witnesses as PW-1 and PW-2 or that of the scribe as PW-3 amounted to failure of the Court to apply its mind and to determine the material issues in accordance with the law. The impugned judgment and decree-dated 16.07.1995 cannot, therefore, be sustained and is consequently set aside.
16. The learned Civil Judge, Faisalabad in his judgment and decree dated. 23.0.1993 dealt with, discussed and evaluated the statement of PWs 1, 2 and-3 (the marginal witnesses and the scribe) as under:- "The onus to prove this issue was on the plaintiff. Mashooq Ali appeared for plaintiff as PW-1 and he deposed during his examination-in-chief that agreement was settled in his presence, but he has admitted during the cross- examination that agreement was never settled in his presence and only payment was made in his presence. Amjad Rashid PW-2 has deposed during examination-in- chief that agreement was settled in his presence, but he also admitted during his cross- examination that agreement was never settled in his presence and only payment of Rs.95,000/- was made in his presence. So it is observed that both PW-1 and PW-2 have adduced no evidence as far as factum of agreement is concerned."
AND "It is also observed that both PWs are not reliable witnesses because in their examination-inchief they have contended that agreement reached in their presence, but during cross examination they have admitted that the agreement was never reached in their presence.......... 17 AND `Zaman who contended to be scribe of this Exh.P-1 has deposed that age of Talib Hussain was 36/37/38 years on the other hand other' PWs have contended the age of Talib Hussain to be 60/65 years and it is observed that tnere is a great difference in the appearance of man who is of 36 years and 60 years, is it is observed that Talib Hussain was not present at the time of alleged execution of Exh.P-1 and some other person was brought for the forgery of Exh.P-1 and story narrated by PWs is cock and bull story."
AND `The onus to prove the execution of agreement between the parties was on the plaintiff and agreement was totally denied by the defendants, so ... ... Must had applied for the comparison of signatures of Talib Hussain with his admitted signatures on National Identity Card which is also on the file and this comparison may had resolved the controversy between the parties but plaintiff has failed to make any effort in this regard, so the presumption in this situation can only be drawn against the plaintiff and it is observed that he has withheld what could have been his best effort and evidence to prove his case."
17. The learned first Appellate Court also did not attend to or discuss or deal with the above reproduced reasoning of the learned trial Judge. The learned first Appellate Court thus also failed to decide the appeal completely and effectively in terms of the settled principles of law.
18. On threadbare reading of the evidence of the parties and the relevant provisions of law, it is held that the learned Civil Judge, Faisalabad correctly and validly concluded on the basis of due and proper evaluation of evidence in his judgment and decree hated 23.02.1993 that the respondent- plaintiff was unable to prove the execution of the agreement to sell (Exh.P-1) and the receipt (Exh.P- 2)
19. In view thereof, this appeal in accepted. The impugned judgment and decree dated 16.07.1995 of the learned Addl. District Judge, Faisalabad is set aside. The judgment and decree dated 23.02.1993 of the learned Civil. Judge, Faisalabad dismissing respondent's suit is restored. The parties are left to bear their own costs.
RSA Accepted.