The suit for the specific performance brought by Khadim Hussain/predecessor-in-interest of Respondent No, 1 to 10 against the petitioner and Respondent No, 11 Nazar Muhammad, has been allowed by the learned trial Court vide judgment and decree dated 23.7.1996. Appeal of the petitioner has failed on 26.6.1999.
2. Briefly stated the facts of the case are, that Nazar Muhammad Respondent No, 11, was the owner' of the suit land measuring 14-Kanals situated at Mauza Kot Qazi Tehsil Kamoki District Gujranwala.
He, through a Sale Mutation No, 421 dated 21.2.1989 sold the said land in favour of the Petitioner/Defendant No,
2. At the relevant time, the possession of the land was with Khadim Hussain/the plaintiff. It is the case of the petitioner that Khadim Hussain was a tenant of the property. Anyhow, said Khadim Hussain claiming that Nazar Muhammad through an earlier agreement to sell dated 9.10.1988 had agreed for the sale of the same land to him for a consideration of Rs, 25,000/- out of which Rs, 20,000/- were received by him as earnest money, whereas for the payment of balance consideration of Rs, 5,000/-, 14 months time i,e, till 3.12.1989 was granted to the plaintiff, when the sale was to be finalized. But according to Khadim Hussain/the plaintiff, Nazar Muhammad failed to fulfil his obligation under the agreement and had sold the property in favour of the Petitioner/Defendant No, 2, therefore, he on 20.1.1990 brought the suit for the specific performance impleading the petitioner as a defendant and also impugning the sale in his favour. It is interesting to note, that Nazar Muhammad, in his written statement, conceded the agreement to sell in favour of the plaintiff Khadim Hussain/predecessor-in-interest of Respondents Nos, 1 to 10 and also pleaded that no sale was made in favour of the petitioner through Mutation No, 421 dated 21.2.1989, which according to him was the result of fraud and misrepresentation. However, in Paragraph No, 4 of the written statement, he averred that he is prepared to finalize the deal in favour of the plaintiff, after the cancellation of the Mutation No, 421, for which, he asserted to take appropriate legal action, but did not do so. The Petitioner/Defendant No, 2, in his written statement, denied the execution of the agreement to sell and claimed it to be back dated and also collusive between the plaintiff and Nazar Muhammad.
3. Issues were framed; he parties were put to trail. In order to prove the agreement to sell (Ex.P.1), the respondent/plaintiff examined PW-2 Ch. Muhammad Afzal Bhatti, Advocate, the alleged scribe of the document. PW.3 is Muhammad Ashraf, the marginal witness, whereas the other two marginal witnesses of the document (Ex. P.1) have not been examined. On the conclusion of the trial, the learned Civil Judge held that as the agreement to sell has been admitted by Nazar Muhammad, hence, the admitted facts need no proof; therefore, no dispute remains qua the proof and the execution of agreement and the receipt of earnest money of Rs,20,000/-. About the validity of the sale mutation in favour of the petitioner, it is held that because of the findings on Issue No, 1, and in view of the assertion of Nazar Muhammad in his written statement challenging the same on the basis of fraud etc, the mutation has lost its legal value. The findings upon the issue of bonafide purchaser were also returned against the petitioner and resultantly, the suit was allowed. The petitioner preferred an appeal, but without any success and the findings of the trial Court have been affirmed more or less for the same reasons, hence this revision petition.
4. Learned counsel for the petitioner has argued, that according to the law, an admission of a co- defendant is not binding upon the other and this rule shall squarely apply to the present case, because: the petitioner, who had an independent right to challenge the sale agreement, took a clear stance, that the said agreement is back-dated and is the result of fraud and collusion between the plaintiff/respondent and Naza Muhammad, therefore, the agreement should have been proved against the petiti9ner in accordance with law. In this context, it is submitted that according to Article 79 read with Article 17(2) of the Qanun-e-Shahadat Order, 1984, for the purposes of validity and the proof of the execution of an agreement envisaging future contractual obligation, the instrument is required to be attested and proved by two witnesses, in the instant case, the other alleged marginal witnesses of Ex. P.1, have not been examined; PW-2 Ch. Muhammad Afzal Bhatti, Advocate, is only the alleged scribe of the document, but is not an attesting witness, therefore, his statement car not be considered to meet the mandatory requirement of Article 17(2) and 79 of the Order ibid. Thus, the findings of the two Courts below, even concu rent, about the validity and the proof of the agreement (Ex. P.1), canna be sustained.
5. I have hard the learned counsel for the parties. The two Courts below infact have basically relied upon the admission of the responclant Nazar Muhammad about the execution of the agreement to sell. But according to the settled law, an admission of a co-defendant is not binding upon the other. This rule, in my view, shall more stringently be applicable to the present case, because the petitioner had already purchased the suit property from Nazar Muhammad and a mutation in this behalf had been attested in his favour. Through, Nazar 'Muhammad, in his written statement, as a defendant, had denied the sale and asserted to challenge it in appropriate proceedings, but he never did so. Therefore, for all intents and purposes, throughout the petitioner possessed the legal title to the suit property and had every right to defend and protect this rights as lawful owner thereof. Nazar Muhammad when had ostensibly transferred his interest and rights in the suit property in favour of the petitioner, and never challenged the alienation independently before any forum, except setting up the defence in this case, his admission about the execution of Ex. P.1, cannot be received as an admission binding the petitioner, being a co-defendant of the case.
Reliance in this behalf can be placed upon Saleem and another vs. Malik Jalal-ud-Din and 7 others (NLR 1983 AC 11). Therefore, despite the admission of Nazar Muhammad in the circumstances of the case, when the petitioner has denied the execution and attestation of Ex. P.1 and claimed it to be the result of fraud and collusion between Nazar Muhammad and the respondent Khadim Hussain, it was incumbent upon the plaintiff to have proved the valid execution and attestation of Ex. P.1.
6. Now coming to the question, if the valid execution and the attestation of Ex. P.1 has been proved.
According to Article 17 of the Qanun-e-Shahadat Order, 1984, an agreement of sale regarding immovable property, which falls within the purview of the above article, requires compulsorily attestation by two witnesses. Article 79 of the Order ibid., ordains that it a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses are called for the purpose of proving its execution. From the collective reading of these two articles, it was absolutely essential for the respondent to have examined at least two attesting witnesses of the agreement to sell, in order to prove its execution, but he only examined Muhammad Ashraf as PW.3, whereas two other marginal/attesting witnesses of the document namely Samar Hussain and Muhammad Arif have not been examined and no reason for this lapse has been propounded. The argument of the respondent's counsel, that Ch. Muhammad Afzal Bhatti, Advocate who has scribed the document and has signed Ex. P.1, has appeared as P.W.2 and deposed about its due execution, therefore, he should be considered to be the other attesting witness of the instrument, has no force for the reason that the Article 17(2) has two fold application, when exclusively and independently considered and applied, it only confines, relating to the validity of an instrument/agreement; thus, such an instrument, which falls within the mischief of this Article, but is not attested by the two witnesses, notwithstanding any admission of the opposite party about its execution, still its validity and enforceability can be called in question and the rights and obligations arise out of an agreement can be avoided on account of its failure to meet the mandatory requirements of the law. The present case does not fall within the above category as ostensibly Ex. P-1 is attested by three witnesses; however, the other application of Article 17 is when it is read together with Article 79, which provides that a document, if required by law, to be attested, it shall not be used as a evidence until two attesting witnesses are called for the purposes of proving its execution, in this status Article 17 is providing the basis and is the source of attracting Article 79, as it is the law requiring the compulsorily attestation of the instrument. Thus in a case, where the execution of a document is in issue, it is essential and mandatory upon the person relying upon the document to examine two of the attesting witnesses. Reliance in this behalf can be placed upon the following judgments, holding:-- Abdul Khaliq vs. Muhammad Asghar Khan and 2 others (PLD 1996 Lahore 367).
"The appellant to prove this document should have examined.at least two of attesting witnesses whereas he only examined one attesting witness namely Qaisar Iqbal DW-1. The document, therefore, was not proved in accordance with law. The same has to be excluded from the consideration."
Muhammad Yaqoob and others vs. Naseer Hussain and others (PLD 1995 Lahore 395).
"In order to prove such document plaintiff has to call at least two attesting witnesses and if the document is not proved in accordance with law it has to be excluded from consideration."
Mst. Rasheeda Begum and others vs. Muhammad Yousaf and others (2002 SCM R 1089).
"The agreement to sell in Civil Appeal No, 1348 of 1996 was executed on 18.3.1991 and attested by Muhammad Rafiq and Muhammad Sarwar. Having been executed after promulgation of the Qv nun-eShahadat Order, 1984 its execution ought to have been proved in accordance with Article 79 (ibid) but the evidence on record coi.sists of only one attesting witness. Payment of earnest money has also not been proved on record. The evidence produced by the appellant does not meet the requirements of Article 79 of the Qanun-e-Shahadat Order, 1984."
7. From all the above decisions, it is undoubtedly clear that, where a document is required by law to be attested, as an agreement to sell immovable property is, by two attesting witnesses, it has to be proved by examining such number, otherwise, the document is not proved and even if it has been admitted in evidence in the statement of one of the witnesses, yet it cannot be used. In this case, the petitioner has only examined one attesting witness and there is no explanation as to why the two others have not been produced or summoned through the process of the Court, to testify about the attestation and the execution of Ex. P.1, by Nazar Muhammad. The submission that PW.2 Ch. Muhammad Afzal Bhatti, Advocate, who scribed the document, should be considered to be the second attesting witness, suffice it to say that there is no bar in law that the statement of a scribe can never be considered as being that of a person witnessing the execution. But, in my firm view, this is subject to two very basic conditions. Firstly, that the scribe should also have signed the document as an attesting witness and if that is not so, it must be proved on the record that at the time when the document was executed, he was present and not only witnessed the execution by the executants, but also the attestation by the required number of witnesses. Secondly, that the witnesses, whom the parties have chosen as the attesting witnesses, with the obvious intention, that in case of dispute about the execution, it is they, who shall testify in this behalf, but for inevitable and the circumstances, beyond the control of the parties, cannot be examined. Except fulfilling the second condition, it shall be impermissible for a party, to examine the scribe as a substitute for the attesting witness, who shall not be considered as an attesting witness in terms of Article 79, with the consequences to follow. Besides, the principles of withholding the best evidence could also be attracted against the defaulting party.
8. Besides, Muhammad Afzal Bhatti, Advocate (PW-2) in his statement, has not stated that he signed the document as an attesting witness, rather specifically deposed that it was as {{URDU TEXT}}" therefore, his statement has no much evidentiary value in the light of the following judgment, which provides: Altaf Hussain Shah vs. Nazar Hussain Shah (2001 YLR 1967). 'A party relying upon a document which is denied by the opposite party must prove its execution in accordance with law. In such a case the rule of best evidence has to be' followed and if such best evidence is not produced, the standard of proof required to prove the document shall be lacking."
Furthermore that "The statement of the scribe has no, evidentiary value as he has signed it merely as a scribe and not as a witness. Ordinarily, the. scribe writes out the document and signs his name before the executant signs the document. It is, therefore, not proper to treat the scribe as an attesting witness."
Further reliance in this behalf can be ,placed upon Mst. Fatima Bibi vs. Mst. Nasim Akhtar and others (2000 YLR 2953).
9. Therefore, the nutshell of the above discussion is, that the PW-2, admittedly has not signed the document as an attesting witness; he does not qualify the above specified criteria, which to my mind, is sine qua non for a scribe to be an attesting witness; and his statement had no much evidentiary value. Resultantly, on account of the above, it can be safely held that Ex. P.1 was not proved in accordance with law.
10.In addition to the above, I also feel it expedient to hold that the petitioner had resisted the suit and challenged the agreement to sell specifically alleging it to be back-dated, and the result of collusion between the plaintiff and Nazar Muhammad. Thus, in such circumstances, the plaintiff should have produced further corroborative evidence, such as by summoning the relevant record/register of stamp vendor, alongwith the vendor to establish that the stamp paper for the purpose of the agreement was purchased on or before 9.10.1988, so as to eliminate the possibility and the doubt that the document was antedated. This has not been so done and the omission has not been explained. Moreover, the document is allegedly shown to have been scribed by an Advocate and not as professional deed-writer, in my view, it was probably done to avoid the difficulty, that if it was scribed by .a deed-writer, the incorporation in his requisite record was required, which 'register has page-marking and carries serial numbers. Whereas, a lawyer is not supposed to maintain any such record and can conveniently claim, the writing of a document on a particular date, without there being any independent and corroborative proof about the date on which it was actually written.
Both the Courts below have glaringly ignored these important aspects, which tantamount to misreading and non-reading of the record, and the ignorance and misapplication of law, therefore, such judgments and decrees cannot be sustained, especially in the light of the facts that the respondent/plaintiff could not prove the agreement to sell in accordance with law and the admission of Nazar Muhammad has no effect upon the rights of the petitioner, who admittedly had purchased the property from Nazar Muhammad. Moreover, Nazar Muhammad, though in the written statement, lad asserted to challenge this sale, but never did so, through any proceedings and therefore, the sale as against Nazar Muhammad remains intact. Resultantly, by setting aside the judgments and decrees of the two Courts below, the suit filed by the plaintiff/respondent against Nazar Muhammad for the specific performance staSids dismissed. The revision petition is accordingly allowed.