' MUHAMMAD KHALID ALVI, J.---Brief facts of the case are that respondent filed a suit for specific performance of agreement dated 2-9-1986 against Sarfraz Khan predecessor-in-interest of the present appellants on 26-5-1987. The appellants contested the suit while taking the plea of total denial. After recording evidence of the parties, the learned trial Court decreed the suit vide judgment and decree dated 13-5-1992. It was assailed by the appellant through an appeal which was dismissed vide judgment and decree dated 2-6-2004. Both these judgments and decrees are being assailed through the instant R.S.A. .2. It is contended by the learned counsel for the appellant that respondent was duty bound to have produced both the attesting witnesses of Exh.P.2 which is the disputed agreement to sell. Out of the two Muhammad Ayyub one of the attesting witnesses has not been produced, therefore, keeping in view the provisions of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 the said document cannot be used in evidence. It is next argued that scribe of the said document i.e. P.W.4 Allah Ditta Naseem has also not signed the said document. It is further argued that payment of sale consideration/earnest money has also not been established on record.
3. On. The other hand, learned counsel for the respondents with reference to 2001 SCMR 1541 contends that the question involved in the instant case are one of fact which have been concurrently found against the appellant, therefore, this Court has no jurisdiction to interfere in the disputed questions of fact in second appeal. It is next submitted that the respondents have successfully discharged the onus keeping in view the issues framed by the trial Court by producing all the witnesses of documents so as to establish the fact of execution of disputed agreement to sell and payment of sale consideration. It is also added that all the material evidence was thoroughly scanned by the two Courts below, therefore, even if this Court has different view from the one taken by the two Courts below concurrently, it is not within the scope of second appeal enumerated in section 100 of the C.P.C.
4. I have considered the arguments of the learned counsel for the parties.
5. P.W.4 stated that Exh.P.2 was written by him. At the foot of the document following words are written:- {{URDU TEXT}} which of course is also in his hand. These words can safely be termed as his signatures.
6. So far the objection of the learned counsel that second attesting witness Muhammad Ayyub was not produced, suffice it to say that it is now well-settled that scribe of a document before whom the attesting witnesses have also signed the document can be safely treated as an attesting witness, therefore, both these objections of the learned counsel for the appellant are without any substance.
7. Through the evidence the appellant has tried to establish that transaction between the parties originated w.e.f. 4-2-1984 when the first sale agreement Exh.P.1 was executed. According to this agreement, land measuring 96 Kanals was agreed to be sold for a consideration of Rs.3,20,000 out of which a sum of Rs.2,30,000 was paid as earnest money. Thereafter a second agreement Exh.P.2 was executed between the parties on 2-9-1986 in which land measuring 112 Kanals was agreed to be sold for a total sale consideration of Rs.4,20,000. Reiterating the earlier payment of Rs.2,30,000 through agreement dated 4-2-1984 further payment of Rs.1,00,000 was also mentioned in the said document while a balance of Rs.90,000 was to be paid at the time of registration of the sale-deed.
There is a reference of the earlier agreement dated 4-2-1984 in Exh. P . 2 .
8. It is thus evident that transaction between the parties originated on 4-2-1982 when the agreement Exh. P.1 was executed and the second agreement Exh.P.2 is merely a continuation of the earlier transaction. This material fact that there existed any agreement dated 4-2-1984 was not pleaded by the respondent in their plaint, therefore, no amount of evidence regarding this fact could have been allowed to be led and even if led cannot he taken into consideration. If the evidence available on file with regard to the earlier agreement dated 4-2-1984 is taken out of consideration, the entire case stand demolished, because the payment of earnest money is also divided in two segments, first of Rs.2,30,000 under the first agreement and second of Rs.1,00,000 under the second agreement. It is also to be noted that the fact of payment of earnest money has also not been properly pleaded in the plaint. It is admitted in para.1 of the plaint that appellant had acknowledged the receipt of Rs.3,30,000 before the witnesses when the agreement dated 2-9-1986 was executed. Meaning thereby that fact of actual payment and that too in two instalments has not been pleaded. Unfortunately this aspect of the case escaped sight of both the Courts below which is going to the root of the case.
9. For what has been stated above, this appeal is allowed, judgment and decrees of both the Courts below are set aside. Resultantly suit filed by the respondents shall stands dismissed.