' MIAN SAQIB NISAR, J.---The appellant has lost his cause of the specific performance at the trial, as also the appeal stage, hence this second appeal.
2. Brief facts of the case are that on 25-4-1984, the appellantbrought a suit for the specific performance against the respondents claiming, that respondent No,1 through an agreement, dated 7-4-1979 (Exh.P.1) agreed to sell him the suit house for a total consideration of Rs,1,20,000 out of which, Rs,90,000 was paid to the said respondent at the time of execution of the agreement, whereas upon the payment of the balance amount of Rs,30,000 within a period of three years, the respondent was obliged to finalize the transaction in his favour after obtaining the non- encumbrance certificate. It is the case of the appellant, that he had served the respondent with a legal notice (Exh.P.3), askinghim to finalize the deal, but no reply to the same was given and in the situation, the appellant also went to the office of the Sub-Registrar on the date given in the notice, where the respondent did not turn up; the application moved by the appellant before the Sub- Registrar for marking his presence is Exh.P.5. Respondent No,1 denied the execution of Exh. P.1 as an agreement to sell and propounded the defence that his son had in fact obtained his thumb impression upon some blank document and that too for the purpose of the security to be given to the appellant for and that he never agreed to sell the suit house to the appellant. On account of the pleadings of the parties, the following issues were framed:--
(1) Whether the suit is time barred? OPD
(2) Whether the suit is under valued, if sc, to what effect and what is correct valuation? OPD.
(3) Whether the defendant has duly executed the agreement to sell, dated 7-4-1979, for a consideration of Rs,1,20,000?
(4) Ifissue No,3 is proved in affirmative, then whether the plaintiff is entitled to specific performance on ground that agreement and all promise? OPP.
(5) Whether the contents of impugned document are forged and fabricated? OPD.
(6) Whether the defendant is entitled to special costs? OPD.
(7) Relief.
3. The parties were put to trial. The 'appellant examined Jahangir Hussain as P.W.1, who is not the marginal witness of Exh.P1, however, hedeposed that the transaction of sale was negotiated and entered into between the parties in his presence and the consideration of Rs,90,000 was also paid to the respondent. P.W.2 Umar Din, who again is not the marginal witness, has deposed the same as P.W.1, whereas P.W.3 Muhammad Hanif is the scribe of the agreement to sell and P.W.4 is the appellant himself. The appellant has tendered in evidence Eh.P.1, the sale agreement, and Exh.P.2 is the original copy of the sale-depd, which according to the plaintiff was handed over to him at the time of the sale agreement by the respondent; Exh.P.3 is the legal notice; Exh.P.4 is the postal receipt of the notice and Exh.P.5 is the application marking the presence of the appellant before the Sub-Registrar. As against the above, the respondent examined his son Muhammad Tariq as D. W.1 and himself appeared as D.W.2. The suit of the appellant was dismissed by the learned trial Court, as he failed to prove the agreement to sell inaccordance with law and his appeal has also failed.
Hence, this second appeal.
4. Learned counsel for the appellant has argued that both the Courts below have misread the evidence on the record in concluding that the agreement to sell has not been proved by the appellant, because on account of the statements of P.W.1 to P.W.3, it is conclusively established that respondent No,1 had agreed to sell the suit house and executed Exh.P.1. By putting his thumb impression upon the document; it is also stated that in paragraph No,2 of the written statement, respondent No,1 has admitted his thumb impression upon the agreement to sell, but took up the plea that this was with regard to the security, which his son had to give to the appellant, that he thumb marked the document, but this version has not been proved through any independent evidence.
5. Heard. There is a concurrent finding of facts recorded by the two Courts below that the appellant has failed to prove the agreement to sell.. I myself have considered the evidence and find that both the marginal A witnesses of the document have not been examined and thus, Exh. P.1 is not proved as required by Article 79 read with Article 17(2) of the Qanun-e-Shahadat, 1984. The - case of the appellant that one of the marginal witnesses of the document is D.W.1, the son of the respondent, therefore, he could not be examined from the appellant's side, suffice it to say that when this witness appeared in the Court, the document (Exh. P.1) has not even been put to him. As regards the other marginal witness namely Muhammad Javed is concerned, there is no explanation as to why he was not examined. More important statement in this case is that of P.W.3, the scribe of the document, who though in his examination-in-chief, has stated that the document was attested by the witnesses in his presence, but he admitted that respondent No,1 did not thumb marked Exh. P.1 before him, because the said respondent was not there. This deposition of P.W.3 is in direct contradiction of the statements of P.W.1 and P.W.2 and, therefore, the entire case of the appellant stands demolished.
6. The argument, that respondent No,1 has admitted his thumb impression on Exh.P.1., therefore, it was not required to be proved in accordance with the law and through the marginal witnesses.
Suffice it to say that mere appendage of the thumb impressions/signatures of a person upon a document is not the due proof of its execution, where the defence taken is that it was not so thumb marked/signed as it purports to be; thus, in such a situation, before the onus is shifted upon the defendant who denies the due execution of the disputed document, it remains the duty of the plaintiff to prove in positive terms that it was executed as it is purported; both the Courts below have formed the view that the appellant has failed to discharge this basic burden of the proof and I share such a view. Moreover, the respondent has only stated in the written statement that he thumb marked some blank document, but never admitted that it was with the intention for the sale agreement (Exh. P.1), therefore, the so called admission, would not improve the case of the appellant, so as to exonerate him from the responsibility of the document upon which he has sued upon. It is the appellant upon whom the onus was, to establish the valid execution of the agreement to sell, but he failed, therefore, I am not inclined to interfere in the second appeal with the concurrent finding of facts recorded by the Courts below, holding that the agreement to sell has not been proved by the appellant.
7. As regards the submission of the respondents' side that while passing the impugned judgment and decree, the learned appellate Court had directed the appellant to make up the deficiency of the court-fee amounting to Rs,9000 and this amount has not so far been paid by him, therefore, there was no appeal before the first appellate Court and this appeal too should be dismissed on that account. It is held that as the matter is being dismissed on merits and the above amount of the Court fee has been directed by the learned lower appellate Court, to be recovered from the appellant as the arrears of land revenue, therefore, I am not inclined to dismiss the appeal for the lapse in payment of the amount of the court-fee.
In the light of above, I do not find any merit in this appeal, which is hereby dismissed.