' JAWWAD S. KHAWAJA, J.- Liaqat Ali and others, appellants-defendants impugn the concurrent decrees of the learned trial Court dated 27-5-1999 and of the learned appellate Court dated 13-6- 2005 whereby a suit filed by the respondents- plaintiffs seeking specific performance of agreement (Exh.P.3) dated 15-1-1979 has been decreed.
2. Learned counsel for the appellants has firstly, argued that only one of the two marginal witnesses, namely, Muhammad Sharif appeared as P.W.3. The other marginal witness, namely, Muhammad Din was not examined by the respondents- plaintiffs and there is no explanation appearing on the record for this omission. On this basis, it was contended that the agreement was not proved.
3. Learned counsel for the respondents-plaintiffs, however, submitted that the agreement (Exh.P.3) having been executed on 1'5-1-1979, the provisions of Articles 17 and 79 of the Qanun-e-Shaliadat Order were not applicable for proving the same. Secondly, he drew the attention of the Court to the testimony of Fazal Karim (P.W.4), who was the scribe of the agreement. He stated that Muhammad Din, who was Lumberdar of the village, had died. In the circumstances, there is a reasonable explanation on the record for. Non-production of Muhammad Din, who was one of the marginal witnesses to the agreement.
4. Secondly, it was argued by learned counsel for the appellants that a perusal of Exh.P.3 would show that the name of Fazal Karim as the scribe was added later in the left margin of the document. This assertion was made on the basis that the concluding word "al-marqoom" appears at the bottom of the page and indicates that the document ended there. The two names appearing in the left margin showing Fazal Karim to be the scribe and Allah Loke (P.W.6) were added subsequently to support the case of the respondents-plaintiffs. Here it may be added that Fazal Karim appeared as P,W.4 while Allah Loke appeared in rebuttal as P.W.6.
5. I have considered the above contentions and note that the same are not well founded. The first line appearing in the left margin of the agreement (Exh.P.3) is in the same hand and ink as the agreement itself. It is also apparent that the margin of the stamp paper had to be used because there was insufficient space on the paper, At this point, it may also be noted that the written statement submitted by Haji (predecessor-in-interest of the appellants) is the ambiguous as to the execution of the agreement. In paragraph 2, it has been averred by Haji that he did not put his thumb impression on the agreement. However, at the same time, an averment has been made that if the thumb impression of Haji appears on the document, the same was obtained by the respondents-plaintiffs through fraud. No particulars of the fraud have been pleaded as required by Order VI, rule 4, C.P.C. In these circumstances, the concurrent findings of the learned Courts below that the agreement had been executed by Haji cannot be interfered with.
6. Thirdly, learned counsel for the appellants drew the attention of the Court to the reasoning appearing at page 7 of the appellate judgment wherein certain conclusions have been drawn by the learned appellate Court from suggestions put to Muhammad Sharif (P.W.3). According to the appellate Court, these suggestions make it clear that the thumb mark of the vendor Haji (predecessor-in-interest of the appellants) was admitted by the appellants- defendants. The conclusion arrived at by the learned appellate Court does not necessarily follow from the suggestion put to P.W.3. However, in the circumstances noted above, this conclusion has no material bearing on the outcome of the case. The learned Courts below have correctly held that execution of the agreement stood proved.
7. In the above circumstances, I find the impugned decrees to be unexceptionable. Furthermore, learned counsel for the appellants was unable to show the existence of any of the grounds mentioned in section 100, C.P.C. To justify interference in the impugned decrees. This appeal is, therefore, dismissed.