' JAWWAD S. KHAWAJA, J.---Respondents Nos. 3 and 4, namely, Mst. Azizan and Mst. Bismillah have not appeared despite service. They are, therefore, proceeded against ex parte. In any event, it is pointed out by learned counsel for the plaintiffs/respondents Nos. 1 and 2 that the suit of the plaintiffs to the extent of respondents Nos. 3 and 4 has been dismissed by the learned Appellate Court and the said dismissal has attained finality.
2. The facts of the case are simple. The respondents/plaintiffs are the L. Rs, of Muhammad Rashid.
They claim that the predecessor-ininterest of the petitioners, namely, Abdul _Majeed Khan, along with his brother Muhammad Yamin and respondents Nos. 3 and 4, namely, Mst. Azizan and Mst.
Bismillah, had executed an agreement to sell (Exh. P.4), dated 2-4-1962, whereby land measuring 4 Kanals, 14 Marlas was to be conveyed by them to the aforesaid Muhammad Rashid. The agreement was denied by the defendants. The respondents filed their suit for specific performance on 18-3-1990 i,e, more than 18 years after the agreement (Exh.P.4). The reason for delaying the filing of the suit given by the plaintiffs is that an inheritance mutation in respect of Abdul Majeed Khan (predecessor-in-interest of the defendants) had not been sanctioned by them. The defence taken in the written statement was that the defendants had not executed the agreement (Exh.P-4).
3. In the above circumstances, it was for the respondents/plaintiffs to prove the execution of Exh.P.4.
None of the witnesses to the agreement was produced. It was stated that the marginal witnesses to the agreement, other than Meharban Khan Lumberdar, had died. However, no attempt was made to prove the attestation by the witnesses, who had died. Even Meharban Khan, who was alive, was not produced. The reason for his omission was that Meharban Khan had become inimical to the respondents/plaintiffs on account of litigation between them. This still did not preclude the respondents/plaintiffs from having him produced as a Court witness and in the event of his failure to own his signatures; the respondents/plaintiffs could have resorted to other means for proving the same.
4. In the absence of any marginal witness and the failure of the respondents/plaintiffs to prove the attestation of Exh.P.4 through other evidence, it is clear to me that the respondents/plaintiffs have failed to discharge the onus of proof placed on them.
5. The learned Court below, as noted above, has dismissed the suit of the respondents/plaintiffs against Mst. Azizan and Mst. Bismillah(respondents Nos. 3 and 4), but has decreed the suit against the petitioners. Considering that there is no evidence on record to prove execution of the agreement (Exh.P-4), it follows that the suit could not have been decreed even against the petitioners. The reason, prevailing with the learned Courts below for passing the impugned decree against the petitioners, is wholly untenable. As a consequence, the suit of the respondents/plaintiffs stands dismissed in its entirety. The petitioners shall also be entitled to their costs throughout.