' SYED SAKHI HUSSAIN BOKHARI, J.---This RSA is directed against the judgment, dated 6-6-1998 passed by learned Additional District Judge, Hafizabad whereby appeal brought by appellants against the judgment and decree, dated 7-4-1993 passed by learned Civil Judge, Hafizabad was dismissed.
2. Relevant facts for the disposal of this appeal are that appellantsfiled suit for specific performance against the respondents and stated that Noora s/o Mehr Dad was owner of suit-land (measuring 50 Kanals situated in Village Harse Atla Tehsil and District Hafizabad) and he agreed to sell the same in favor of appellants for a consideration of Rs,2,00,000 and received Rs,1,95,000 in advance vide registered agreement, dated 25-2-1986 and delivered possession to them. They further stated that Hon'ble Supreme Court of Pakistan had issued stay order, therefore, registered sale-deed was not executed. Later on appellants/plaintiffs paid remaining amount (Rs,5000) to Noora. The stay order was vacated but at that time Noora had died and respondents/defendants are his legal heirs. The respondents failed to get registered sale-deed in favor of appellants, therefore, they were constrained to file suit. Mahla respondent/defendant No,1 mentioned in written statement that suit has been filed with the collusion of defendant No,2 and that nothing was paid to Noora. Also that Noora was an old man and suffering from paralysis. The agreement in question is a forged document. On the pleadings of the parties following issues were framed:--
(1) Whether the plaintiffs and the defendant No,1 entered into an agreement to sell, dated 25-2- 1986 and the defendant No,1 received Rs,1,95,000 as earnest money? OPP
(2) Whether the defendant No,1 received the remaining consideration amount Rs,5000 from the plaintiff? OPP
(3) Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD.
(4) Whether the present suit has been filed in collusion with the defendant No,2? OPD
(5) Whether the plaintiffs are entitled to the decree prayed for? OPP.
(6) Relief.
' The parties adduced evidence in support of their respective claims and after hearing the parties learned trial Court dismissed the suit brought by appellants vide judgment, dated 7-4-1993. The appellants filed appeal thereagainst which was dismissed vide judgment, dated 6-6-1998 passed by learned Additional District Judge, Hafizabad. Hence this appeal.
3. I have heard the arguments and perused the recorded.
4. As mentioned above, Noora son of Mahla was owner of suit-land but he died before institution of the suit. The case of the appellants is that Noora had agreed to sell suit-land in their favor for a consideration of Rs,2,00,000 vide agreement, dated 25-2-1986. However, the case of the respondents is that Noora never agreed to sell suit-land in favor of appellants and that agreement, dated 25-2-1986 is a forged document. The plaintiffs produced. Said agreement as Exh.P-1. The perusal of Exh.P-1 shows that Abdul Ghaffar is scribe whereas Muhammad Nawaz son of Sher Muhammad and Muhammad Akram son of Sher Muhammad are its marginal witnesses. The agreement (Exh.P-1) also shows that Peer Muhammad, Lumbardar, Hafizabad had identified Noora . Before Registrar. However appellants have not examined Muhammad Nawaz son of Sher Muhammad (marginal witness of Exh.P-1) and they examined only Muhammad Akram son of Sher Muhammad as P.W,2. Likewise they have not examined Abdul Ghaffar (Scribe) and Peer Muhammad, Lumbardar in support of their 'version. As stated earlier the case of respondents is that agreement Exh.P-1 is a forged document. So in the circumstances of the case it was necessary for the appellants to examine aforesaid witnesses (Muhammad Nawaz, Abdul Ghafaar and Peer Muhammad, Lumbardar) in support of their case but they have not examined them. As such I find that appellants have failed to produce any worthwhile evidence in support of their case. So their claim is baseless. As such learned trial Court has rightly decided issues Nos. 1, 2, 3 and 5 and dismissed the suit.
5. Learned counsel for the appellants has argued that issues were not framed properly. Learned counsel for the respondents submits that issues were framed in this case on 6-3-1990 but appellants never raised objection before trial Court. He further submits that parties knew about their case and there was no ambiguity, therefore, the contention of the appellants is devoid of force. The case was filed on 27-3-1989 and issues were framed on 6-3-1990 but appellants never raised any such objection before learned trial Court. Even otherwise parties were fully aware about the nature of actual controversy and since the parties had ever opportunity of substantiating their respective contentions, incorrect or non-framing of any particular issue has become meaningless in this case. As mentioned above, appellants have failed to produce any worthwhile evidence in sport of their case. The judgment, dated 6-6-1998 shows that learned Additional District Judge has decided the appeal brought by appellants after appraisal of entire material available on record.
Paras Nos. 8 to 10 of said judgment read as under:-- `(8) Issues Nos.1 and 2 touch the real matter in controversy between the parties. The onus of these issues was placed upon the plaintiffs/appellants to prove that Noora deceased the owner of the suit-land entered into the agreement to sell, dated 25-2-1986 and received Rs,1,95,000 as earnest money and that he also received Rs,5000 as the balance sale amount from the appellants/plaintiffs, Exh.P-1 the impugned agreement to sell is a registered document which was registered in the Office of the Sub-Registrar, Hafizabad on 25-2-1986. It is established principle of law that mere registration of a document in the Office of the Registrar/Sub-Registrar is not sufficient to hold that its execution has been proved when it has been impugned during the pleadings. The impugned agreement to sell Exh.P-1 is stated to have been executed by Noora son of Mehrdad the owner of the suit-land (who has since died). It was incumbent upon the plaintiffs/appellants to prove its execution beyond any shadow of doubt. Neither the stamp vender, who sold out the stamp paper of the said agreement to sell, nor its scribe or the Sub-Registrar have been examined in evidence to prove its execution. The plaintiffs/appellants have examined only one Muhammad Akram as P.W.2 who is the brother-in-law of Muhammad Sharif one of the appellants. No receipt whatsoever has been brought on record showing payment of Rs,1,95,000 the earnest money to Noora deceased. Article 79 of Qanoon-e-Shahadat Order, 1984 provides that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.
(9) This is a document proporting for agreement to sell of the suit-land. Its perusal would reveal that it was allegedly attested by Muhammad Nawaz son of Sher Muhammad and one Peer Muhammad Lumbardar, Hafizabad, who identified the said Noora deceased. Neither Muhammad Nawaz has been examined nor the said Peer Muhammad, in proof of the execution of Exh.P-1. It means that the plaintiffs/appellants have not complied with the provision of law on the subject. It further means that execution of the impugned agreement to sell has not been proved in evidence.
Similarly the payment of the balance amount of Rs,5000 has also not been proved. There is oral evidence on this subject and nothing is brought on recordshowing that the said amount of Rs,5000 was paid to the said Noora deceased against any receipt whatsoever. It was the duty of the plaintiffs/appellants to prove their case under issues Nos.1 and 2 beyond any shadow of doubt and in view of the findings and discussion made above, they have miserably failed in proving it. In this state of affairs, the evidence of the respondent No,1 with regard to the sickness and illness of Noora deceased was not so much relevant to be discussed.
(10) During the course of arguments, the learned counsel for the appellants has drawn my attention towards the wrong form of issues Nos. 1 and 2, whereupon it is stated that instead of Noora deceased the word respondent No,1 has been entered. I have given anxious consideration to this contention and found that it is not fatal to the pleadings of the parties. Moreover the learned Court below has resolved this point in its impugned judgment. During the course of arguments, the learned counsel for the respondent No,1 has also contended that Muhammad Sharif one of the appellants while appearing in this Court on 24-10-1997 has contended that Noora deceased has gifted away the suit-land to them during his life time and they did not pay anything to him. This statement of Muhammad Sharif one of the appellants is also important and note-worthy. It also disproves the contention of the appellants/plaintiffs".
' It is well reasoned judgment. There is no illegality or infirmity in the impugned judgment; therefore, there is no justification to set aside the .Same.
6. For what has been discussed above I am of the considered opinion that this appeal has no force and the same is accordingly dismissed. No order as to costs.