' HAMID FAROOQ DURRANI, J.---The facts relevant for the purpose of appeal in hand are that appellant brought a suit against respondents on 1-9-2001 before the learned Civil Judge, Oghi. The claim in the plaint included decree for specific performance of. Agreement regarding sale of property comprising 3/4 share out. Of 73 kanals, 11 marlas situated in village Malhar, Tehsil Oghi, District Mansehra and also for cancellation of Mutation No.834 attested on 21-12-2000. In the alternative recovery of Rs.18,53,146 was sought against the respondents.
2. It was, inter alia, mentioned in the plaint that plaintiff and defendant No.1 belonged to the same area while the later was being trusted by the former due to his piety and righteousness. The defendant offered some land situated in Bahawalpur to the plaintiff and in the said regard received money at different intervals. In the meantime, the defendant also got prepared revenue papers in the name of the plaintiff which prompted the latter to pay an amount of Rs.18,53,146 to the former in toto. That later the plaintiff came to know that the revenue papers handed ,over to him were manipulated by the defendant and that he was defrauded of his huge amount in the garb of sale price for landed property. Resultantly, the plaintiff intended to file complaint against the defendant upon which latter executed a promissory note for the suit amount in addition to an Agreement entitling the former for transfer of immovable property, detailed in the heading of plaint, in case of default of stipulated payment. Further, it was claimed, the defendant would execute the requisite mutation/transfer deed in the said regard. The B ' property promised to be transferred was, however, mutated as a gift by defendant No.1 in favour of defendants Nos. 2 to 5 through Mutation No.834 attested on 21-12-2000. The said fact, when came into the knowledge of the plaintiff, provided him the cause of action against the B defendants. Along with the plaint copies of deed, promissory note and legal notice etc. Were appended.
3. The defendants Nos. 1, 3 and 5 entered the proceedings through filing their common written statements on 21-1-2002 while the respondents Nos. 2 and 4 filed a joint written statement on 7-2- 2002. The learned trial Court was thereafter pleased to formulate the necessary issues. In the meanwhile, upon an application of the plaintiff under Order XVIII, Rule 16, C.P.C., the statement of Muhammad Yaqoob son of Hassan Ali P.W.1 was recorded on 31-1-2002, as the said witness had to proceed to Karachi where he normally resided. It was on 13-11-2002 that the defence of defendants was closed by invoking the provisions of Order XVII, Rule 3, C.P.C. And the suit was decreed through detailed issue wise judgment.
4. The matter was brought before this Court in appeal by the defendants which was allowed and the suit was remitted to the learned trial Court upon setting aside the impugned decree. The defendants were ordered to produce all their witnesses on 28-6-2003 before the learned trial Court. A cost of Rs.10,000 was also imposed upon the defendants in the process. The required evidence was produced and the learned trial Court was pleased to dismiss the suit on 9-9-2003.
' Aggrieved therefrom the plaintiff/appellant has brought the appeal in hand praying for reversal of impugned decree in his favour.
5. Syed Sajjad Hassan Shah, learned counsel for the appellant, contended that the witness Muhammad Yaqoob appearing as P.W.1 turned hostile against the appellant and gave a statement which was in contrast to the documentary evidence available on record. In spite, the witness did not deny his signatures on promissory note (Exh.P.W.3/2) or on the deed (Exh.P.W.3/1). The learned counsel in the said regard also referred to the specimen signatures obtained by the learned trial Court and stated that those were perfectly identical, therefore, the same could not have been legally denied by the witness. It was further argued that the scribe of both the exhibits was duly produced by the plaintiff before the Court who, while appearing as P.W.3, was subjected to lengthy cross-examination. This witness, coupled with the other marginal witness Malik Taj Muhammad (P.W.7) of the two documents, sufficiently fulfilled the requirements of attesting witnesses for a deed under the law. Backing out of P.W.3 Muhammad Yaqoob would, therefore, did not affect the proof of the said documents. It was further stated by the learned counsel that the defendant No.1 himself did not care to appear in the witness box and stand the test of cross-examination or at least to deny the execution of promissory note as well as the agreement to sell. In the circumstances, the deeds in question were presumed to be admitted. While referring to the contents of plaint, reading in juxta position to the contents of deed Exh.P.W.3/1, it was stated that the plaintiff had disclosed all the material facts and was not required to have stated the insignificant minute details. The plaint in the said backdrop was firm and legal.
' While adverting to the question regarding admissibility of deed Exh.P.W.3, in spite of its being unregistered, the learned counsel referred to section 17 of Registration Act, and stated that the deed being an Agreement to sell no rights of ownership were transferred thereby, therefore, the same was not necessarily registrable. In the said regard he also referred to the provisions of section 50 of the Act ibid and maintained that the document in question was admissible in evidence and did not suffer from legal infirmity.
' Speaking about the promissory note Exh.P.W.3/2, the learned counsel contended that the plaintiff/appellant was not obliged to prove the passing on of consideration for execution of the said note in the light of provisions contained in section 118 of the Negotiable Instruments Act. It was, therefore, erroneously held by the learned trial Court that the said instrument was without consideration. He further stated that it was proved on record that the plaintiff had financial strength to pay the disputed amount to the defendant, besides, the consideration for sale could be paid through any manner or mode. In his .View, the discrepancies regarding the mode of payment as mentioned in the plaint and deed Exh.P.W.3/1, inter se, were not material and, therefore, did not cast any adverse influence upon the claim of the appellant. In support of his arguments the learned counsel relied on 1990 SCMR 1259, PLD 1991 Lahore 400, 2001 SCMR 1992, 2006 YLR 2247, 2007 CLD 114, NLR 1994 AC 661, 2006 SCMR 1347, 1999 MLD 3214, 1996 CLC 741, 1979 SCMR 465, 2001 CLC 653, PLD 1986 Quetta 232, PLD 1983 Karachi 99, 2006 CLC 1680, CLC 1993 Lahore 257, PLD 1983 SC 344, 2005 MLD 261, 1986 SCMR 306, 2001 SCMR 1700, MLD 1991 Lahore 1576, 2006 SCMR 1927, PLD 1988 Karachi 460, PLD 1972 SC 25, PLD 1986 SC 35, 1997 SCMR 837, PLD 1971 SC 516, 2003 MLD 292, PLD 1985 Lah. 637, 1998 CLC 1608, PLD 1977 SC 109, PLD 1979 Lahore 41 and 1990 CLC 1014.
' Learned counsel while referring to Exh.P.W.6/2 contended that the issuance of a cheque for Rs.18,53,146 by defendant No.5, one of the sons of defendant No.1, was an evidence towards the acknowledgement of payments made in favour of defendant by the plaintiff. The said cheque was however dishonoured, therefore, could not be realized by the appellant.
6. Mr. Muhammad Rafique Yousaf Advocate appeared on behalf of the respondent and argued that the appellant squarely failed to prove his case before the learned trial Court. Referring to the contents of plaint the learned counsel stated that there were marked contradictions between the text of promissory note, the deed and the plaint. In the circumstances, it was obligatory upon the plaintiff to have proved his claim in the light of Exh.P.W.3/l and Exh.P.W.3/2. It was also contended that the preparation of revenue papers regarding land at Bahawalpur was not attributable to the defendants while through the evidence it was proved that the same were procured by the plaintiff himself. The plaintiff/appellant failed to produce any cash book or ledger of accounts before the trial Court although he claimed to be a person carrying on large business and had supplied the building material to the defendant worth the claimed amount. In the absence of such accounts the suit amount could not be claimed. Withholding of goods evidence, if available, would only negatively affect the plaintiff's claim, the learned counsel maintained.
' Speaking about merits of evidence produced by the appellant, it was contended that the statement of P.W.1 Muhammad Yaqoob was recorded in pursuance to application of the appellant wherein it was specifically stated that the said witness had a pivotal role in the matter. The witness, on the other hand, did not support the claim of appellant. Similarly, scribe of the deed and the pro note, appearing as P.W.3, also clearly admitted that the parties or the witnesses were not personally known to him, therefore, this deposition could not be stretched in favour of the appellant.
' The learned counsel also referred to the relevant part of evidence and stated that there were contradictions in the statement of plaintiff regarding handing over of disputed cheque to him, besides, no evidence was led to substantiate the fact that the said cheque was dishonoured. It was also asserted that the break up of claimed amount with regard to dates of payment and the beginning or end of transactions towards the sale of building material, also did not find mention in the pleadings or the evidence brought forth by the appellant.
' It was also the contention of learned counsel for respondents that the appellant, as a plaintiff, was to prove his case on the strength of evidence both oral as well as documentary, and was bound by the statements of his witnesses. The appellant failed to do so in addition to remaining at a loss in providing all the material facts through the plaint. It was maintained that the documents, relied upon by the parties, were to be proved through witnesses even if not objected to by the other side.
In his view, the plaintiff did not succeed in substantiating his ambiguous claim, therefore, he was rightly non-suited by the learned trial Court. In support of his arguments the learned counsel relied on PLD 2004 SC 860, 2002 CLC 22, 2006 CLC 666, 2006 SCMR 470, 2006 MLD 1262, 1984 CLC 2663, 2005 SCMR 152, 2002 CLC 88, 2002 CLC 960, PLD 2006 Lahore 48, 1994 MLD 656, 2005 SCMR 135, 2006 CLC 35, 2004 MLD 341, 1992 MLD 2515, 2005 MLD 190, 2004 CLC 546, 2005 CLC 1751, PLD 2003 Pesh. 49, 2002 CLC 557, 2006 CLC 546, 2004 SCMR 578, 2005 MLD 1954, 2006 CLC 571, 2006 SCMR 690, 2003 CLC 733, 2001 CLC 1727, PLD 2003 Pesh. 90 and 2006 SCMR 562.
7. The perusal of record shows that the plaintiff/appellant has withheld in the plaint the factum of supply/sale of building material to respondent No.1 and the said respect accumulation of the suit amount against him. Mere mention of sale of landed property at Bahawalpur by the defendant is noted as disputed transaction in the plaint. In contrast to the said fact the deed Exh.P.W.3/1 would suggest that it related to a loan (Qarz-e-Hasna) transaction amounting to Rs.18,53,146 between the parties. It was specifically mentioned that the entire noted amount was received in cash by the respondent. In furtherance of his commitment the defendant/respondent had undertaken to transfer his landed property at `Malhar' in the event of failure to pay back the disputed amount. The appellant, while appearing as P.W.6, stated in clear terms that the respondent used to visit his shop and took different amounts from him whereafter he purchased building material including steel and cement for the construction of his house in the village. When the amount, payable by the defendant, accumulated to a great extent the appellant demanded for its return whereupon the defendant agreed to transfer his property at Bahawalpur. Ultimately, the respondent executed Exh.P.W.3/1 and. Exh.P.W.3/2 in presence of witnesses who also attested the, said two documents.
These witnesses included Muhammad Yaqoob P.W.1 and Malik Taj Muhammad P.W.7.
' The statement of P. W.1 Muhammad Yaqoob would be worth perusal in the above context. This witness was examined under the provisions of Order XVIII Rule 16, C.P.C., who categorically stated that he signed blank paper and not the deed. The witness also denied his signatures on the promissory note. P.W.7 Malik Taj Muhammad admitted his signatures on the two deeds, however, the preparation and signing of the documents by the parties was not done in his presence.
Similarly, the signing of deeds by P. W.1 Haji Yaqoob was also not done before him. The witness clearly admitted that no cash transaction was ever made by the parties in his presence. The statement of P.W.3 Muhammad Luqman, Petition-Writer, would also be relevant in the said regard.
In his examination the witness only admitted the scribing of two documents and entry of the same in his register for the purpose. This witness did not mention the factum of signing of deeds by the parties or the witnesses in his presence. It was also admitted by the witness in cross-examination that he did not know the parties or the marginal witnesses. The witness further admitted that no money changed hands in his presence. This witness volunteered that "all the signatures of all the persons are of same person".
8. It would be noticeable that the witnesses produced by the appellant made their depositions, which did not fully support the claim of the appellant while he was bound by the statements of his witnesses including that of P.W.1 who unequivocally negated the stance of the appellant. The appellant was legally obliged to prove his claim through solid and convincing evidence brought by him before the Court and was not to be benefited from the shortcomings of opposite side. It is also noted that the witness P.W.3 could not be termed as attesting witness of the documents keeping in view his examination-in-chief and also the fact that he did not know any of the parties or the witnesses. The marginal witnesses of a document are produced not merely to identify the signatures of the executants but are examined to also prove that executants had put signatures within their view. In the circumstances, the scribe of the deed (P.W.3) cannot be termed as an attesting witness requisite under the provisions of Qanun-e-Shahadat Order, 1984.
' Adverting to the contents of deed Exh.P.W.3/1, it is noted that the same are in conflict with the averments in plaint as well as the statement of plaintiff wherein an altogether different context regarding payments made to the defendant is advanced.
9. It is an admitted fact that consideration for executing the promissory note Exh.P.W.3/2 was not passed on to the maker, in cash, and its issuance was outcome of another transaction, which was partially for transfer of immovable property in favour of plaintiff by the defendant. In the circumstances, it was obligatory upon the claimant to have proved consideration for issuance of demand promissory note, therefore, the presumption provided through section 118 of the Negotiable Instruments Act was not extendable in favour of the appellant.
10. Dealing with the objection by appellant regarding nonappearance of defendant/respondent in the witness box, it is noted that where the burden of proof of an alleged fact was upon the plaintiff and the said burden was not satisfactorily discharged, non-appearance of defendant for recording his statement would not adversely affect his case. Similarly, it would not extend any benefit to the plaintiff. In the present case the two attesting witnesses denied their presence at the time of execution of documents by the parties, therefore, the evidence of appellant did not meet the required standard to discharge the onus lying upon him.
11. It is further noted that the witness/representative of bank appearing as P.W.5, could not produce original record pertaining to opening of account by respondent No.5 Muhammad Irshad. The said respondent was claimed by plaintiff to have issued a cheque for the disputed amount in favour of plaintiff towards discharge of liability of respondent No.1, his father. The witness also admitted in cross-examination that the signatures of said respondent differed as those appeared on account opening form and NIC of respondent.
' Without prejudice to the criminal proceedings initiated on the strength of said cheque, it is observed that the same could not serve as good evidence for the cause of plaintiff also owning to the fact that its handing over to the appellant by respondent No.5 was not alleged by the former in his statement. Needless to mention that the said significant factual assertion was not included in the plaint also.
12. For what has been discussed above, it becomes clear that the appellant could not succeed in establishing his claim before the trial Court through cogent evidence. The material variations and contradictions in his stance also contributed towards the failure of his suit, which was rightly dismissed by the learned trial Court.
' Consequently, it is held that there is no occasion for this Court to interfere in the impugned findings. The appeal in hand, therefore, is found meritless and is accordingly dismissed. The parties are left to bear their respective costs in the circumstances of the case.