' MUNIB AHMAD KHAN, J.--- This revision is a second round of litigation after remand by the Honourable Supreme Court.
2. Succinctly the facts of the case are that the applicant filed suit for specific performance of contract, declaration and injunction stating therein that he purchased land bearing Survey Nos.59/1, 59/6 to 11, 60/9 to 16, 61/9 to 15, 63/1 to 3 and 64/1 admeasuring 26-29 acres in Deh Thul, Taluka Chamber, District Tando Allahyar from Mst. Zaibun Nisa through her attorney/son Muhammad Munawar Khan through agreement, dated 8-1-1976 against a total consideration of Rs,16,000. The amount of Rs,8,000 was paid at the time of execution of agreement, a further sum of Rs,3,000 was paid through cheque on 9-2-1976, while the remaining balance of Rs,5000 was to be paid afterwards but instead of fulfilling the agreement the landlady sold the land in dispute to defendants Nos. 2 to 5 through registered sale deed, therefore, suit of specific performance was filed. It was also stated that the applicant was in possession of the land and was willing to perform his part of the contract.
3. The respondent No,1 contested the suit through her general attorney/son and denied the claim of the applicant by declaring agreement, dated 8-1-1976 as a forged document and also denied receiving amount for the said agreement towards part payment. Besides, he stated that the applicant used to manage land since 1969 and was paying a lump sum amount of Rs,1070 per annum as income from the land till 1972-73 and thereafter raised the amount to Rs,1350 per annum in the shape of lease money. She admitted that the land has been sold to respondent Nos.2 to 5: The same written statement of the lady was adopted by respondent Nos. 2 to 5 also. On the pleading of the parties, the Civil Court framed following issues:---
(1) Whether sale agreement, dated 8-1-1976 was executed by the defendant, Zaibun Nisa through her attorney Munawar Khan, for Rs,16,000 and Rs,8000 was received as advance at the time of agreement and Rs,3000 on 9-2-1976?
(2) Whether the parties are agriculturists within the meaning of D.A.R. Act? If so, what is its effect?
(3) Whether the defendant Nos. 2 to 5 had knowledge of agreement with plaintiff regarding sale of suit land, if so, what is its effect?
(4) Whether sale deed, dated 12-2-1976 in favour of defendants Nos.2 to 5 is illegal, and void?
(5) What should the decree be?
4. The applicant examined himself and witnesses Muhammad Abid and Ahmed while the respondent examined Muhammad Munawar Khan. The Civil Court by judgment, dated 20-4-2004 decreed the suit, appeal was preferred which was also dismissed and even the revision by the High Court was declined as such the matter was taken to the Honourable Supreme Court and inter alia the following prayer, as apparent from the order was made:-- "Apart from the oral prayer that the disputed signature may be referred to Hand-writing Expert for comparison thereof with the admitted signature as well as specimen signatures of the executant, an application to this effect has been moved before this Court. Mr. K.B. Bhutto, learned counsel for the respondents, has serious reservations about the prayer for referring the disputed document of the instance of the petitioners."
5. On the above prayer the Honourable Supreme Court passed following order:--- "We would, therefore, convert this petition into an appeal, allow the same and set aside the judgment of the Appellate Court as well as the High Court and remand the suit to the trial Court for decision afresh after referring the disputed documents to a recognized Handwriting Expert at the expenses of the petitioners and after allowing an opportunity of hearing to both parties. Necessary exercise shall be completed within 90 days of the receipts of copy of this judgment."
6. After remand by the Honourable Supreme Court the matter was referred by the Civil Court to the Handwriting Expert who submitted his report and was also examined and cross-examined in Court by the parties. The Civil Court by its judgment, dated 27-4-2004 dismissed the suit while the Appellate Court maintained the judgment, therefore, this revision has been filed.
7. Learned counsel for the applicant has submitted that the judgments of both the lower Courts are opposed to facts and law as the same is result of misreading and non-reading of evidence on record and that both the Courts have simply relied upon the evidence of Handwriting Expert and totally ignored the other evidence in the shape of almost admission on the part of the respondents towards acceptance of Rs,8,000 and Rs,3,000. In this respect learned counsel has referred to paras.4 and 5 of the written statement of respondent No, 1 . He further submits that the evidence of Handwriting Expert was not confidence reposing but even then it has been relied upon nd that the evidence on the part of the applicant was fool proof as besides himself he examined his witnesses and out of them one witness Abid was not only witness of transaction but was a witness of the document as well, while the respondent No,1 did not examine any witness to disprove the version of the applicant nor could clarify as to on what account he received Rs,8,000 and Rs,3.000 and the explanation given by him that the said amount was towards outstanding for lease money etc, was contrary to the factual position as the said sum could not be due in 1976 when the agreement was executed. He submits that there was no calculation to justify the said amount towards lease nor there was anything on record to show that any lease amount was agreed whereas the said land was in possession of the applicant on the basis of Hari, under which settlement, half of the produce was given to the respondent. Learned counsel has pointed out the opinion of the Handwriting Expert as well as his cross-examination and stated that he has not taken into account the NIC of respondent nor other relevant documents while he has compared the signatures of the agreement of 1976 with the signatures he has obtained from the respondent in 2001 i,e, after about 25 years and with the signatures on written statement, Vakalatnama etc. Which were signed after filing of the suit and in such circumstances, the disputed agreement would not have been taken for comparison with above signatures while other signatures prior to and immediately after 1976 including NIC would have been taken. He further submits that even signatures on the Vakalatnama and written statement have not properly been compared as Handwriting Expert was not an expert as apparent from his evidence. He submits that the applicant has proved beyond means through circumstantial and substantiate evidence that he acquired the land after paying bigger part of consideration through agreement of 1976 and has been in possession of the said land continuously. Learned counsel has also pointed out that there is a difference between the averments of the written statement as well as evidence of the respondent while a person can not be allowed to depart from the pleadings. In this respect he relied upon 2001 SCM R 1992 and 1996 SCM R 336. Learned counsel has further relied upon 2005 MLD 61 and 2006 SCMR 151 on the issue that the scribe to the agreement can be equated with the marginal witnesses and that non- production of two marginal witnesses was not fatal as Article 17 of the Qanun-e-Shahadat Order 1984 was not applicable as the agreement was executed in 1976. Learned counsel has also cited 2006 SCM R 193 on the issue of value of expert evidence.
8. On the other hand Mr. Naimatullah Soomro, learned counsel for respondent Nos. 2 to 5 has submitted that the applicant was firstly a Hari and then became lessee and in both the capacities he made certain payments, which have been admitted in the written statement. He submits that the land in dispute was sold to respondent Nos.2 to 5 through registered sale deed, dated 12-2-1976 while the applicant's case is based on a forged sale agreement, which has been manipulated only to continue the possession. He submits that witness Muhammad Munawar Khan has denied the execution of any agreement, therefore, the agreement, dated 8-1-1976 was a bone of contention and after the evidence of Handwriting Expert this issue has been decided in favour of respondent rightly by both the lower Courts and since it is a concurrent finding, it cannot be gone through in the revision. He has also taken the Court to the opinion of the Handwriting Expert and stated that since the signature on the agreement has been declared as forged, therefore, there is no basis for the claim of the applicant. He has further pointed out that even as per prayer of the plaint, the applicant is entitled to alternate relief, if he succeed, therefore, no case under Specific Relief Act is made out. He stated that since the case of the applicant was based on the agreement, which has not been proved while the burden of its proof lie upon it, therefore, no indulgence can be shown by this Court. He has relied upon 2000 SCM R 431 and 1999 CLC 395 on the point that different view in the revision can not be allowed if there is no illegality in the evidence. He has also relied upon 2001 SCM R 798 on the point that even if there is minor discrepancy in the finding of the Lower Court then it is to be ignored.
9. Syed Khalid Shah, learned counsel for L.Rs, of respondent No,1 has adopted the arguments of Mr. Naimatullah Soomro with the addition that the judgment of Honourable Supreme Court is clear in respect to reference of the disputed documents to Handwriting Expert and since opinion of the Handwriting Expert is in favour of respondent, therefore, the case has rightly been decided by the Courts below. He has stated that the powers under section 115, C.P.C. Are limited and concurrent findings of both the Courts below cannot be questioned openly. In this respect he has cited PLD 2002 SC 293, 2006 SCM R 1304, 2007 SCM R 1179, 2007 SCMR 539 and PLD 1992 SC 838.
10. To appreciate the arguments of both the learned counsel it is to be seen that the Honourable Supreme Court while remanding the case to the Civil Court directed for referring the disputed document to a recognized Handwriting Expert. In the said order, which was passed on the request of the respondent in C.P. No,706-K of 1999 (Muhammad Munawar and 5 others v. Ahmed), it has not been said that the said suit to be decided only on the basis of evidence of the Handwriting Expert but of course it was to be taken into consideration along with, other evidence. Following the direction of Honourable Supreme Court, the matter was referred by the Civil Court to the Handwriting Expert who required certain documents which were submitted and for comparison he pointed out his need as under:- - ' The examination of the documents has revealed that the following data may kindly be made available---
(1) 20-30 specimen signatures of Muhammad Munawar Khan in three different speeds i,e, allow,' medium and fast speeds, in the same sequence and same ting of ink as in question signatures.
(2) Good number of Authenticated routine signatures of Muhammad Munawar Khan, which he might have signed the normal course of his working during the period before and after the date of executed.
(3) Original NIC Card of Muhammad Munawar Khan.
11. In response requirement No,1 was fulfilled by sending recent signatures on blank papers as well written statement, Vakalatnama and counter-affidavit but requirement Nos.2 and 3 were not fulfilled. Anyhow the Handwriting Expert sent his opinion which is as follows:-- Opinion:-- The examination of the documents thus received vide letter No,II/S/C/J/Hyd.--- 523, dated 24-10-2001 and No,564 of 2001, dated 23-11-2001 have revealed that the system characterization, variation, pen movement, pen position, slant and formation of the disputed signature bearing on the Agreement regarding sale of Agricultural land, dated 8-1-1976 now marked as "Q" are dissimilar with those of the routine and specimen signatures of Muhammad Munawar Khan bearing on the (Vakalatnama, dated 24-3-1976 and Counter Affidavit, dated 26-3- 1976) now marked as "R-1", "R-2" and "S-1" , "S-2" , respectively.
(Sd.) (Ayaz Ai Siddiqi)
' Examiner of the Questioned Documents Criminalistic Division Sindh Karachi.
12.. The Handwriting Expert was called as a witness and was examined and cross-examined by the parties counsel. In his examination in chief he stated as follows:-- "I am not capable to answer in English before this Court. The slant means triangle. It is correct to suggest that there is a word of similar characteristic but not system characteristic. The formation means start of writing.---It is correct that I have not given the opinion beginning in my report. I do not know about the beginning stroke. The signature on Exh.130, Vakalatnama Exh.81, application and counter affidavit Exh.18 are not similar. It is incorrect to suggest that I am not Handwriting Expert. In the cross-examination the Handwriting Expert stated as follows:-- "When I found my opinion I examined Vakalatnama, Counter Affidavit, sale agreement and disputed specimen signatures. I have not prepared the independent chart with regard to Exh. 130 in all four pages but on page No,3 there is a specimen signature and we had taken no specimen signature for the purpose of examination. It is incorrect to suggest that the defendant party have approached me to depose in their favour".
13. The trial Court placed much reliance on the evidence of the Handwriting Expert and particularly banked upon following para. Which is also reproduced in its judgment:- "The length of my service is about 9 years. I am working as a Sub-Inspector Crime Branch, Hyderabad. It is incorrect to suggest that I am not Handwriting Expert. It is incorrect to suggest that according to law I am not authorized to prepare the reports. It is incorrect to suggest that I am not Handwriting Expert to give my opinion."
' The Trial Court observed, since the above piece of evidence has not been shattered by the other side, therefore, there was no agreement when the signatures on the said agreement have not been proved by Handwriting Expert.
14. It is strange that prior to the order of Honourable Supreme Court, four issues were decided in favour of the applicant wherein the evidence of all the witnesses was considered but after recording of the evidence of Handwriting Expert the Civil Court has totally changed its mind and has not given any weight to the evidence which was already on record as the applicant has examined himself as well as his two witnesses but no reasoning has been given as to how evidence of this witness has been discarded. The trial Court has failed to consider that the plaintiff in paras.4 and 5 of the plaint has stated that sum of Rs,8,000 and Rs,3,000 by cheque was paid to the respondent, which factual position has been replied by the respondent in his written statement as follows:-- "Para.4 is denied. The answering defendant has not received any amount as advance or part payment of the sale of the land from the plaintiff. It is also denied that Rs,3000 were received by defendant No,1 on 9-2-1976 towards the part payment of the consideration.Para.5 is misstatement of the facts that the plaintiff has deliberately suppressed the fact as to how he came in possession of the suit land. The fact is that the plaintiff used to manage the suit land from 1969 onwards. The attorney of the defendant No,1 happens to be a Government servant, a Class-I Officer and the defendant No,1 herself being a lady, none. Of them could manage the land personally and as such the plaintiff was engaged to manage the land but as he was a semi-illiterate person, he was not able to maintain regular accounts. Consequently, it was mutually agreed that instead of rendering full accounts the plaintiff would pay a lump sum of Rs,1070 per annum as income from the land till 1972-73 where after the said amount was raised to Rs,1350 per annum. For convenience sake it was treated as annual lease money. The plaintiff continues to hold the possession as such and in respect of the amount mentioned above, the has been making part payments and delivering to the answering defendant slips of accounts which have already been produced."
15. Contrary to the above version in the written statement, the respondent No,1 Muhammad Munawar Khan has stated in his examination-in-chief, I see Exh.74 Agreement of sale, dated 8-1- 1976, it do not bear my signature. Rs,8,000 was due against plaintiff Ahmed Khan in respect of the lease in which he had paid Rs,3,000 by cheque and I had executed a receipt for the amount. In the evidence, the respondent No,1 has stated that the applicant was Hari since 1960 and used to give the accounts. On the other hand, the plaintiff has given a picture of the transaction while same is being supported by his witnesses Muhammad Abid Hussain who has categorically stated as follows:-- "I know the parties. I see Exh.74, it was typed by me and the same bears my signature as well as the signature of the parties and the witnesses. They had signed before me. Attorney of Mst. Zaibun Nisa had signed the document after reading the same. Attorney Munawar had received Rs,8000 from Ahmed Khan in our presence. ' He signed after receiving the amount. Whatever written in the agreement is correct."
16. The other witness whose name is also Ahmed Khan, stated as follows:-- "That I know the plaintiff and Muhammad Munawar Khan, attorney of defendant No,
1. I do not know other defendants. About 6 years back plaintiff and attorney of defendant No,1 had entered into agreement of sale of agricultural land in writing. Sale price was fixed at Rs,16000. Ahmed Khan and paid Rs,8000 to attorney in my presence at the time of said agreement. The agreement was read over and explained to the concerned parties and then they put their signature. I see Exh.74, it is same, correct and bears the signatures of the parties as well as my signature. Munawar had signed the agreement in my presence after taking the money."
17. Both the above witnesses have categorically supported the plaintiff's version and on the basis of that evidence, the suit of the plaintiff was decreed prior to going to Honourable Supreme Court the said decree was upheld by the District Judge and even by the High Court in Revision. After remand by the Honourable Supreme Court, the said evidence was available and has not changed its direction. Now it is to be seen as to what is the effect of the evidence of Handwriting Expert on the evidence which had already been brought on record through other witnesses while no supporting evidence has been brought by the respondent. First of all it is to be seen that the agreement in dispute was allegedly executed on 8-1-1976, therefore, some documents of that era would have been sent as per requirement of Handwriting Expert while NIC of Munawar Khan, which would have old signature was very necessary to compare the signature but that was not done. The only document sent to the Handwriting Expert were signed after the year, 2001, which were written statement, affidavit and Vakalatnama. These documents cannot be proper documents for comparison of signature as they were filed and signed after knowing the claim of the defendant and by the time these documents were signed by the respondent/defendant, he must have made his mind to take a defense. I have also noticed from Exh.129 whereby Handwriting Expert has asked good number of authenticated routine signatures which the signatory might have signed in the normal course of his working before and after the date of execution of agreement of 1976 but no effort was made as respondent was not required to submit documents prior to and after 1976, therefore, Handwriting Expert was not in a position to compare those signatures properly. Even otherwise Handwriting Expert does not seem to be an expert as he was illiterate of English language and could not differentiate between words similarly characteristic or system characteristic. He was not even aware of beginning stoke of writing. According to the expert the signature of the respondent Muhammad Munawar Khan on the Vakalatnama, application and counter affidavit were at variance and not similar, therefore, in such situation not only the Handwriting Expert was an expert in true sense but Muhammad Munawar Khan was also in the habit of making different signatures, therefore, the only factual position to be seen for solving the dispute between the parties was the evidence of the parties. As discussed above the evidence of the applicant and his witnesses which prevailed upon the trial Court and even on the appellate Court in the first round has totally been discarded after recording the evidence of Handwriting Expert but no reasoning has been given as to how the opinion of the trial Court has changed on these issues, while the Appellate Court has simply banked upon the evidence of the Handwriting Expert. The Appellate Court, too, similarly, ignored the available evidence and put up a point for determination in respect of Handwriting Expert and concurred with the finding of the Lower Court.
The said Court failed to realize that the Honourable Supreme Court in its remand order has not stated any where that the other material witnesses is to be discarded rather it is only directed for referring the relevant documents to the Handwriting Expert and that is to be considered by the trial Court. The expert opinion can be a corroborative evidence but not substantive piece of evidence as it is being formed on the opinion and can different from one person to another keeping in view his education, age, experience and perception. Here in the case in hand the evidence of the Handwriting Expert is not wroth confidence reposing as firstly he is not a proper literate person and only S.-I. In police department. He has not placed on record any certificate or other qualification nor record of his experience. The opinion given by him cannot be relied upon keeping in view his evidence recorded, further the required documents asked by the Handwriting Expert were not supplied to him, in such a situation the opinion of the Handwriting Expert cannot override the material evidence which has come on record in the shape of marginal witnesses of the documents in dispute. The expert opinion based on human judgment and not on mechanical process, cannot be a substitute for oral evidence given on oath. That can be used to remove doubts but when it has properly been nullified by oral and circumstantial evidence then it cannot be relied upon. It is also to be observed that expert opinion should be from qualified person with experience as every Dic Tom Harry cannot be considered on his own assertion and that aspect can be judged by the Court itself.
18. It has further been observed that both the defendant Nos.2 and 5 have taken shelter under ,a so-called registered sale deed, dated 12-2-1976 but they have failed to submit that document in Court as despite efforts of the learned counsel I cannot trace out it from the record. Its absence can be noticed with the observation that it might have been avoided with the fear of similarity in signature on it and on the disputed sale agreement.
19. Apart from my opinion on the evidence of Handwriting Expert, I have observed that there is a discrepancy in respect to the stand taken by the respondent in his written statement as well as in evidence as although he admitted receipt of Rs,8,000 and Rs,3,000 but he was not in a position to account for the said two amounts and even these figures could not match with the figures, he referred towards annual lease money etc. In such a situation evasive reply on the part of the defendant/respondent is to be discarded. The evidence of the applicant as well as his witnesses has stood brunt of cross-examination and have established that the applicant's version was correct and even that could not be shaken by the Handwriting Expert. In the light of material discrepancy, grave irregularity rather illegality towards appreciation of evidence, the Court must interference in revisional jurisdiction, hence the authorities cited by the respondent's counsel in this respect are not applicable in the circumstances.
20. The citation of the learned counsel for the applicant, keeping in view the evidence on record and pleadings, do have force. In such a situation I find merit in the revision and hold that both the Lower Courts have failed to appreciate the evidence on record, hence I set aside both the judgments, dated 19-11-2005 passed by Additional District Judge, Hyderabad as well as judgment, dated 20-4-2004 passed by Senior Civil Judge, Hyderabad and decree the suit of the plaintiff as prayed.