' MIAN HAMID FAROOQ, J.---Muhammad Din, the appellant/plaintiff, through the filing of the present second appeal, under section 100, C.P.C., has assailed the judgment and decree, dated 17-4-1994 whereby the learned Additional District Judge accepted respondents' appeal, dismissed appellant's suit and set aside the judgment and decree, dated 19-4-1990 passed by the learned Civil Judge, through which he decreed the suit for specific performance of an agreement, filed by the appellant.
2. Briefly, stated, the facts of the case are that the appellant filed a suit for specific performance of an agreement, dated 10-4-1983, (Exh. P. 1) against the respondents, alleging therein, that they agreed to sell the land in question in favour of the appellant for a total consideration of Rs,90,000 a sum of Rs,47,000 was received by them as earnest money and the remaining amount of Rs,43,000 was to be paid at the time of the registration of the sale-deed, which was to be executed after the completion of consolidation proceedings. According to the appellant, refusal on the part of the respondents to complete the sale transaction necessitated the filing of the suit. The respondents contested the suit by way of filing the written statement, thereby controverting the allegations made in the plaint, raising the preliminary objections and, inter alia; pleading that they never executed any agreement to sell; that the appellant took the disputed land on lease and an amount of Rs,31,000 was received by them as lease money for three years with an additional amount of Rs,1,000, being value of water.
' Out of the divergent pleadings of the parties, the learned trial Court framed the following issues:-- - Issues.
(1) Whether the suit is time barred? OPD
(2) Whether the suit is not maintainable , in view of preliminary objection No,2? OPD
(3) Whether the suit is not maintainable in view of preliminary objection No,3? OPD
(4) Whether the plaintiff is entitled to the specific performance of the alleged agreement? If so, on what terms? OPP
(5) Relief.
' Both the parties led oral as well as documentary evidence and ultimately, the learned trial Court decreed the suit, favouring the appellant, vide judgment and decree, dated 19-4-1990. The respondents, obviously, felt aggrieved and assailed the said judgment and decree before the appellate forum and the learned Additional District Judge accepted respondents' appeal and dismissed appellant's suit, vide judgment and decree, dated 17-4-1994 hence the present second appeal.
3. Learned counsel for the appellant has contended that the appellant has been non-suited on the basis of facts which were neither alleged nor exist on record. He has further submitted that in view of the evidence on record, the appellant has been able to prove the execution of an agreement to sell and the findings, rendered by the learned Additional District Judge, to the contrary are not sustainable in law. He, while supporting the judgment of the learned trial Court, has submitted that the learned lower appellate Court, while rendering the impugned judgment, has committed legal errors which need to be rectified by this Court in exercise of its appellate jurisdiction. The learned counsel for the appellant has relied upon the following judgments:--- ' Zar Wali Shah v. Yousuf Ali Shah and others 1992 SCMR 1718, Ghulam Muhammad and another v.
Muhammad Aslam and others PLD 1993 .SC 336, Anjuman-e-Islamia, Sialkot through Khawaja Muhammad Ahmad, President, Anjuman-e-Islamia, Sialkot v. Haji Muhammad Younas and 3 others PLD 1997 Lah. 153, Muhammad Anwar v. Haji Muhammad Ismail and others 1992 M LD 860 and Boota and others v. Ghulam Haider and others 1999 YLR 1638.
' Conversely, learned counsel for the respondents, while supporting the impugned judgment, has submitted that the scribe of the alleged agreement to sell was not produced as witness; P. W.1 admitted that land was taken on lease; that the appellant did not appear as his own witness; that there is no evidence on record that an amount of Rs,47,000 was paid to the respondents and that P.W.4 was not cross-examined.
4. As the respondents denied the execution of the agreement to sell, therefore, the appellant was under a legal obligation to prove, through the production of best available evidence, that the respondents did execute agreement to sell, within the parameters of law. Unless the appellant was able to prove the execution of the agreement to sell, he was not entitled to the decree of specific performance of the alleged agreement and thus, issue No,4 was framed to resolve the said controversy. In order to prove the said issue, admittedly, the appellant did not appear in the witness-box and instead thereof his son Muhammad Fiaz was examined as P.W.3. Although in his statement, he deposed about entering into the alleged transaction and the execution of an agreement to sell, yet he unequivocally stated in the cross-examination that all the circumstances were told and explained to him by his father. The exact wording is reproduced below:--- {{URDU TEXT}} ' Even according to P.W.3, although he was present at the time of the execution of the agreement to sell, yet admittedly he did not sign the agreement. The learned Additional District Judge has discussed the entire statement of said witness in the impugned judgment, therefore, the same is not required to be reiterated. However, one thing is clear from his statement that he was not bale to prove the payment of Rs,47,000 as earnest money, as this witness did not state any thing that how much amount was paid to the respondents and for what purpose and at which place.
5. Upon the examination of the impugned judgment, I find that the learned Additional District Judge has exhaustively embarked upon the issues involved in the case, appreciated the oral as well as documentary evidence on record in its true perspective and has reached to the proper conclusions, which, to my mind, are not open to exception. The learned Additional District Judge, in detail, as- noted above, discussed each and every witness and document and record and after believing or disbelieving the same, came to the authoritative conclusion that the appellant failed to prove the execution of the alleged agreement to sell and it is not proved from the evidence on record that any earnest money was paid to the respondent. I have perused the evidence, produced by the parties, in juxta-position with the findings given by the learned Additional District Judge and is of the view that inferences drawn by the learned lower appellate Court are in accordance with the evidence on record. The findings rendered by the learned Additional District Judge are not only in accordance with the record of the case but the same are also in consonance with the law on the subject.
6. I have also perused the judgment rendered by the learned trial Court and find that the findings given therein by the learned Civil Judge are not supported by the evidence on record. To my mind, the trial Court's judgment, as compared to the learned lower appellate Court's judgment, is not sustainable in law and suffers from grave legal errors, which have been , rectified by the learned lower appellate Court by reversing the findings of the learned trial Court and substituting its own findings, which are supported by reasons and vouched by the evidence on record. I am not inclined to restore the judgment of the learned trial Court which has rightly been reversed by the learned lower appellate Court.
7. In my view as the impugned judgment is neither contrary to the evidence nor in violation of the principle of E administration of justice, thus, the judgment of the learned appellate Court should ordinarily be preferred. If any case is needed, judgments reported as Mir Muhammad alias Miral v.
Ghulam Muhammad PLD 1996 Kar. 202 and Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC 312 can be referred.
8. Another aspect of the case, which has persuaded me to dismiss the present appeal, is that the respondents are admittedly `Pardhanasheen' ladies and the appellant, claiming to be the beneficiary of an agreement to sell, was under an obligation to prove that the agreement to sell has been executed by `Pardhanasheen' ladies that they had complete knowledge about the contents of the document and that they have an independent and disinterested advice in the matter before entering into the transaction and executing the document. The Honourable Supreme Court of Pakistan in a case reported as Amirzada Khan and another v. Itbar Khan and others 2001 SCM R 609, while dilating upon a similar controversy about the execution of the document by `Pardhanasheen' lady has held as under:--- ' " It is by now well-established requirement of law that burden of proof in respect of a genuiness of a transaction with a `Pardhanasheen' lady and a document allegedly executed by such a lady lies on the person who claims benefit from the transaction or under the documents. Such a person is legally obliged to prove and satisfy the Court; firstly, that the document was executed by `Pardhanasheen' lady and secondly, that she had complete knowledge and full understanding about the contents of the document and thirdly, that she had independent and disinterested advice in the matter before entering into the transaction and executing the document...."
' Upon the examination of the evidence on record, I find that the same does not satisfy the above requirements and G the appellant failed to produce any evidence to prove the above standards as laid down by the Honourable Supreme Court of Pakistan,
9. Now coming to the judgments, relied upon by the learned counsel for the appellant. As regards the cases of Zar Wali Shah and Ghulam Muhammad and another (ibid) those relate to allowing a party to lead the additional evidence. In this appeal, although the appellant filed an application (C.M. No,86-C/03) seeking permission to lead additional evidence, yet learned counsel for the appellant, on 22-4-2003 withdrew the said application and no fresh application was filed uptil the decision of this appeal. In the said back drop, these judgments are of no avail to the appellant.
' As regards the case of Anjuman-eIslamia, Sialkot (ibid) it has been held that ordinarily party to suit must enter witness-box in order to make statement in support of his pleadings and that where there was sufficient material on record to prove fact in issue, then mere failure of party to enter witness-box to prove same fact was not fatal to his case. In the case in hand, in view of the evidence on record, even if it H be ignored that the appellant did not appear in the witness-box, even then the other evidence, as discussed by the learned lower appellate Court, is sufficient to show that the appellant failed to prove the execution of the agreement to sell, therefore, it cannot be legitimately argued by the appellant that there was other sufficient material on record to otherwise prove the issues. Under the circumstances, the said judgment also does not support the case of the appellant.
' In the case of Muhammad Anwar(ibid), it has been held that where document was duly proved through the statements of marginal witnesses, it was not necessary to produce the scribe of the document. The evidence produced by the appellant, as discussed by the learned lower Appellate Court, amply manifests that the appellant was not able to prove the execution of the agreement to sell, as noted above, therefore, even if the non-production of scribe as a witness be ignored, even then it will not make any differences. This judgment is also of no avail to the appellant.
10. It has been held in the judgment of Boota etc. (ibid) that evidence of witness who made a wrong claim would not be trustworthy. To my mind, the dictum laid down in the said judgment goes against the stance of the appellant, as the witnesses produced by the appellant have not been believed by the learned lower appellant Court as they made wrong statements.
11. In the above perspective, I am of the considered view that the impugned judgment is legal, unexceptionable, apt to the facts and circumstances of the case and does not call for any interference by this Court, thus, findings rendered by the learned lower appellant Court are maintained.
12. Upshot of the above discussion is that the present second appeal is devoid of any merits, thus, the same is dismissed with no order as to costs.