' MIAN SAQIB NISAR, J.---The petitioner filed a suit for the specific performance of an agreement to sell dated 26-5-1990, allegedly executed in his favour by the respondents in respect of the property measuring 18 Kanals out of Khasra Nos.805, 956 and 958, however, it may be mentioned that the khasra numbers were got corrected after seeking the amendment of the plaint; obviously the earlier Khasra numbers given in the plaint did not correspond to the alleged agreement to sell. It may also be settled that the petitioner claims to have paid an amount of Rs,33,000 to the respondents as an advance money, whereas on the remaining payment of Rs,17,000 they were required to seek the finalization of the transaction; the respondents resisted the suit; they denied the execution of the agreement to sell as also the receipt of any money, etc.; issues were accordingly framed and after the trial, the learned Trial Court vide judgment and decree dated 24- 3-1996, dismissed the suit holding that "no sale transaction was effected between the parties. No earnest money was paid. The description of property mentioned in the plaint does not agree with that of mentioned in the agreement Ex. P.1. The agreement to sell Ex. P.1 has not proved in letter and spirit without any shadow of doubt." Being aggrieved, the petitioner preferred an appeal, which was accepted vide judgment and decree dated 30-3-2003, the respondents challenged the said judgment and decree in R.S.A. No,47 of 2000 before this Court, which was accepted and the matter was remanded to the first appellate Court for decision afresh in accordance with law. On remand, the learned appellate Court, vide judgment and decree dated 1-10-2004, has affirmed the judgment and decree of the learned trial Court and it is inter alia categorically holding that the petitioner has failed to prove the agreement to sell in accordance with law; however, in the alternate relief, a decree of Rs,66,000 has been passed in favour of the petitioner.
2. I have heard learned counsel for the parties and find that an agreement to sell is required under the provisions of Article 17 of the Qanun-e-Shandat Order, 1984 to be attested by the two witnesses and thus to be proved under Art. 79 of the Order ibid by the same numbers. In this case, the petitioner has only examined one of the attesting witnesses and there is no justification for the non-examination of the other. The argument that the scribe should be taken to be the other attesting witness, suffice it to say that no doubt, the above can be said to be possible but not without meeting the conditions as laid down in the judgment reported as Qasim Ali v. Khadim Hussain (deceased) through Legal Representatives and another (PLD 2005 Lah. 654). When questioned learned counsel for the petitioner has not been able to establish, if such conditions have been met. Besides, it may be held that according to the alleged agreement to sell, the respondents agreed for the sale of the specific property in the Khasra numbers mentioned therein, which is not exclusively owned by them and in the agreement it is provided that they shall also get the sale transaction finalized from the other co-owner of the property who is not privity to the contract. It is not shown, that in those numbers, the share of the respondents is larger than the other co-owner and therefore, was enforceable in B terms of section 15 of the Specific Relief Act.
Therefore, no exception can be taken to the impugned judgment and decree. This petition thus has no merits and the same is hereby dismissed.