' MIAN SAQIB NISAR, J.---Respondent's suit for specific performance was dismissed by the learned trial Court, vide judgment and decree, dated 31-3-1996; however, on appeal filed by the respondent, which was accepted by setting aside the impugned judgment and decree, the suit has been allowed on 17-6-1998. Hence this revision.
2. Briefly stated the facts of the case are that the shop in dispute was an evacuee property, which was purchased in auction by the petitioner and PTO, dated 28-12-1960, was issued in her favour; respondent on 30-9-1992, brought a suit for specific performance claiming that the respondent through an agreement to sell, dated 29-12-1961, had agreed to sell the shop in favour of the petitioner and at the relevant time, respondent paid a sum of Rs.1360 to the petitioner and for the balance consideration Rs.460, it was agreed that when ever the property is finally transferred in favour of the petitioner, same shall be transferred in favour of the respondent, PTD in favour of the petitioner was issued by the Settlement Department on 10-9-1963 but she did not perform her part of the agreement and thus three days before the institution of the suit, she refused to convey the property, hence the suit.
3. The suit was contested by the petitioner; she denied that the property was ever agreed to be sold by her through alleged agreement to sell, which is a forged and fabricated document; she further stated that the possession was not delivered to the respondent under the agreement, rather he is tenant of the petitioner; moreover, the objection was taken that the suit is barred by time. On accounted pleadings of the parties, the learned trial Court, framed the following issues:--
(1) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD.
(2) Whether the plaintiff is estopped to file this suit due to his words and conduct? OPD
(3) Whether the suit is barred by limitation? OPD
(4) Whether the suit has been insufficiently valued for the purpose of court-fee and jurisdiction?
OPD
(5) Whether the suit has been filed with ulterior motives? OPD
(6) Whether the plaintiff is entitled to decree as prayed for in the plaint? OPP
(7) Relief.
' Evidence of the parties was recorded; respondent examined P.W.1 son of the scribed of the agreement to sell and himself appeared as P.W.2; with regard to other two marginal witnesses, it is stated in the examination in chief of the respondent that both have died.
4. Conversely, the petitioner examined Headmistress of the M.C. Girls Middle School Hafizabad, who brought on record Exh.D.1, according to which, the petitioner was a minor at the time of execution of the agreement to sell, she herself appeared as D.W.2 and denied that she has ever agreed to sell the suit property in favour of the respondent. On the conclusion of the trial, learned Civil Judge, by giving findings on issue No.6, has come to the conclusion that the plaintiff/respondent has failed to prove the execution of the agreement to sell by the petitioner. As regard issues Nos.1, 2 and 5, are concerned, those were decided against the petitioner, however, the suit as mentioned above, based upon the finding of issue No.6, was dismissed. Respondent preferred an appeal and the learned. Appellate Court, has allowed the same on the reasoning that the document in question is thirty years old; both the marginal witnesses of the document have died; scribe of the document has also demised and his son has appeared as P.W.1, who has proved the writing of his father on Exh.P-1. Besides that the case of the petitioner that respondent was tenant in property has not been established because she has never filed any ejectment petition, against the respondent and has also not been able to prove that respondent was inducted in possession as tenant.
5. Learned counsel for the petitioner has attacked the above reasoning on the ground that these are against the record and also the law.
6. I have heard learned counsel for the parties. As per issue No.6, the onus to prove the valid execution of the petitioner's document is upon the respondent. Respondent has never produced the stamp vendor through whom the stamp paper for the purpose of execution of Exh.P-1 was purchased. Besides, son of deed writer P.W.1 has only stated that the writing of Exh. P-1 is that of his father, but has not been able to prove that the alleged signature of the petitioner on Exh.P.1 were affixed by her. Moreover, P.W. 1, brought along with him the record/registers of his father, but Exh. P-1 even according to his own statement in examination in chief is not incorporated therein.
7. As regard two marginal witnesses are concerned, who are Feroze and Iqbal Hussain, they are stated to have died but no person has been produced such as their close relatives or any one else acquainted with their signatures to establish that they had attested the agreement as the marginal witnesses. The most important aspect of the matter is that according to respondent, transaction was negotiated by the brother of the petitioner and Feroze Din, one of the marginal witness was instrumental in finalizing the deal. Feroze also delivered the keys of the shop to the A respondent. However, respondent in his statement, has very candidly conceded that he did not know the petitioner personally; she was in "parda" at the time when the deal was negotiated and also observed "Parda", when she came to the deed writer for the purpose of execution of the document. Thus from the above statement, it is absolutely not established, if the lady who allegedly executed the agreement to sell is the petitioner. It is settled law that proof about the execution of the document by a pardanashin lady, must be very positive and the execution by her must be proved, which is conspicuously lacking in the present case. Resultantly, I am of the considered view that the respondent has failed to prove the valid execution of the document by the petitioner. It may be pertinent to state here that at no stage, the respondent ever moved to the Court below for the purpose of seeking comparison of the signature of the petitioner on Exh.P-1, through a hand writing expert.
8. As regards the question, whether the presumption of execution of thirty years old document is concerned, first of all it has to be established that the document is of thirty years age in the present case, except the date on the document, there is no independent evidence that such document is that old, because the petitioner had denied the execution, therefore, it was incumbent upon the respondent to at least had summoned the record of the stamp vendor or to have produced the record of the scribe, in which the document could have been incorporated to prove the period of 30 years, resultantly, such presumption drawn by the Court for valid execution of Exh. P-1, is erroneous.
9. For the question that learned appellate Court has himself compared the signature of the petitioner on written statement and found the same similar. But from my own. Perusal of these two documents, I have different view but in any case, this comparison with naked eye cannot be accurately made, resultantly, the respondent at appropriate time in the facts and circumstances and when the two alleged marginal witnesses had died, the respondent should have sought the comparison from the hand writing expert, which he has failed.
10. As regards the reasoning of the learned appellate Court that the petitioner has failed to established that the respondent is in possession of the petitioner as tenant and that she has never filed any ejectment application, etc., against the respondent, suffice it to say that basic question involved in the matter is about the execution of the document which respondent has miserably failed. Notwithstanding as to what is the nature of the possession of the respondent, but it is not proved on the record that such possession is based upon agreement to sell, resultantly, the presumption drawn by the Court of appeal is not only erroneous but totally illegal, therefore, the judgment and decree of the Court of appeal cannot be sustained.
In the light of above, by allowing this petition, the impugned judgment and decree of the Court of appeal is set aside and to that of the learned trial Court is upheld.