1. ' GULZAR AHMED, J.---By this Revision Application, applicant has impugned judgment dated 16-10- 2006 passed by the learned IInd Additional District Judge Badin, whereby Civil Appeal No,58 of 2006 filed by the applicant was dismissed and the judgment and decree dated 19-4-2006 passed by the learned Senior Civil Judge Matli, by which applicants' F.C.S. No,6 of 2005 was dismissed, was maintained.
2. ' Learned counsel for the applicant has contended that both the trial Court as well as the Appellate Court has misread the evidence in disbelieving the execution of sale agreement of land made between the applicant and the respondent and that the applicant has not only produced himself in the witness box to prove the sale agreement but he has also produced two attesting witnesses.
3. He has further contended that the respondent was the owner of 20 Acres of land and was competent to sell the same to the applicant and the evidence in this respect produced by the applicant was erroneously not believed by the Courts below. In support of his submission he has relied upon the case Mustafa and 3 others v. Muhammad Khan and another PLD 1978 SC(AJ&K)75 and the case of Muhammad Anwar v. Haji Muhammad Ismail (1992 MLD 860).
4. ' On the other hand learned counsel for the respondent has contended that no proof was led by the applicant of execution of the sale agreement and the attesting witnesses have said nothing about the execution of the sale agreement produced by the applicant nor they have admitted their signatures on it. He has further contended that the sale agreement was an unnatural document as it was neither made at the place where the land was situated nor at the place of residence of the applicant for that of the respondent. He has contended that the writer of the agreement has not been produced and the concurrent findings of the two Courts below are not liable to be upsetted.
5. He has further contended that there is no illegality or irregularity nor jurisdictional error in the impugned judgment. In support of his submissions he has relied upon the case of Abdul Hameed v.
6. Suhrab through Legal Heirs (PLD 1997 Karachi 589), Muhammad Dervaish Al-Gilani and 14 others v.
7. Muhammad Sharif and others (1997 SCMR 524), Dhani Bux v. Ali Sher and others 2007 YLR 2134 and Rashid Ahmed v. Said Ahmed 2007 SCMR 926.
8. ' I have considered the submissions made by the learned counsel for the parties and have gone through the record.
9. ' It appears that the applicant had filed a suit for Specific Performance of Contract and Permanent Injunction against the respondent describing the agricultural land bearing Survey No,47/10,11, 72/2,3,4,5,6,7,10,12, 873/1,3,4,5, 84/1,2,3,4,5,12 total measuring 20 Acres in Deh Kari Taluka Matti, District Badin as suit land. The applicant has claimed that on 9-11-2003 the, parties entered into a contract of sale and the respondent executed sale agreement at the rate of Rs,8,000 per Acre, total consideration of Rs,1,60,000 out of which the applicant had paid Rs,1,30,000 in the presence of witnesses Haji Muhammad Hassan and Muhammad Usman and the possession of the land was handed over to the applicant. It was further claimed that the balance amount of Rs,30,000 was to be paid to the respondent on 10-12-2009 upon which he was to register the sale-deed in favour of the applicant. It is alleged that on 10-12-2003 the applicant along with witnesses approached the respondent for .Execution of the sale-deed on payment of the balance amount but the respondent sought time of 15 days for obtaining sale certificate. It is further alleged that after 15 days the applicant along with witnesses with balance amount approached the respondent for execution of the sale-deed but the respondent requested for further time for obtaining of sale certificate and ultimately the respondent demanded higher rates, which was not accepted by the applicant upon which the respondent refused to execute the sale-deed, which led to the filing of the suit. The suit was contested by the respondent, who filed his written statement and denied selling of the land of the applicant or receipt of consideration amount and also denied signing or executing the sale agreement. Upon pleadings of the parties, the trial Court framed the following issues:--
(1) Whether the plaintiff has purchased the suit land from defendant through agreement of sale dated 9-11-2003 and paid Rs,1,30,000 in advance in presence of the witnesses?
(2) Whether the sale agreement dated 9-11-2003 is 'valid document and the same is executed by defendant?
(3) Whether the plaintiff is in possession of the suit land?
(4) Whether the defendant refused to execute the sale deed in favour of the plaintiff?
(5) Whether the defendant is exclusive owner of whole the suit land along with S.No,74/11? If not, what is its effect?
(6) Whether the plaintiff and his brother Abdul Razzaque had filed suit in the name of their mother bearing F.C.S. No,24 of 2001 regarding the same land against the father of defendant?
(7) Whether the plaintiff has no cause of action to file the suit?
(8) Whether the suit is not maintainable in law?
(9) Whether the suit is bad for misjoinder of necessary parties?
(10) Whether the suit is barred under the law?
(11) Whether the plaintiff is entitled to any relief?
(12) What should the decree be?
10. ' From the side of the applicant, the applicant appeared as witness, he produced the sale agreement as Exh.28. The applicant also produced the two attesting witnesses namely Muhammad Usman and Haji Muhammad Hassan. Therefore applicant closed his side. The respondent appeared as his own witness and he also produced one Abdul Bahar as his witness. On conclusion of respondent's evidence and after hearing the advocates for the parties, the trial Court gave its judgment by which the suit was dismissed against which the applicant filed an Appeal, which was dismissed by the impugned judgment.
11. ' As regards the first submission of learned counsel for the applicant, the applicant in his evidence has produced the sale agreement as Exh.28 and stated that it was executed between him and the respondent and that the witnesses of sale agreement were brought by the respondent from village Subhan Dasti and after executing the sale agreement the applicant along with witnesses reached the house of Mrs. Olga for attestation of the sale agreement. In his cross-examination the applicant was suggested that the agreement was false, which was denied by him.
12. ' P.W.2 Usman in his evidence has stated that he is witness of sale agreement executed by the applicant and the respondent and that the agreement was signed by him, the respondent, the applicant and Haji Muhammad Hassan and after executing the sale agreement, they went to the Oath Commissioner Mrs. Olga and in his presence Mrs. Olga inquired from the respondent that he has executed sale agreement and received the sale consideration, which he admitted and after that Mrs. Olga attested sale agreement. He further stated that the consideration amount of Rs,1,30,000 was paid by the applicant to the respondent. He denied the suggestion that neither any money was paid in his presence nor the agreement was reduced in writing in his presence. He further denied that no transaction of suit land has taken place in his presence.
13. ' P.W.3 Haji Muhammad Hassan in his evidence has stated that in his presence the applicant has given Rs,1,30,000 to respondent as sale consideration and the sale agreement was reduced in writing by the Stamp Vendor and after reducing the Stamp Paper in writing they went to the house of Oath Commissioner Mrs. Olga for attestation and in his presence the Oath Commissioner affixed her stamp and signed on the Stamp Paper of sale agreement of suit land. He denied the suggestion that he was deposing falsely at the instance of the applicant.
14. ' The respondent in his evidence has stated that the sale agreement Exh.28 does not bear his signature and stated that it is a forged document and that he does not know anything about the attesting witnesses of the said sale-agreement. In his cross-examination he denied the suggestion that the sale agreement bears his signature.
15. ' On scanning of the evidence regarding the execution of the sale agreement Exh.28, it is noted that though the applicant has claimed that it was executed between him and the respondent and so also attested by the two witnesses but the two attesting witnesses in their evidence have neither been shown or confronted with the said sale agreement Exh.28 nor they have admitted their signatures on the said sale agreement nor they have stated that the sale agreement Exh.28 was signed by the applicant and the respondent in their presence. All along they have spoken about the sale agreement between the applicant and the respondent and payment of sale consideration of Rs,1,30,000 in their presence but specifically they did not refer in their evidence to the sale agreement Exh.28.
16. ' Learned counsel for the applicant has contended that there was no need of showing to the attesting witnesses the sale agreement Exh.28 and that their mere saying that the agreement was executed between the applicant and the respondent and that they have signed the same as attesting witnesses was sufficient to prove the factum of the execution of the sale agreement Exh.28 between the applicant and the respondent. Article 79 of the Qanan-e-Shahadat Order 1984 is as follows:--
79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses [at] least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of Court and capable of giving _evidence: ' Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.
17. ' The above provision lays down that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution if there be two attesting witnesses alive, and subject to the process of Court and capable of giving evidence. Thus under this Article the attested document could only be used as evidence when the two attesting witnesses have proved its execution.
18. ' In the case Mst. Kulsoom Bibi v. Muhammad Arif 2005 SCMR 135 while considering of implication of Article 79 of Qanoon-e-Shahadat Order 1984 the honourable Supreme Court of Pakistan has made the following observation:-- "It may be clarified at this juncture that marginal witnesses of a document are produced not merely to identify the signatures of an executant but are examined to prove, in addition to the above fact, that the executant had put the signatures within their view. Both witnesses never uttered a single word to the effect that Muhammad Fazil had signed the document within their view. This is with regard to the document."
19. ' Read in the context of the law as laid down by the honourable Supreme Court of Pakistan with regard to proving of an attested document, it is clear from evidence of the two attesting witnesses in the present case that the sale agreement Exh.28 never came to be proved as the attesting witnesses neither acknowledged that the sale agreement Exh.28 was executed by the applicant and the respondent before them nor did they acknowledged that the sale agreement Exh.28 bears their signatures as attesting witnesses.
20. ' The provision of Article of 79 of Qanun-e-Shahadat Order 1984 being mandatory, its real compliance had to be made and mere production of attesting witnesses with their specifically acknowledging that the exhibited document was signed by the parties in their presence and in their view and without specifically acknowledging their own signatures on the exhibited document will not be the compliance of the provision of the said Article. To comply with the said Article, the attesting witnesses in their evidence have to be shown the document, which is claimed to be attested by them and their categorical replies have to be obtained as to whether the document was signed by the parties in their presence and in their view and as to whether the document bears their signatures as attesting witnesses. No such evidence has come on record of this case.
21. The net result of this discussion is that the execution of sale agreement Exh. 28 between the applicant and the respondent was not proved and the applicant has failed to discharge his burden in this respect.
22. ' It may also be noted that the applicant in his cross-examination has stated that he does not know as to how much is the share of the respondent in the suit land and admitted that the suit land is jointly owned by the respondent with Imran Mazhar and Shujjat. He has even admitted that the share of respondent in the land will not be that of 20 Acres. In view of this state of evidence of the applicant himself regarding the ownership of the land, it becomes imminent doubtful as to whether the respondent could have at all made agreement for selling of land which did not belong to him, moreso when the applicant has not shown any authority in the respondent from the co- sharers to sell their land.
23. ' The case of Mustafa which is the judgment of Supreme Court of Azad Jammu and Kashmir relied upon by the counsel for the applicant lays down that a co-sharer in possession of his specific field numbers can validly transfer such land even if his share in such specific field numbers exceeds his share. In the present case the applicant has not shown through evidence that the respondent was in possession of specific survey numbers and therefore this case is of no help to the Applicant.
24. 'So far the case of Muhammad Anwar relied upon by the counsel for the applicant, which is a Single Bench judgment of Lahore High Court---Incidently goes against the case of applicant as it provides that Article. 79 of the Qanoon-e-Shahadat Order 1984 requires proving of the execution of a document by two attesting witnesses if alive. However, where only one attesting witness was alive the signature of such witness could be proved through other evidence meaning that one of the attesting witness who is alive, has to prove the signature on the document.
25. ' In view of the above discussion, I neither find any misreading of evidence by the two Courts below nor any illegality or irregularity or jurisdictional error in the impugned judgment. Both the two Courts below have concurrently given findings disbelieving the execution of the sale agreement between the applicant and the respondent to which no exception can be taken. There is no merit in this Revision Application, which is dismissed as such. The listed application is also disposed of.