' MUHAMMAD SAIR ALI, J.--- Through this civil appeal, the appellant has challenged judgment and decree, dated 13-6-2002 passed by a learned Division Bench of Lahore High Court, Lahore, accepting respondents' R.F.A. No,94 of 1998 and reversing the judgment and decree passed by Civil Judge, Lahore, decreeing appellant's suit for specific performance of agreement dated 30-1-1998.
2. The appellant Kazim Raza in his suit dated 17-12-1998 claimed agreement to sell dated 31-1-1998 in his favour from Mst. Mohsana Zareen (respondent No,1), Mohsin Mehmood Ahmed (respondent No,2) and their mother Mst. Zohra Begum (since deceased), alleging execution of agreement by respondent No,2 as general attorney of his mother Mst. Zohra Begum (now deceased) and his sister (respondent No,1) for selling Property bearing No,SE-IV-43-S.2, Abdul Karim Road, Qila Gujar Singh, Lahore for the purported consideration of R.8,00,000. It was also pleaded that out of the above settled consideration an amount of. Rs,7,50,000 was paid to the said ladies and the balance was agreed to be payable at the time of execution of registration of the sale-deed by or before 1- 6-1998. And that on refusal of the transfer of the land to him, appellant sought enforcement of agreement dated 30-1-1998 through. The suit for specific performance.
3. Respondent No,1 submitted contesting written statement while respondent No,2 remained ex parte and their mother Mst. Zohra Begum died in the meanwhile. The agreement was denied as forged and Fictitious document. It was also alleged in the written statement that respondent No,2 had shifted out of Pakistan prior to the date of agreement and had never returned to make the agreement. And that for the last several years, his whereabouts were not known. The purported power of attorney was also claimed by respondent No,1 to have been forged and fabricated denying appointment of respondent No,2 by her or by her mother as their general attorney.
4. Eight issues were framed by the learned trial Judge. Evidence was recorded. Appellant as plaintiff examined Muhammad Amin P.W.1, Altaf Hussain P.W.2 (the marginal witnesses of the purported agreement Exh.P.1) and himself as P.W.3.
' Respondent No,1 as defendant appeared as D.W.1 and produced Exh.D.1 and Exh.D.2 as the documentary evidence.
5. The learned trial Judge held that agreement dated 30-1-1998 and payment of Rs,7,50,000 to have been proved along with the General Power of Attorney. The suit was decreed by the learned trial Judge.
6. Respondent No,1 filed an appeal thereagainst in the Lahore High Court, Lahore. This appeal was accepted by the Lahore High Court, holding that the appellant herein had failed to prove execution of agreement, the power of attorney as well as the payment of Rs,7,50,000 to respondent No,1 and her deceased mother. Judgment and decree of the learned Civil Judge was set aside in acceptance of the appeal of respondent No,1 through the impugned judgment dated 13-6-2002.
Hence the present appeal. The learned Advocates Supreme Court for the parties repeated the submissions made by them before the High Court.
7. We have considered the submissions of learned Advocates Supreme Court appearing for the parties and have also examined the record. The learned Advocate Supreme Court for the appellant was unable to show misreading or non-reading of evidence, overlooking of record or misapplication of law by the learned Division Bench of the High Court in pronouncing the impugned judgment. In our considered reading, the learned Judges of the High Court thoroughly, painstakingly and analytically examined the entire evidence including the alleged agreement to sell as well as the power of attorney for recording their well-reasoned judgment.
8. The appellant was unable to answer that his witnesses appearing as P.W.1 and P.W.2 failed to depose as to the execution/signing of the alleged agreement by Mst. Libra Begum (deceased) or by Mst. Mohsana Zareen (respondent No,1). Deposition of P.W.1 and P.W.2 in their examination-in- chief was that the agreement was signed and thumb- A marked by Mohsin Mehmood Ahmad (respondent No,2). They were also unable to name the scribe of the documents.
9. The learned High Court was thus justified in holding that:--- "(12) .... The appellant has denied her signatures on the agreement to sell. The Handwriting Expert has not been called to prove the disputed signatures by comparison with the admitted signatures of the vendors. In this view of the matter, the Court itself can compare the disputed signatures or writing with the admitted signatures or writing. In case of "Messrs Waqas Enterprises v. Allied Bank of Pakistan 1999 SCM R 85 the honourable Supreme Court itself compared the disputed signatures with the admitted signatures in the Court. By exercising the jurisdiction under Article 84 of the Qanun-e-Shahadat Order, 1984 and on the touchstone of the above referred judgment, we have ourselves compared the signatures of Mst. Mohsana Zarin on the agreement Exh. P.1 with her admitted signatures which she had affixed on the written statement and power of attorney Exh. P.2.
On the agreement Exh.P.1 she has allegedly signed as "Mohsina" whereas on the written statement she has signed as "Mohsna Zarin" at two places. There is little doubt in our mind that Mst. Mohsna Zarin has not signed the agreement dated 30-1-1998 Exh.P.1 and her signatures on the agreement are forged. She has also made it clear in her testimony that she always signs as Mohsna Zarin. This statement of her finds support from the admitted documents signed by her which are available on the record.
(13) .... It was obligatory for the respondent to prove the agreement by primary evidence under Article 74 of the Qanun-e-Shahadat Order, 1984, which has not been done in this case because the agreement Exh.P.1 has been written in different ink and different handwriting, which can be seen with a naked eye. The scribe of the document Exh.P.1 has not been produced. In this view of the matter, we are constrained to hold that the agreement dated 30-1-1998 has neither been proved in accordance with the provisions of Qanun-e-Shahadat Order, 1984 and the same is a fictitious and forged document. No reliance can be placed on the same.
(15) The power of attorney Exh.P.2 is dated 22-3-1993, whereas the agreement to sell was executed after a lapse of five years, i,e, on 30-1-1998. No indication has been given in the evidence that permission to execute the agreement to sell was obtained from the principal as the agreement to sell was executed after the long period and the transaction was being made on behalf of Pardanashin ladies. It is not understandable that when the agreement to sell, dated 30-1-1998 was executed, by Mohsin Mehmood Ahmad as general attorney of his mother Mst. Zohra Begum and sister Mst. Mohsina Zarin, then why the signatures and thumb-impressions of the ladies were got affixed on the agreement ...."
10. Neither any ground has been canvassed nor do we find any reason to interfere in the impugned judgment. This appeal is, therefore, dismissed. Judgment and decree, dated 13-6-2002 passed by the learned Division Bench of the Lahore High Court, Lahore is maintained.