JUDGMENT MIAN SHAHID 1QBAL, J.---This Civil Revision is directed against the judgment and decree dated 18-1-2003 passed by learned Additional District Judge Kasur in Civil Appeal No.105 of 2001 instituted by respondents against the judgment and decree dated 23-10-2001 passed by learned Civil Judge, Kasur whereby suit filed by respondents was dismissed.
2. Briefly stating facts of case are that a suit for specific performance of the agreement dated 19-3- 1995 (Exh.P.1) was filed on 12-11-1995 in respect of land measuring 4-Kanals 14-Marlas for a consideration of Rs.73,438, out of which Rs.63,438 was paid as earnest money. The sale-deed was to be executed on or before 31-12-1995.
3. After filing of suit, the petitioners Nos. 1 and 2 separately filed written statements on 8-4-1996. In the said written statements the defendants took the pleas that signatures on the alleged disputed agreement to sell were disguised on the basis of Patta to be executed and they never signed it purporting it to be a sale agreement nor on the basis of Exh.P.1 any amount was transferred or received by the present petitioners. In respect of the above said agreement as alleged by present petitioners the stamp paper was purchased on 27-3-1995.
4. Out of the pleadings of the parties the learned trial Court framed the following issues on 7-4- 1997:--
(1) Whether the defendant No.1 had executed an agreement in plaintiff's favour on 19-3-1995 having received Rs.63438? OPP.
(2) Whether the sale-deed in favour of defendant No.2 is ineffective upon the plaintiffs rights? OPP.
(3) Whether the defendant No.2 is bona fide purchaser for consideration without notice of agreement in plaintiff's favour? OPP.
(4) Whether the plaintiffs have no cause of action? OPP
(5) Whether the suit is false, frivolous and vexatious? If so, whether the defendants are entitled to special costs under section 35-A, C.P.C.? OPD.
(6) Whether the plaintiffs are entitled to the decree as prayed for? If so, on what terms? OPP.
(7) Relief.
5. After framing of issues the parties produced their respective evidence. The petitioner No.1/defendant Arshad Ali who is owner of property appeared as D.W.1, Rasheed Ahmad son of Ahmad Din appeared as D.W.2 and Muhammad Asghar appeared as D.W.3 who is presently petitioner No.2. Along with oral evidence present petitioners produced Exh.D.1, record of the stamp vendor showing the sale of the stamp paper dated 27-3-1995. The present respondents who were plaintiffs in the suit produced Muhammad Anwar Joya, deed writer as P.W.1, Haji Mushtaq Ahmad, one of the plaintiffs as P.W.2, Muhammad Umar alias Manna son of Nawab Din, a witness of the said agreement to sell Exh.P.1 as P.W.3.
6. Evidence of the petitioners was closed on 16-7-2001. Respondents produced Amjad Ali stamp vender as P.W.4 in rebuttal. The present petitioners objected to producing of evidence but their objection was turned down and said witness was allowed to appear and make statement who was then crossed.
7. The learned trial Court after recording of evidence dismissed suit of the present respondents vide judgment and decree dated 23-10-2001.
8. These respondents assailed the impugned judgment and decree dated 23-10-2001 through appeal, the learned lower appellate Court/Additional District Judge vide judgment and decree dated 18-7-2002 accepted the appeal and set aside the impugned judgment and decree dated 23-10-2001 and thereby decreeing the suit.
9. The precise contentions of the learned counsel for the petitioners are that the learned trial Court while deciding suit in question decided issue No.1 holding that the agreement to sell dated 19-3- 1995 was not proved especially for the reason that execution of the stamp paper was shown to be dated 19-3-1995 whereas issuance of the stamp paper was shown to be dated 27-3-1995. Thus in view of subsequent issuance of stamp paper question of execution of agreement to sell does not arise.
10. The learned trial Court while deciding issue also held that P.W.2 and P.W.3 during their cross- examinations stated that Arshad Ali defendant No.1 purchased the stamp paper whereas Amjad Ali stamp vender appeared as P W.4 and stated in his cross-examination that he sold stamp paper to one Muhammad Anwar Joya. Since there was contradiction in purchase of stamp paper, as such the court finally concluded that the agreement to sell was not proved. Even otherwise since Exh.P.1 was witnessed by three persons Haji Fazal Elahi son of Muhammad Ramzan, Abdul Ghani son of Muhammad Musa and Muhammad Umar alias Manna son of Nawab Din, out of these three witnesses only one Muhammad Umar alias Manna appeared in the witness box as P.W.3 and categorically stated that no amount was given or tendered in his presence. In these circumstances Issue No.1 was decided against the plaintiff.
11. As far as Issue No.2 is concerned, the defendant No.2 appeared as D. W.3 and in his cross- examination he was suggested by plaintiffs that he has paid Rs.5,000 to defendant No.1 on 5-1- 1995. This suggestion conveys and confirms the fact that prior to the alleged agreement there also exist a contract between defendants regarding sale of property which was finally converted into sale of property on 4-9-1995.
12. The learned lower appellate court while reversing the findings on issues 1 and 2 observed that Amjad Ali P.W.4 while appearing in witness box has clearly explained reasons for the issuance of the stamp paper on 27-3-1995. He admitted in his statement that the stamp paper was sold on 19- 3-1995 to one Anwar Joya deed writer P.W.1, but as no endorsement was made on back side of the stamp paper as such he called for the said stamp paper which was brought by the said Anwar Ali Joya and he made endorsement on the back D side of said stamp paper on 27-3-1995. Moreover the transaction between present petitioners Nos.1 and 2 who were real brothers have taken place, as such learned lower appellate court while reversing the findings has held that had the petitioner No.1 sold the property to petitioner No.2 question of subsequent leasing of the property would not arise which shows collusion between two brothers. The other reasons which prevailed before the learned lower appellate court that the signatures and thumb impressions are since admitted between the parties it was then the headache of petitioners Nos. 1 and 2 to prove that the property was leased out to the present respondents and not sold out, on the basis of these reasons the learned lower appellate court reversed the findings and decided Issues Nos. 1 and 2 in favour of respondents, thus decreeing the suit.
13. The learned counsel further pointed out that P.W.1 who is the deed writer of the document in his cross-examination admitted that there were number of cuttings in the register which he has brought. Moreover, at the place where the amount of Rs.63,438 has been written, he stated on his on that instead of Rs.10,000 it has been written as Rs.63,438. He admits in his cross-examination that according to the endorsement on the backside of the stamp paper the said stamp paper was issued on 27-3-1995. During cross-examination number of things were pointed out, for example he admitted that it is correct that at Serial Nos. 8, 9, 10, 11 and 12 in front of these columns in the last except thumb impressions nothing has been written as to whose thumb impressions those are. He also admits in his cross-examination that number of pages and lines have been left blank. During cross-examination he was suggested that these pages and lines have only been left blank in order to fill up antedated stamp papers which he usually do in connivance with the parties.
14. Haji Mushtaq Ahmad plaintiff appeared as P.W.2. In his cross-examination he admits that agreement to sell was executed in winter season. He also admits that he does not know date of the agreement. During cross-examination he admits that only Rs.5,000 was given as earnest money but no receipt was issued. In cross-examination he disclosed that stamp paper was purchased by Arshad Ali. He also admits that nothing has been mentioned regarding payment of Rs.5,000 in the agreement to sell. He further explained that some amount was given at the Bhatha and some payments were made at the residence. He has not been able to give details as what amount, at what place was paid or given.
15. Muhammad Umar alias Manna son of Nawab Din who is one of the witnesses of the said agreement appeared as P.W.3. In his cross-examination he narrates that Rs.5,000 was paid by the plaintiffs to Arshad Ali. He further explains in his examination that no amount was given in his presence in respect of Exh.P.1. In cross-examination he admits that after two months of the payment of Rs 5,000 the Exh.P.1 was executed. He admits that regarding payment of Rs.5,000 nothing has been mentioned in the agreement. He also narrates in his cross-examination that stamp paper was purchased by Arshad. He denied the suggestions that the document in question is forged and fabricated.
16. P.W.4 Amjad Ali appeared and stated in his examination that he issued the stamp paper on 19- 3-1995 but did not make endorsement either on back of the stamp paper or in the register as he had rush of work and Anwar Joya P.W.1 took away stamp paper during rush hours with the undertaking that he will get it entered in his register. In his cross-examination he admits that P.W.1 had not brought the register in which relevant stamp paper Exh.P.1 has been entered in....The counsel for the defendants during cross-examination on the said witness took up the objection that defendants be directed or the Court should procure relevant register as it would be the most crucial evidence in the case. Neither his request for procuring the relevant register was accepted nor objection by the learned counsel for the petitioners that witness should not be allowed to appear in rebuttal as the respondents had the opportunity to produce evidence in affirmative. The witness in his cross-examination admits that he sold the stamp paper to Anwar Joya P.W.1 and the explanation put forth for not registering the stamp paper on the relevant date was rush of clients and subsequently on his asking Anwar Ali Joya has brought the stamp paper on 27-3-1995 and he got it entered in his register.
17. The learned counsel for the petitioners submits that story of the plaintiffs was to stand on its on legs and should not be decreed on the shortcoming of petitioners, hence the learned lower appellate court while reversing the findings has fallen in error. Learned counsel relied upon Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others, (2003 MLD 131) and Badar Zaman v. Sultan, (1996 CLC 202).
18. Learned counsel further submits that mere presence of the signatures and thumb impression does not attract proof of execution of the document and there should have been some evidence in order to prove the same. In absence of that the learned lower appellate court while reversing the judgment of the trial Court has misconstrued the law. Reliance is placed upon Muhammad Amin v.
Ghulam Muhammad, (PLD 1993 Lahore 569), Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujtahid and others (PLD 2007 Lahore 254) and Muhammad Anwar Bedar and others v.
Muhammad Aslam Pervez and others (1996 CLC 385).
19. Learned counsel further submits that it was incumbent upon the plaintiffs/ respondents to prove the execution of the document under Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 and in absence of that judgment and decree passed by , the lower appellate court was not inconsonance with the law. Learned counsel further submits that the lower appellate court while reversing the findings on Issues Nos. 1 and 2 have failed to attend to the question that the plaintiffs have not been able to prove that a sum of Rs.5,000 was .Paid to the present petitioners which was even not sufficient to decree the suit of the present respondents. Reliance is placed on Maqsood Ahmad and others v. Salman Ali, (PLD 2003 SC 31). He further submits that as far as the payment of the amount is concerned, the plaintiffs have totally failed to bring on record any document as to how and what amount was paid at the time of signing of the alleged agreement Exh.P.1. In the last the learned counsel submits that the judgment and decree passed by the learned lower appellate court may be set aside and the decree passed by the learned trial Court be restored. Learned counsel further submits that had the trial Court allowed him to procure the register of stamp papers from the record room so as to unearth the truth as to how many stamp papers were sold by the said witness on the said date.
20. No one has appeared on behalf of respondents, therefore, they are proceeded against ex parte.
21. I have considered the arguments of the learned counsel for the petitioners and with his assistance perused the record.
22. First question argued by learned counsel was that story as narrated in the plaint by the respondents was to stand on his on legs and the learned lower appellate while reversing findings on Issues Nos. 1 and 2 has mostly discussed the shortcoming of petitioners/defendants while reversing the findings on Issues Nos. 1 and 2. He relies on 2003 MLD 131 which says that "plaintiff/appellant has to prove his case independently and cannot get benefit of shortcomings of defendant/respondent". There is no cavil to the proposition that up to date it is settled law that a person who alleges should prove the same. In the instant suit respondents filed a suit on the basis of an agreement to sell except in which stamp paper had two dates one is 19-3-1995 and second is 27-3-1995. These two dates were sufficient to create doubt in the mind as to how a document has been executed prior to issuance of same unless and until some oral or documentary evidence has been placed on record to make up the deficiency which the said different dates had created in absence of that the findings of the lower appellate court is not sustainable.
23. The second contention of the learned counsel for petitioners was that since the disputed document in question the contents of which were denied, as such it was incumbent upon the respondents/ plaintiffs to have proved the same through attesting witnesses of the said agreement Exh.P-1 especially in the circumstance when issuance of date of disputed document was doubtful and the learned lower appellate court while attending to the same has not taken care of the fact that plaintiffs/ respondents as alleged by them have paid to the present petitioners a sum of Rs.63,438 whereas in his evidence the attesting witness of Exh.P-1 fully speaks of payment of Rs.5000 and even the said amount was not paid in his presence. Moreover, plaintiff himself admitted in cross-examination that at number of occasions amounts were paid by the plaintiffs to defendants whereas a bare reading of the document Exh.P1 totally negates the same. In presence of such contradictions and the state of affair as existed in evidence learned court ought to had taken notice of the above fact while deciding the same. Reference is made to "Muhammad Amin v.
Ghulam Muhammad" (PLD 1993 Lahore 569) which says that "Mere presence and signatures on the pro note by defendant as admitted by him would not mean that execution of pro note had been admitted by him---Expression "execution" of a document does not mean mere presence of signature of the executant on it where plea has been raised that same were obtained for some other purpose and the amount mentioned therein was never paid to him---and "Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujtahid and others" (PLD 2007 Lahore 254) which says that---Execution of---Proof---Mere appendage of thumb marks or signatures would not mean due execution of document.
24. It was also urged by counsel for petitioners before the learned lower appellate Court that disputed document which contains fiscal matter was to be proved under Articles 17 and 79 of Qanune-Shahadat Order 1984. In this context reliance is placed on PLD 1995 Lahore 395 2002 SCMR 1089, 2002 CLC Lahore 88 and 2003 CLC Lahore 485. In the present case plaintiffs only produced Umar alias "Manna" as P.W.3 who was one of the attesting witnesses out of three; even the said witness in cross-examination contradicted with the stance of plaintiffs/ respondents that payment of Rs.5000 was I made to petitioner No.1 Arshad Ali. He further explains in his cross-examination that no amount was given in his presence. In the presence of only one witness produced by the plaintiffs the learned lower appellate court should have attended to this part of evidence before reversing the judgment on this issue. Learned counsel placed his reliance on PLD 2003 SC 31 which says that "the document squarely fell within the categories of the instruments which were required to be attested by two men or one man or before a court of law the contents of document were required to be proved as per methodology of Articles 79 of Qanun-e-Shahadat Order, 1984.
25. Thus the learned lower appellate court ought to had taken notice of the law J laid down in the referred judgments and ought not to had reversed the findings.
26. The learned lower appellate Court even did not advert to the statement given by P.W.1 where in his cross-examination he stated that agreement in question was executed during winter. On the reverse the document based for filing of suit as per its date of issuance purported to be issued in March. This visible contradiction was also overlooked by the learned lower appellate Court while reversing the findings.
H Moreover, learned lower appellate court ought to had taken into consideration the accompanying stance and circumstances while reversing the findings, for example the learned court should have appraised the evidence of deed writer who while appearing as P.W.1 had admitted that in his register where instant agreement to sell was recorded, there were number of cuttings and shows that amount of Rs.63,438 has been written instead of Rs.10,000. He admits that in the column where thumb impressions have been got recorded no name has been written against each thumb impression as to whose they are. Moreover, throughout the said register number of pages were kept blank which further create doubt regarding authenticity of said register, which fact ought to had been taken notice of while passing the impugned judgment.
27. As the learned lower appellate court has over-looked the basic law on the subject thereby ignoring the factor of prove of document; its execution and payment alleged by plaintiffs/respondents as shown in the agreement to sell judgment of the learned lower appellate court in these circumstances was outcome of mis-reading or non-reading of evidence and ignoring the settled law, therefore, same cannot sustain in presence of the fact that only one witness to the disputed agreement was produced which law did not permit.
28. In view of the above discussion, this revision petition is accepted, judgment and decree, dated 18-1-2003 passed by learned lower appellate Court is set-aside, whereas judgment and decree, dated 23-10-2001 passed by the learned trial Court is restored.