1. MUNIB AKHTAR, J.---This civil revision arises out of Suit No, 67 of 1996 filed by the present applicants as plaintiffs against the predecessor-in-interest of the respondents listed at No, 1 as defendant, seeking specific performance of an agreement between the predecessor-in -interest of the applicants as buyer, and the predecessor-in-interest of respondent No,1 as seller. (The actual buyer and seller both having passed away, the litigation proceeded between their respective successors-in-interest, the present parties to this revision.) By means of the said sale agreement dated 12-10-1993, Muhammad Suleman, the predecessor-in-interest of the present respondents listed at No, 1, agreed to sell his agricultural land situated in Deh Sattar Dino Taluka Bhirya City, as detailed in the agreement, being a total area of 73 acres, to Misri Khan, the predecessor-in - interest of the present applicants. The said agreement purported to record that the total sale consideration was 2,19,000 out of which an amount of 200,000 had been received by the seller, and the remaining 19,000 was to be paid in the month of December, 1995 before the Sub-Registrar Kandiaro at the time of registration of the sale-deed. The agreement further recorded that the possession of the property had been handed over to the purchaser Misri Khan. The agreement was witnessed and attested by Din Muhammad and Beharam. It was also notarized by S. Assadullah Shah, advocate and notary public.
2. The case of applicants (who are hereinafter referred to as the plaintiffs) was that their predecessor-in-interest, Misri Khan, the purchaser had approached the defendant No,1, Muhammad Suleman, in December 1995 seeking that the Muhammad Suleman received the balance consideration of 19,000 and execute the registered sale-deed in his favour. According to the plaint, Muhammad Suleman kept putting off the matter on one pretext or another, and even demanded more money from Misri Khan. It was alleged that by April, 1996 it became clear to Misri Khan that Muhammad Suleman was not going to keep his end of the bargain, and accordingly; the suit was filed, seeking specific performance of the agreement.
3. Muhammad Suleman put in appearance in the suit, and denied the execution of any agreement between him and Misri, Khan, and also denied ever having put Misri Khan in possession of the suit property on account of the sale agreement.
4. On the pleadings of the parties the learned trial Court framed following issues:--
(i) Whether defendant No, 1 agreed to sell out suit land to the plaintiff on receiving part payment?
(ii) Whether the sale agreement dated 12-10-1993 is forged and manipulated document?
(iii) Whether suit is barred under section 42 of Specific Relief Act?
(iv) Whether suit is not maintainable at law?
(v) Whether suit is undervalued and insufficiently stamped?
(vi) Whether plaintiff is in possession of the suit land in pursuance of sale agreement?
(vii) Whether the plaintiffs are entitled for the relief claimed?
(viii) What should the decree be?
5. After considering the evidence led by the parties, and hearing the submissions of the learned counsel appearing on their behalf, the learned trial Court decided the material issues in favour of the plaintiffs, and decreed the suit as prayed by means of judgment dated 10-10-2000.
6. Being aggrieved by the aforesaid judgment and decree, the defendants filed an appeal which was heard and disposed of by the District Judge, Noushehro Feroz (being Civil Appeal No, 1 of 2000). The learned appellate court was pleased to reverse the order of learned trial Court, and dismissed the plaintiffs' suit with costs. by means of judgment dated 6-11-2001. Being aggrieved by the aforesaid dismissal, the plaintiffs filed the present revision in this Court.
7. Learned counsel for the plaintiffs strongly assailed the judgment of the learned appellate court. He submitted that no cogent reason had at all being advanced by the appellate court for disagreeing with the conclusions arrived at by the trial Court, which had carefully considered the evidence led by the parties, and had arrived at the correct, conclusion by decreeing the plaintiffs suit. Learned counsel submitted that the agreement had been properly proved by the plaintiffs in the manner as required by law, and that the payment of the substantial portion of the sale consideration as stated therein, i,e, 200,000, had been properly confirmed by the plaintiffs' witnesses. Learned counsel submitted that the principal reason put forward by the learned appellate Court for disagreeing with the conclusion arrived at by the learned trial Court was that the signature of the seller Muhammad Suleman on the agreement did not match those otherwise admitted by him.
8. However, according to learned counsel, the variation in the signatures was such as was but the natural result of the passage of time. Learned counsel also assailed the observations of the learned appellate court that the scribe of the agreement had not been produced, and submitted that there was no requirement in law that the scribe be examined if the attesting witnesses were produced, which had been done in the present case. Learned counsel further submitted that by consent, a commissioner had been appointed by the learned trial Court to examine the position on the ground, and the commissioner had reported that the possession of the suit property lay with the plaintiffs. This report was taken on record and produced in evidence, and learned counsel submitted that no objection thereto had been taken at any time by the defendants. According to learned counsel, this further corroborated the claim of the plaintiffs that they had been put in possession of the suit property as stated in the agreement.
9. Learned counsel for the defendants/respondents supported the decision of the learned appellate court, and submitted that the plaintiffs' suit had been rightly dismissed. He submitted that the learned trial Court had misread the evidence and failed to appreciate the material discrepancies in the evidence of the witnesses produced by the plaintiffs. He accordingly prayed that the revision be dismissed.
10. The crucial questions requiring determination were of course those specified in Issues Nos. 1 and 2, i,e, whether Misri Khan and Muhammad Suleman had entered into an agreement to sell, as was claimed by the plaintiffs, or whether the document produced and relied upon this behalf was a forged and fabricated document, as claimed by the defendants. The learned trial Court considered the evidence of the two attesting witnesses, Beharam and Din Muhammad and another witness produced by the plaintiffs, one Mir Muhammad, and came to the conclusion that the said witnesses confirmed the execution of the agreement, and it therefore accepted the evidence of these witnesses. It may be noted that Mir Muhammad was the attorney of Misri Khan. The learned appellate court on the other hand, came to the conclusion it did not find the evidence of the attesting witnesses reliable and satisfactory. The reason for the learned appellate court's rejection of their evidence was that Mir Muhammad and one of the attesting witnesses, Din Muhammad, both testified that the stamp paper had been purchased by Misri Khan from Kandiaro, whereas according to the learned appellate court, the stamp paper itself clearly showed that it had been purchased from Gambat. The learned appellate court further observed that although the attorney Mir Muhammad, and both the attesting witnesses, had been specifically questioned about the name of petition writer or scribe who had written the sale agreement, they did not know his name.
11. For these reasons, the learned appellate court expressed its dissatisfaction with the evidence of the plaintiffs' witnesses.
12. In my view, the points taken by the learned appellate court, while not irrelevant, do not make a compelling case for disagreeing with the findings of the learned trial Court. Both Mir Muhammad and the attesting witnesses specifically confirmed that the agreement had been executed in their presence and that the amount of 200,000 had been paid over to the seller Muhammad Suleman.
13. The specific role required by attesting witnesses in respect of any agreement witnessed by them is to confirm whether or not the agreement had been executed by the parties thereto. On this central point, as rightly observed by the learned trial Court, the evidence of the plaintiffs' witnesses could not really be shaken in cross-examination. The fact that the witnesses did not know the name of scribe of the agreement was, in my view, a peripheral issue, which was neither required by the law nor was something from which a compelling adverse conclusion could be drawn to the extent, and in the manner, as held by the learned appellate court. Insofar as the question of where the stamp paper was purchased from (i,e,, from Kandiaro or Gambat), that too, in my view, is not a matter central to the issues at hand. The stamp paper is produced by one or other of the parties to the agreement, and attesting witnesses are hardly ever concerned with where it has been purchased from. The fact that both Mir Muhammad and Din Muhammad thought that the stamp paper had been purchased from Kandiaro is therefore, of no great moment and in my view, the learned appellate court has erred in placing an undue emphasis and significance on the same.
14. The learned appellate court has also placed emphasis on the fact that the scribe of the agreement was not produced in evidence. This was not a point that was taken by the learned trial Court and in my view, quite rightly so, since it is not a requirement of the law that the scribe be produced to establish whether the agreement was executed or not. That is the function and role of the attesting witnesses, and as noted above, they were produced in evidence by the plaintiff.
15. The learned appellate court has made certain observations with regard to the value of the stamp paper on which the agreement was recorded, namely, stamp paper worth 50. In my view, the conclusion drawn by the learned appellate court on the basis of the value of the stamp paper, and the changes made in the Stamp Act, 1899 (as applicable in Sindh with effect from 1-7-1994) are speculative, and the learned appellate court was wrong in placing reliance on the same.
16. This brings me to the last point on which the learned appellate Court disagreed with the learned trial Court, namely that the signature of the seller, Muhammad Sideman, on the agreement, which was denied by him, was different from those admitted by him, which in the present case were his signatures on his account opening form with the United Bank Limited. For this purpose, the defendants had produced one Noor Muhammad, an officer of United Bank Branch at Noushehro Feroz, where Muhammad Suleman used to maintain his account. Noor Muhammad produced the specimen signatures of Muhammad Suleman as available with the Bank on the account form. The learned trial court had not given any credence to this evidence on the ground that Muhammad Suleman had not signed the account form in front of Noor Muhammad, and that the defendants ought to have produced that Bank officer before whom the form was signed. The learned appellate court quite rightly brushed aside this objection on the ground that the account form had been produced from proper custody, and there could be no reason to doubt that the signature on it was that of Muhammad Suleman. Upon comparing the specimen signatures as available with the Bank, and the signature of Muhammad Suleman on the agreement, the learned appellate court observed as follows:-- "These specimen signatures of Muhammad Suleman if compared with his alleged signature on Exh.89, even a child can say with the signature of Muhammad Suleman on Exh.89 is forged." (Exh.89 is of course, the agreement sought to be specifically enforced.)
17. The learned trial Court, as noted above, did not regard the account form with the Bank as worthy of consideration. It did however observe that the signature of Muhammad Suleman as on the sale agreement appeared to match his signature on the NIC, a copy of which was also produced by Noor Muhammad. The learned trial Court also placed reliance on the fact the attesting witnesses and Mir Muhammad had all deposed that Muhammad Suleman had signed the agreement in their presence.
18. Obviously, there is a discrepancy between the findings recorded by the learned trial Colin on the one hand, and the learned appellate court on the other with regard to the signatures. Both courts examined the signature of Muhammad Suleman on the agreement to sell. One court, the learned trial court, compared this signature with Muhammad Suleman's signature on his NIC, and concluded that the two were the same. The other, the learned appellate court, compared the signature with the specimen signature available with the bank, and concluded that the two were so different that even a child could make out the difference.
19. As noted above, learned counsel for the plaintiffs accepted that there was a variation in the signatures as compared by the learned appellate court, but sought to explain it away as a natural variation that is only to be expected with the passage of time. The problem is that when the signature on the Bank's account form (which is dated 27-12-1976) is compared with the signature of Muhammad Suleman on his written statement (which is dated 16-10-1996), the two prima facie appear quite similar. But both also appear to be rather different from the signature on the agreement to sell (which is dated 12-10-1993). If two signatures 20 years apart appear to be the same or similar, and both appear to be different from those on a document executed in between, there is, prima facie a question mark over the latter. Thus, in my view, there is substance in the observations made by the learned appellate court that Muhammad Suleman's signature on the agreement to sell appears to be rather different from the admitted signature.
20. It will be seen from the foregoing that the material evidence can be regarded as falling into two main categories. One is the evidence of the plaintiffs witnesses, and the other is the signature of Muhammad Suleman on the agreement to sell. As to the first category, the learned trial Court accepted the evidence of the plaintiffs witnesses, but the learned appellate court found it wanting.
21. As I have indicated, I am not satisfied with the reasons for which the learned appellate Court disagreed with the learned trial Court on this count. The second category is Muhammad Suleman's signature. The learned trial Court concluded that the signature was genuine, whereas the learned appellate court concluded that the signature was such a blatant forgery that even a child could discern that it was fake. As I have indicated, I find that there is force in the observations of the learned appellate court in this regard. There is however, one piece of evidence that is missing that could have resolved the matter of the difference between the signatures, and that is the testimony of a handwriting expert. The learned trial Court noted that expert opinion in this regard was not sought by the defendants (who were denying the signature on the agreement). In my view, since the learned appellate court had come to a different conclusion in respect of the signature on the agreement, it ought (at the very least) to have considered seeking expert opinion on this point instead of simply relying on its own conclusions in this regard, not matter how strongly held and put those conclusions were. Obviously, the matter cannot be resolved on the evidence as it stands at present since there is a clear conflict between the two main categories, as noted above. The opinion of the handwriting expert will therefore necessarily have to be obtained in order to properly resolve the suit.
22. Accordingly, I allow this revision, and set aside both the judgments below. The matter is remanded to the learned trial Court, which will obtain expert handwriting opinion on the signature of Muhammad Suleman as on the agreement to sell as compared with his signatures on his written statement and on the bank form. The learned trial Court shall then consider all the evidence, as already on the record along with the handwriting expert's evidence, and after considering the same in the light of submissions made by the parties or their counsel, shall pass judgment and decree in accordance with law. The learned trial court shall do so completely uninfluenced by anything said in this judgment or any of the judgments set aside today, and shall conclude the matter as expeditiously as possible and preferably within 4 months from today. The fee of the handwriting expert, and any associated costs, shall be borne by the plaintiffs. The office is directed to immediately return the R&P to the learned trial Court to enable the matter to proceed further before that Court.