' MUHAMMAD NOOR MESKENZAI, J.--- Instant appeal is directed against the judgment/decree dated 31st March, 2010 passed by Civil Judge, Quetta, whereby the suit filed by the plaintiffs/appellants was dismissed.
2. Precise facts relevant for the disposal of instant appeal are that the plaintiffs filed a suit for declaration, specific performance of agreement dated 9-11-1999, possession and perpetual injunction against the defendants/respondents. It was averred in the suit that plaintiffs' grandfather namely Nasrullah Khan got possession of a shop measuring 350 sq.Ft. Khasra No,6 Khewat No,142 Khatooni No,177, Ward No,38 Mohal Mouza City, Tehsil and District Quetta situated at Mission Road, Quetta. It was further stated in the plaint that underneath the shop, there was a basement of about 837 sq.Ft., which was in possession of one Muhammad Ali Hazara. The plaintiffs' grandfather remained as a tenant in the shop, however, on 24th June, 1993 a formal agreement regarding rent was executed between him and the defendant. As per para No,2 of the plaint another sale agreement was executed between the parties on 9th November, 1999 and both the parties agreed as under:-
(1) The consideration price of the shop along with its basement was settled to be Rs,25 lac.
(ii) Acknowledgment of Zafarullah being tenant in the shop through his father since 1990.
(iii) Re-certifying the amount of 6 Lacs that was paid to the defendant at the time of the execution of the tenancy agreement dated 24-6-1993 as deposit.
(iv) Acknowledgement of restoration of possession by Zafarullah after the payment of Rs,4,50,000 to the tenant in the basement namely Muhammad Ali Hazara, which was to be deducted from the total consideration/ price.
' As per the agreement, Rs,4,50,000/- cash stands paid to the defendant at the time of execution of agreement, Rs,15,00,000/- inclusive of the deposit amount of Rs,600,000/- also stand paid to the defendant, however, regarding remaining Rs,10,00,000/- it was settled that plaintiffs' grandfather would deposit the same in the Bank within the period stipulated in the sale agreement. According to plaint the predecessor-in-interest of plaintiffs deposited Rs,7,60,000/- in the Bank on different dates. The plaintiffs also assumed possession of shop and basement as owners/purchasers. So far remaining amount, the same was to be paid at the time of final mutation. The defendant was approached on several occasion with the request to mutate the shop in question in the names of plaintiffs. So much so on 20th July, 2006 he was also served with the notice but all in vain.
3. The suit was contested by defendant No,1 by way of filing written statement whereby the claim of the plaintiffs was repudiated on factual as well as legal grounds. Respondent No,2 did not appear, as such he was proceeded against ex parte. The learned trial Court out of the pleadings of parties framed the following issues for determination:--
(1) Whether the suit is not maintainable in the light of legal objection "C&D" mentioned in the written statement?
(2) Whether the plaintiffs were only tenant and no sale agreement was made regarding the property in questions?
(3) Whether the plaintiff is entitled for relief claimed for?
(4) Relief?
4. Thereafter, the parties were directed to adduce evidence in support of their respective claim, whereupon, the plaintiffs produced ten witnesses and also got recorded their statement through attorney. In rebuttal, the defendant produced four witnesses, appeared in the witness-box and got recorded their statements in support of written statement.
5. The learned trial Court after hearing the parties and evaluating the evidence dismissed the suit filed by plaintiffs/appellants vide judgment, dated 31st March, 2010. Hence this appeal.
6. We have heard Mr. Abdullah Baloch, Advocate for the appellants whereas Mr. H. Shakeel Ahmed, Advocate represented the respondent.
' The learned counsel for the appellants argued with great vehemence that the learned trial Court fell in error while recording findings on issue No,2. The learned trial Court passed the impugned judgment contrary to the documentary as well as oral evidence. The plaintiffs succeeded to prove the sale of disputed property and the payment of sale price by their predecessor in interest but the learned trial Court while delivering the judgment failed to take into consideration all these aspects of the case and drawn a conclusions, which are not sustainable under the law. The defendant failed to rebut the claim of plaintiffs either by way of producing oral or documentary evidence but even then the learned trial Court instead of decreeing the suit, dismissed the same: The trial Court while deciding issue No,2 has only concentrated that the rent agreement executed on 24th June, 1993 has not been signed by predecessor in interest of plaintiffs. Learned counsel stressed that the document could not lawfully be rejected on the basis of such ground. The plaintiffs produced ample evidence to prove genuineness of the document i,e, sale agreement and representative of the Bank along with deposits slips which not only prove the sale transaction but also payment of sale price by, plaintiffs in favour of respondent No,1 stands established. The trial Court believed the expert, who was not notified, therefore, no reliance could be placed upon such. Evidence.
' On the other hand, the learned counsel for respondent No,1 strenuously opposed the appeal and submitted that the plaintiffs failed to prove their claim before the trial Court, as such, the learned trial Court rightly dismissed the suit. Neither there is any illegality in the judgment nor irregularity in the proceedings conducted by the trial. Court. The learned trial Court after proper appraisal of documentary as well as the oral evidence rightly came to the conclusion that the plaintiffs miserably failed to prove the sale agreement or payment on the basis thereof. Learned counsel emphasized that the so-called agreement which is the base of claim and the plaintiffs mainly rely upon the same has not been signed by predecessor-in-interest of plaintiffs. Similarly, the signatures of defendant/respondent on so-called sale-deed are forged. The respondent No,1 through reliable, trustworthy and confidence-inspiring evidence refuted and rebutted the claim of plaintiffs. The judgment impugned herein is the result of proper appraisal of evidence. It was well- reasoned and has been passed after attending all the aspects of the case, the same is not open to any exception.
7. We have considered the contentions, so put forth by the learned counsel for parties and gone through the available record minutely. Perusal of the record reflects that the plaintiffs/appellants to prove their version produced as many as ten witnesses. A meaningful glance of the evidence, produced by the plaintiffs/appellants, reveals that plaintiffs have failed to prove their case. As far as issue No,1 'Whether the suit is not maintainable in the light of legal objection "C D" mentioned in the written statement? Is concerned, it is to observe, that Issue No,l. Was decided in affirmative but respondents did not file cross-objection, therefore, the findings qua issue No,1 are retained. As far as Issue No,2, "Whether the plaintiffs were only tenant and no sale agreement was made regarding the property in questions?" is concerned, though the frame thereof is somewhat laconic but since both the parties remained satisfied with the nature of the issue, therefore, let this issue be examined in the light of evidence produced by plaintiffs/appellants. There are two agreements Mark-1 and Exh:P/1-A. As far as. Mark-1 is concerned, neither the agreement in original was produced nor any marginal witness entered into witness box, therefore, in our considered opinion, there was/is no need to dilate upon such an inadmissible piece of evidence. As far as the agreement Exh:P/1-A, is concerned, the plaintiffs/appellants have miserably failed to prove the agreement. P.W.1 Muhammad Ishaque though narrates the story yet does not states that the agreement was signed in his presence by the parties and particularly the defendant/respondent, rather admits that the document has not been drawn in his presence. In reply to cross vide question No,23 he states that:---{{URDU TEXT}} ' Besides, he is a close relative of plaintiffs.
' P.W.2 Abdul Rehman is also silent with regard to the factum of signatures on the so-called deed by defendant/respondent. Besides, the availability of the name of P.W. As a witness of the alleged deed, the same was not tendered in evidence by P.W.2. In reply to cross he states that:--{{URDU TEXT}} ' Similarly, P.W.3 Muhammad Ibrahim, who claims to be a witness to sale-deed, does not state that the agreement was got signed by defendant Muhammad Iqbal in his presence. P.W.8 Abdul Rehman, who claims to be author of the document, also does not state that agreement was signed by the defendant in his presence. For the sake of convenience, the operative portion of the statement is reproduced:---{{URDU TEXT}} ' P.W.9 Syed Ahmed Khan is the Notary Public, who has verified the sale deed i,e, Exh.P/1-A. For ready reference the statement of this witness is also reproduced:-{{URDU TEXT}}
8. The perusal of the statements referred to hereinabove leave no room for doubt that the Exh.P/1-A was not at all signed by the defendant/respondent in the presence of any of the P. Ws. P.W.9, who is a Notary Public does not state that the contents of the document were either read over or were owned and accepted by the defendant. In written statement, the defendant/respondent has categorically denied the execution of the document and also has stated that his signatures are forge and fake. The overall perusal of entire evidence produced by the plaintiffs/appellants established the fact that there is not an iota of evidence to prove that the document Exh.P/1-A was signed by the parties in their presence such omission in the statements of P. Ws, itself is sufficient to hold that the plaintiffs/appellants have failed to prove the execution of the document i,e, sale deed.
By holding the view, we are fortified by the dictum laid down in judgment titled as Maqsood Ahmed and another vs. Muhammad Razzaque and 9 others reported in PLD 2009 SC (AJ&K) 13 (relevant at page-20), wherein it was observed as under:---
(A) "It is well-settled principle of law that for proving the execution of any document it is essential that two attesting witnesses should appear before the Court and state that the document was executed by the executant in their presence. The executant signed the document in their presence and they identify his signatures. This view finds support from a case reported as Muhammad Shafi v. Liaqat Hussain and 6 others 1999 CLC 1130 wherein it has been observed as under:-- "To prove the execution of the document it was necessary to lead the evidence to testify the fact that the executant (Mst. Saleema Bibi) put her thumb-impression out of her free will and consent in presence of witnesses."
' The aforesaid view further finds support from a case reported as Mst. Kulsoom Bibi and another v.
Muhammad Arif and others 2005 SCMR 135 wherein it has been observed as under:- "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."
' It further finds support from another case titled Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others 1985 SCMR 214 wherein it has been observed as under:--- "It has to be noted that the trial Court had implicitly relied on the statement of Shaukat Ali the attesting witness. His statement, however, is of little value because he admitted that he has not seen Asif Hussain signing the disputed document. If he had actually not seen him signing document, he could not prove the execution of the document by Asif Hussain. "
(B) In case title Mst. Saeeda Anwar and 3 others v. Malik Bashir Ahmad and others reported in 2009 MLD 1314 (relevant at page 1325), it has been observed:--- "All these agreements except Exh.D.W.1/3 are purported to have been executed on 16-11-1988 in favour of appellants Nos.], 2 and 4 respectively and are attested by D.W.17 Abdul Sami Mirza and Tariq Mehmood Butt. However, agreement to sell Exh.D.W.1/3 in favour of respondent No,3 is shown to have been executed on 11-11-1998 and is attested by D.W. 11 1ftikhar Ahmed and D.W.12 Muhammad Raza. However, execution of these documents is not proved in accordance with law.
Under Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, execution of a document is not proved unless two attesting witnesses are examined to prove its execution."
(C) Furthermore, the view finds support by another judgment title ' Sanaullah and another v.
Muhammad Manzoor and another' reported in PLD 1996 SC Page-256, wherein it has been held that:- "The ordinary rule for proving the execution or signature of a person on a document, is to call that person in evidence. In case the person who is alleged to have executed the document denies his signatures, his signatures can be proved by calling the person in whose presence the document was executed. In view of the preceding discussion and the circumstances of the case, the signatures of appellant No,1 on Exhs. P. I and .P.3 could be proved only by calling the two attesting witnesses in whose presence, according to respondents, appellant No,1 signed these documents.
Both the attesting witnesses of these documents were alive and were available but they were not produced by the respondents in evidence. In these circumstances, the Courts below could not hold on the basis of the evidence on record that the execution of documents Exhs. P.1 and P.3 by appellant No,1 was proved."
9. Besides, there is an inherent defect in the case of plaintiffs that the plaintiffs claim the possession of basement through Haji Muhammad Ali Hazara against a sum of Rs,45000/- but have failed to produce Haji Muhammad Ali Hazara, an adverse inference within the meaning of section 129(g) of Qanun-e-Shahadat Order can validly be drawn against the plaintiffs.
10. It is pertinent to mention here that during the course of proceedings before the trial Court defendant/respondent came forward with the plea that his signatures are forged, therefore, to ascertain the genuineness of signatures, the documents be sent to Handwriting Expert. It is interesting to note that such request of the defendant was vehemently opposed by the plaintiffs. It appears that the parties proposed the place of their choice, where the document should be sent to Handwriting Expert, but the trial Court instead of sending the document to the offices proposed by the parties, on its own, opted the third option and sent the same to the office of the Director Technical, Federal Investigation Agency HQRS G-9/4, Islamabad, wherefrom it was confirmed that signatures on the deed/document are forged. This act on the part of trial Court, is highly rational, absolutely logical and legal, which amounts to having a positive approach for resolving the legal intricacies and thus deserves appreciation. After receiving the report, the defendant/ respondent requested for examination of Examiner but this request too was vehemently opposed by plaintiffs/appellants.
11. There is another important aspect of the case i,e, the document in question is not registered.
Legally, an interest in an immovable property worth more than rupees one hundred is created, same requires compulsory registration,, otherwise such transaction would not create or extinguish any right whatsoever. Since, the claim of plaintiffs/appellants valuing Rs,25 lacs is based on a document, which is not registered, hence incapable to create any right in the property, therefore, no decree could be passed on such illegal and unwarranted document. Furthermore, the document in question is inadmissible in evidence in view of section 35 of Stamp Act, 1899 and the same is liable to be impounded as per the provisions of section 33 of the said Act.
' In the light of above discussion, we are fully satisfied that the claim of plaintiffs/appellants is concocted, fictitious, baseless and without substance. The plaintiffs miserably failed to prove their case and the trial Court has rightly dismissed the suit, hence we feel no hesitation to dismiss the, appeal with cost throughout. Decree sheet be drawn accordingly.