' CH. SHAHID SAEED, J.---The instant R.S.A. Is directed against the judgment and decree dated 6-5- 2003 passed by learned Addl: District Judge Gujranwala by way of which appeal filed by the respondents was accepted and their suit for specific performance of contract which earlier was dismissed by the learned trial court vide judgment and decree dated 31-1-2002, stands decreed.
2. Brief facts giving rise to this R.S.A. Are that defendants Nos. 1 to 5 were owners of suit-land as described in para No,1, of the plaint, who agreed to sell it out to plaintiffs, against the consideration of Rs,4,00,000. The earnest money of Rs,1,00,000 was paid at the time of execution of agreement dated 11-7-1994. It was mutually agreed that defendants Nos.1 to 5 would execute the sale transaction on or before 15-2-1995 after payment of rest of the sale consideration. After the execution of agreement, the plaintiffs contacted defendants Nes.1 to 5 for execution of sale transaction in their favour. They also asked the defendants Nos.1 to 5 to receive rest of the consideration and execute mutation of sale which was already entered after scribing of the agreement but the defendants Nos. I to 5 kept on delaying the matter till it was disclosed that the defendants Nos.1 to 5 have further executed registered sale-deed in favour of defendants Nos.6 to 12 on 24-1-1995.
3. On the other hand, defendants Nos.1 to 5 and 6 to 12 appeared before the trial court and filed separate written statements. Defendants Nos.1 to 5 conceded in their written statement that mutation of Sale No,412 was entered with Patwari halqa by them in favour of the plaintiffs. Whereas defendants Nos.6 No 12 contested the suit by tooth and nail. Out of the divergent pleadings of the parties learned trial court framed nine issues including relief. Both the parties got recorded their oral as well as documentary evidence. Thereafter learned trial court after hearing the arguments of learned counsel for both the parties dismissed the suit of the plaintiffs. They preferred an appeal which was allowed and their suit was decreed. Feeling aggrieved by the said judgment and decree appellants have filed the instant R.S.A.
4. Learned counsel for the appellants contends that the judgment and decree passed by the learned appellate court is against law and facts and also based on misreading and non-reading of evidence; that the alleged agreement to sell Exh.P.1 was attested by two witnesses namely Shahid Bashir and Zafar Javed. Out of them only Shahid Bashir Cheema appeared in the witness box as P.W.1 but Zafar Javed the other attesting witness was not produced by the respondents.
Further argued that under Article 79 of the Qanun-e-Shahadat Order, 1984, no document could be proved unless the attesting witnesses were produced in the court; that under the West Pakistan Land Revenue Act, 1967 no mutation could be attested simply on an agreement. Since the Sale price has not been paid, therefore, Mutation No,412 could not be attested by the Patwari Halqa in respect of the alleged agreement to sell. The said mutation was false and fabricated document, but the learned Addl: District Judge, Gujranwala has committed an error by relying on this document. Learned counsel further maintained that it was proved on the record that the appellants are the bona fide purchasers for value without notice, therefore, they were protected under the Transfer of Property Act and the sale in their favour was maintainable; that the evidence of Shahid Bashir Cheema P.W.1 was full of contradictions. Similarly the evidence of Muhammad Ashraf stamp vendor was discrepant and as such, these witnesses could not be relied upon.
5. On the other hand, learned counsel for the respondents maintained that respondents entered into agreement to sell regarding the suit-land on 11-7-1994 for Rs,4,00,000 whereas earnest money Rs,1,00,000 was paid at the time of execution of agreement to sell. Further argued that it was agreed between the respondents and defendants Nos.1 to 5 that registered sale-deed would be executed in favour of the respondents on 15-2-1995 on the receipt of remaining sale price of Rs,3,00,000, but, subsequently, defendants Nos.1 to 5 executed, registered, sale-deed No,340 in favour of defendants Nos.6 to 10 dated 24-1-1995 instead of executing registered sale-deed in favour of the respondents. Further argued that respondents have proved Exh.P.1 through cogent and confidence inspiring evidence. Statement of DW.1 Muhammad Aslam vendor is in favour of the respondents. Mutation was also registered regarding the agreement to sell in their favour.
Appellants have not produced any evidence to prove that they are the bona fide purchaser of the property in dispute and has also supported the impugned judgment and decree of the learned appellate court.
6. Arguments heard. Record perused.
7. Undeniably, Exh.P.1 is the first agreement to sell between the plaintiffs and the defendants Nos.1 to
5. To prove the said document plaintiffs were legally bound to produce the marginal witnesses of Ex.P.1 but from the perusal of record it reveals that alleged agreement to sell (Exh.P.1) was attested by two witnesses namely. Shahid Bahsir and Zafar Javed but at the time of evidence respondents produced only Shahid Bashir Cheema as P.W. But Zafar Javed the other attesting witness was not produced. According to Article 79 of the Qanun-e-Shahadat Order, 1984, no document could be proved unless two attesting witnesses were produced in the court. Since two witnesses were not produced in respect of the sale agreement P.1. It is settled law that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses have been called for the purpose of proving its execution. Admittedly Exh.P.1 is an agreement to sell which is compulsorily required by law to be attested by two witnesses but the respondents have failed to fulfil the basic requirement of Article 79 of the Qanun-e-Shahadat. Reliance can be made to the case of Mst.Nagina Begum v. Mst.Tahzim Akhtar and others (2009 SCM R 623.)
8. Now adverting to the next contention of the learned counsel for the appellants. No doubt, the learned appellate court has relied upon the statement of DW.1 Muhammad Aslam who was the original owner of the property in dispute. Muhammad Aslam defendant No,1 on one hand admitted the execution of agreement to sell in favour of the plaintiffs and also receipt of earnest money of Rs:1,00,000 from the plaintiffs but on the other hand, he executed the registered sale-deed in favour of the appellants only on the statement of one Bootey Khan without making any confirmation from the plaintiffs that whether they are agreed to relinquish their claim of the suit-land or not. Learned trial court has rightly held that attitude of defendant Muhammad Aslam, does not look natural and does not appeal to one's conscious that when he had already entered into an agreement to sell with one party and had received earnest money then how could he executed registered sale-deed in favour of another party without seeking consent of the first party. After careful perusal of the statement of Muhammad Aslam I have left no option but to say that he is an interested witness and he has given the said statement having in league with the respondents, therefore, the same cannot be believed.
9. The other contention of the appellants was that they are the bona fide purchasers of the property in dispute. In this regard sufficient evidence is available on the record. Muhammad Rafique Shaheen appeared as DW-2 who was the scriber of sale-deed Exh.D.1. Muhammad Riaz who was one of the marginal witness of Ex. D.1 recorded his statement as DW-3. Muhammad Boota, one of the appellant appeared as DW-4. He stated that defendant No,1 Muhammad Aslam executed registered sale-deed in his favour and had never told him about any previous agreement to sell regarding the suit-land. He further deposed that respondents also never told him regarding Exh.P.1 with respect to the suit-land. After going through whole the evidence on record I am of the considered view that appellants are bona fide purchasers of the property in question and they had no knowledge about Ex.P.1 prior to the execution of the registered sale-deed.
Consideration. Amount Rs,5,00,000 is also proved to be paid to the defendants Nos.1 to 4. No evidence is available on record to the effect that appellants have the knowledge of execution of the agreement of sell in favour of the respondents. Reliance can be made to the case of Muhammad Afzal v. Muhammad Ayub and others (2003 SCM R 961) .
10. It is stark reality that there was no entry of mutation in the copy of registered Haqdaran Zaeem obtained by the appellants at the time of attestation of registered sale-deed. Initially the Mutation No,412 regarding the property in dispute in favour of the respondents was entered but subsequently the same was got cancelled by the defendants Nos.1 to 4. It is also an admitted fact that the said mutation was also not sanctioned. It is settled principle that no mutation could be attested simply on the basis of an agreement. It could be attested either on the basis of a registered deed or on the basis of a decree of a Court. The Mutation No,412 could not be attested by the Patwari Halqa in respect of the alleged agreement- to sell. Attestation of mutation in favour of respondents also creates doubt regarding the validity of Exh.P.1.
11. It is also an admitted fact that Bashir P. W.1 marginal witness of Exh.P.1 was resident of village Thatha, the other witness namely Zafar Javed belonged to village Nizampura. Whereas the owners of the land belong to District Sargodha and the land was situated in village Abdal. When all the persons belong to different places and they have no relations with each other than how they get together at one place and prepared Exh.P.1. Moreover there are material contradictions in the .Statements of the P.Ws. Scribe of Exh.P.1 has, also not produced. Shahid Bashir Cheema P.W.1 during his cross examination showed his , ignorance as to the date of execution of written agreement Ex.P.1, therefore, it can safely be held that respondents have failed to prove Ex.P.1 through cogent and confidence inspiring evidence.
12. For the foregoing reasons, I am of the considered view that the learned appellate court has committed illegality and material irregularity while passing the impugned judgment and decree which has no bearing in the eyes of law. Hence, the instant R.S.A. Is accepted. The impugned judgment and decree is set aside and the judgment and decree passed by the learned trial Court dated 31-1-2002 is restored. There is no order as to costs.