' CH. SHAHID SAEED, J.---By way of filing this civil revision, the petitioner has impugned the judgment and decree dated 17-11-1999 passed by learned Additional District Judge, Kasur who accepted the appeal and set aside the judgment and decree dated 15-2-1996 passed by learned trial Court whereby the suit of the petitioner - plaintif f was decreed.
2. Precisely stated the facts extracted from the record are that the petitioner -plaintif f Sahab Khan filed a suit for specific performance of agreement to sell dated 12-11-1989 (Exh. Pl) entered into with defendant No,1 Bashir - ud-Din regarding agricultural land measuring 182, kanals 18 marlas, fully descr ibed in the plaint, alleging that a sum of Rs,60,000 was paid as earnest money white the residual amount was to be paid at the time of registration of sale-deed subject to issuance of NOC from GHQ, however , defendant No,1 transferred the same in favour of defendant No,2 vide registered sale-deed dated 18-5-1991.
3. The suit was hotly contested by the defendants who filed written statement and alleged that Exh.P1 was result of fraud and forgery. The learned trial Court after framing of issues and recording of oral as well as documentary evidence adduced by the parties decreed the suit on 15-2:1996. Feeling dissatisfied, the respondents- defendants filed appeal which was allowed by the learned first appellate court vide impugned judgment and decree. Hence this civil revision.
4. Learned counsel for the petitioner -plaintif f inter alia contends that admitted ly, the petitioner -plaintif f is in possession of the suit-land who has developed the same to the status of cultiv able and also built a fish farm thereupon after spending huge amounts but the defendants did neither raise any finger upon the possession nor on the development of the suit-land; that the petitioner has successfully proved the lawful execution of agreement to sell dated 12-11-1989 through cogent and unshaky evidence; that the learned Additional District Judge has failed to appreciate the evidence available on record and merely on the presumption that the signatures of respondent No,1 are not such as appeared on other documents dismissed the suit of the plaintif f; that the marginal witnesses as well as scribe of Exh.P1 have categorically stated that the Exh.P1 was executed and signatures were put in their presence, as such, there was no need for any comparison; that the learned first appellate court has also not taken into account the fact that the petitioner , besides himself, has produced three independent witnesses who unambiguo usly supported the averments of the petitioner while respondents, besides themselves, have only produced one witness who has admitted categorically that he has murdered the brother -in-law of the petitioner , so his enmity with the plaintif f is very much clear, as such, his evidence cannot be believed upon, therefore, the preponderance of evidence is in favour of the plaintif f; the learned Additional District Judge was obliged to give sound reasons for setting aside the decree of the trial Court which he has failed to offer; that there are material irregularities in the impugned judgment which is just colourful and arbitrary , therefore, the civil revision be allowed, the impugned judgment and decree be set aside and the judgment and decree of the learned trial Court be restored.
5. Conversely , learned counsel for the respondents submit that the respondents in their written statement have categorically denied the execution of the agreement to sell dated 12-11-1989 (Exh.P1) in favour of the plaintif f terming it as a forged, sham and fraudul ent document, so the learned Civil Judge was obliged to Took into the matter and verify the signatures which he had failed to do but the same function has lawfully been adopted by the learned first appellate court who has rightly observed that the signatures of respondent-defendant No,1/alleged vendor Bashir ud Din are not original but fraudulently copied by someone, therefore, the whole case of the plaintif fs falls on the ground; that onus probandi of Exh.P1/issue No,4 was on the plaintif f, which he could not dischar ge; that the plaintif f was already in possession as tenant and no possession as per the alleged agreement was handed over to him; that the respondent-defendant No,2 Saleem Khan has lawfully purchased the suit-land vide registered sale-deed dated 18-5-1991 (Exh. D6) before filing of the instant suit on 11-11-1991, therefore, he is a bona fide purchaser without notice and is protected under section 27 of the Specific Relief Act; that there are material contradictions in the statements of. P.Ws. Who all state that the fish farm was built about one/two years of the date when evidence was recorded on 20-3-1994 while the plaintif f in his plaint, claims that it was built soon after getting the possession in 1989; that the P.Ws. Depose that the thumb-impressions were put on Exh,P1 however , there exists no thumb impres sion on Exh. P1 ; that P. W .1 Muhammad Mansha, scribe admits that he did not know the parties and also he never produced his register on the lame excuse that the same has been lost; that the marginal witnesses belon g to some other area; that the decision of appellate court is immuned from interference until and unless some gross illegality , irregularity or misreading or non-reading of evidence has been committed, therefore, the civil revision has no force, it be dismissed.
6. Arguments advanced by learned counsel for the parties have been heard and the record also perused.
7. The vital issue in this case is Issue No,4 which pertains to the legal and lawful execution of agreement to sell dated 12-11-1989 and as a consequence, entitlement of the plaintif f to the decree for specific performance of the contract.
8. The record shows that the plaintif f purchased the suit-land vide alleged agreement to sell dated 12-11-1989 which was denied by defendant No, 1/vendor who later on sold the same land to defendant No,2 Saleem Khan vide registered sale-deed dated 18-5-1991. The evidence was adduced by both the sides. The written statement was filed by the defendants wherein they alleged fraud. The plaintif f, besides himself, produced three witnesses: scribe of agreement to sell Muhammad Mansha as P.W.1, marginal witness Sharif as P.W.2 and marginal witness Muhammad Aslam as P.W.3. The plaintif f as well as all the three witnesses are firm on the point that the agreement to sell dated 12-11-1989 (Exh.P1) was executed and signatures were also put in their presence. The P.Ws. Were cross-examined but their veracity could not be shake n and nothing could be dug out from them in favour of the respondents-defendants, as such, the plaintif f has proved the Exh.P1 as per requirement of Qanun-e-Shahadat Order , 1984.
9. Learned respondents' counsel has pointed out that the P.Ws. State that both the signatures and thumb- impressions were made, but there exists on the agreement to sell only signatures. This Court observes that the agreement to sell was reduced in writing on 12-11-1989 while the evidence was recorded on 20-3-1994 after about five years, so forgetting somethin g out of the whole scene is part of human nature. Furthermore, people commonly take the signatures as both signatures and thumb-impressions or mere signatures or thumb= impressions. Otherwise, the P.Ws. Have consistently stated that the alleged agreement to sell was executed and signed in their presence, so there is no reason to disbelieve them merely on the basis of typical wording being commonly used in our society . The courts are bound to decide the cases as per law and procedure so that miscarriage of justice could be avoided. The signatures were valid and the execution of agreement to sell stood proved from the record. The learned first 'appellate court while passing the impugned judgment has deviated from all the norms of justice established by the Hon'ble Supreme Court of Pakistan and rather extended undue benefit to the respondents-defendants.
10. The respondents in their defence took plea that the Exh.P1 is result of fraud and forgery. As they alleged commission of fraud, so responsibility to prove the fraud lies upon them. In defence, they, besides themselves, have produced only one witness Sardar Khan as DW-2 who categorically admits that he had murdered the brother -in-law of the plaintif f, so his animus against the plaintif f cannot be ruled out. No doubt, it is the responsibility of the plaintif f to prove his case beyond any shadow of doubt and he has to stand on his own legs, but, on the other hand, it was also the duty of the defendants to rema in aware and vigilant. Neither defendant No,1 took any precautionary measures to stop the plaintif f from making any development over the suit-land, if the land was not sold, nor defendant No,2 made it sure whether the land had already been sold or not, so he does not fall within the definition of bona fide purchaser . As such, the defence ha completely failed to produce any independent witness in their favour and also to dischar ge their duty of proving that the fraud has been committed with them through Exh.P1.
11. The circumstances of each case must determine whether a prudent man ought to act upon the supposition that the facts exist from which a liability is to be inferred. What, circumstances will constitute proof can never be the subject of a general definition. But one thing is clear that in civil cases what is required or considered sufficient is preponderance of probability , while, in criminal cases, any of the serious consequences of an erroneous condemnation both to the accused and the society , the persuasion of guilt must amount to such a moral certainty as convinces the minds of the tribunals, as reasonable meaning beyond all reasonable doubts.
12. The possession of the plaintif f over the property in question is admitted. However , the plaintif f claims that it is the result of Exh.P1 while the defendant No,1 terms it tenancy . It is comm on practice that when someone keeps a person his tenant, he always remains vigilant that the nature of the property is not changed and no addition or alteration in the same, except with due consent, is allowed. In this case, the version of the plaintif f is that he purchased the uneven and barren land, developed it to cultivable and also built a fish farm after spending huge amounts, but, astonishingly , the defendants remain mum over all these developments and did not demand the vacation of the tenancy . Moreover , during his cross-examination, defendant No,1 Bashir -ud- Din, the alleged vendor , himself states that he has not given possession of the suit-land to the plaintif f as tenant. So, the assertion of defendant No,1 that the possession was given to the plaintif f as a tenant is belied from his own conduct and statement. As such, this Court is compelled to believe that the possession is result of the agreement to sell and not that of tenancy .
13. Another point raised by respondents' side is that the P.W.S state that the fish farm was built about one or two years of recording of evidence on 20-3-1994 while the plaintif f claims for the same at an earlier date. In this respect, the attention is drawn towards the possession. When the possession has been already been handed over to the plaintif f and he owns the land, then it is upto him when he develops the land or builds something upon it. He might have built the same in the year 1991 shortly before instituting the suit on 11-11-1991 whereas the evidence was recorded on 20-3-1994 after five years of filing of suit, so deposing of P.Ws. That the fish farm was built about one/two years before is merely a guesswork. Even if we calculate backwards from 20-3-1994 to the date of institution, it becomes 2 years and 'five months, so there is a little difference between the speculation of the P .Ws. And the actual period which dif ference can be ignored.
14. With regard to comparison of signatures by the learned Additional District Judge, there is no dispute with regard to the authority and powers vested in this regard and it is admitted by both sides and also held by the Hon'ble Supreme Court of Pakistan that the courts have the powers to look into the signatures and compare the same at their own. The dispute is whether the learned Additional District Judge has rightly exercised his powers or not. I have carefully perused the signatures made on Exh. P1, written statement and Exh. D6, the sale-deed admittedly made in favour of defendant No,2. In my view , the signatures on all the said documents have been made by one person; that there appears no difference at all in the signatures made on Exh. P1 and Exh.D6, however , signatures put on written statement have been shortened by the defendant No,1, perhaps, wilfully to defeat the execution of Exh.P1 and that if there appears a very little difference between the signatures made on different documents, it is common among the human beings and cannot make an excuse for denial of having made the same, especially when all the P.Ws. Have emphatically deposed that the Exh.P1 was executed and signatures were put in their presence. It is also relevant to mention that the stamp papers for Exh.P1 were purchased by defendant No, I /vendor Bashir -ud-Din himself and his signature also appears at the backside thereof. If we presume that the sianatures on Exh.P1 were impersonate d, then, what will be the status of other signatures made on other documents in the same style, writing and flow. By comparing signatures on the said documents, there remains no doubt that defendant No,1-Bashir -ud-Din himself purchased the stamp papers and put signatures on Exh.P1 which are similar to those put on Exh. D6 and also on written statement.
15. The epitome of the whole discussion is that the plaintif f has successfully proved agreement to sell dated 12- 11-1989 through cogent and convincing evidence. The possession is also admitted. The signatures appeared on all the documents are by one and the same person. The learned first appellate court has failed to compare the signatures properly and also committed illegality by not appraising the evidence properly and in such circumstances where a judgment of a lower court suffers from misreading, non-reading, of evidence illegality or irregularity , the High Court has ample powers to interfere therein. As a consequence, this civil revision is allowed, the impugned judgment and decree is set aside and the judgment and decree passed by learned trial Court is restored.