' ABDUS SATTAR ASGHAR J.--- Through this single judgment I intend to dispose of this Civil Revision and Writ Petition No,10375 of 2012 both arising out of one and the same consolidated judgment and decree dated 29-2-2000 passed by learned Additional District Judge-II, Bhakkar.
2. Succinctly the facts leading to this Civil Revision and Writ Petition are that Masood Munir (since deceased) represented through his legal heirs (respondents Nos.1 to 6) was allotted agricultural land measuring 1200 kanals comprising Lot No,69 situated at Village Rakh Dagranwali, Tehsil and District Bhakkar (to be, called hereinafter the suit-land) under the Tube-well Sinking Scheme in the year 1954. On 20-11-1994 Muhammad Qasim Ali and others (petitioners) lodged suit for specific performance of an agreement to sell in the form of an affidavit dated 16-4-1962 allegedly executed by Masood Munir in favour of their predecessor namely Ali Muhammad to sell the suit-land in his favour in consideration of Rs,5,000/- and for declaration to the effect that an agreement to arbitration dated 3-8-1987, Award thereof dated 26-10-1989 making it Rule of Court vide order dated 22-12-1990 by learned Senior Civil Judge Bhakkar, advice dated 25-9-1994 issued by Member Board of Revenue, Punjab, Lahore, Mutation No,465 dated 10-10-1994 and order of Collector dated 26-10-1994 to the extent of respondents Nos.7 and 8 are against law and facts, based on mala fide and ineffective as against their rights. Petitioners also prayed for recovery of possession of suit-land along with mense profit. Suit was resisted by the respondents while filing contesting written statement. After framing of issues and recording of evidence of the parties learned Senior Civil Judge Bhakkar vide judgment dated 15-12-1997 decreed the suit in favour of the petitioners.
Respondents being dissatisfied assailed the same through appeal before the learned Additional District Judge Bhakkar which was allowed vide judgment and decree dated 29-2-2000 (impugned through this Civil Revision). On 22-12-1993, petitioners had also lodged an application under section 12(2), C.P.C. Challenging the decree dated 22-12-1990 passed by learned Senior Civil Judge Bhakkar whereby an award dated 26-10-1989 was made Rule of the Court. The said application under section 12(2), C.P.C. Was accepted by learned Senior Civil Judge Bhakkar vide same judgment dated 15-12-1997. Muhammad Khalid Nasir respondent No,8 and Wali Muhammad respondent No,7 (since deceased) represented by his legal heir Dr.Naveed Ahmad in whose favour the Rule of Court was made also impugned the judgment dated 15-12-1997 through two separate appeals, a civil revision and cross-objections before the learned First Appellate Court. The learned Additional District Judge Bhakkar through the impugned judgment and decree dated 29-2-2000 accepted the appeals, revision, cross-objections filed by the respondents and dismissed the suit for specific performance as well as application under section 12(2), C.P.C. Filed by the petitioners. Petitioners being aggrieved of the acceptance of the revision petition by the learned First Appellate Court have separately assailed the said judgment through writ petition referred to above.
3. It is argued by learned counsel for the petitioners that learned First Appellate Court fell in grave error while reversing the findings of the learned trial Court by ignoring material ocular and documentary evidence placed by the petitioners on the record; that the impugned judgment, therefore, is against law and facts causing miscarriage of justice and liable to set aside. It is further argued by learned counsel for the petitioners that Masood Munir allottee had executed an affidavit/agreement dated 16-4-1962 in favour of Ali Muhammad predecessor of the petitioners for the sale of suit-land in consideration of Rs,5,000/-; that possession was also delivered to Ali Muhammad deceased; that said Ali Muhammad was also constituted as an attorney vide special power of attorney dated 5-12-1960 authorizing him to manage and developed the suit-land as well as to implement the impugned affidavit/agreement to sell; that on the basis of affidavit/agreement to sell dated 16-4-1962 Ali Muhammad deceased lodged an application to the Collector Bhakkar under section 19 of the Colonization of Government Lands Act, 1912 for transfer of lot and issuance of proprietary rights in his favour and also developed the land with huge expenditure and hard labour; that proprietary rights of the said land were transferred in favour of Ali Muhammad on 4-5-1970 by the Thal Development Authority and the same was duly incorporated in the Revenue Record; that Masood Munir challenged the order of transfer of the proprietary rights by filing an appeal and a revision which were dismissed in limine by Board of Revenue Punjab Lahore vide orders dated 18-8-1970 and 19-8-1970; that Masood Munir thereafter invoked the constitutional jurisdiction of this Court vide Writ Petition No,1689 of 1970 against the said orders passed by Board of Revenue Punjab Lahore; that during pendency of the said writ petition Tehsildar Bhakkar was appointed as Receiver by this Court vide order dated 27-5-1974 and ultimately the Writ Petition was allowed vide order dated 9-1-1975 and the case was remanded to the Settlement Officer Bhakkar to decide the application of transfer of the Lot filed by Ali Muhammad afresh after providing opportunity of hearing to the parties and Receiver was directed to hand over the possession of the suit-land to the original allottee Masood Munir predecessor of the respondents Nos.1 to 6. The petitioners being dissatisfied with the order dated 9-1-1975 filed a petition for leave to appeal before the Hon'ble Supreme Court of Pakistan which was declined vide order dated 19-2-1975. After remand of the matter application lodged by Ali Muhammad for transfer of the Lot was disallowed by the Competent Authority. The petitioners contested the matter up to the Board of Revenue but failed and ultimately proprietary rights of the suit-land were transferred in favour of Masood Munir predecessor in interest of respondents Nos.1 to 6.
Consequently petitioners lodged suit for specific performance of the agreement to sell on 20-11- 1994 on the basis of affidavit/agreement to sell dated 16-4-1962. It is further argued by learned counsel for the petitioners that in order to prove the execution of agreement to sell in form of affidavit dated 16-4-1962 (Exh.P75), petitioners produced Ghulam Hussain (P.W.-6) the marginal witness, Muhammad Siddique (P.W.-9) stamp vendor, Ghulam Mustafa (P.W.-11) the petition writer and Muhammad Qasim Ali (P.W.-12) one of the petitioners who had accompanied his father Ali Muhammad at the time of execution of said affidavit/agreement to sell; that the impugned affidavit/agreement to sell dated 16-4-1962 was also attested by Malik Jahangir Magistrate; that at one stage a query by Board of Revenue was made to said Malik Jahangir Magistrate the then working as Commissioner Sargodha Division who vide his letter (Exh.P60 and Exh.P62) had verified his signatures as attesting Magistrate over (Exh.P75) while posted as Magistrate 1st Class Lyallpur (Faisalabad); that payment of Rs,4000/- out of total consideration amount i,e, Rs,5000/- has been admitted in the affidavit/agreement to sell (Exh.P75); that the remaining consideration amount of Rs,1,000/- was paid through two money orders each valuing Rs,500/- (Exh.P21); that Masood Munir demanded more money, therefore, Rs,350/- were also paid to him at Faisalabad in presence of Muhammad Khalid Munir Advocate (respondent No,7); that petitioners' earlier suit for declaration lodged on the basis of impugned affidavit/agreement to sell dated 16-4-1962 which was dismissed as withdrawn before issuance of the proprietary rights in favour of respondents and withdrawal thereof has no bar under Order Rule 2, C.P.C. Against the petitioners' right to seek specific performance of affidavit/agreement to sell after the grant of proprietary rights; that execution of impugned affidavit/agreement to sell was as per policy of the Thal Development Authority and not violative to section 19 of the Colonization of Government Lands Act, 1912 and section 15 of the Transfer of Property Act, 1882; that petitioners have proved the execution of agreement to sell in terms of Article 17(2)(a) and 79 of Qanun-e-Shahadat Order 1984; that learned First Appellate Court has ignored the above quoted material ocular and documentary material while reversing the findings of learned trial Court, therefore, petitioners have a good case to call for interference of this Court in exercise of revisional jurisdiction; that arbitration proceedings as well as Award making it Rule of Court inter se the respondents are collusive, mala fide, based on fraud and misrepresentation to defeat the petitioners interest and right in the suit-land, therefore, dismissal of petitioners' application under section 12(2), C.P.C. Is also unwarranted in law calling for interference of this Court through exercise of constitutional jurisdiction.
4. On the other hand learned counsel for the respondents have contended that petitioners have miserably failed to prove the execution of affidavit/ agreement to sell dated 16-4-196/ in accordance with the law as envisaged under Article 17(2)(a) and 79 of Qanun-e-Shahadat Order 1984; that Ghulam Hussain (P.W.-6) the marginal witness admittedly did not know Masood Munir personally; that Muhammad Siddique (P.W.-9) stamp vendor simply stated that he had issued the stamp paper for execution of affidavit; that testimony of Ghulam Mustafa (P.W.-11) petition writer is also of no avail to the petitioners as he himself had not scribed the said document rather it was scribed by one Abdul Ghani (since died) as an affidavit; that payment of the consideration amount of the impugned agreement to sell is also not established; that there is nothing on record from the petitioners' side to show that any amount was sent to Masood Munir as payment of any consideration amount in performance of alleged agreement to sell; that Board of Revenue itself through letter No,1578-68/2046-CH dated 11-5-1968 has declared that practice of transfer of lease- hold rights through affidavit by Thal Development Authority was irregular; that this Court in Civil Revision No,937/1994 vide judgment dated 12-10-1999 involving similar question of law and facts maintained that such an affidavit can neither be termed as sale-deed nor an agreement to sell, therefore, no decree for specific performance can be issued; that order dated 12-10-1999 was assailed through Civil Petition No,1814-L of 1999 before the Hon'ble Supreme Court of Pakistan which was refused vide order dated 24-11-1999; that petitioners earlier suit for declaration lodged on the basis of impugned affidavit/agreement to sell dated 16-4-1962 was dismissed as withdrawn thereof petitioners are estopped to file the suit afresh under Order II, Rule 2, C.P.C.; that the arbitration proceedings between the parties were legal and there is no legal or factual infirmity in the same; that there is no jurisdictional error in the order passed on the application under section 12(2), C.P.C. And the same has rightly rejected.
5. I have given patient hearing to learned counsel for the parties and carefully gone through the record with their able assistance.
6. An agreement to sell pertaining to future obligation generally proposes fixation of some consideration amount, earnest money if paid at the time of its execution and the remaining to be paid at the later stage or at the time of registration/completion of sale and attested by two marginal witnesses. I have carefully gone through the impugned affidavit/agreement to sell (Exh.P75). It is scribed on a stamp paper valued Rs,4/- issued on 16-4-1962 in favour of Masood Munir son of Ch. Fatah Muhammad resident of Chak No,248/RB Tehsil and District Lyallpur.
Muhammad Siddique (P.W.-9) stamp vendor who sold out the stamp paper at serial No,1121 on 16- 4-1962 appeared in the witness box. In his testimony he submits that it was purchased by Masood Munir for execution of an affidavit. During cross-examination he has categorically admitted that he did not know Masood Munir at the time of sale of stamp paper. Issuance note given by him on the backside of the stamp paper does not mention any purpose of its issuance i,e, execution of affidavit, therefore, testimony of Muhammad Siddique (P.W.-9) is of no avail to the petitioners.
7. In terms of Article 79 of the Qanun-e-Shahadat Order, 1984 it was incumbent upon the petitioners to prove the alleged affidavit/ agreement to sell dated 16-4-1962 by producing two attesting witnesses. The word 'attestation' means the act of witnessing the actual execution of a document subscribing ones name as witness to that effect. It also means signing of the document to testify that the attester is a witness to the execution of the document. One who signs the document in the presence of the executants after seeing the execution of the document is called an 'attesting witness'.
8. Ghulam Hussain (P.W.-6) on the backside of the affidavit (Exh.P75) has scribed only one line i,e, "I know Mr. Masood Munir and he has signed in my presence Sd/- Ghularn Hussain 16-4-1962". He has not uttered even a single word with regard to execution of any affidavit or sale agreement. While facing the cross-examination he admitted that Masood Munir was not personally known to him at the time of alleged execution of affidavit/agreement to sell (Exh.P75). Ghulam Muhammad the other witness reported to have died had also not signed the said document as attesting witness rather has scribed the same sentence. Both the witnesses, therefore, cannot be termed as "attesting witnesses" of the transaction. In this case bare perusal of the affidavit/agreement to sell dated 16-4-1962 reveals that it is not attested by two marginal witnesses. Therefore, the same could not be termed as a valid document in terms of Article 17(2)(a) and 79 of the Qanun-e- Shahadat Order 1984. Simultaneously, Ghulam Mustafa (P.W.-11) petition writer is not scriber of the affidavit/agreement (Exh.P75) rather it was scribed by one Abdul Ghani Batalvi petition writer.
Ghulam Mustafa (P.W.-11) deposed that Abdul Ghani petition writer has died and that he identify his writing and signatures. His testimony is also therefore of no avail to the petitioners with regard to the transaction. Besides it is pertinent to mention that petitioners have not been able to explain as to why the document (Exh.P75) was reduced in the form of an affidavit instead of a proper agreement to sell. It fails to manifest any amount of consideration of the alleged transaction of sale between the parties. It also fails to show that how much amount was paid to the seller/executant at the time of its execution, prior thereto or any clause with regard to balance payment if any. Argument of learned counsel for the petitioners that in fact the sale has already been completed in favour of their predecessor Ali Muhammad and the affidavit was an acknowledgement of the same, suffice to say that the affidavit cannot be read even as a sale- deed on account of absence of above quoted ingredients of contract. In the absence of vital ingredients of an agreement it could hardly operate to create any legal consequences as such.
Admittedly it is a unregistered document and fails to fulfil the requirements under the Registration Act 1908. Besides it is also noteworthy that admittedly Masood Munir was not owner of the suit-land at the time of its alleged execution i,e, 16-4-1962, therefore, he had no authority to sell the suit-land violative to the provisions of section 19 of the Colonization of the Government Lands Act, 1912. There is nothing on the record to show that Masood Munir had ever appeared before any Authority to acknowledge the impugned sale in favour of Ali Muhammad.
9. Petitioners have also failed to establish payment of any consideration amount to Masood Munir through any reliable confidence-inspiring ocular or documentary account. It is admitted by the petitioners through (Exh.P65) i,e, a letter issued by Board of Revenue Punjab Lahore that practice of transfer of lots in Thal Development Authority through affidavits are observed as not regular. This court has also discarded such an affidavit vide order dated 12-10-1999 passed in another Civil Revision No,937 of 1994 involving, identical question of law and facts. The said order was assailed before the Hon'ble Supreme Court through Civil Petition No,1814-L of 1999 (Aziz-ur-Rehman Vs. Faiz- ur-Rehman). The Hon'ble Apex Court has also rejected the said Civil Petition vide order dated 24-11- 1999. The operative part whereof reads below:--- "---- The contents of the affidavit have also been scrutinized and evaluated by the learned Judge of the High Court in the impugned judgment. The plaint and the Affidavit talk of conveyance of the rights in the property in dispute through the document. Such a conveyance of the rights in the year 1962 as held by the learned Judge in the impugned judgment could not legally take place as the said document cannot operate as a sale-deed as the so-called seller himself was not the owner of the land an 18-5-1962 as he admittedly became the owner on conferment of proprietary rights in the year 1986. Moreover, it is not disputed that an allottee could not transfer the rights in view of the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. We also agree with the finding of the learned Judge of the High Court that in the circumstances, no decree for specific performance can validly be issued in favour of the plaintiff in the facts and circumstances of the case. Moreover, no question of law of public importance is involved in the matter.
6. Leave to appeal is, therefore, refused and the Petition is dismissed."
10. Admittedly Masood Munir being allottee/lessee having good relations had executed special power of attorney in favour of Ali Muhammad on 5-12-1960 authorizing him to manage and develop the suit-land. There is nothing on record to substantiate that the possession of the suit- land was ever handed over to Ali Muhammad in part performance of impugned affidavit/agreement dated 16-4-1962. Qasim Ali petitioner son of Ali Muhammad deceased was, an employee of Thal Development Authority, therefore, maneuvering of the impugned affidavit by Qasim All in favour of his father Ali Muhammad cannot be ruled out.
11. Admittedly the petitioners earlier suit for declaration lodged on the basis of impugned affidavit/agreement to sell dated 16-4-1962 without seeking specific performance thereof was dismissed as withdrawn. Subsequent suit on the basis of same cause of action therefore is not maintainable in terms of Order II, Rule 2, C.P.C.
12. Agreement to arbitration and Award thereof between the respondents duly made Rule of Court by the Court of competent jurisdiction was challenged by the petitioners through an application under section 12(2), C.P.C. But not substantiated with any speck of material. It was incumbent upon the petitioners to substantiate their pleas of fraud and misrepresentation with confidence-inspiring ocular and documentary evidence which is not available on the record in this case. Therefore, application under section 12(2), C.P.C. Was rightly dismissed by the learned trial. Court.
13. For the above discussion and reasons I agree with the findings of learned First Appellate Court that no decree for specific performance can validly be issued in favour of the petitioners in the peculiar facts and circumstances of the case. No factual or legal infirmity is found in the impugned judgment dated 29-2-2000 and does not call for interference by this Court in exercise of revisional or constitutional jurisdiction. Therefore, civil revision and writ petition both having no merits are dismissed.