1. ' AZHAR SALEEM BABAR, J.--- The above titled appeal has been filed to challenge the validity of decree and judgment passed by learned District Judge Sudhnooti, dated 29-4-2010. Whereby, decree and judgment of the Civil Judge Pallandri has been set aside.
2. ' Facts of the case are that appellant/plaintiff filed a suit for declaration and specific performance of agreement-to-sell, before the Court of Civil Judge Sudhnooti, on 26-6-2000, averring therein, that land Khewat No,10/09, Khata Nos.34/21 and 35, 36, 37, 38, 39 measuring 17 kanals, 11 marlas and Khewat No,11 Khata Nos.40, 41, 42, 43, 44 measuring 4 kanals, 1 marla, situated in village Nar Orri Tehsil and District Sudhnooti was in joint ownership of the respondent/ defendant. The respondent/defendant sold a piece of land measuring 7 kanals, 2 marlas out of the said property, vide agreement-to-sell dated 28-6-1987. It was further alleged that consideration amount worth Rs,35,000/- had already been paid to the appellant/plaintiff and possession of number Khasra 1018, measuring 7 kanals, 2 marlas was handed over to the respondent/defendant. The appellant/plaintiff further claimed that after the agreement-to-sell, the plaintiff improved the status of land by cultivating it and planting tress therein and construction of a plinth worth Rs,50,000/-. On account of agreement-to-sell, the appellant/ plaintiff prayed to the Court, for a decree of declaration along with specific performance of agreement-to-sell of the suit-land.
3. ' The respondent/defendant filed written statement and rebutted the claim of the appellant/plaintiff by averring that deed of agreement-tosell is fake and bogus. The respondent/defendant never entered into such agreement, however it was stated by the defendant that the appellant/ plaintiff got possession of the land on account of a mortgage for a sum of Rs,21,000/-, which he is ready to pay to the appellant/plaintiff. The respondent/defendant further denied any kind of developments, effected by the appellant/plaintiff on the suit-land. Some preliminary arguments were also raised in the written statement, in the tune that the suit is barred by the law of limitation and that co-sharers have not been impleaded as party to the proceedings, who were necessary party to the litigation.
4. ' After hearing the parties, in accordance with law, and giving them a chance to lead evidence, learned Judge in the trial Court decreed the suit in the terms that the plaintiff is owner of the suit- land, vide agreement-to-sell dated 28-3-1987. It was further directed that the respondent/defendant is liable to register a sale-deed in favour of the appellant/plaintiff, within a month, otherwise sale-deed shall be registered by Nazir of the court.
5. ' The appellant/plaintiff filed an appeal before the Court of District Judge Sudhnooti, who reversed the judgment of the trial Court and dismissed the suit of the appellant/plaintiff, hence this appeal.
6. ' I have heard the learned counsel for the parties and gone through the record of the courts below.
7. Learned counsel for the appellant argued before the court that the appellant/plaintiff produced one marginal witness of the agreement-to-sell, because the other witness named Muhammad Farooq happened to be a clerk of counsel for the respondent. He further added that Sardar Abdul Hamid, Advocate, the then Advocate for the appellant had attested the agreement-to-sell in the capacity of Notary Public, so both the witnesses were not produced before the trial Court. He further argued that respondent/defendant filed a suit for possession in the year 1998, which was later on withdrawn. It was claimed that the appellant/plaintiff came to know about refusal of the respondent/defendant to perform his duty, when the suit for possession was filed by him. He further added that respondent/defendant has admitted in his statement that he received money from the appellant/ plaintiff for the suit-land. Learned counsel has filed written arguments as well, and stressed that from the date of knowledge of refusal of the defendant i,e, 1998, the suit is within limitation. Learned counsel is of the view that Article 79 of Qanun-e-Shahadat Order, does not apply to the case at hand. He cited 1989 CLC 1498 Lahore and 2006 SCR 243 in support of his version.
8. ' A perusal of case-law cited as 1989 CLC 1498 Lahore, transpires that it is the requirement of Qanun-e-Shahadat Order, that quality and not quantity matters in answering whether a fact has been proved or not. It has been laid down in 2006 SCR 243, that where a portion of statement is not challenged during cross-examination, it shall be deemed to be admitted. It has also been held by the honourable Supreme Court of Azad Jammu and Kashmir that onus of proof shifts during the proceedings and cannot be permanently fixed on one party.
9. ' On the other hand, learned counsel for the respondent/defendant has diverted my attention towards the deed of agreement-to-sell, annexnre "A" of the file of trial Court and stated that stamp paper was originally sold for affidavit, in favour of Muhammad Ashraf, which was later on amended by another handwriting and ink, by writing that the stamp paper has been sold in favour of Raza Muhammad Khan, for agreement-to-sell. Learned counsel has stressed that onus of proving a document lies on beneficiary of the document and the respondent/ defendant could not succeed in proving the same. He further argued that Haji Shabir stamp-vendor, has been produced as witness, before the trial Court, who has stated that phraseology of the deed was not read-over to him and has further stated that agreement-to-sell Exh.PA, was not written in his presence. Learned counsel has stressed that under the provisions of Qanun-e-Shahadat Order, at least two witnesses are necessary to prove a document. But despite the fact that witnesses to the document of agreement-to-sell are alive and present in the vicinity, the defendant did not produce them before the court. Learned counsel has further argued that a period of 6 months for performance of the document has been provided in the agreement-to-sell, Exh.PA. The document was executed in the year 1987, whereas the suit for specific performance has been filed in the year 2000, which is badly hit by law of limitation, which provides under Article 113 a period of 3 years in such a case. Learned counsel has relied on 2002 SCM R 1089 SC (Pak) and 2009 SCR 38.
10. ' A perusal of the case-law in 2002 SCM R 1089, reveals that agreement-to-sell involving future obligation, if reduced to writing and executed after coming into force of Qanun-e-Shahadat Order, 1984, is required by Article 17(2)(a) of Qanun-e-Shahadat, 1984 to be attested by two male or one male and two female witnesses, as the case may be. Such agreement has to be proved in accordance with the provisions of Article 79 of Qanun-e-Shahadat Order, 1984. It has been laid down in 2009 SCR 38 that under Article 79 of Qanun-e-Shahadat Order, 1984, a document has to be proved by two attesting witnesses of the document in whom presence, the document was executed. It has further been stated that in the case at hand, only one witness was produced, who failed to prove the execution of the document.
11. ' There are two points involved, in the instant case for resolution of this court, first being the limitation and 2nd one relates to proof of execution of deed of agreement-to-sell.
12. In case where no limitation is provided in the deed of agreement-to-sell, it may be agitated that limitation runs from the date of refusal of the defendant to perform his obligation of getting the sale-deed registered. But where the document itself provides a limitation, it cannot be alleged that limitation would run from refusal of the defendant. In the case at hand, it has been provided in the deed of agreement-to-sell that A Muhammad Ashraf Khan, the executor, shall register a sale-deed in favour of Raza Muhammad Khan, within a period of 6 months, from the date of agreement-to- sell i,e, 28-6-1987. It is true that in the year 1987, limitation of 3 years was provided under Article 113 of Limitation Act, for a suit for specific performance of agreement-to-sell. The appellant/ plaintiff filed his suit before the trial Court on 26-6-2000, which is obviously hit by the law of limitation.
13. It is worth-mentioning here, that the appellant/plaintiff has termed his suit as declaratory one, which is not in accordance with law. In the prayer clause, the appellant/plaintiff has sought declaration of title of the suit-land on account of family settlement on one hand and on the other hand, it has been claimed that respondent/defendant is bound to register a sale-deed in accordance with the agreement-to-sell. Both the claims are contradictory in nature. In a case of specific performance of a contract to sell, the plaintiff can file a suit for specific performance only.
14. Obviously an agreement-to-sell does not create a title in the plaintiff, rather it creates an opportunity for title of the suit-land. The remedy to the extent of declaration in the instant case is against the law, so it is held that a suit for declaration by the appellant/plaintiff, before the trial Court, was not competent. As mentioned earlier, the appellant/plaintiff filed his suit for specific performance of agreement-to-sell after lapse of 13 years, which is badly hit by law of limitation.
15. ' So far as, the execution of document of agreement-to-sell is concerned, I have to base on the provision of law contained in Article 17 of Qanun-e-Shahadat Order, 1984, for convenience the provision is reproduced below:---
17. Competence and number of witnesses.--- (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law,-
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.
16. It may also be added here that Article 79 of Qanun-e-Shahadat, further provides that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the court and capable of giving evidence In the case at hand, the document of agreement-to-sell dated 28-6-1987, shows that Muhammad Farooq and Haji Shabir are the marginal witnesses of the document, besides that Fazal Hussain petition writer has also affixed his signature as author of the document. The appellant/plaintiff could not testify the details of the document. Haji Shabir, the witness deposed before the trial Court that phraseology of the deed was not read-over to him nor was the deed written in his presence.
17. Deposition of the only witness to the agreement deed, does not prove the details of the document.
18. As mentioned earlier, the plaintiff ought to have proved the disputed document by at least two marginal witnesses under the provisions of Qanun-e-Shahadat Order. The argument of learned counsel for the appellant/plaintiff cannot be concurred with, that Muhammad Farooq, the other marginal witness of the disputed deed, happened to be clerk of counsel for the respondent/defendant because had the witness gone hostile, the appellant/plaintiff had a chance to cross-examine him. It may also be added here that a perusal of the agreement-to-sell dated 28-6-1987, shows that it was basically sold for affidavit which was later on converted to the purpose of agreement-to-sell, under a different handwriting. It is also noted that the stamp-vendor has not affixed his signature on the altered phrase as well. So, the execution of document of agreement-to-sell is highly doubtful, on this score too.
19. ' It has been agitated on behalf of the appellant/plaintiff that the respondent/defendant has himself admitted that the plaintiff paid a sum of Rs,21,000/- to him. The respondent/defendant claims that he owes this amount to the appellant/plaintiff on account of mortgage of the suit-land.
20. Whether some amount is payable to the appellant/plaintiff by the respondent or not, it obviously does not affect merits of this case. The appellant/plaintiff is at liberty to recover the amount, if he so desires, through proper litigation.
21. Nutshell of the above discussion is that the appellant/plaintiff could not prove his case, before the trial Court and the suit of the appellant/plaintiff is badly barred by the law of limitation. The appeal is thus dismissed being devoid of force.