' CH. MUHAMMAD YOUNIS, J.--- Briefly stated the facts relevant for the disposal of the instant revision petition are that the deceased Wazir Muhammad Khan (predecessor-in-interest of the respondents) filed a suit for specific performance of the agreement to sell dated 29-12-1971 in respect of half portion of the Property bearing No,34 situated at Haider Road Rawalpindi Cantt against Sh. Fazal-urRehman deceased (predecessor-in-interest of the petitioner). The suit was resisted by Sh. Fazal-ur-Rehman and the learned trial Court vide judgment and decree dated 26- 7-2006 dismissed the said suit. Feeling aggrieved of the said judgment and decree Wazir Muhammad Khan predecessor-ininterest of the respondents filed an appeal which was allowed by the learned Addl: District Judge, Rawalpindi vide judgment and decree dated 5-10-2007 and after setting aside the judgment and decree passed by the learned trial Court the suit of Wazir Muhammad Khan was decreed in his. Favour.
2. Through the instant revision petition the judgment and decree dated 5-10-2007 passed by the learned Addl: District Judge has been assailed on the ground that the same are against law and facts and are result of misreading and non-reading of evidence.
3. The learned counsel for the petitioner contends that the well reasoned judgment and decree of the lower court was reversed by the learned Addl: District Judge in appeal without any lawful justification. The said court was not competent to reappraise the evidence in appellate jurisdiction.
The findings of the learned first appellate court on issues Nos.4, 6 and 7 are not justified as the respondent had failed to prove the execution of the agreement to sell dated 29-12-1971 (Exh.P1). The petitioner had denied its execution and the onus was on the respondent to prove its execution through cogent and convincing evidence. The learned counsel goes on to submit that neither the scribe nor the stamp vendor was produced to prove the execution of Exh.P1. Even the statements of M.A. Rauf P.W.1 and Kh. Ghias ul Hassan P.W.2 who are the marginal witnesses of the agreement to sell were not reliable and the plaintiff/respondent while appearing as P.W.5 did not qualify to prove its execution as required by Article 78 of Qanun-eShahadat, 1984. P.W.1 did not know Sh. Fazal-ur- Rehman, petitioner personally so there was no question of identifying his signatures on the alleged agreement. The scribe was also not known to him. The marginal witnesses also did not sign the register of the scribe and no such register was produced. P.W.1 has no knowledge as to who had purchased the stamp paper. Similarly, P.W.2 also had no acquaintance even with the respondent.
The respondent while appearing as P.W.5 was also unable to depose the name of the scribe nor the agreement in question contained his name.
' The learned counsel argued that report of the Handwriting Expert Exh.P2 relied upon by the learned Addl: District Judge had no evidentiary value. The original document was not produced. Rather signatures from photocopies were compared by him which is not permissible in law. Moreover, the report of the handwriting expert was obtained prior to the filing of the suit without any order of the court. The learned counsel relied on PLD 1999 Karachi 257 (Rana Mamoon Rasheed v. Kokab Noorani Okarvi and 4 others on this point and maintained that the comparison could only be made with original documents and not photocopies. In the agreement to sell there was no mention of any pending litigation in respect of the suit property. The learned counsel maintained that the notice was given after lapse of 24 years and the suit filed thereafter was hopelessly barred by time.
The findings of the learned appellate court with regard to the limitation were contrary to law. The period of three years had to start from the date of execution of the agreement and it has been held illegally that the limitation was to start from the denial of the petitioner. The provisions of Article 113 of the Limitation Act were not applicable and the learned appellate court proceeded to decree the suit on wrong assumptions. The respondent failed to prove the actual division of the property nor any measurement was mentioned in the plaint along with the detail of construction so the claim of the respondent regarding half share of Bungalow No,34 was vague. The respondent had miserably failed to prove the execution of the agreement to sell through any cogent and reliable evidence and the learned Addl: District Judge allowed the appeal without any lawful justification so the impugned judgment and decree passed by the learned appellate court is not sustainable in the eye of law and the same is liable to be set aside. In support of his arguments the learned for the petitioner referred to 1992 CLC 2524 [Karachi Chilya Corrugated Board Mills Ltd. v. M. Ismail and others on the point that when the letter was admitted in evidence without objection the same could not be objected to before this Court. He referred to PLD 2007 Lahore 254 Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid and others on the point that mere fixing of thumb mark or signature would not mean due execution of document and as held in 1996 MLD 1819 Muhammad Ashraf v. Shah Noor Khan and another in case of denial of execution of a document under Articles 72 and 117 of Qanun-e-Shahadat, 1984 it is incumbent upon the party alleging the execution to prove the same and the contents of the document. On this point he also relied on 1998 MLD 837 [Lahore] Mst. Jannat Bibi v. Faqir Muhammad, 1990 MLD 1129 [Karachi] Abdul Hameed v.
Muhammad Zaki and 3 others and 1994 MLD 1622 [Lahore] Muhammad Khan and others v.
Muhammad Boota and others. The learned counsel referred to 2001 YLR 2145 [Lahore] Nazeer Ahmed v. Abdul Hameed Khan and others on the point that non-production of the scribe of agreement to sell or the stamp vendor was fatal and adverse inference was to be drawn. He also relied on 2003 CLC 733 [Lahore] Sultan through legal heirs v. Muhammad Farooq and another and 2005 SCMR 152 Anwar Ahmed v. Mst. Nafees Bano through L.Rs on the point. Regarding comparison of signatures he referred to PLD 1999 Karachi 257 Rana Mamoon Rasheed v. Kokab Noorani Okarvi and 4 others wherein it was held that comparison of signatures could only be made with original documents and not with its photocopies.
' The learned counsel further referred to 2004 YLR 1923 [Lahore] Abrar Ahmed v. Syed Anwar Hussain Shah and 2 others, 2002 YLR 2082 Asiya Kausar and another v. Amjad Ikram and another and 2002 MLD 965 [Lahore] Nawab alias Babu through legal heirs v. Muhammad Rafique through legal heirs in support of his arguments.
4. On the other hand, the learned counsel for the respondent vehemently opposed the revision petition and argued that in the agreement Ex-P1 no cut-off date for specific performance was mentioned and the time was not essence of the contract. Since the litigation had started in respect of the suit property so it was the duty of the petitioner to inform the respondent about the fate of litigation and when the respondent came to know of the fact that the matter had been decided finally by the august Supreme Court of Pakistan on 11-3-1987, he immediately issued a notice Exh.P3 to the petitioner for specific performance of the agreement to sell Exh.P1 and on receipt of the reply to notice he filed a suit for specific performance with promptitude as required by law since the execution thereof had been denied by the petitioner Sh. Fazal-ur-Rehman. The marginal witnesses appeared before the Court and proved the execution of Exh.P1. The petitioner did not rebut the contention of the respondent by producing any independent evidence as the son of the respondent was a boy of tender age at the time of the said agreement so how he could deny the execution of the agreement. The learned counsel referred to 1986 SCMR 306 Dil Murad and others v Akbar Shah and argued that the onus to prove the execution of the agreement had been shifted to the petitioner after appearance of the marginal witnesses as well as the respondent in the witness box. The learned counsel argued that even if the report of the Handwriting Expert is not considered to be a valid piece of evidence the respondent has proved the execution of the agreement by producing the other cogent and reliable evidence. On the point of limitation the learned counsel for the respondent argued that the learned appellate court has rightly observed that the limitation was to run from the date of denial by the petitioner as no cut-off date of was mentioned in the agreement. The suit was filed when through reply to notice dated 21-11-1995 (Exh.P4) the execution of the agreement Exh.P1. Was denied by the petitioner. It was pointed out by the learned counsel that the petitioner denied the factum of litigation whereas the judgment of the august Supreme Court negates his version. The plea of the petitioner in reply to notice and the written statement was inconsistent about the pendency of any litigation regarding the property in dispute. The learned counsel contends that suit of the respondent was well within time and was filed as soon as the respondent came to know of the end of litigation. He complied with the terms of the agreement to sell and issued notice Exh.P3 to the petitioner and on receipt of reply to the notice Exh.P4 the suit was filed immediately after the denial/refusal of the petitioner. The report of Handwriting Expert also supports the contention of the respondent. The respondent had successfully proved his case by producing the marginal witnesses of Exh.P1. Namely P.W.1 Abdul Rauf and P.W.2 Kh. Ghias ul Hassan as well as the handwriting expert P.W.4 Khan Mushtaq. The respondent Wazir Muhammad Khan appeared in the witness box as P.W.5 to prove the execution of the agreement to sell. The learped counsel contends that Exh.D1 is the letter written by respondent Wazir Muhammad Khan to Sh. Fazal-urRehman in 1985 but no reply to it was given. Exh.D2 sale-deed, Exh.D3 copy of the civil suit of land situated in Mareer Hassan, the Writ Petition Exh.D4 and order of this Court Exh.D5 have absolutely no concern with the disputed property i.e, bungalow No,
34. The judgment dated 11-3- 1987 passed by the apex Court regarding the property in dispute was produced as Exh.D6. The respondent was not in the knowledge of this judgment nor the petitioner Sh. Fazal-ur-Rehman issued a notice to the respondent after the end of litigation as was required by agreement to sell.
The documents Exh.D7 and Mark-A have nothing to do with the bungalow in dispute. The learned counsel contends that no evidence was produced by the petitioner except the solitary statement of Haroon who was born in 1980. So he was not in the knowledge of the facts and was unable to deny the signatures of his father on the agreement to sell.
5. The learned counsel argued that the scope of revision is limited and the impugned judgment and decree passed with jurisdiction warrants no interference by this Court. On this point the learned counsel for the respondent referred to 2010 SCMR 5 Muhammad Idrees and others v.
Muhammad Pervaiz and others, 2010 SCMR 52, Abdul Qadoos through L.Rs, v. Habibur Rehman and others, 1999 SCMR 958, Muhammad Ilyas v. Ghulam Muhammad and another, 2012 SCMR 508 Abdul Khaliq (Deceased) through L.Rs v. Ch. Rehmat Ali (Deceased) through L.Rs and others, 2012 SCMR 730 Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad, 2012 SCMR 1373 Noor Muhammad and others v. Mst. Azmat-e-Bibi. The learned counsel referred to 1986 SCMR 1126 Punjab National Silk Mills Ltd. v. National Bank of Pakistan and another, 1996 SCMR 575 Sirbaland v. Allah Loke and others, 1986 SCAM 306 Dil Murad and others v. Akbar Shah, on the point of corroborative value of the report of Handwriting Expert.
6. On the point of limitation the learned counsel referred to PLD 1995 SC 314 Inam Naqshband v. Haji Shaikh ljaz Ahmed, PLD 2004 SC 62 Ghulam Qadir v. Khandu, 2006 SCMR 306 Ghulam Rasool through L. Rs v. Saadullah Khan and others, 2007 SCMR 870 Hakim-ud-Din through L.Rs and others v. Faiz Bakhsh and others and 1987 SCMR 404 Mst. Choori v. Ghulam Hussain.
7. I have considered the arguments advanced from both the sides and perused the available record.
8. Admittedly, the fate of the case hinges upon the execution of the agreement to sell Exh.P1. In order to prove the execution thereof, the respondent Wazir Muhammad Khan appeared in the witness box as P.W.5 and supported his contention contained in the plaint. According to him the agreement to sell was executed by Sh. Fazal-ur-Rehman predecessor-in-interest of the petitioner on 29-12-1971 and an amount of Rs,10,000 was paid to him in presence of the witnesses. As some litigation had started after the execution of the agreement regarding the property in dispute so the matter remained pending and the respondent came to know of the termination of the litigation in the year 1995 so he immediately issued a notice Exh.P3 requiring the said Sh. Fazal-ur-Rehman to perform his part of the agreement. The said legal notice was responded to by him vide reply Exh.P4 denying the execution of any such agreement to sell. In his reply he also took the plea that there was no litigation pending regarding the bungalow in dispute. This contention of the said Sh. Fazal- urRehman was negated by Exh.D6 the copy of the judgment of the Supreme Court of Pakistan dated 11-3-1987 which affirms the factum of litigation in respect of the said property. This shows the conduct of Sh. Fazal-ur-Rehman. He concealed this fact till last moment which speaks of his malafides. The respondent produced P.W.1 M.A. Rauf and P.W.2 Kh. Ghias ul Hassan who were the marginal witnesses of the agreement to sell. Both of them categorically stated that Sh. Fazal- urRehman executed the said agreement to sell and signed the same in their presence after receiving an amount of Rs,10,000 from the respondent Wazir as earnest money. No fatal discrepancy or contradiction could he pointed out by the learned counsel for the petitioner in their evidence so the contention of the respondent was fully corroborated by these two marginal witnesses and the learned appellate court rightly came to the conclusion that the agreement to sell Exh.P1 was executed by Sh. Fazal-ur-Rehman in respect of the property in dispute. In rebuttal, there is nothing on the record except the solitary statement of DW-1 Muhammad Haroon-ur- Rehman who was born in 1980 and did not know much about the execution of Exh.P1 and could not categorically deny the execution of the agreement to sell. He just stated that his father had told him that no such agreement was executed. As regards the plea of the learned counsel for the petitioner that scribe or the stamp vendor has not been produced, it would suffice to say that there was no hard and fast rule to necessarily produce the stamp vendor or scribe. When the document is otherwise proved on the record through the marginal witnesses it could not be discarded merely due to the reason that stamp vendor or the scribe was not produced so the learned appellate court rightly concluded that execution of the agreement to sell was fully proved. As regards the report Exh.P2 and the statement of the Handwriting Expert, in the light of the case law referred to above by the learned counsel for the petitioner it is of no help to the respondent because the comparison was made from a photocopy which diminishes the evidentiary value of the report. The comparison should have been made with the original documents. But even if the said report and the evidence of the handwriting expert is excluded from consideration the agreement to sell is proved on the record by the other independent evidence produced in this respect.
9. So the findings of the learned appellate court on issues No, 4 and 6 are upheld warranting no interference.
10. Another point raised by the learned counsel for the petitioner was that the Bungalow No,34 was not liable to be bifurcated into two portions. This plea is not convincing because the petitioner Sh.
Fazal-ur-Rehman himself alienated the eastern half portion of the same to Muhammad Ashraf etc. Through registered sale-deed Exh.P7 so he was estopped to take any such plea. Issue No,1 was thus rightly answered in negative by the learned appellate court.
11. As regards the issue No,2, the learned counsel for the petitioner argued that the suit was barred by limitation whereas according to the learned counsel for the respondent the limitation was to start from the date of refusal of the petitioner Sh. Fazal-ur-Rehman and it would commence from the date when the reply to the legal notice was given wherein he denied the execution of the agreement to sell so the learned appellate court rightly answered the issue No,2 in negative as the suit was within time from the date of refusal of the petitioner. On this point I rely on 1994 SCMR 2189 and PLD 1994 Lahore 108.
12. In the light of the above discussion, I find no legal infirmity, illegality or perversity in the impugned judgment and decree passed by the learned appellate court. Admittedly, the scope of revision is .Very limited. The findings on question of facts or law however erroneous the same may be recorded by any court of competent jurisdiction could not be interfered by this Court in its revisional jurisdiction under section 115, C.P.C. Unless such findings suffer from jurisdictional defect, illegality or material irregularity causing miscarriage of justice. On this point I rely on 2010 SCMR 817 (Molvi Muhammad Azeem v. Alhaj Mahmood Khan Bangash), 2012 SCMR 730 (Administrator, Thal Development through EA CO Bhakkar and others v. Ali Muhammad) 2012 SCMR 508 (Abdul Khaliq (deceased) through L.Rs v. Rehmat Ali (deceased) through L.Rs and others) and 2011 SCMR 758 (Hazara and others v. Muhammad Yar and others). Admittedly, the powers of revisional Court can be exercised only to correct some legal and jurisdictional errors. So the revision petition is hereby dismissed.