' AMIN-UD-DIN KHAN, J.---Through this appeal, appellant-plaintiff has, challenged the judgment and decree dated 15-2-2005 passed by learned Addl: District Judge, Daska, whereby the appeal filed by the respondents-defendants was accepted, in result of which, judgment and decree dated 22-2-1995 passed by learned Civil Judge 1st Class, Daska decreeing the suit of the appellant- plaintiff, were set aside.
2. The facts, in brief, as leading to this 'appeal are that the appellant-plaintiff on 29-11-1993 filed a suit for specific performance on the basis of an agreement to sell dated 20-4-1993 against the defendants-respondents. The written statement was filed and suit was contested on the ground that suit has been filed on the basis of forged and fictitious agreement to sell, when the defendants never entered into an agreement to sell with regard to the suit property. They stated that the market value of suit property at the time of agreement was rupees one crore, whereas in the agreement the value has been shown as rupees six lac. From the divergent pleadings of parties, issues were framed and both the parties were invited to produce their respective evidence. Both the parties adduced their oral as well as documentary evidence. After the close of trial, vide judgment and decree dated 22-2-1995 learned trial court decreed the suit. Feeling aggrieved thereby, an appeal was filed by the respondents-defendants before learned first appellate court, which was accepted vide judgment and decree dated 0-2-2005 and judgment and decree passed by learned trial court decreeing the suit were set aside. Hence, this second appeal.
3. Learned counsel for the appellant-plaintiff states that agreement to sell was proved by the plaintiff, as he himself appeared as P.W.1, one of the marginal witnesses was produced as P.W.2, who is Khadim Hussain and scribe of agreement was produced as P.W.3, who has also stated with regard to the transaction, therefore he can be evaluated as a marginal witness. Further states that when the defendants have alleged fraud, therefore they were bound to plead and proved the fraud with full particulars.
4. On the other hand, learned counsel for the respondents-defendants states that the land situates in Daska and its value was more than rupees one crore at the time of alleged agreement and stamp paper was purchased from Shakar-Garh and allegedly it was written in Sialkot. Further states that even the plaintiff has not produced stamp vendor and alleged agreement is not signed by the plaintiff himself, therefore it is not an agreement in the eye of law; that the judgment and decree passed by learned first appellate court are in accordance with law. Further argues that the junior of stamp vendor categorically stated that in the Register at Sr.No,5313 it is mentioned that the stamp paper was sold to Fayyaz Ahmad for `Iqrar-Nama' in favour of Abdul Salam Malik. Learned counsel states that this paper was purchased for the purpose of Bus and it was endorsed at the backside of paper, which has been noted by learned first appellate court and the same contention of respondents-defendants has been admitted by learned first appellate court, which is in accordance with the evidence available on the file.
5. I have heard the learned counsel for the parties at full length and also gone through the record minutely as well as the findings of two courts below, with their able assistance.
6. The' astonishing facts are that the land situates in Daska. The stamp paper was purchased from Shakar-Garh, which was allegedly written at Sialkot. The Scribe of stamp paper Ch. Qamar Elahi Advocate filed this suit on behalf of plaintiff. He also appeared as P.W.3 as witness of plaintiff. I have been told that said learned counsel is not in this world, therefore I refrain myself from further making any comment except the character of said counsel is not only a professional misconduct but also shameful., which is also a substance in favour of respondents-defendants to hold that the writing and all the proceedings are fraudulent. Under the law it is the mandatory duty of plaintiff to prove valid execution of agreement to sell. There is no cavil to the rule that if the Scribe certifies the transaction of document, then his statement can be evaluated as of a marginal witness but in this case when the story of fraud revolves around the said Scribe and plaintiff, therefore his statement cannot be read in favour of plaintiff without any reservation. The impugned document Exh.P-1 is not signed by the plaintiff. In this context, light can be taken from the judgment of august Supreme Court of Pakistan reported as "2010 SCM R 334 (Mst. Gulshan Hamid v. Kh. Abdul Rehman and others)". This agreement cannot be termed as an agreement in the eye of law, as for valid execution of agreement there must be offer, acceptance and part performance. When confronted to learned counsel for the appellant that whether the defendants were entitled to press the alleged agreement through the court when it was not signed by the plaintiff himself. The answer is certainly in negative. In these circumstances, in my view it cannot be termed as an agreement. The contention of learned counsel for the appellant that as the fraud was pleaded, therefore the defendants were bound to specifically plead and prove the same through evidence. No doubt, the principles are that when the fraud is alleged, the party alleging the same is bound to plead and prove the same but it was a suit for specific performance. The basic burden of proof was upon the plaintiff-appellant to prove the valid execution of agreement to sell, as upon his success the burden would have certainly shifted upon the defendants to prove their contentions, then their pleadings and the evidence would have been scrutinized and the defect if any could have been taken into consideration. The defendants have not admitted this document. If it would have been the case of defendants that they admitted the document but it has been got signed by them by practicing fraud, then certainly the contention raised by learned counsel for the appellant that the pleadings of fraud with specific details and specific evidence with full details was required. This is not a case where non pleading fraud specifically it fatal for the defendants because in this case I have observed that the plaintiff-appellant has not proved the valid execution of agreement to sell and entering into the agreement by the parties prior to incorporating the same in the document.
This is second appeal. For invoking the jurisdiction of this court through second appeal, the appellant is bound to show that the decision of learned first appellate court is contrary to law or learned first appellate court failed to determine some material issue of law or usage having the force of law or there is some substantial error or defect in the procedure provided by the C.P.C. By the learned first appellate court. No such defect has even been argued before this court. In these circumstances, no case for interference by this court while exercising jurisdiction under section 100 of the C.P.C. Has been made out by the appellant.
7. In view of above discussion, this appeal having no force is dismissed, leaving the parties to bear their own costs.