' GHULAM MUSTAFA MENGALJ.--- This Civil Revision Petition under section 115, C.P.C. Is directed against the judgments and decrees dated 25th August, 2009 and 25th November, 2009 respectively passed by learned Senior Civil Judge, Pishin and Additional District Judge, Pishin, whereby suit and appeal filed by the petitioner was dismissed.
2. The-relevant facts of the case are that the plaintiff/petitioner filed a suit for declaration, mutation, cancellation of agreement dated 4th July, 2006 and permanent injunction against the defendants/respondents in the Court of Senior Civil Judge, Pishin. It was averred that the defendant/respondent No,1 entered into an agreement to sell of suit land situated at New Killi Surkhab measuring 15,750 Sq. Feet in favour of plaintiff/petitioner for a sale consideration of Rs,10,000 (Rupees ten thousand only) vide agreement dated 6th December, 1993 and Rs,8,500 (Rupees eight thousand five hundred only) was paid as earnest money and remaining amount was agreed to be paid at the time of mutation and possession of th land was handed over to the plaintiff/petitioner. It was further .Averred that the remaining amount of Rs,1,500 (Rupees one thousand five hundred only) was paid to the defendant/respondent and thereafter in the month of March, 2008 the defendant/ respondent No,2 started illegal interference and dumped stones for construction of wall and the plaintiff came to know that the respondent No,1 through fraud and misrepresentation vide an another agreement dated 4th July, 2006 sold out a portion of the land measuring 7,650 sq. Feet to the defendant/respondent No,2. It was stated that the plaintiff/petitioner approached to the defendant/respondent No,1 for mutation of land in question on several occasions but he delayed the matter on one pretext or the other. With these averments following prayer was made:- "(a) To declare that the plaintiff is the lawful owner and in peaceful possession of land measuring 15750 sq.Ft situated at New Killi Surkhab, which has been purchased from defendant No,1 through agreement dated 6-12-1993, boundaries whereof have been given in para No,2 of the plaint.
(b) To declare that the act of private defendants is totally illegal, unlawful and they have no concern or whatsoever with property in question.
(c) To declare that the alleged agreement dated 4-7-2006 executed between private defendants is totally illegal and unlawful and the same be declared as null and void.
(d) To direct the defendants to mutate the land in question measuring 17750 sq ft: in the name of plaintiff, boundaries and description whereof has been mentioned in agreement dated 6-12-1993 and para No,2 of the plaint.
(e) By means of permanent injunction, the private defendant seaways kindly be restrained not to further interfere in peaceful possession of plaintiff land in any manner and change the nature of the suit property. Any other relief which this Hon'ble Court may deem fit and appropriate in the circumstances of the case may also be awarded in favour of plaintiff and cost of the suit may also be awarded.
3. The suit filed by plaintiff/petitioner was contested by the defendants/respondents by filing the written statement on various grounds. The respondents No,1 in his written statement denied the execution of any agreement to sell in favour of plaintiff, while respondent No,3 despite service of notice did not appear; therefore, he was proceeded against ex parte. The learned trial Court, in order to resolve the controversy existing between the parties, framed the following issues: "(1) Whether suit of the plaintiff is not maintainable in view of preliminary legal objections raised by the defendants in the written statement?
(2) Whether the plaintiff and defendant No,1 entered into an agreement on 6-12-1993 regarding which defendant No,1 sold out his land measuring 15750 sq.Ft. To the plaintiff against consideration of Rs,10,000?
(3) Whether the agreement dated 4-7-2006 in between defendants Nos.] and 2 is produced of fraud?
(4) Whether the plaintiff is lawful owner and in peaceful possession of the property measuring 15750 sq.Ft. In the light of agreement dated 6-12-1993 boundaries whereof mentioned in the body of plaint?
(5) Whether the plaintiff is entitled to the relief claimed for?
(6) Relief. "
4. The plaintiff/petitioner in order to prove his case, produced as many as three witnesses namely, Naik Muhammad as P.W-1, Taj Mir as P.W-2, Abdul Samad as P.W-3 and also got recorded his own statement. The defendants/respondents, in rebuttal, produced four witnesses namely, Abdul Ghani, Petition Writer, District Court, Pishin as D.W-1, Abdul Rehman as D.W-2, Nasrullab as D.W-3, Abdul Rasheed as D.W-4 and defendant/respondent No,2 being attorney for defendant/ respondent No,1, got recorded his own statement.
5. After hearing the parties, learned Senior Civil Judge, Pishin vide judgment and decree dated 25th August, 2009 dismissed the suit of the plaintiff/petitioner. The plaintiff/petitioner being aggrieved of the judgment and decree, filed Civil Appeal No,47 of 2009 before the Additional District Judge, Pishin, which was also dismissed on 25th November, 2009. The plaintiff/petitioner approached this Court by filing the instant petition.
6. Petitioner argued that both the Courts below have failed to appreciate the oral as well as the documentary evidence produced by hith and have committed material irregularity, as such, the impugned judgments and decrees being illegal and result of misreading and non-reading of the evidence available on record, are liable to be set aside.
7. On the other hand Mr. Aminullah Dakar, learned counsel for the respondents submitted that the petitioner has failed to prove any sale in his favour in respect of land in dispute, as such, the judgments passed by Courts below are not open to interfere by this Court in exercise of its revisional jurisdiction.
8. I have heard the petitioner in person and learned counsel for the respondents and have gone through the record as well as impugned judgments. From perusal of the record, it appears that the sale agreement dated 6th December, 1993 (Mark/P-I) is photocopy on the record. To prove the sale agreement the petitioner/plaintiff produced Naik Muhammad, marginal witness, as P.W.1. He in his statement deposed that on 6th December, 1993 he was sitting with the petitioner/plaintiff, respondent No,1 entered into an agreement for sale of suit-land measuring 1550 sq.Ft in favour of petitioner for a consideration of Rs,10,000/- (Rupees ten thousand only). He further deposed that at that time apart from the parties the witnesses, Lalai Mamma, Dost Muhammad and Amir Muhammad were present. The sale agreement was written by the petitioner. The sale agreement was signed by him and Lalai Mamma, while the remaining witnesses did not sign the same. He identified his signatures on the agreement. The original agreement was not produced by the witness, therefore, same was not exhibited and Marked as P-1. P.W-2 is Taj Mir. He deposed in his statement that at the time of sale of the land he was present. The petitioner paid Rs,8500/- (Rupees eight thousand five hundred only) to the respondent No,1. At that time witnesses namely, Naik Muhammad, Noor Muhammad and Amir Muhammad were present. In this regard sale agreement was executed and witnesses namely, Naik Muhammad, Noor Muhammad and Amir Muhammad signed the sale agreement. The third witness is Abdul Salam. He deposed that there was a dispute between petitioner and respondent No,2 with regard to disputed land. Both the parties authorized him to resolve the dispute. He gave his verdict but the petitioner refused to accept his decision. Petitioner/plaintiff appeared and deposed that on 6th December, 1993 respondent/defendant No,1 entered into a sale agreement with him of sale of suit-land and possession of the same was handed over to him by the respondent No,l. He further deposed that sale agreement was executed between the parties; meanwhile the respondent No,2 informed him that he had purchased the land in question from the respondent No,
1. Thereafter the respondent No,2 constructed house.
9. Settled principle of law is that plaintiff has to prove his own case and he cannot be benefited on the weakness of other side, if any. Admittedly, the sale agreement dated 6th December, 1993 Mark/P-1, is a photocopy, which would be of no help to the petitioner as the same had not been proved in any manner prescribed by law and the document itself is inadmissible in evidence and that is why it was not exhibited. The sale agreement was written and signed by the petitioner. It may be observed that only one marginal witness i,e, Naik Muhammad (P.W.1) was examined, while the other marginal witness namely Amir Muhammad was not produced by the petitioner; whereas, the remaining witnesses had not signed the same. Mark/P-1 being photocopy cannot be admitted as secondary evidence under the law. Article 79 of the Qanun-e-Shahadat Order, 1984 is as follows:--- "79. Proof of execution of document required by law to be attested. 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: Provided that, it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."
10. The above provision lays down that if a document is signed 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 Court and capable of giving evidence. Thus under this Article the document could only be used as evidence when two witnesses have proved its execution.
11. The evidence produced by the petitioner/plaintiff was not sufficient to discharge the onus with regard to proof of execution of alleged agreement to sell in respect of land in question. A document which is not proved is inadmissible in evidence, unless strict proof of it is waived. In the instant case the petitioner/plaintiff was bound to prove due execution of sale agreement in accordance with law but he has failed to prove the same. I have further noticed that evidence produced by the plaintiff/petitioner is contradictory.
12. The learned Courts below have recorded concurrent findings of facts against the petitioner, which are not open to Interference by this Court until and unless grave injustice or material illegality is proved on the record, which is missing in this case, therefore, no interference can be made in the concurrent findings of facts recorded by -the Courts below. This Court in limited revisional jurisdiction is neither required nor supposed to interfere with these findings, which are well-founded. The petitioner has failed to point out any illegality, irregularity or an iota of evidence purportedly misconstrued by the Courts below.
13. For the foregoing reasons, the revision petition is dismissed and the impugned judgments and decrees passed by the Courts below are upheld. No order as to costs.