MEHMOOD MAQBOOL BAJWA, J.--- Assails the legality of judgment and decree dated 15-2-2005 recorded by a learned Additional District Judge, Sargodha, whereby while setting aside the judgment and decree dated 30-6-2004 drawn up by learned Civil Court, Sargodha, suit for specific performance of executory contract of exchange was dismissed.
2. The present appellant instituted suit for specific performance of agreement of exchange dated 1-12-1986 asserting that there was an undertaking between the adversaries regarding exchange of landed property measuring 16 kanals and possession was accordingly surrendered to each other.
Alleged refusal on the part of respondent prompted the appellant to institute suit for specific performance, contested by the respondent, denying the execution of agreement. Divergent pleadings of the parties resulting in casting of following issues:--- ISSUES:
(1) Whether the defendant agreed to change the suit land vide agreement dated 1-12-1986 and the plaintiff handed over the possession of the exchanged land in lieu? OPP
(2) Whether the suit is time barred? OPD
(3) Whether the suit has been wrongly valued for the purpose of court-fee and jurisdiction? OPD
(4) Relief.
After recording pro. And contra evidence, while answering all the issues in favour of appellant, suit was decreed in his favour vide judgment and decree dated 30-6-2004, called in question by respondent before first appellate court who non-suited the appellant vide judgment and decree dated 15-2-2005 by accepting the appeal preferred by the respondent.
3. Heard.
Learned counsel for the appellant while assailing the findings impugned maintained that the learned Additional District Judge, answered Issue No,1 against him in view of non-compliance of Article 79 of The Qanun-e-Shahadat Order, 1984, due to non-production of two marginal witnesses.
Submitted that the- second marginal witness Saleh Muhammad could not be produced due to his serious illness. Referring to the record of trial court, it was submitted that local commission was appointed in order to record his statement but attempt remained unsuccessful due to mental and physical condition of said witness. Further argued that statement of Mehboob Ali, Advocate (PW-1) who is scribe of the agreement (Exh.P!) could have been taken into consideration as marginal witness. Help was sought from the dictum laid down in "Mst. Fatima Bibi v. Mst. Nasim Akhtar and others (2000 YLR 2953) and "Zafar Ullah Khan v. Mst. Hakim Bibi and another" (2000 YLR 2789).
Submitted that the first appellate court ignored this well-settled proposition of law. Continuing his arguments, the learned counsel for the appellant argued that appellant is in possession of property in part performance of agreement which after huge investment was made cultivable.
Making reference to para (1) of written statement on merits, it was contended that respondent admitted his thumb-impression on the agreement (Exh.P1), substantiating the contention of the appellant. Argued that impugned judgment is result of misreading and non-reading of evidence.
Controverting the arguments, learned counsel for the respondent maintained that appellant could not prove the execution of agreement (Exh.P1) and as such, the learned appellate court rightly set aside the judgment recorded by the trial court. Argued that the appellant was obliged to produce two marginal witnesses in order to prove the execution of agreement which admittedly could not be established in accordance with Article 79 of The Qanun-e-Shahadat Order, 1984, and as such same was rightly, excluded from consideration. Reliance was placed upon "Muhammad Abdul Mannan v. Dr. M. Hamid Afsar" (2002 M LD 1368), "Mst. Rasheeda Begum and others v. Muhammad Yousaf and others" (2002 SCM R 1089). Referring to the contents of written statement that respondent is an illiterate person and placing reliance upon "Shabbir Anwar v. Sh. Tariq Mehmood and 2 others" (2002 Civil Law Cases 1102), it was submitted that execution of agreement was required to be proved by appellant being beneficiary. Referring to the evidence of Shahadat Khan (PW-3) a marginal witness, it was submitted that agreement (Exh.P1) was not signed by respondent in his presence and as such even the evidence of said witness cannot advance plea of appellant. Reference was made to "Mst. Kulsoom Bibi and another v. Muhammad Arif and others"
(2005 SCM R 135).
4. The appellant sought specific performance of agreement of exchange (Exh.P1). Perusal of stipulation contained in it suggests that both the parties being signatory to said executory contract agreed to transfer their respective land in favour of each other after conferment of proprietary rights in favour of present appellant. However, as per contents, possession was delivered.
Since the contents of the agreement created future obligations, therefore, was required to be attested by two men or one man and two women as envisaged by Article 17 of The Qanun-e- Shahadat Order, 1984. The same provision of law also suggests the production of required number of witnesses in view of use of expression "and evidence shall be led accordingly".
Since the document is required by law to be attested, therefore, according to Article 79 of The Qanun-e-Shahadat Order, 1984, it could not be acted upon unless two attesting witnesses have been called to prove its execution. However, earlier part of the said Article is subject to later part of the said provision in order to produce two witnesses which are as under:--- "(1) The attesting witnesses are alive, (2) Subject to the process of the court, and (3) capable of giving evidence."
Admittedly, agreement (Exh.P1) was signed by two marginal witnesses Shahadat Khan (PW-3) and Saleh Muhammad. One of the witnesses Shahadat Khan appeared as PW3. Second marginal witness Saleh Muhammad though alive and subject to the process of the court but is not capable of giving evidence as is evident from the report of local commission not subject to challenge at the instance of respondent. In view of the matter, inability to produce second witness by itself is not sufficient to suggest conscience non-compliance of the provisions of Articles 17 read with 79 of The Qanun-e-Shahadat Order, 1984.
5. The next question for consideration is whether in the attending circumstances, execution of agreement (Exh.P1) was proved at the instance of respondent.
Prior to dealing with this aspect, it would also be desirable to determine whether scribe of document can be treated as marginal witness. In order to treat the scribe, as marginal witness, it is necessary for the said witness to depose that executant signed or thumb-marked the document in his presence and view while admitting its contents as held in "Zafar Ullah Khan v. Mst. Hakim Bibi and another" (2000 YLR 2789) and "Mst. Fatima Bibi v. Mst . Nasim Akhtar and others" (2000 YLR 2953).
Keeping in view the above yardstick, statement of Mian Mehboob Ali, Advocate (PW-1) is examined who in his direct statement maintained that contents of agreement were read over to the parties who signed the same besides pasting their thumb impression. In cross-examination though he stated that Maula Bakhsh (respondent) also appeared and agreement was written as per dictate, of the parties after due identification by checking their identity cards but in the later part he frankly admitted that neither Maula Bakhsh was personally known to him nor he had identity card. In view of the matter, evidence of this witness in order to prove the document cannot be believed, relied and acted upon particularly in view of the suggestion put to him that he entered the name of Maula Bakhsh at the instance of appellant which, however, was denied.
Even if it is presumed that evidence of scribe (PW-1) can be taken into consideration being marginal witness, it would be of little help to substantiate the contention of the appellant in view of the evidence of marginal witness, Shahadat Khan (PW-3) who in his direct statement categorically added that agreement (Exh.P1) was not written in his presence. Further stated that same was written in Sargodha and appellant brought it to his village, where he signed the same.
Confronted with the situation, an attempt was made by learned counsel for the appellant adding that since the witness admitted his signature on agreement (Exh.P1), therefore, he has to be considered marginal witness for all intents and purposes. I am least impressed by they argument which is half-hearted attempt at the instance of the appellant.
In order to appreciate the argument advanced by appellant, it would be desirable to know the meaning of word "Execution" used in Article 79 of The Qanun-e-Shahadat Order, 1984.
The expression means signing a document as a consenting party. Where the document is required by law to be attested, execution designates the whole exercise including both the signature by the executant and the attestation by the subscribing witnesses. It also suggests signing a document, written, read over and also includes the signing in the presence of witnesses where witnesses are necessary. The Honourable Supreme Court of Pakistan while dealing with Article 79 of The Qanun- e-Shahadat Order, 1984 has held in "Mst. Kulsoom Bibi and another v. Muhammad Arif and others"
(2005 SCM R 135) that marginal witnesses are required to produce not only to identify the signatures of executant but are examined also to prove that the executant had put the signatures within their view.
Evidence of Shahadat Khan (PW-3) is no where suggestive that respondent ever thumb-marked agreement in his presence. When there is frank admission on his part that agreement was not written in his presence, how it can be presumed that executant was identified by him who also signed the same in his presence. In view of the matter, Shahadat Khan though appeared as a witness but he cannot be said to be a marginal witness. Execution of the agreement (Exh.P1) as such could not be established at the instance of appellant while taking into consideration the evidence of Shahadat Khan (PW-3) and Mehboob Ali Sarfraz, Advocate (PW-1) even stamping him as second "marginal witness".
It is further to be noted that evidence of Shahadat Ali (PW-3) clearly reflects the bona fides di Mian Mehboob Ali, Advocate (PW-1) scribe who though, deposed that witnesses were also present who signed the same in his presence. When there is a categorical stance on the part of Shahadat Ali (PW-3) that agreement was not written in his presence to which no exception was taken at the instance of appellant by resorting to the course envisaged in Article 150 of The Qanun-e-Shahadat Order, 1984, how the evidence of scribe (PW-1) can be taken into consideration.
6. Argument that Muhammad Yousaf and Muhammad Bakhsh (cousins of the respondent) were also privy to the agreement (Exh.P1) who in pursuance of their undertaking transferred the land in his favour cannot advance plea of appellant for two-fold reasons. Firstly, the appellant did not produce any of them to prove it which could have been a circumstance in his favour. Secondly, failure of the appellant to prove execution of agreement in accordance with law.
7. Factum of possession of 'appellant over the disputed land claiming it in part-performance controverted by respondent adding it to be a permissible possession as tenant by itself would not be sufficient to prove agreement of exchange though it could have been considered a corroborative evidence if execution of agreement (Ex.P1) was proved in accordance with law.
8. Pursuant to above discussion, appellant failed to prove the existence, terms and conditions of agreement (Exh.P1) in accordance with law. Judgment and decree impugned before this Court cannot be said to be contrary to law in order to attract the provision of section 100 of the Code of Civil Procedure, 1908 and as such while endorsing the same, appeal preferred by appellant is hereby dismissed without any order as to costs.