' ARSHAD MAHMOOD TABASSUM, J. The petitioner, on 09.01.1985, instituted a suit for specific performance of agreement to sell dated 22.02.1966, averring in the plaint that the respondent/defendant (Sh. Muhammad Mobeen), being owner of land measuring 35 acres, fully described in the headnote of the plaint, sold out 11 acres of land in favour of Mst. Sardar Bibi regarding which a suit for pre-emption was instituted, which remained pending in different courts; that in the meanwhile, the respondent offered to sell his remaining 24 acres of land to the petitioner/plaintiff at the rate of Rs. 1100/- per acre and accordingly, the petitioner/plaintiff made payment of Rs. 6,000/- on 22.09.1966, as advance money and obtained possession of the suit land from him; that an agreement to sell (Iqrarnama) was also executed between the parties, whereafter the petitioner started cultivating some of the said land, whereas, he got the remaining land cultivated through his tenant; that the petitioner continued making payment of the remaining sale consideration to the respondent at different occasions; that in this regard, he made payment of Rs. 7,800/- to the respondent/defendant on 02.02.1968, against receipts; that in this way, he made payment of the entire sale consideration; that the respondent had undertaken to transfer the land in favour of the petitioner on the decision of the pre-emption suit mentioned above; that ultimately the suit for pre-emption stood decided from the High Court, whereupon the petitioner requested the defendant for transfer of the land in his favour through a registered sale-deed regarding which the respondent again undertook to do the needful and in this regard, he executed a memorandum in his favour and that thereafter, tenant of the petitioner, namely Abdul Hameed connived with the respondent and offered to purchase the suit land for a higher price due to which, the respondent changed his intention and refused to transfer the land in his favour. Accordingly, the petitioner instituted the suit.
2. The suit was contested by the respondent through filing his written statement, wherein he denied having executed any agreement in favour of the petitioner and maintained that the petitioner was known to him, as he (respondent) was owner of huge property and his litigation was pending in different Courts; that the petitioner used to pursue his cases on his behalf and for that purpose, at different occasions, had obtained his signatures on various papers for pursuing the said cases and due to forgery, he had prepared fictitious agreement. He also maintained that neither he received any amount towards sale consideration, nor had he handed over the possession of the suit land to the petitioner. He also resisted the suit on the ground of limitation.
3. The divergent pleadings of the parties, led the learned Trial Court to frame the following issues:-- - ISSUES
1. Whether the suit is within time? OPP
(2) Whether the agreement dated 22.09.1966 is the result of fraud, if so, its effect? OPD
(3) Whether the plaintiff is entitled to decree for specific performance, if so, on what terms and conditions? OPP
(4) Whether the defendant is entitled to get special cost under Section 35-A, CPC? OPD
(5) Relief.
' Both the parties produced their pro and contra evidence in support of their respective claims and ultimately, the learned Trial Court decreed the suit vide judgment and decree dated 21.10.2000.
4. The respondent preferred an appeal, which was allowed by the learned first Appellate Court vide judgment and decree dated 24.08.2005, hence, this petition under Section 115, CPC.
5. Learned counsel for the petitioner has argued that the learned first Appellate Court has illegally interfered with the well-reasoned judgment, passed by the learned Trial Court and on erroneous assumption of law and facts, accepted the appeal and set aside the judgment of the learned Trial Court; that the P.Ws. Produced by the petitioner remained consistent in their depositions and have fully established execution of the agreement to sell in dispute; that even the respondent had not categorically denied his signatures on agreement to sell, but pleaded misrepresentation and fraud and he was obliged to prove the same through cogent evidence; that the petitioner sufficiently proved on record that the marginal witnesses of the agreement to sell had since died, hence, non- production of the said witnesses could not be a ground for non-suiting him. He has, therefore, concluded that the impugned judgment suffers from mis-reading, non-reading and mis- construction of the law on the subject, hence, the same merits setting aside.
6. Conversely, learned counsel for the respondents has fully supported the impugned judgment.
7. Having heard learned counsel for the parties, it appears that during trial, respondent Muhammad Mubeen Qureshi, died and is legal heirs stepped into his shoes, who submitted amended written statement. The petitioner claimed decree for specific performance on the basis of agreement to sell dated 22.09.1966. The said document is available on record as Ex.P.1. It appears that the marginal witnesses of the said document include Abdul Hameed and Khushi Muhammad and it was scribed by Hafiz Muhammad Sharif. Saeed Anwar Javed appeared as P.W.1, who claimed that the parties were known to him; that agreement Ex.P.1 was in the handwriting of his father and he was also present, when the same was drafted. He claimed that in his presence, the amount of Rs. 6,000/-was paid to the respondent through cheque. He further stated that he did not know about the death of marginal witnesses of the said agreement. He also maintained that his father was stamp vender, but he could not say with certainty that the stamp paper on which agreement had been drafted was the one issued by his father. He also stated during cross-examination that since he was not a handwriting expert, he could not say with certainty that the signatures on the agreement were those of Sh. Muhammad Mubeen (respondent). The relevant portion of his statement reads as under:--- ' He admitted that the petitioner remained working as an agent of the respondent. In this regard, he states that:---
8. On perusal of the agreement in dispute Ex.P.1, it appears that the same did not bear the stamp and signatures of the stamp vender. As pointed out above, the name of the above-said witness has not been mentioned in the agreement in dispute, therefore, his depositions have hardly any relevance. Another witness, who was produced to prove the agreement is Rehmat son of Habib Ali, who appeared as P.W.2. However, this P.W. Is again not a marginal witness of the agreement to sell in dispute. Similarly, Islam ud Din, P.W.4 is also a witness of a memorandum, but no such memorandum was tendered in evidence nor proved.
9. The claim of the petitioner was that he made payment of Rs. 6,000/- by way of a cheque, however, this fact does not find a mention in the agreement to sell in dispute Ex.P.1. Had a cheque been issued at the time of execution of agreement to sell, it must have been mentioned in the body of the agreement. Moreover, in view of the admission of P.W.1 that the petitioner had been working as an agent of the respondent and also in view of the claim of the respondent as made in para No. 3 of the plaint, it cannot be ruled out that such a cheque was issued during the course of dealing of the petitioner and respondent being an agent and principal. It is also borne out from the evidence of P.W.2 Ghulam Hussain Khawar that the cheque was encashed on 24.09.1966, whereas, the agreement dated 22.09.1966, recites that an amount of Rs. 6,000/- was received by the respondent on that day. This is yet another major contradiction, which goes into the roots of the claim of the petitioner.
10. Apart from the fact that the marginal witnesses of the agreement to sell have not been produced, nor any such proof has been brought on record in the shape of the death certificates of the said marginal witnesses, the petitioner was obliged to produce the said witnesses and non- production of the said witnesses is fatal for his case.
11. Leaving aside the fact that the execution of agreement to sell has not been established, there is another legal defect in the said document, due to which no decree for specific performance could be passed in favour of the petitioner. The said legal defect is that the agreement in dispute, admittedly, does not contain the signatures of the respondent/alleged vendor. Even if it is considered that the agreement Ex.P.1 was executed, yet the agreement could be binding upon the parties only if both the parties to the said agreement had signed the same. It is an unilateral agreement, whereby the responsibility has been created against the respondent for selling the land, but no responsibility has been created against the present petitioner to perform his part of agreement, meaning thereby that in case of violation of terms of agreement to sell in dispute on the part of the vender, the vendees/defendant would have no remedy under the law, because the said vender had an absolute excuse that he was not party to the agreement to sell, as it did not contain his signatures. Thus, the petitioner can seek benefit under the agreement to sell, but no liability can be taken up against him, as he has not signed the agreement to sell in dispute. In these circumstances, it appears to be an agreement, which was not enforceable under the law. So has been held by the Apex Court in the case titled "Mst. Gulshan Hamid v. Kh. Abdul Rehman and others" (2010 SCM R 334), the relevant portion whereof reads as under:-
6. A perusal of the deed would indicate that it was signed by the appellant Mst. Gulshan Hamid alone and not by any of the three vendees. As evidence from the contents of the deed it created rights and liabilities on both sides. Had there been an occasion for the owner-lady to bring a suit for specific performance, she would not have signed the deed so as to accept any of the liabilities.
The circumstances under which the contract is made are such that the present plaintiffs are given a unfair advantage over the defendant unfair advantage over the defendant Section 22 of the Specific Relief Act, 1877 clearly provides that in such circumstances, the discretion is not to be exercise in favour of the plaintiffs.
11. In the light of above discussion, this Court has arrived at the irresistible conclusion that the learned Trial Court had illegally decreed the suit, which was rightly dismissed by the learned first Appellate Court by accepting the appeal of the respondents/defendants. Resultantly, this civil revision has no merits, which fails and the same is hereby dism issed with no order as to costs. Civil revision .