Shahid Karim, J:-This is an appeal against the judgment and decree dated 5.12.2003 passed by the Addl. District Judge, Burewala. By the said judgment and decree, the appeal of the respondent No.1 was accepted and the judgment and decree dated 11.12.1986 passed by Civil Judge, Vehari was set aside.
2. The relevant facts are that the respondents filed a suit on 30.04.1983 in the court of Senior Civil Judge for specific performance and declaration alleging that Muhammad Yasin himself and being general power of attorney of Mst. Bhagan entered into an agreement to sell dated 7.3.1982 (agreement). The agreement was regarding the land situated in Chak No.447/E.B and 493/E.B, measuring 213 Kanals in total for a consideration of Rs.4,31,250/- out of which an amount of Rs.1,50,000/- as alleged in the plaint was paid at the time of the execution of the agreement and the remaining was to be paid on 7.4.1983. As a consequential relief, a declaration was prayed to the effect that the mutations of Hibba No.102, 103 dated 17.3.1982 and mutation No.169 dated 16.3.1982 were liable to be cancelled as having been executed in contravention to the rights of the respondents/plaintiffs.
3. The facts as explicated above have been narrated in the plaint. The case set up in the plaint is that the gift deed dated 16.3.1982 in favour of the defendant No.3, mother of the petitioners herein, is without lawful authority and has been executed as a sham transaction in order to avoid and stunt the agreement and its performance. It was also alleged in the plaint that subsequently collusive suits were filed with regard to the said mutations which were later withdrawn. The appellant/defendant No.1 Muhammad Yasin also gave an affidavit in those suits in which he expressed his ignorance regarding the mutations on the basis of gift deed. It was alleged that the respondents/plaintiffs were in possession of the property which was ample proof that an agreement had been executed between the parties. It was finally asserted that since the appellants/defendants No.1 and 2 had entered into an agreement to sell with the respondents/plaintiffs, they cannot turn around and renege from it now. A specific performance for the agreement was sought in the prayer clause as also the declaration to the effect that the mutations No.102 and 103 dated 17.3.1982 on the basis of oral gift be set aside and declared as void.
4. The appellants/defendants filed their written statement and denied the execution of the agreement without more. They did not offer an explanation in the written statement as to how the documents which were relied upon by the respondents/plaintiffs came in the hands of the respondents as also no further explanation was offered regarding any fact. It was simply proferred that the mutations on the basis of oral gift have been validly executed in favour Mst. Naziran Begum the mother of Muhammad Yasin and no challenge can be thrown to those mutations.
5. The following issues were framed by the trial court:
1. Whether the suit is not maintainable in its present form? OPD.
2. Whether the description of the suit land has not been given correctly in plaint: if so, what is its effect? OPD.
3. Whether the impugned agreement to sell the suit land dated 7.3.1982 is hit by Martial Law Regulation No.115? OPD.
4. Whether the defendants have executed the impugned agreement to sell the suit land dated 7.3.82 in favour of the plaintiff receiving Rs.1,50,000/-. OPP.
5. On non proof of issue No.4 whether the plaintiff has performed his part of the contract and his willing to perform the other part of the contract also and hence, is title to the decree for specific performance of contract in dispute? OPP.
6. Whether the plaintiff is estopped by bring this suit by his own words and conduct? OPD.
7. Whether the impugned agreement to sell the suit land is illegal, against the facts, false, null and void, without consideration and hence ineffective as against the rights of the defendants? OPD.
8. Whether the suit of the plaintiff is malafide and vexatious, if so, whether the defendants are entitled to special costs u/s 35-A of CPC, if so, up to what extent? OPD.
9. Whether the plaintiff has got no locus standi to bring this suit? OPD.
10. Whether this court lacks territorial jurisdiction to try this case in view of preliminary objection No.8 of the written statement? OPD.
11. Whether the suit is bad for mis-joinder of cause of action? OPD.
12. Relief.
6. It has been mentioned in the impugned judgment that the counsel for the defendants did not press issue No.1, 6, 10 and 11 and, therefore, the Addl. District Judge did not feel the need to give any findings as regards these issues.
7. The pivotal issues for determination of the controversy between the parties were issues No.4,5 and 7 on which both the courts below have dilated upon and rendered their findings. In view of the settled principle of law that in case of variance and dissension in the findings of the two courts below, the High Court in its appellate jurisdiction has to give preference intention to the findings of the lower appellate court unless it suffers from grave irregularity or the same are perverse or reasons given by the lower appellate court are not sustainable. (See Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCM R 1). I shall proceed to deal with the impugned judgment passed by the Addl. District Judge and to see if material irregularity or error of law has been committed while rendering the impugned judgment.
8. Learned counsel for the appellants has submitted that the plaint does not contain specification as to where the agreement was entered into. It has not been mentioned in the agreement itself as to the place where it was entered. PW.3 Haleem Shah is the scribe and he is not a witness to the agreement and also he does not depose with regard to any such fact. PW.5 also deposes that the agreement with Muhammad Yasin was executed at Faisalabad and also that at the time of the execution of the agreement, the witness along with Muhammad Yasin, Yousaf and Ch. Muhammad Ali was present. However, despite being admitted to be alive Nawab Din, the second attesting witness has not been produced in evidence. The learned counsel further submitted that the plaint is silent as to whether earnest money was paid whereas this fact has been brought forth in the evidence of PW.4 and PW.5. The scribe PW.3 was produced in evidence who has denied any knowledge regarding the place where the stamp papers were purchased. PW.4 also feigns ignorance as to from where the stamp papers were purchased. It has also been pointed out by the learned counsel that the PW.5 in his examination in chief does not mention regarding the presence of the witnesses while in the cross examination he admits that Qurban Ali, the attesting witness accompanied PW.4 and Muhammad Yasin was present already at the place of the execution of the agreement. With regard to the execution of the receipt Ex.P.3, it is alleged by the learned counsel for the appellants that the plaint does not mention any such document to have been executed.
Further that the agreement Ex.P.2 also does not mention about receipt Ex.P.3. According to the learned counsel, the statement of PW.3 scribe is discrepant with regard to the receipt, in that, he says that he gave the same serial number to Ex.P.2 and P.3 and in the column relating to the nature of document, the receipt has been mentioned but in the next column regarding explanation there is no mention of the receipt.
9. Oral and documentary evidence was produced by the parties. The respondents/plaintiffs herein produced PW.1 Mirza Masood who was petition writer, PW.2 Mian Manzoor Advocate who was oath commissioner and who attested Ex.P.1, Ex.P.2 (the affidavit and the agreement respectively), PW.3 who is the scribe of the agreement, PW.4 Muhammad Qurban Ali, attesting witness and the plaintiff himself as PW.5. PW.1 is the petition writer and attested to the fact that Ex.P.1 the affidavit of defendant No.1 was written by him. He stated that he had written Ex.P.1 upon the asking of the defendant No.1 Muhammad Yasin and the contents of the affidavit were read over to the said defendant and were singed and thumb marked by him. PW.2 Mian Manzoor Advocate, oath commissioner, attested Ex.P.1 and Ex.P.2 and also attested to the fact that Ex.P.1/1 were the signatures and thumb impressions of defendant on Ex.P.1. The learned counsel for the petitioner has taken cavil to the observations of the Addl. District Judge that the trial court had doubt as to why the thumb impressions and the signatures of the defendant No.1 were obtained on one side of the stamp paper. Learned counsel submits that no such observation was made by the trial court and the Addl. District Judge has not given any reasons for having observed so. However, nothing turns on this and even if it were to be held that the trial court did not make such an observation it will not impact on this case.
10. Haleem Shah appeared as PW.3 and is the petition writer and also the scribe of the agreement Ex.P.2. He attested to the fact that he wrote the agreement upon asking of the appellant/defendant on 7.3.1982 and entered it in his register at S. No.54 which was also signed by the appellant/defendant No.1. The receipt Ex.P.3 was also written by him which too was written on the demand of the parties. PW.4 was the attesting witness Muhammad Qurban Ali who attested to have signed as marginal witness, the documents Ex.P.2 and Ex.P.3. He also deposed that earnest money was paid in his presence to the appellant/defendant No.1. He also stated that the earnest money was paid in the presence of the petition writer and he was also present there along with the plaintiffs and the appellant/defendant No.1. The learned counsel for the appellant once again takes issue with the observations of the lower appellate court with regard to the fact that it was wrongly observed by the trial court that PW.4 was the relative of the respondents/plaintiffs and, therefore, was not worthy of trust. The learned counsel submits that this was not observed by the trial court.
However, once again nothing turns on this aspect and whether it was so observed by the trial court or not, it makes a little difference as the fact that PW.4 is a relative of the respondent/plaintiff will not, unless the credentials of the witnesses are called in question, affect the outcome of the case.
Finally, the respondents/plaintiffs himself appeared as PW.5 and in his deposition has substantiated the averments and contents of the plaint as also the facts, regarding the execution of the agreement and the receipt.
11. Learned counsel for the respondents/plaintiffs have taken objections to the maintainability and the narrow scope of a second appeal. It is submitted by the learned counsel that the appellants have to show glaring and patent misreading of evidence in order to have the impugned judgment set aside. The learned counsel submits that in the written statement although the signatures on the agreement have been denied but in evidence an altogether different case has been tried to be put up by the appellants/defendants. Learned counsel has in this regard relied upon PLD 1969 SC 617 and 2007 SCM R 554. He further submits that there is no evidence of fraud to have vitiated the agreement and the evidence led is beyond the pleadings of the defendants. He has referred to the evidence of DW.1 in which the appellant Muhammad Yasin has admitted to the execution of the documents. Moreover, the objection regarding sale, on the basis of power of attorney, has not been taken in the written statement. DW.1 admits that the possession is with the plaintiffs. Learned counsel finally submitted that DW.1 has admitted his signatures on Ex.P.3 in the examination in chief and upon a reading of Ex.P.3 it becomes apparent that it mentions the factum regarding the agreement to sell Ex.P.2.
12. The facts at first blush, are complicated, however, the proposition narrows down to one which lends itself fortunately to some simplification. The instant case is regarding the execution of an agreement to sell and which agreement to sell was executed on 7.3.1982. The agreement thus pre- dates the Qanun-e-Shahadat Order, 1984 and thus section 68 of the Evidence Act, 1872 will be applicable in such matters. Section 68 of the Evidence Act, 1872 relates to the proof of execution of documents required by law to be attested and is reproduced as under: "68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness 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, unless its execution by the person by whom it purports to have been executed is specifically denied"
13. It is clear that as per the mandate of section 68 of the Evidence Act, 1872 if a document is required by law to be attested, it can be used in evidence if one attesting witness has been called for the purpose of proving its execution. In Muhammad Amin v. Sardar Ali (PLD 2006 SC 318) this proposition was authoritatively settled by the Supreme Court of Pakistan as under: "...It is an admitted fact that agreement to sell was executed between the parties on 16-11-1981 whereas Qanun-e-Shahadat Order came into force on 26-10 1984 meaning thereby agreement to sell executed prior to coming into force of the said order 1984 (President's Order No.10/1984). By virtue of Article 1(3) of the said Order came into force at once, there it does not apply retrospectively to documents already executed and are past and closed. See Manzoor Ahmad's case 2002 SCM R 1391, Noor Muhammad's case 2002 SCM R 1301, Syed Muhammad Sultan's case 1997 CLC 1580 and Ramzan's case 2001 M LD 957."
14. In the instant case, PW.4 Muhammad Qurban Ali is the attesting witness of the agreement and the deposition of said witness has not been shaken either in the examination in chief or in the cross examination. He without equivocation deposes that the agreement as well as the receipt were executed in his presence and he was a marginal witness and put his signatures as such on the said documents. He admits those documents and also that the earnest money was paid in his presence. More importantly he also attests to the signatures of Muhammad Yasin having been put in his presence. During cross examination, nothing substantial was brought forth to shake the credibility or the deposition made by him. The scribe of the agreement and the receipt was also produced and he too supported the contents of the plaint and the case set up therein. He, in fact, stated that he had written the agreement upon the asking of the appellant/defendant No.1 and that the fact of the execution of the agreement has been duly mentioned at serial No.54 of his register. Once again the said witness PW.3 remained unshaken during the course of the cross examination and nor has the learned counsel for the appellants been able to point out any major discrepancy in his evidence. In this manner, I am in no manner of doubt that the execution of the agreement has been duly proved by the respondents/plaintiffs.
15. It is pertinent to mention that the appellants/defendants have, in the written statement, completely denied the execution of the agreement and the receipt. However, substantial improvement was sought to be made in the evidence brought forth by the appellants/defendants.
It is trite and settled principle vouched by superior courts that parties are bound by their pleadings and evidence cannot be led beyond the pleadings. A reference may be made to (PLD 2010 SC 965) and (2012 SCM R 254). In the examination in chief, DW.1 Muhammad Yasin, appellant/defendant No.1 has woven a web of an altogether different story which was not previously mentioned in the written statement and thereby recast the entire stance of the appellants/defendants. He submits that after the execution of the oral gift deed dated 6.3.1982 in favour of his mother, he went to Faisalabad and stayed with the respondents/plaintiffs. During the stay, he mentioned about the gift as also that he had certain property in Faisalabad but he was not in possession of that property. According to him, the respondents/plaintiffs lured him and took him to one Masood Ahmad Dogar Advocate who was statedly a friend and said that he be appointed as attorney and would take care regarding his property in Faisalabad and would help him regain the possession also. The next morning they went to Masood Ahmad Dogar Advocate and upon the asking of respondents/plaintiffs he affixed his signatures on Vakalatnama as well as seven or eight blank papers. Subsequently, it transpired that Masood Ahmad Dogar Advocate had filed various suits and which were withdrawn by Muhammad Yasin upon making a statement in the court. He also admits that he and his wife had filed suit against his mother Mst. Naziran Begum in whose favour the mutation on the basis of oral gift had been made. These suits were later withdrawn. Again this fact is astounding and demonstrates the collusiveness of the entire transaction. It is pertinent to mention that the oral gift was made on 6.3.1982 whereas the agreement is dated 7.3.1982 which means that the oral gift was executed one day prior to the agreement. The inference can only be that the alleged oral gift was made in order to evade and circumvent the agreement duly entered.
Also certain suits were also filed in respect thereof to lend the approval of the civil court to this sham transaction.
16. Another important aspect which impacts the outcome of this controversy is that in the examination in chief, DW.1 accepts that Ex.P.3 does bear his signatures but at the same time he says that these are the same documents which were got procured by Masood Ahmad Dogar Advocate from him on the pretext that certain suits had to be filed. This again is a fantastic and unbelievable assertion and definitely is an effort to improve upon the case as set up in the written statement. More importantly, in the cross examination the appellant/defendant Muhammad Yasin as DW.1, admits that the possession of the property is with the respondents/plaintiffs. This again is beyond comprehension, in that, it cannot be believed that while on the one hand an agreement to sell is being denied while on the other hand the possession has also been delivered to the respondents/plaintiffs in pursuance thereof.
17. The contradiction in the evidence produced by the plaintiffs alluded to by the learned counsel for the appellants/defendants has little bearing on the result which is sought to be reached and the determination made by the lower appellate court. The observation of the Supreme Court of Pakistan in Saheb Khan through Legal Heirs v. Muhammad Pannah (PLD 1994 SC 162) can be aptly referred to in this regard: "Plaintiff could not have been non-suited on minor contradiction in his statements when such statements were recorded after several years."
18. It has rightly been observed that Ex.D.5 to D.7, D.9, D.13, D.15 and D.16 have been produced by the appellants/defendants but these documents have no nexus with the controversy in hand and do not advance the case of the appellants/defendants. These documents cannot be relied upon as there is no mention of the circumstances in which these documents have arisen in the written statement and so against the settled principle, the appellants/defendants cannot be permitted to lead evidence beyond the pleadings.
19. The learned counsel for the respondents has relied upon a plethora of judgments. However, it is not necessary to refer to those judgments in detail. In Ch. Riayasat Ali v. Mst. Hakim Bibi and another (PLJ 2000 Lahore 1778) it was held that statement of a scribe of the document could be considered to be a statement of marginal witness and requirements of provisions of Articles 17 and 79 of Qanun-e-Shahadat Order, 1984 were, thus, fulfilled. This is not an issue here and, therefore, this judgment is perhaps not relevant. Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 Supreme Court 617) and Muhammad Hassan v. Khawaja Khalil-ur-Rehman (2007 SCM R 576) have been cited for the proposition which has already been reiterated in Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCM R 1). Muhammad Akram and another v. Altaf Ahmad (PLD 2003 Supreme Court 688) lays down the rule that mutation being not a title deed is merely an evidence of some original transaction between the parties prior to entry of a mutation. Zafar Muhammad v.
Mst. Anwar Bibi (2004 SCM R 559) and Bashir Ahmad and another v. Muhammad Rafiq (2002 SCM R 1291) related to the essential ingredients of a gift and it is beyond comprehension as to how these judgments are relevant to the facts of the instant case. Muhammad Nawaz alias Nawaza v.
Member Judicial Board of Revenue and others (2014 SCM R 914) has been referred to for the proposition that no party could be allowed to lead evidence on a fact which had not been specifically pleaded nor could any evidence be looked into which was outside the scope of the pleadings.
20. I would, therefore, hold and affirm the findings on issues No.4,5 & 7 rendered by the appellate court Addl. District Judge, Burewala. The findings as regards issue No.2 are also affirmed in view of the findings on issues No.4, 5 and 7. Under the circumstances, the judgment and decree of the Addl. District Judge, Burewala dated 05.12.2003 is maintained and the appeal is dismissed accordingly.