' CH. MUHAMMAD MASOOD JAHANGIR, J.---This civil revision is directed against the judgment and decree dated 29-4-1991 passed by the learned Civil Judge, Arifwala and judgment and decree dated 17-12-1995 delivered by the learned Additional District Judge, Arifwala whereby the suit filed by Muhammad Mansha plaintiff/respondent No,1 for specific performance of agreement to sell dated 28-8-1968 was decreed and appeal filed by the present petitioners/defendants was dismissed respectively.
2. The facts of the case are that the petitioners were owners of disputed property measuring 100 kanals 17 marlas in Chak No,14/EB Pakpattan Sharif and Muhammad Mansha plaintiff/respondent No,1 brought a suit against the present petitioners/defendants that the disputed property was owned by Provincial Government, which was allotted to Mst. Taj Mehlan defendant No,1, who then executed an agreement to sell in favour of the plaintiff on 28-8-1968 Exh.P1 against a consideration of Rs,10,600 and Rs,5,000 were paid by the plaintiff/respondent No,1 to defendant No,1 as earnest money whereupon she promised to execute sale deed in favour of plaintiff after getting proprietary rights from the Government of Punjab. It was further averred in the plaint that plaintiff would pay in installment the price of the disputed property to the Punjab government out of balance consideration of Rs,5,600, that defendant No,1 also executed a power of attorney on the same day in favour of Muhammad Ramzan father of the plaintiff/respondent No,1 with regard to the disputed land and the possession was also handed over by the defendant/ respondent No,1 to the plaintiff/respondent No,1 in lieu of agreement to sell Exh.P1, that disputed property was developed by the plaintiff/respondent No,1 after spending a lot of money and arrears of installments were also paid by him to the Punjab government, that subsequently sale deed Exh.P16 was also attested in favour of respondent No,1, that the defendant No,1, who instead of honouring the agreement to sell Exh.P1 got transferred the disputed property vide sale deed dated 27-4-1981 Exh.P17 in favour of defendant No,2 Muhammad Yaqoob. The latter further transferred the said disputed property to the present petitioners/defendants Nos.3 and 4 Pervaiz Akhtar and Mureed Hussain, and that plaintiff/respondent No,1 had asked the defendants many times for performance of agreement Exh.P1, but on their refusal he was constrained to file a suit for specific performance of the said agreement before the learned trial court. The said suit was contested by defendant No,1 as well as defendants No,3 and 4/present petitioners by filing their independent written statements. The defendant No,1 in her written statement denied -the execution of agreement to sell Exh.P1 as well as power of attorney. However, subsequently she absented herself from court proceedings and the learned trial court initiated ex parte proceedings against her. Defendants Nos.3 and 4/petitoners while submitting their written statement also denied the execution of agreement to sell Exh.Pl.
3. The learned trial court in the light of dfvergent pleadings of the pities framed the following issues:-
(I) Whether the plaintiff is owner in possession of the suit-land with reference to agreement to sell dated 28-8-1968? OPP
(2) Whether the registered sale deed dated 27-4-1981 executed by defendant No,1 in favour of defendant No,2 is void, illegal and ineffective as against the rights of the plaintiff? OPP
(3) On proving issue No,2 in the affirmative whether the subsequent sale vide Mutation No,121 dated 17-1-1983 is illegal, void and ineffective as against the rights of the plaintiff? OPP
(4) Whether the suit is not maintainable in its present form? OPD
(5) Whether the suit is not by principle of res judicata? OPD
(6) Whether defendants Nos.1 and 2 are unnecessary parties to the suit? OPD
(7) Whether the suit is barred by limitation? OPD
(8) Whether the plaintiff has no locus standi? OPD
(9) Whether the agreement to sell dated 28-8-1968 is not by law? OPD
(10) Whether the defendants Nos.3 and 4 are bona fide purchasers for consideration? OPD
(11) Whether the plaintiff has no cause of action? OPD
(12) Whether the suit has been incorrectly valued for the purposes of court fee and jurisdiction? If so, what is the correct valuation and what effect? OPD
(13) Whether the defendants are entitled to special costs? If so, up to what extent? OPD
(14) Relief.
4. Both the parties produced their evidence in pros and cons and ultimately the learned trial court decreed the suit filed by the plaintiff/respondent No,1 and the learned lower appellate court dismissed the appeal filed by the present petitioners/ defendants Nos.3 and 4 vide impugned judgments and decrees referred in para-1 ante.
5. The learned counsel for the petitioners has argued that the impugned judgments and decrees passed by the courts below suffer from infirmity being tainted with misreading and non-reading of material/evidence available on file, that the learned courts below have misinterpreted the evidence available on record, that findings on issues Nos.1 3 are against standard of proof laid down by the Qanune-Shahadat Order 1984 as the required number of witnesses were not produced by the plaintiff/respondent No,1 to prove the valid execution of agreement to sell, that the disputed agreement to sell was allegedly got executed by an illiterate paradanasheen lady and independent corroboration was required by the beneficiary/plaintiff to prove the bargain as well as its execution but he failed to bring on file strong and confidence inspiring evidence, that the disputed alleged agreement was a conditional agreement as the balance sale consideration was to be paid by plaintiff/ respondent No,1 who failed to deposit the installments with the Government of Punjab and due to said failure, the agreement, if any, had been executed between the plaintiff/respondent No,1 and petitioners, the same being unilateral in form was not enforceable in the eye of law, that only Deed Writer was produced by the plaintiff/respondent No,1 to prove the valid execution of agreement, which did not fulfil the requirement of law for proving the said private document, that both the courts below overlooked the said aspect and passed the impugned judgments and decrees while misinterpreting the law as well as evidence available on file. He has lastly prayed for acceptance of the instant civil revision, setting aside of the impugned judgments and decrees and further for dismissal of the suit filed by the plaintiff/respondent No,l.
6. Conversely the learned counsel for the plaintiff/respondent No,1 has refuted the arguments advanced by the learned counsel for the petitioners and pleaded that execution of agreement to sell Exh.P1 as well as the bargain of sale struck between the plaintiff/respondent No,1 and defendant No,1 had been fully proved before the learned trial court by producing qualitative and quantitative evidence and after appreciating the same the courts below rendered concurrent findings of facts through the impugned judgments and decrees, which cannot be interfered with by this Court while exercising revisional jurisdiction. He has lastly prayed for dismissal of the instant civil revision.
7. Arguments heard and record perused.
8. The pivotal issue in the present case is issue No,1 and the onus of said issue was upon the plaintiff/respondent No,l. To discharge the said onus Falak Sher Deed Writer P.W.1 was produced who deposed that the agreement to sell dated 288-1968 Exh.P1 was scribed by him on the direction of defendant No,1 in favour of plaintiff/respondent No,1. He further deposed that Muhammad Aslam brother of Mst. Taj Mehlan was also present at the time of its execution. The perusal of Exh.P1 reveals that Muhammad Aslam son of Sikandar has been reflected as marginal witness. Exh.P1, but record of this file reveals that said witness was not produced by the plaintiff/respondent No,1. On a query put by this Court to the learned counsel for the plaintiff/respondent No,1 that whether said marginal witness was got summoned for recording his evidence he has spontaneously replied that it was the duty of, defendant No,1 to bring him in the witness box as the said marginal witness was her brother, but the plaintiff/ respondent No,1 could not produce him as a P.W. Because he might have deposed against the interest of the plaintiff/ respondent No,1. The said version of the learned counsel for the respondent No,1 is without any substance. Even the finding of the learned trial court while deciding issues Nos.1 to 3 that said Muhammad Aslam was required to be produced by defendants as he was real brother of alleged executant is not sustainable as it was duty of the plaintiff/ beneficiary of the document in question to produce whole of the evidence in proof of his respective stance and if any witness deposed against the interest of the plaintiff, he could be got declared hostile enabling the said party to cross-examine its own witness for brining the truth on the record. However, due to the fear that a witness, if is produced, will not support its version cannot absolve the party from its bounded duty to bring on record all the available evidence. Reliance can be placed upon the judgments reported as Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs (PLD 2011 SC 241) para-12 of which judgment is of great importance and is reproduced hereunder:- "12. For the argument that as the second attesting witness of the agreement was the son of the respondent, therefore, the appellant could not take the risk of examining him, it may be held-that as ordained above the mandatory provisions of law had to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of the Order, 1984, relating to hostile witness take its own course. Before parting it may be mentioned that the judgment reported as Abdul Wali v. Muhammad Saleh (1998 SCMR 760) which find mention in the leave granting order is not relevant for the proposition in hand as it relates to a document before the enforcement of the Order, 1984 when Article 17 was not there.
9. The plaintiff/respondent No,1 produced Abdul Wahid as PW.2 who produced death certificate of Khushi Muhammad, Lumberdar, the alleged identifier of Mst. Taj Mehlan before the Sub-Registrar at the time of registration of the disputed agreement to sell Exh.P1. PW.2 claimed to have identified signatures of his deceased uncle over the disputed agreement Exh.P1, but during cross- examination he deposed that he was not an expert of documents and signatures. The statement of P.W.2 is not much helpful to the plaintiff/respondent No,1. Plaintiff further produced Noor Hassan as PW3 who deposed in his examination in chief that Mst. Taj Mehlan defendant No,1 and the plaintiff/respondent No,1 were known to him and that a bargain of sale regarding disputed property had been settled between the plaintiff and defendants for Rs,10,600 and Rs,5,000 part payment was made before the Tehsildar to defendant No,1 whereas balance consideration was to be deposited by the plaintiff/respondent. No,1 before the government treasury, who deposited one or two instalments in the said treasury, but failed to calculate that how much amount was paid by him, that after the payment of entire instalments the ownership was to devolve on defendant No,1 and thereafter the disputed property was to be transferred to the plaintiff/ respondent No,1 and that at the time of execution of Exh.P1 he was also present before the Deed Writer and defendant No,1 thumb marked Exh.P1 in his presence. The said P.W. In his cross-examination admitted that Exh.P1 did not bear his signature. He further deposed that he could not recognize/ identify the thumb impression of defendant No,1 on the stamp paper Exh.P1. He further deposed that he also could not identify the signature or thumb impression of Muhammad Aslam, alleged marginal witness of the disputed agreement to sell. He even admitted further during the cross-examination that he was not in a position to identify the signature or thumb impression of any of the witnesses of the agreement to sell Exh.P1. He also showed ignorance about the names of husband as well as the children of defendant No,l. Shamoon PW4 produced by the plaintiff/respondent No,1, although claimed that bargain was struck between the plaintiff/respondent No,1 and defendant No,1 against a consideration of Rs,10,600 out of which Rs,5,000 were paid as token money and agreement to sell Exh.P1 was also scribed before him, when Khushi Muhammad, Muhammad Ramzan and Mansha were also present, but it was straightaway admitted in the cross-examination that he was not the marginal witness of the agreement to sell. Plaintiff/ respondent No,1 Muhammad Mansha himself appeared as PW6 and deposed on the same lines as pleaded in his plaint. He also produced original challans Exh.P4 & P5 through which two instalments were paid by him in the government treasury and in last lines of his statement he deposed that after these two instalments the rest of the amount of installment had been secretly paid by defendant No,1 and she acquired the property rights. In cross-examination he clearly admitted that defendant No,1 had acquired the proprietary rights in the year 1981 and the she transferred the same to defendant No,2 in the same year, who further alienated the said land to defendants Nos.3 and 4. He also claimed to have earlier filed a suit in the year 1973 against defendant No,1 which was dismissed by the Civil Court. The last lines of the cross-examination of PW6 are worth mentioning and he himself has falsified his case. The relevant portion in verbatim for ready reference is reproduced as under:- {{URDU TEXT}} The said admission on the part of plaintiff that he himself had not paid any consideration to the defendant No,1 is sufficient to hold that plaintiff/respondent No,1 had not only failed to prove the transaction of sale as well as valid execution of agreement to sell Exh.P1, but he also failed to prove that any sale consideration was paid to defendant No,1 in lieu of alleged sale. No other oral evidence was produced. However in documentary evidence the record of revenue hierarchy including copies of jamabandi, khasra girdawri ranging Exh.P1 to P12, copy of Mutation No,113 Exh.P13, copy of Mutation No,112 Exh.P14, copy of Mutation No,121 Exh.P15, copy of sale deed in favour of defendant No,1 Exh.P16 and copy of sale deed in favour of defendant No,2 Exh.P17 were produced by the plaintiff/respondent No,l.
10. On the other, hand when defendant No,1 namely, Mst.Taj Mehlan herself appeared as DW1 before the learned trial court, the plaintiff/respondent No,1 failed to recognize the said lady. The record further reveals that the learned trial court appointed Raja Masood Akhtar, Advocate as local commission to ascertain whether the lady appearing before the learned trial as defendant No,1 was actually defendant No,1 or not who thoroughly probed the said matter and after recording statement of various persons he submitted his report dated 12-12-1989 before the learned trial court to the effect that the lady who appeared before the learned trial court and to whom the plaintiff/respondent No,1 objected that she was not defendant No,1 was the actual defendant No,l.
Mst. Taj Mehlan/defendant No,1 being DW1 denied the execution of agreement to sell Exh.P1 and she was subjected to cross-examination by the learned counsel for the plaintiff/ respondent No,1, but nothing favourable could be gained to support case of the plaintiff. Even she was not confronted with the claim of the plaintiff that she also executed power of attorney in favour of Muhammad Ramzan father of the plaintiff with regard to the disputed property. The detailed report submitted by the Commission is available at pages 283 to 361 of this civil revision. In this state of affairs, when the petitioner failed to recognize defendant No,1, the alleged executant of the agreement to sell Exh.P1 at the time of recording her statement as DWI, how it could be believed that transaction of sale had been earlier settled between them, which was followed by execution of agreement to sell and thereafter the plaintiff had been approaching her for the performance of her part to get transferred the land in his favour, who made refusal in this regard, but this is sufficient to draw an inference that they were never confronted with each other previously. This fact has thrown a sufficient clog about the genuineness of agreement to sell (Exh.P1).
11. The scanning of evidence available on record reveals plaintiff/respondent No,1 failed to produce the marginal witnesses as well as Registrar who attested the agreement to sell Exh.P1. The non- production of said relevant witnesses had created a dent in the case of the plaintiff/respondent No,1. No plausible explanation is available on file for C withholding such evidence of important nature. Inference under Article 129(g) of Qanun-e-Shahadat Order 1984 has to be drawn against the plaintiff/respondent No1 that if such evidence was brought on the record, they would have deposed against his version. The plaintiff/respondent No,1 neither could prove the settlement of bargain nor the payment of balance consideration as discussed above and P.Ws. Who are alien of agreement to sell Exh.P1 deposed that amount was paid before Tehsildar, who registered the Exh.P1 was not produced in the witness box. The contention of the learned counsel for the respondent/plaintiff that as the disputed agreement Exh.P1 was a registered document and it attained presumption of truth is not believable. Under the law the document Exh.P1 being a private document was required to be proved by production of its marginal witnesses as well as Registering Officer. Reliance can be placed upon the judgments reported as Nuor Begum v. Abdul Ghaffar (2003 YLR 1494).
12. Both the courts below failed to consider the said aspect and wrongly decided issues Nos.1 to 3 in favour of plaintiff/respondent. No,1 and against the petitioners/defendants. Although the contention of the learned counsel for the plaintiff/respondent No,1 that Exh.P1 was scribed before the promulgation of Qanune-Shahadat Order, 1984 and only one attesting witness was sufficient to prove the valid execution of agreement to sell Exh.P1 under the Evidence Act is in accordance with law, but in the present case none of the marginal witnesses was produced by the laintiff/respondent No,l. No doubt Abdul Wahid nephew of Khushi Muhammad the alleged marginal witness of Exh.P1, who had died before recording the plaintiff's evidence was produced in the secondary evidence as PW2, who claimed to have identified the signatures of his uncle, but such evidence is also not helpful to the plaintiff to prove the transaction of sale alleged to have been settled between the parties as well as valid execution of the agreement. In response to the said situation the learned counsel for the plaintiff/ respondent No,1 has responded that Deed Writer was produced as PW1 and the statement of said witness is to be considered as statement of attesting witness. The statement of PW1 has once again been perused and it is found that nowhere he has mentioned in his statement that bargain was struck before him. He even did not depose that the sale consideration was paid in his presence. Even the perusal of Exh.P1 reveals that Deed. Writer did not attest the agreement to sell Exh.P1 as marginal witness. So it is a settled principle of law now that a scribe cannot be considered as attesting witness. Reliance in this respect is placed upon the judgments reported as Muhammad Sarwar Khan v. Salamat Ali ((2012 CLC 94) and Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs (PLD 2011 SC 241). Para-5 of the cited judgment is relevant which is reproduced below:--
5. Notwithstanding the above, now attending to the legal propositions urged, it is expedient to comprehend the true import of Article 17 (2) (a) of The Order, 1984, the relevant portion whereof reads as follows:--
(1) ..............
(2) Unless otherwise provided in any law relating to the enforcement of Hadood or any special law.
(a) in matter pertaining to financial or future obligation, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and (b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant"
' From the clear and unambiguous language of the Article, in order to bring a case within its purview in the context of present case, two ingredients must co-exist, firstly there must be an instrument, secondly, it should pertain or relate to a matter either of a financial or future obligations. If the above two conditions are met, it is mandated that the instrument must be attested in terms of the Article. There can be no cudgel that an agreement of sale or to sell immovable property being a written document is an instrument within the meaning of law, however, to ascertain; its nature, the Black's Law Dictionary, Fifth Edition defines it as under: "Agreement of sale; agreement to sell.---An agreement of sale may imply not merely an obligation to sell, but an obligation on the part of the other party to purchase, while an agreement to sell is simply an obligation on the part of the vendor or promisor to complete his promise of sale. Treat v.
White, 181 U.S. 264, 21 S.Ct. 611, 45 L.Ed.
853. It is a contract to be performed in future, and, if fulfilled, results in a sale; it is preliminary to sale and is not the sale."
' The noted meaning is also fortified by the provisions of section 54 of the Transfer of Property Act, 1882 which defines the sale of immovable property, prescribes the mode and mechanism how it is made; and by virtue of its clear language distinguish it from a contract/agreement of sale, when it is ordained that: "A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties". Furthermore, in the above context, a clear distinction and contract is drawn in the same provision, wherein it is provided that a contract for sale itself shall neither create any interest in or a charge on such property. Thus, the former transaction Of not a conditional sale) is the conclusive transfer of an absolute title and ownership of the property unto the vendee in presentee, while the later is meant for accomplishing the object of sale in futurity and for all intents and purposes it pertains to the future obligations of the parties thereto, resultantly there is no room for doubt that a sale agreement/ agreement to sell is duly covered and is hereby so declared to fall within the pale of said Article.
13. Irrespective of the above facts and circumstances, it is also notable after perusal of the impugned agreement to sell (Exh.P1) that the same was unilateral having not been signed by one of the party i,e, plaintiff/respondent. Under the law the said agreement was not enforceable. Safe reliance can be placed on the judgment reported as Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCM R 334). This view has further been fortified in the case-law reported as Sher Shah v. Muhammad Suleman (2013 YLR 1017) and the relevant portion is reproduced as under:-- "Performance of an agreement is required by both the parties and if it is unilateral and signed by one party and signatures of the other party is not available on the said document, the same is not an agreement enforceable under law."
14. On the touchstone of above referred discussion, this Court is of the view that the learned trial court as well as learned lower appellate court while misreading and non-reading the evidence decided issues Nos.1 to 3 in favour of the plaintiff/respondent No,1 and against the petitioners/defendants. The findings of learned trial court as well as learned lower G appellate court on these issues are not sustainable which are reversed and these issues are decided in favour of the petitioners/defendants. However, as the learned counsel for the parties have not stressed on the other issues, those need not to be thrashed by this Court any further.
15. Sequel of the above discussion is that the instant civil revision is accepted, the impugned judgments and decrees passed by the courts below are set aside and the suit filed by the plaintiff/respondent No,1 stands dismissed with costs.