CH. MUHAMMAD MASOOD JAHANGIR, J.---This civil revision is directed against judgment and decree dated 05.05.2009 passed by learned Civil Judge, Jaranwala, whereby suit for specific performance of agreement to sell dated 03.04.1974 (Exh. P1) instituted by respondents was decreed as well as judgment and decree dated 10.06.2010 delivered by learned Additional District Judge through which appeal filed by petitioners was dismissed.
2. Admittedly, Mst. Gullai Bibi and Allah Bukhsh were sister and brother inter se and the petitioners are successors of Mst. Gullai Bibi whereas respondents are siblings of Allah Bukhsh. Mst. Gullai Bibi, predecessor of petitioners, was owner of her share measuring 12 Kanals 9 Marlas situated in Chak No.566/GB Tehsil Jaranwala, District Faisalabad and after long time of her demise, the respondents instituted a suit for declaration as well as permanent injunction and in alternative for possession through specific performance of agreement to sell dated 03.04.1974 (Exh.P1) against petitioners with the assertion that their aunt Mst. Gullai Bibi, had agreed to sell aforementioned subject property against a consideration of Rs.9,000/- and after receiving the same, its possession was also handed over to them, which was honoured by the promisor throughout her remaining life, but she could not transfer the title to the promises being under coercion of the petitioners, who were opposing the said agreement and after her death when petitioners reprobated to acknowledge the Exh.P1, respondents were compelled to institute the instant suit. The suit was hotly contested by petitioners with the stance that agreement to sell (Exh.P1) was forged and fictitious document and that Gullai Bibi had neither entered into any bargain of sale nor received its consideration from the respondents. The learned Trial Court out of divergent pleadings of the parties framed the following issues:-- 1.Whether the plaintiffs entered into an agreement with the Gulai Bibi regarding the suit land for the consideration of Rs.9000/-on 03.04.1974 and the whole consideration was paid? OPP 2.Whether plaintiffs are entitled to a decree as prayed for? OPP 3.Whether the agreement dated 03.04.1974 is the result of fraud? OPD 4.Whether the suit is time barred? OPD 5.Relief.
3.After recording evidence of both the parties and while appreciating the same, suit of respondents was decreed whereas appeal of petitioners was dismissed by the courts below through judgments and decrees as narrated in para-1 ante, which are subject matter of the instant civil revision.
4.The learned counsel for petitioners has argued that both the courts below while misreading and non-reading the evidence available on record rendered impugned judgments and decrees on erroneous premises of law; that respondents failed to produce stamp vendor as well as deed writer to prove valid execution of agreement (Exh.P1) and that only Sher Afzal, one of the vendees was examined by respondents to prove the contents of Exh.P 1, but both the courts below erred in law while relying on his statement without taking into consideration that he being vendee/beneficiary could not be treated as a witness of his own transaction; that both the courts below also failed to consider that stamp paper of (Exh.P1) was not purchased by Gullai Bibi, that agreement (Exh.P1) was forged and fictitious document, the valid execution whereof could not be proved by respondents through production of independent witnesses and due to withholding of best evidence, it was sine qua non for courts below to draw an adverse inference against respondents under Article 129(g) of the Qanun-e-Shahadat Order, 1984; that both the courts below mis- appreciated the material available on suit file and committed material irregularity and illegality while answering issues Nos.1 to 3 in favour of respondents and that evidence available on record was not sufficient to hold that they succeeded to prove valid execution of agreement to sell Exh.P1; that suit was badly time barred and no cogent evidence was available to shatter stance of the petitioners, but courts below erred in law while deciding issue No.4 in favour of respondents. He has lastly prayed that while accepting instant civil revision and setting aside of impugned judgments and decrees, suit of respondents be dismissed.
5. Conversely, learned counsel for respondents has supported the impugned judgments and decrees on the ground that Exh.P1 was got executed prior to promulgation of Qanun-e-Shahadat Order, 1984 and under section 68 of the Evidence Act, 1872, the beneficiary was required to produce only one attesting witness, which requirement of law was complied with by examining Sher Afzal PW1; that other witness Muhammad Ramzan had already passed away, whose signatures and thumb impressions were got identified through production of Saqlain Abbas (PW3), who was familiar therewith and respondents succeeded to prove valid execution of agreement; that Sher Afzal PW1 during his statement made an offer to administer oath on the Holy Quran that transaction was settled with Mst. Gullai, but neither the offer was accepted by petitioners nor in response they made any such attempt to negate the version of respondents on special oath and both the courts below were perfect to draw an adverse inference against them; that Exh.P1 was a thirty years old document, which was brought on the file from proper custody and under the law presumption of correctness was attached to its contents, and that concurrent findings of facts arrived at by the courts below are not liable to be interfered with by this Court while exercising jurisdiction under section 115 of Code of Civil Procedure, 1908. He has lastly prayed for dismissal of the instant civil revision.
6.Arguments heard and record perused.
7.There is no cavil with the proposition that sale of the property through contract takes effect in terms and conditions incorporated therein, but it would not by itself create any interest or charge in the same and heavy onus lies on the beneficiary to prove that transaction had been duly settled between the parties on such terms and conditions. The copy of disputed agreement (Exh.P.1) is available at page 68 of the instant file and perusal of same reveals that it was signed/thumb marked by Sher Afzal one of the respondents/vendees, Fazal ur Rehman son of promisor and Muhammad Ramzan, Lumberdar being its attesting witnesses. No doubt, there is much force in the argument of learned counsel for respondents that Exh.P1 was executed prior to promulgation of Qanun-e-Shahadat Order, 1984 and under section 68 of the Evidence Act, 1872, its contents could be proved while examining single attesting witness, but to my mind, Sher Afzal (PW1) was also included in the group of vendees and there is no cavil with the proposition that a beneficiary could neither be judge of his own cause nor could be treated as an attesting witness of his own transaction, even if he had signed the agreement in such capacity. He was an interested person and both the courts below skipped the aspect that his statement could not be treated at par of attesting witness. The other attesting witnesses, namely, Fazal ur Rehman as well as Muhammad Ramzan, Lumberdar were not examined by respondents as admittedly prior to recording of evidence they had already passed away. No doubt, Saglain Abbas, grandson of Muhammad Ramzan, was examined as PW3, whose statement at the most could only prove that his grandfather had put his signature over (Exh.P1) being its one of the attesting witnesses, but he was not able to prove the construction and execution thereof.
8. Let us pause here for a while to see whether statements of these witnesses as well as Ghulam Akbar (PW2) are of such significance that suit of the respondents could be decreed and whether their evidence was appreciated by courts below in true perspective while rendering impugned judgments. Sher Afzal (PW-1) could only depose that contract was settled in 1974, who despite asking in cross-examination neither could disclose the exact date and month nor the weather when it was agreed. He also admitted in his cross-examination that property and residence of the parties to the agreement was located in Tehsil Jaranwala, District Faisalabad, but could not justify why the stamp paper was purchased and scribed at Nankana Sahib, the then Tehsil of District Sheikhupura. Additionally he stated that bargain was settled 8/10 days prior to execution of Exh.P1 at the residence of promisor and for scribing of agreement they went to Nankana Sahib on tonga, whereas Ghulam Akbar (PW2), who is not the signatory of Exh.P1 in any capacity, but claimed to be available among the parties during entire proceedings of bargain and execution of Exh.Pl has belied the deposition of star witness (PW1) while stating in his cross-examination that 10/20 days prior to execution of Exh.P1, the bargain was effected at the residence of PW1 and for scribing the contract they went to the stamp vendor on lorry. PW2 also conceded that at the time of execution of contract, Sher Afzal (PW1), one of the vendees, presented his CNIC to the deed writer. The copy of the same as well as copy of CNIC of Muhammad Ramzan, the other attesting witness were brought on the suit file along with Exh.Pl as Marks A & B respectively and Mark-B divulges that it was issued to Muhammad Ramzan in 1975, one year after the execution of Exh.P1, which is another question mark on its genuineness. Sher Afzal (PW1) in answer to a question worded that stamp paper had been purchased by Muhammad Ramzan, but Ghulam Akbar PW2 again contradicted him while replying in his cross-examination that it was purchased by Sher Afzal, whereas, the endorsement of stamp vendor on the back page of stamp paper (Exh.P1) transpires that it was issued to Mst. Gullai through her son Fazal ur Rehman.
9. When it is proved through the evidence of the respondents on record that stamp paper of Exh.P1 was not purchased by Gullai Bibi, the alleged executant of same, rather it was purchased through Fazal ur Rehman son of Gullai and petitioners specifically denied the execution of Exh.P1 while claiming it to be forged and fictitious document, then in such scenario, stamp vendor of Exh.P1 was left with the respondents being an independent witness to prove whether any authority was conferred upon said Fazal ur Rehman for purchase of stamp paper on her behalf, who was neither attempted to be examined nor his stamp vending Register was got summoned, which might have been retained in the safe custody. It is also borne out from the record that contract (Exh.P 1) was scribed by an un-licensed deed writer whereas the licenses are issued by competent authority to the skilled deed writers so that interest of the parties could be secured as the license holder deed writers are required to maintain a register C to make entries of the documents and signatures/thumb impressions of the executants against the said entries in their registers to cross check its authenticity by all means. In the present case, no such documentary evidence of corroborative nature in shape of register of stamp vendor/ deed writer is available on record to support the version of respondents and adverse inference has to be drawn against the beneficiaries. The argument of learned counsel for respondents that by examining Saglain Abbas (PW3), the grandson of Muhammad Ramzan, one of the attesting witnesses of Exh.P1, who had already passed away, the respondents succeeded to prove its contents is misconceived. The said witness not only admitted that his grandfather was closely related to the respondents, but also conceded that he was born on 10.08.1988 and his grandfather also died in the same year. He was examined by the respondents to identify wer issue No.1 in favour of respondents.
10. I have noticed that both the courts below proceeded to draw an adverse inference againstthe signatures of his grandfather, but neither he could be presumed to identify the signature of his relative, who had already died prior to his birth or within 2/3 months thereafter nor he was in the position to prove contents of Exh.P1, alleged to have been executed 14 years prior to his birth. In absence of any other witness on the record to prove the construction of Exh.P1 as well as transaction mentioned therein, both the courts below were not justified to ans the petitioners on account of an offer made by Sher Afzal (PW1) during his cross-examination that he was ready to take special oath on the Holy Quran to the effect that respondents had purchased the suit property from Mst. Gullai. To my mind, there was no reason and ground to draw such inference. There is established principle that a party has to succeed on its own footing and no premium can be extended to him merely on account of making a statement on special oath with regard to his stance, which remained unproved through evidence led by him on record. There is also no cavil with the proposition that if a party without consent of his adversary at his own made a statement on special oath and in rebuttal the latter did not opt to make such type of statement, then no adverse inference could be drawn against him. The fact remains that unilateral statement of a party, if any, made on special oath has to be collaborated by the other independent evidence.
The court could only decide a lis on the basis of statement made on special oath provided both the parties agreed thereto. In absence of any agreeable situation among the parties, the court neither can force an unwilling party to make statement on such oath nor can decide the lis on its basis, which was administered without the consent of other party.
11. The submission of learned counsel for respondents that Ehx.P1 having age more than 30 years attained presumption of its correctness within the meaning of Article 100 of the Qanun-e-Shahadat Order, 1984 and the conclusion drawn by the courts below with respect to it was unexceptionable, is not well founded. The perusal of Exh.P1 reflects that the same was not a registered document, but only notarized document and admittedly the notary was also not examined by the beneficiaries. It is not essential for a court to attach presumption of execution to a E document more than 30 years old in all the cases without considering the other related facts of the case to draw such inference.
On account of appreciation of evidence available on suit file, the presumption under discussion as to validity and execution of Exh.P1 would not apply.
12.The next argument of learned counsel for respondents that possession of suit property was handed over to respondents at the time of execution of agreement and benefit of section 27-B of the Specific Relief Act, 1877 was to be extended to them, is not tenable. It is well established principle that terms of the documents and intention of the parties as to the character of document must be gathered F after considering its terms as a whole, but not in isolation and expression of the entire document is to be taken into consideration while interpreting the same. The minute perusal of basic document is completely silent to the effect that at the time of its execution, the possession of suit property was also delivered to respondents in consequence of the transaction reflected therein. Even no evidence in the Li-ape of revenue record/khasra girdawari is available on the suit file through which it could be established that on 03.04.1974 when the alleged agreement was settled between parties, possession of suit property was also handed over to respondents.
Although copy of khasra girdawari is available on file, but its perusal reflects that possession of respondents was entered being co-sharers in the joint holding. The oral deposition of PW 1 that possession of suit property was handed over to respondents in lieu of execution of agreement (Exh.P1) cannot be believed as the same is beyond the scope of their master document. So the stance of respondents that Gullai Bibi had handed over possession of suit property to them at the time of settlement of bargain, which constituted a notice to her, could also not be proved.
13. So far as contention of learned counsel for respondents that Gullai Bibi in her remaining life as well as the petitioners being her successors neither claimed possession of disputed property from respondents nor any suit for cancellation of agreement (Exh.P 1) was filed by them and, therefore, petitioners were estopped to question the genuineness of disputed agreement is concerned, suffice it to say that there is well settled legal proposition that a party approaching the court for seeking some relief has to stand on its own legs and in the absence thereof any weakness in the defence of the adversary would neither improve his case nor will he be entitled for any relief on such score alone. If any case law is needed, reference may be made to the decisions of the honourable Supreme Court of Pakistan reported as Sudhangshu Bimal Biswas v. MD Mustafa Chowdhary (1968 SCM R 213) and MD Anwarullah Mazumdar v. Tamina Bibi and 5 others (1971 SCM R 94). When the respondents failed to establish the execution of Exh.Pl as well as transaction reflected therein, then on the score of any silence as well as inaction on the part of Mst. Gullai or petitioners, no benefit could be extended to the respondents to grant them a discretionary relief in the shape of decree for specific performance. The findings of courts below on issues Nos.1 to 3 being found to be result of twisting the material available on suit file are reversed while answering the same against respondents.
14. Admittedly, qua performance of agreement dated 03.04.1974, respondents instituted their suit before the court of first instance on 18.04.2007 with the elapse of 33 years and in para No.3 of the plaint, it was pleaded that Mst. Gullai being under coercion of petitioners could not perform her part during her lifetime. Undeniably, Mst. Gullai died on 15.08.1986, but respondents again wasted another period of 21 years to bring their suit against the petitioners, who, as per their own version, were militant to the agreement in the lifetime of promisor and there is no plausible reason in the pleadings as well as evidence of the respondents that why they consumed such a long span of time to institute their suit. Irrespective of the fact that whether time was essence of the contract or not?, the point remains that which part of Article 113 of the Limitation Act, 1908 would apply in the present case. Undeniably, no target date for its performance was provided in contract (Exh.P1), therefore, the case in hand would definitely fall within the second part of the provision ibid and period for filing of suit would start from the time when Mst. Gullai refused to honour her part due to the resistance of the petitioners, which fact was already in the notice of the respondents, but they lost a further period of 21 years to bring their suit even after the death of original promisor.
Additionally, neither any I specific date of refusal of the petitioners to perform their part was provided in the plaint nor the same was deposed by (PW1), one of the respondents, in this deposition. In this view of the matt Court while exercising revisional jurisdiction provided under section 1er, it can safely be concluded that the suit was badly time barred, but the courts below failed to consider the aforenoted reasons while answering issue No.4 in negative, which findings are also reversed and same is replied in affirmative.
15. At the fag end of his arguments, the learned counsel for the respondents has submitted that the concurrent findings of the courts below cannot be disturbed by this15 of C.P.C. The said contention is also not tenable as both the judgments and decrees having been found to be the result of misreading and non-reading of evidence as well as non adherence to the law applicable in this regard are not sustainable. It is correct that normally this Court does not interfere in the concurrent findings of the fact recorded by two courts below, but when there is gross misreading and non- reading of evidence and patent violation of the law is floating on the surface of such concurrent findings, this Court cannot shut its eyes and is always under obligation to rectify the error by interference in such like illegal findings.
16.The accumulative effect of the above discussion is that instant civil revision is accepted, impugned judgments and decrees passed by learned courts below are hereby set aside and suit instituted by respondents stands dismissed with special cost of Rs.100,000/-(Rupees one lac only).
17.Before parting with the judgment, it is added that judicial officers, who are working honestly, assiduously and with good behavior, command respect in the society, but there is no space in this institution for mendacious, inactive and clumsy officers. A judicial officer is assigned with the duty to dispense with justice as per law on the basis of material before him, but in the case in hand, the findings of both the judicial officers do not appear to be result of appreciation of record in its true perspective, whereas both of them appear to have intentionally twisted the material while formulating their impugned findings, therefore, I am constrained to direct that this judgment should be placed in personal files/ACR dossiers of Mr. Manzer Ali Gill, Additional District Judge as well as Mohammad Amin Shahzad, Civil Judge so that the same may be confronted to them, at the time of their promotion.