CH. MUHAMMAD MASOOD JAHANGIR, J.---The leadings facts of the case are that respondents Nos.1 and 2 (hereinafter to be referred as plaintiffs) instituted a suit for declaration through specific performance of agreement against the petitioners (hereinafter to be referred as defendants) before the learned trial court with the assertion that Muhammad Jaffar (herein after to be referred as defendant No. 1) predecessor-in-interest of the defendants, was allottee of property measuring 56 Kanals 7 Marlas, who settled a bargain of sale regarding property measuring 52 Kanals 7 Marlas out of said property against a consideration of Rs.730,000/-at prior point of time and thereafter, defendant No.1 again agreed to sell his remaining allotted property measuring 4 Kanals against a consideration of Rs.70,000/-and after having received this consideration the agreement Exh.P1 and receipt Exh. P2 were executed by him on 14.2.2001 in favour of the plaintiffs; that while executing Exh.P1 and Exh.P2 the sale, settled at earlier point of time, was also acknowledged by defendant No.1; that on 07.8.2002, defendant No.1 moved an application under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 before the District Officer, Revenue for transfer of the disputed property to the plaintiffs and while doing so, execution of agreement (Exh.P1) was also acknowledged by him, but after acquiring proprietary rights, defendant No.1 refused to acknowledge the agreement, whereupon the plaintiffs were compelled to file the above referred suit, which was contested by defendant No.1 by filing his written statement, wherein he averred that neither any bargain of sale of disputed land was settled nor the plaintiffs had paid any sale price to him. He further pleaded that plaintiffs being tenants were in possession of the suit property and that no application under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 was made by him before the revenue hierarchy. It was also asserted in the written statement by defendant No.1 that agreement Exh.P 1 and receipt Exh.P2 were forged and fictitious documents.
While facing with the contest, the learned trial court captured the disputed area of facts by settling the following issues:--
1. Whether the disputed property was allotted to the defendant under dakheel kari scheme? OPP
2. Whether the defendant No.1 agreed to sell the disputed property to the plaintiffs and executed agreement dated 14.2.2001 by receiving Rs.8 lacs from the plaintiffs? OPP
3. Whether the plaintiffs are entitled to get incorporation of their names in the revenue record as being owners under the alleged agreement dated 14.2.2001 ?OPP
4. Whether the suit is not maintainable in its present form? OPD
5. Whether the plaintiffs have not come to the court with clean hands? OPD
6. Whether the plaintiffs are estopped to file the instant suit by their words and conduct? OPD
7. Whether this court has got no jurisdiction to entertain and decide the suit? OPD
8. Whether the suit is hit by Order-II Rule-2 of C.P. C. ? OPD
9. Relief.
2. The learned trial court after collecting and appreciating evidence of the parties decreed the suit vide judgment and decree dated 28.4.2010, which was maintained when appeal filed by the defendants was dismissed by the learned lower appellate court vide judgment and decree dated 09.9.2010. Hence the instant civil revision.
3. It is argued by the learned counsel for the defendants that both the courts below committed material irregularity while decreeing the suit of the plaintiffs; that the judgments and decrees passed by the courts below are not free from taint of misreading and non-reading of evidence and the impugned judgments and decrees are based on surmises and conjectures. It is also added by him that learned lower appellate court without rendering independent findings on each and every issue violated the mandate of Order XLI Rule 31 of the Code of Civil Procedure, 1908 and the same, on the face of it, is not sustainable. He has lastly prayed for acceptance of the instant civil revision, setting aside of the impugned judgments and decrees and for dismissal of the suit.
4. Conversely, the learned counsel for the plaintiffs has supported the impugned judgments and decrees passed by the courts and prayed for dismissal of the instant civil revision.
5. Arguments heard and record scanned.
6. While glancing over impugned judgment dated 09.9.2010 passed by District Judge, Toba Tek Singh, it is straightaway noticed that the said court neither reflected the issues framed by the learned trial court, nor discussed them independently therein. Additionally, he did not care to appreciate, even mentioning the evidence led by the parties on suit file. He was the last court of fact and heavy responsibility was upon him to render a judgment as per mandate of Order XLI Rule 31 of the Code of Civil Procedure, 1908, but he decided the appeal in clandestine and fanciful manner while concluding as under:-- "7. I have seen Ex. P1. Date of its ' execution is written on it. If time is not written, it makes no difference. No doubt to prove a private document two marginal witnesses are required. Sabir appeared as PW-1. According to death certificate of Riaz, Ex. P. 14, he died on 15.9.2003. Therefore, Saeed Hashmi scribe, PW-4, is competent witness when he stated in cross-examination that parties were known to him. In the light of statements of PW-1 and PW-4 this court is of the view that nothing is wrong with the impugned judgment. and decree of learned trial court. There is no force in this appeal. Therefore, the decision of the learned trial court is upheld and this appeal is dismissed with costs. Record of this appeal be consigned to record room and that of learned trial court be returned immediately with a copy of this judgment."
The study of impugned judgment has left nothing to observe that the District Judge, who should be the role model for his team subordinates, neither took pain to scan the evidence available on file nor appreciated it as per spirit of law and did not pay any heed to resolve the controversy among the parties in just and fair manner. I have the option to remand the appeal to him for fresh decision while setting aside his judgment, but when entire evidence is available on file and the parties are involved in the litigation since the year 2004 (when the suit was instituted before the learned trial court), it will be appropriate to decide the /is on my own end instead of throwing the parties for another round of litigation.
7. The study of plaint as well as agreement Exh.P1 reveals that prior to execution of Exh.P1, the major portion of the disputed property measuring 52 Kanals 7 Marlas was allegedly purchased by the plaintiffs from defendant No.1 but admittedly neither the specific date/period nor the names of the witnesses were disclosed therein to prove that when the said bargain was settled and before whom the consideration of Rs.730,000/-was paid to defendant No.l. The agreement Exh.P1 was executed at a subsequent point of time on 14.2.2001 when rest of the property measuring only 4 Kanals was allegedly purchased by the plaintiffs against a price of Rs.70,000/-. No doubt in the said document, the earlier bargain/sale was found to be acknowledged by defendant No.1 but the execution of agreement (Exh.P1) was specifically denied by him and to prove the transaction of sale as well as execution of agreement (Exh.P1), one of the plaintiffs, namely, Rab Nawaz appeared as PW2, whose statement-in-chief is completely silent to the extent that before whom the bargain of sale at two different times was settled. He only deposed that sale consideration was paid to the vendor in the presence of Sabir Ali and Muhammad Ramzan. Admittedly, Muhammad Ramzan, out of above two witnesses, is neither signatory of agreement (Exh.P1) nor he was produced by the plaintiffs to prove that in his presence, sale consideration was paid. The plaintiff admitted in his cross-examination that at the time of execution of contract no sale consideration was paid. He further deposed that bargain was settled in the year 2000, whereas Exh.P1 is found to be scribed on 14.2.2001. Sabir Ali who is one of the attesting witnesses of agreement (Exh.P1) came into the witness-box as PW 1 and deposed that at the time of execution of agreement and receipt Exh.Pl and Exh.P2, sale consideration was not paid rather at a prior point of time, the same was made to the vendor in the village. However, he specifically conceded in his cross-examination that Muhammad Riaz, the other attesting witness of Exh.Pl and Exh.P2, did not sign the said documents in his presence. Muhammad Saeed Hashmi Deed Writer PW4, during his examinationin-chief also deposed that Muhammad Riaz was neither present nor he put his thumb mark on the said documents in his presence when he scribed the agreement and receipt (Exh.P1 and Exh.P2). He also conceded that no sale consideration was paid in his presence. Admittedly, the other attesting witness namely Muhammad Raiz was not produced by the plaintiffs to prove the valid execution of Exh.P1 and Exh.P2. The argument of learned counsel for the plaintiffs that Muhammad Riaz had already died on 5.9.2003 prior to recording of evidence of the parties, which was proved by production of copy of death certificate Exh.P11. No doubt, the said witness had already passed away, but to verify his signatures over Exh.P 1 and Exh.P2 any person familiar with his signature could be brought into the witness-box to verify his signatures. Besides these witnesses, Lal son of Muhammad Ali was also examined by the plaintiffs, who endorsed the proceedings of application filed by defendant No.1 under section 19 of the Colonization of Government Lands (Punjab) Act, 1912, which were conducted before the revenue authority but he too admitted that no sale price was paid by the plaintiffs to defendant No.1 in his presence. No other witness including the stamp vendor, who issued the stamp paper of Exh.P1 was produced by the plaintiffs before the learned trial court.
8. The argument of learned counsel for the plaintiffs that by producing scribe PW4 as well one of the attesting witnesses (PW1), the plaintiffs succeeded to prove the execution of above documents, is misconceived. It is by now well settled principle that a scribe or anybody else who did not put his signatures on the document as attesting witness cannot be considered as such. Reliance can be placed upon the judgment reported as Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 SC 241) wherein his lordship Mian Saqib Nisar while authoritatively clinching the said proposition held that a scribe cannot be considered as a substitute for the attesting witness unless he signed the document being attesting witness also. The same view has once again been affirmed by the apex Court in the recent judgment reported as Farid Bakhsh v.
Jind Wadda and others (2015 SCM R 1044).
9. The plaintiffs prior to filing the suit in hand almost five months ago on 8.6.2004 also filed a suit for permanent injunction (Exh.P5) against the defendants on the basis of sale dated 14.2.2001 but regarding the property measuring 112 Kanals 13 Marlas, which was dismissed vide order dated 27.11.2004 on account of non-deposit of diet money whereas in the suit in hand they claimed their rights on the basis of agreement of the same date regarding property measuring 56 Kanals 7 Marlas. The contradiction regarding total measurement of the property in both the suits instituted by them with a difference of almost five months of time, has also made the veracity of agreement (Exh.P1) as doubtful.
10.The contention of the learned counsel for the plaintiffs that the plaintiffs succeeded to prove that defendant No.1 made an application under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 before District Collector and he not only appeared before the revenue hierarchy but also acknowledged the execution of the agreement to sell (Exh.P1) by making his statement through production of certified copies of Exh.P3 to Exh.P6 is also not tenable. Defendant No.1 by filing an Defendant No.1 by filing an application on 03.12.2002 before the revenue hierarchy had not only denied the filing of said application under section 19 of the Act ibid rather he also denied the execution of agreement (Exh.Pl) in favour of the plaintiffs, and the application filed under section 19 of the Act ibid was ultimately dismissed. The said stance had also been followed by defendant No.1 in his written statement as well as during statement got recorded by one of the legal heirs of defendant No. 1 . In such scenario the plaintiffs were required to prove that defendant No.1 not only filed the said application but also got recorded his statement before the revenue authority.
Admittedly, the certified copies of Exh.P3 to Exh.P6 are not copies of judicial record, which could not be received in evidence without the proof of signatures/thumb impression and writings of the person alleged to have signed/thumb marked or written the same, even if, such documents brought on record are accepted without objection. Reliance is placed upon the judgment reported as Muhammad Yousaf Khan v. S.M. Ayub and 2 others (PLD 1973 SC 160). The plaintiffs only produced Lal (PW3) to prove that in his presence defendant No.1 got recorded his statement before the revenue officer but he, too, admitted in his cross-examination that no sale consideration was paid to defendant No.1 in his presence and at the time of his statement neither the original record was before him nor his solitary statement is sufficient to prove that defendant No.1 preferred any such application or he made the statement. The plaintiffs neither got summoned the original record of the application filed under section 19 of the Act ibid from the custodian of the record nor confronted the same to the legal heir of defendant No.1 when he appeared before the learned trial court to make his statement. The revenue officer/official could also be brought into the witness- box by the plaintiffs to negate the stance of defendant No.1 that he had neither made any application nor recorded any statement to acknowledge the sale in favour of the plaintiffs. This best evidence despite its availability was withheld by the plaintiffs without any justification. The settled legal position is that if a party is in possession of some document/evidence in support of his claim but he does not produce the said document/evidence, the presumption would be that the evidence not produced and withheld by him, if was produced, it would have gone against his version. Additionally, the plaintiffs also did not make any application for the comparison of alleged thumb impression appearing on the said application or against his statement made before the revenue authority. It is clear to my mind that departmental/tribunal proceedings attain presumption of truth but defendant No.1 has also a right to rebut the same by raising a defence.
Even the judicial proceedings which have relevancy and presumption under Articles 54, 55 and 56 of the Qanun-e-Shahadat Order, 1984 can be attacked under Article 58 of the Order ibid. The said scheme of law can be made applicable in the instant case. Furthermore, the proceedings before the revenue hierarchy came to an end without its logical conclusion. In view of the specific denial of the deceased defendant No.1 contained in the written statement that he neither made application nor made any statement before the revenue hierarchy, it became incumbent upon the plaintiffs to prove their stance otherwise but they failed to do so.
11. The other limb of the case is that bare perusal of agreement dated 14.2.2001 (Ex:P1) reveals that it was unilateral in nature having not been signed by one of the parties i.e. vendees, which is not enforceable under the law. In arriving at this view, this court is fortified by the dictum laid down by the august Supreme Court of Pakistan in the judgment reported as Mst. Barkat Bibi v. Muhammad Rafique (1990 SCM R 28) and the operative para thereof is reproduced hereunder:-- "A perusal of the above Iqrarnama "shows that there is no reference made therein specifically to the exact consideration for the agreement. Moreover, we observe that it is a unilateral offer made by Muhammad Din to re-convey the land as soon as they (the vendors) themselves have raised the money. No indication is to be found in the document that this offer was accepted by the respondents for no one on the side of the respondents has signed this "Iqrarnama" in token of its acceptance. It was no more than a proposal because unless the person to whom the offer is made signifies his willingness to accept it, the proposal does not, in law, ripen into an agreement.
Now it is only an "agreement", as the term is understood in law, which can be enforced by a suit for specific performance. Accordingly, it is only if the so-called "Iqrarnama" gualified as an agreement would it have the effect of creating a legal relationship 'between the parties so as to give rise to jural, as opposed to- moral, obligations and the only would a suit for specific performance be maintainable on its basis. The so-called ""lqrarnama" dated 24.7.1953,. on close examination, however, does not qualify to be an "agreement". Hence a suit to specifically enforce it was not competent."
This view has also been strengthened by the apex Court in the judgment reported as Gulshan Hameed v. Kh. Abdul Rehman (2010 SCM R 334) while observing that an agreement is required to be signed by both the parties and if it is not signed by anyone of the parties, then the same cannot be enforced as per law. Even in the recent judgment delivered by the apex court in case styled as Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187) it has been observed as under:-- "Thus for the purposes of a valid contract there should be the meeting of minds of the contracting parties. And where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. So that it should reflect and establish their consensus ad idem, which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto. la particular it refers to the 'situation where there is a common understanding of the parties in the formation of the contract in the absence of which there is neither a concept nor the possibility of a valid contract."
12. On the touchstone of above discussion, there is no hesitation to hold that the agreement (Ex:Pl) was unilateral in nature, which was not enforceable as per law and a decree for its specific performance cannot be granted.
13.At the fag end of his arguments, the learned counsel for the plaintiffs has submitted that the concurrent findings of the courts below cannot be disturbed by this Court while exercising revisional jurisdiction provided under section 115 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 H 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. Reliance can be placed upon the judgments reported as Nazim ud Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCM R 24), and Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCM R 1001).
14. So, this court can decide in which cases the interference is warranted. From the discussion above, I have no hesitation in my mind to observe that both the courts below have failed to analyze the facts and law on the subject and committed grave irregularity and illegality while passing the impugned judgments and decrees, which are reflective of misreading and non-reading of evidence. The onus to prove the valid execution and contents of the disputed document was upon the beneficiaries/plaintiffs, who failed to discharge the said onus, but both the courts below have omitted to take - into consideration the said aspect of the case, which has rendered the judgments and decrees passed by them illegally and unlawfully having failed to exercise the jurisdiction vested to them in ,a judicious manner. Both the courts below have erred in law while decreeing the suit filed by the plaintiffs while misinterpreting the evidence on the record, ^which has rendered the impugned judgments and decrees patently illegal, unlawful and perverse as well as without jurisdiction, which cannot be sustained in the eyes of law.
15. Accumulative effect of the above discussion is that the instant civil revision is accepted. impugned judgments and decrees passed by the courts below are hereby set aside and suit filed by the plaintiffs is dismissed with costs throughout.