Ch. Muhammad Masood Jahangir , J:- Undeniably subject land was allotted to Rab Nawaz son of Kamal Din, predecessor of the petitioners, under Grow More Food Scheme in 1974, which was purportedly cancelled on 31.01.1989 by the District Collector , however , ultimately vide order dated 30.07.1995 his lot was restored and consequently , proprietary rights were also awarded to his legal heirs on 02.03.2005. Thereafter on 28.12.2005 respondents No. 1 to 6 and 8 to 17 filed a declaratory suit while setting their claim on agreement to sell dated 03.09.1989 or in alternative for its specific performance with the assertion that the allottee in his lifetime had agreed to sell his allotment rights for a consideration of Rs.1,50,000/- and after receiving Rs.1,49,000/-, contract (Exh. P.1) was executed, whereas rest of the sale price was to be paid at the time of transfer of the subject land. It was further averred in para No.4 of the plaint that Muhammad Ashraf, respondent No.7 was also one of the vendees, but he subsequently sold out his share to plaintif f No.1, therefore, was not impleaded in the original suit. The suit was contested on behalf of the petitioners with the averments that plaintif fs were in occupation of the property as their tenants and on their demand of the cultivation share, they not only denied to pay, but a forged and fictitious contract was grafted to deprive them of their valuable property . In pros and cons evidence in bulk was examined and ultimately the suit was decreed by the learned trial Court vide judgment and decree dated 23.10.2010 while directing respondents/plaintif fs to make payment of balance sale price within 30 days. Though the judgment of the learned Trial Court was assailed by the present petitioners through an appeal before the learned Lower Appellate Court, but on the other side, the respondents/decree holders failed to deposit the balance sale consideration and the latters filed an application beyond the stipulated period on 25.11.2010, before the Court of first instance for extension of time, which was declined on 09.12.2010. The respondents/decree holders successfully assailed the same through Civil Revision, which was allowed on 15.03.2012 and appeal of the present petitioners against the judgment and decree of the learned Trial Court failed on the same day. On one hand, the petitioners through Civil Revision in hand have assailed the judgments and decrees of two Courts below , whereby they concurrently decreed the suit of the respondents/plaintif fs and on the other hand by filing connected Writ Petition No.4984/2012, the order dated 15.03.2012 of the learned Lower Revisional Court whereby time period for deposit of balance sale consideration was extended, has been assailed. As common questions of law and facts inter se the parties with regard to same property are involved in both the files, therefore, this Court has proposed to decide both the lis jointly through this single judgment. However , the source point for reference will be Civil Revision in hand.
2. Mr. Tariq Zulfiqar Ahmad Chaudhary , Advocate/learned counsel for the petitioners submitted that alleged agreement to sell (Exh. P.1) being a document of financial liability and future obligations was required to be proved at least by producing two witnesses, but none of them was examined; that the stamp paper of Exh. P.1 was also not purchased by the alleged vendor , therefore, it was to be excluded from the evidence, but both the Courts below erred in law while ignoring the mandate of Articles 17 & 79 of Qanun-e Shahadat Order , 1984; that Rab Nawaz, the alleged executant of Exh. P.1, was an illiterate person and the contract was maneuvered by the tenants to prolong their possession over the land, but the Courts below failed to consider the statements (Exh. D-2 & Exh.D-3) of Sardar Muhammad brother of the Attorney as well as that of Rafique, one of the plaintif fs, wherein they deposed that no transaction of sale qua the subject property had ever been effected; that the judgments being tainted with misreading and non-reading of evidence available on file were illegal and unlawful, which were liable to be set aside and that the learned Revisional Court was not within its jurisdiction to extend the time limit for deposit of remaining sale consideration, hence the impugned judgments of both Courts below as well as afore-noted order of the Revisional Court are liable to be set aside.
3. In contra, learned counsel for the respondents/plaintif fs refuted the argume nts of learned counsel for the petitioners and emphasized with great vehemence that unshaken quality evidence was examined to prove the contents of the agreement as well as transaction reflected therein; that on the basis of minor contradictions or infirmities, the statements of the witnesses could not be discarded, but the substance and gist of their depositions fully proved the case of the plaintif fs; that concurrent judgments of two Courts below cannot be interfered with while exercising powers under section 115 of the Code of Civil Procedure, 1908 and finally prayed for the dismissal of instant Civil Revision as well as connected W rit Petition No.4984/2012.
4. I have heard the arguments advanced by learned counsel for the parties, perused the record as well as judgments of two Courts below and order of the Revisional Court with their able assistance.
5. As per contents of the plaint four persons; Allah Ditta son of Wali Muhammad, Muhammad Ashraf, Allah Ditta son of Din Muhammad and Muhammad Akram purchased specific shares from Rab Nawaz, but originally the suit was instituted by Allah Ditta son of Wali Muha mmad, legal heirs of other Allah Ditta and widow of Muhammad Akram, without impleading the fourth vendee, Muhammad Ashraf, while extrapolating that the latter had agreed to sell his purchased share to plaintif f No.1 through a subsequent independent agreement dated 06.06.1996, however , during trial proceedings, Muhammad Ashraf filed an application for his impleadment contending therein that he neither sold out his share nor executed a contract, anyhow his petition was accorded and he was impleaded in the group of plaintif fs, but without bringing any change in its contents, the amended plaint was filed. It was also taken by surprise that the alleged agreement exec uted between Muhammad Ashraf and Allah Ditta plaintif f No.1 was not brought into picture despite the fact that the former being DW-8 in his cross-examination denied its execution. A specific fact pleaded by the plaintif fs in their plaint was not only left unattended by them, but explicit dichotomy and contradiction among them to this extent has forced the Court to draw a negative inference.
6. The case of respondents/plaintif fs hinge s on a sale and prior to probe of pleadings and evidence of the parties, it will be advantageous to advert to the definition of sale provided in section 54 of the Transfer of Property Act, 1882, which envisages transfer of immoveable property for price, paid or promised. In order to enforce sale, it is sine qua non for the vendee to establish; firstly, that transaction was struck with a title holder or having authority to create a right, secondly, it was settled against consideration and thirdly, that it was accompanied by delivery of possession. Mere execution of agreement, attestation of mutation or even registration of sale deed by itself does not furnish proof of ingredients of sale, referred herein above and whenever any of such documents as well as transaction of sale reflected therein is questioned or denied, the onus lies on the beneficiary to prove the transaction as well as his document, if executed for its acknowledgement.
7. It was not an issue that property under the lis titled by the State was allotted to Rab Nawaz, the predecessor of the petitioners on 31.07.1974 and as per detail referred in order dated 02.06.2003 (Exh. P-13) of the DO (R), it was cancelled and the land was resumed on 31.01.1989, however the allotment was restored by the learned Member Board of Revenue while allowing ROR on 30.07.1995, meaning thereby that on the day when agreement Exh. P-1 dated 03.09.1989 was executed, there was no allotment in favour of Rab Nawaz for its further sale. This fact was also admitted by one of the plaintif fs, Muhammad Ashraf (PW -8), while deposing as under:- {{URDU TEXT}} In such a situation, question arose whether the alleged vendor , who was neither title holder nor equipped with the allotment rights, was competent to settle the sale?, the answer would be "no" and learned counsel for respondents on confrontation found himself in trouble to defend the alleged sale.
8. Anyhow, the pivotal question involved in the case in hand was that the petitioners/defendants not only specifically denied the execution of agreement, rather claimed it to be forged, fictitious, outcome of fraud and in such situation, the respondents being its beneficiaries were bound to prove its execution as well as transaction reflected therein. Mere admissibility of document as evidence is not ipso facto the proof of its execution. Due execution of document is required to be proved in consonance with the provisions of Qanun-e-Shahadat Order, 1984, which in itself is a complete code to provide the mode of proof of facts by way of oral and documentary evidence. The question agreement (Exh.P.1) being a document involving financial obligation was to be proved as per mode provided under Article 79 of the Qanun-e-Shahadat Order, 1984. What are its requirements for proving such a document, can be understood by reading it, which for facility of reference is reproduced hereunder:- If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses 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 executant of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
This provision explicitly lays down that such a document can only be used as evidence until two attesting witnesses, at least, have been called for the purpose of proving its contents, execution and construction, but nothing short of it can even be imagined for proving the same. The word "attestation" means the act of witnessing the construction of document acquiescing ones name as witness to that effect, which also includes putting his thumb impression-signatures to testify that he witnessed its execution and such a signatory is called an "attesting witness". To test whether the respondents through the material available on suit file succeeded to prove their hub document as well as sale mentioned therein, when adverted to the basic agreement, it was found to have been attested by Sultan Ahmad as well as Muhammad Latif son of Allah Ditta Parbana Sial, residents of Chak No. 100/15-L being its marginal witnesses. Verily, the former had already died prior to recording of evidence. No doubt as per requirement of Article 80 of the Order, ibid an attempt through an application was made by the plaintiffs for summoning of his son, Ghulam Abbas, to testify signatures of his father available over Exh. P-1, which was accorded, but surprisingly, he was given up without assigning any reason through a statement dated 23.01.2010 made by their counsel and when learned counsel for the respondents was called upon to justify, why despite his summoning, he was not examined, his reaction was that in the meantime the witness had already been approached by the petitioners, therefore he was no more reliable to be examined, was not appealable. Had he been examined and he would have made an inimical statement, facing with such a situation, he would have been declared hostile and subjected to cross-examination, so that truth could be elucidated. Moreover , Muha mmad Latif (PW-10) who portrayed himself to be second marginal witness though depose d in his statement-in-chief that agreement was signed by Sultan Ahmed deceased, but he did not utter a single word to verify the signatures of the latter . Additionally no effort on behalf of plaintiffs was made for the comparison of signatures of the attesting witness available at Exh.P1 with any of his admitted one. The scheme provided in the Order , 1984 does not appear to allow a party to rely on presumptive or other evidence of execution when he is unable to comply with the provision of Article, ibid. So non examination of summoned witness compelled the Court to draw an adverse inference.
Mr. Tariq Zulfiqar Ahmad Chaudhary , Advocate for the petitioners emphasized that other marginal witness Muhammad Latif, was also not examined , rather for ulterior motive, designedly Muhammad Latif (PW-10), son of one of the vendees/plaintif fs while getting benefit being name sake portrayed himself to be attesting witness of Exh.
P-1 and to persuade, he while drawing attention of this Court succeeded to establish that the marginal witness of Exh. P-1 was Parbana Sial by his caste and shown to be resident of Chack No. 100/15-L, whereas Muhammad Latif son of vendee when appeared as PW-10, he exposed himself to be an Arain by his class and resident of Chak No.101/15-L. The diversity to the extent of caste as well as residence between them appearing on the surface of record could not be over ruled by mere saying that it was a pen mistake. Nevertheless moving ahead, when his statement was scanned, it appeared to be inadequate to prove the contents of the agreement as well as transaction referred therein. Muhammad Latif, PW -10 stated as follows in his cross-examination as under:- {{URDU TEXT}} This proved that he did not witness the transaction, who also failed to disclose how much sale price was paid by each of the vendees. He while deposing as under:- {{URDU TEXT}} obliterated the case of the plaintif fs. Rana Muhammad Yousaf, Stamp Vendor (PW-2) in clear terms deposed that Stamp of Exh. P-1 was purchased by Rab Nawaz. He also did not allege that the contract was scribed by him, whereas PW-10 antipodal to him deposed that Stamp was purchased by Ashraf from Saghir Ahmad and the latter scribed it, hence PW-10 fully falsified the statement of PW-2. This Court is conscious of the fact that prior to promulgation of Qanun-e-Shahadat Order , 1984 a document could be proved by calling a person who signed or scribed it or a person in whose presence the document was written or signed but thereafter Article 17 of the Order is distinct departure, which ordains that a document creating financial liability or future obligation has not only to be attested by at least two witnesses and in order to prove such document he has to call those two attesting witnesses otherwise it has to be excluded from consideration. The case in hand is a classic example where requirement of aforenoted provisions were not followed.
9. Though the plaintiffs in order to prove the original transaction examined, Bashir Ahmad (PW-6), but contrary to Stamp Vendor (PW-2), he stated that on 03.09.1989 when the agreement was executed only one Stamp Paper was purchased by Rab Nawaz, whereas the other Stamp Paper for the execution of Power of Attorney had already been purchased by the latter. He further deposed in his cross-examination that bargain was settled through him and one Abdul Aziz, but one of the plaintiffs, Muhammad Ashraf (PW-8) negated PW-6 while wording that sale was struck through one Manan. Neither the broker, Manan and Abdul Aziz were brought into picture by the plaintiffs, nor Allah Ditta, plaintiff No.1 despite his availability examined himself. The formers could be the best persons to prove that bargain was settled and sale price was paid, whereas the latter could affirm that the agreement was executed and the vendor was not impersonated. No doubt Muhammad Ashraf, one of the plaintiffs (PW-8) appeared being witness, but was not originally impleaded in the plaint rather it was the stance of the other plaintiffs that he had sold out his share through a specific agreement to plaintiff No.1 and in such situation withholding of the aforementioned witnesses compelled the Court to draw an adverse inference under Article 129(g) of Qanun-e-Shahdat Order, 1984.
Moreover , no doubt as per its perusal the stamp paper of agreement (Exh.P1) was issued to Rab Nawaz, but the endorsement made by the Stamp Vendor on its back did not bear signatures/thumb impression of the former .
Though, the Stamp Vendor , Rana Muham mad Yousaf (PW2) along with his Register was examined, who deposed that he had issued two stamp papers as per demand of Rab Nawaz, one for execution of agreement to sell in favour of Muhammad Ashraf and the other for execution of power of attorney in favour of one Haji Bashir , yet he in his cross-examination not only admitted that the stamp paper of Exh. P-1 did not bear the thumb impression/signatures of Rab Nawaz, but he also conceded that the parties were not personally known to him, whereas the Deed-W riter or his releva nt Register was not examined without any justification despite his/its availability . The emphasis of learned coun sel for the respondents that Notary Public, who notarized the agreement was produced being PW3, hence any lacuna on the part of respondents, if any, stood cured, was not tenable on the counts; firstly , that an agreement was not required to be notarized by any imagination of law, secondly , the Notary Public could not be equated at par with the author of a document. Moreove r, this PW admitted in his cross- examination that the endorsement on Exh.P1 as well as his Register was made by his clerk, so his deposition was of no help to prove the contents authored by the scribe.
10. Ch. Asif Amin and Ch. Aftab Shabbir Arain, Adcoates for the respondents emphasized with great vehemence that at the time of execution of Agreement, the vendor for its acknowledgement also executed General Power of Attorney (Exh.P2) in favour of Bashir Ahmad (PW-6), which fact was duly proved through examination of Zubair Ahmad, Stamp Vendor (PW-4), Notary Public (PW-3) and Rustam Ali, the Registrar (PW-9), therefore, Courts below were perfect while relying upon it, was misconceived. A careful study of the plaint revealed that its contents were silent to the effect that a supporting document i.e General Power of Attorney to supplement the sale for its acknowledgement was also executed on the same day. It is settled by now that a party is not allowed under the law to improve its case beyond what was originally set up in the pleadings. As per principle of "secndum allegate et probate " a fact has to be alleged by a party before it is allowed to be proved, which has full command of provisions of Order VI rule 2 and Order VIII rule 2 of the Cvil Procedure Code, 1908. As such any evidence led by a party beyond the scope of its pleadings is liable to be ignored. Reliance can be placed upon judgments reported as Muhammd Wali Khan & another vs. Gul Sarwar Khan & anoth er (PLD 2010 SC 965) and Haider Ali Bhimji vs. VI Additional District Judge, Karachi (South) & another (2012 SCMR 254), wherein it was held that in absence of specific pleadings, the Court could not allow a party to grope around and draw remote inferences in one's favour from his vague expression, hence evidence, if any, led by the respondents to establish Exh. P-2 was of no help to them being departure to their pleadings. Moreover , as the execution of Exh. P.2 was also denied by the petitioners, therefore, the respondents being its beneficiary were bound to prove the same independently , but they did not examine its scribe, whereas one of its attesting witness, Ch. Shakar Din, had already departed. The other marginal witness, Muhammad Ashraf was one of the plaintif fs and his statement being an interested person could not be given due weight. Regardless of the fact that it was not proved as per law, when both the documents i.e. agreement (Ex:P-1) and General Power of Attorney (Ex:P-2) were minutely gone through, this Court was not persuaded to conclude that General Power of Attorney was executed/attested to supplement the agreeme nt. Adverting to the contents of Exh.P .1, there was although specific clause which reads as under:- {{URDU TEXT}} but admittedly prior to execution of Exh.P1, neither Exh. P.2 was scribed nor registered, rather on the same day it was written, whereas attested on the following day. The deep study of the latter affirmed that it was completely silent that any contract of sale was effected with the respondents, rather the powers delegated to the agent affirmed that he was authorized to transfer the suit land through sale, gift, exchange etc. as well as to receive token sale price. Had Exh. P-2 been executed/attested for the confirmation of sale in favour of the respondents, the following powers would have not been delegated to the agent:- {{URDU TEXT}}
11. It would also be pertinent to note that despite the fact that alleged Power of Attorney in favour of PW-6 was executed and registered on 3/4.09.1989, but the agent or the vendees did not pursue the case of the vendor for the restoration of the lot. Memorandum of ROR (Exh.D1) was reflective of the fact that on 07.09.1991 (two years after the execution of agreement as well as Power of Attorney) it was personally filed by Rab Nawaz, allottee, wherein on 09.08.1997 much prior to institution of suit, not only the latter made a statement (Exh.D4) that neither he had sold his property nor executed an agreement to sell, rather Sardar Muhammad, the real brother of the alleged General Attorney also got recorded his statement (Exh.D2) that the allottee was illiterate and folk person, who had appointed him being special Attorney to follow up the case and above all Mohammad Rafique plaintif f No.3 also made a statement (Exh.D3) that the suit land was not cultivated by them rather it was being ploughed by the allottee, and that the latter had not settled any agreement of sale with them. Neithe r during the proceedings of ROR nor in the suit in hand any ef fort was made to challenge the said statement.
12. Corollary of the above appreciation of the evidence is that the alleged vendor had no title or allotment rights to enter into sale; stamp paper of agreement (Exh.P.1) was not purchased by the vendor; both the marginal witnesses were not examined and if for the sake of agreement, one was examined, he not only failed to prove the contents of the contract as well as transaction, but he being interested one was not trustworthy; the scribe as well as one of the available vendees besides the brokers through whom the alleged transaction was settled were also withheld; stricto senso General Power of Attorney (Ex:P-2) was not proved and more importantly the powers delegated to the agent were reflective of the fact that prior to it no sale/bargain with the respondents qua suit land was effected, hence both the Courts below not only committed material irregularity as well as illegality to pass the impugned judgment rather the same being its wrong estimation cannot be sustained. This Court is conscious of the fact that normally the revisional jurisdiction is not invoked, where the Courts below rendered a concurrent view of fact, but when it is based on extraneous reasoning then obviously , this Court is competent and equipped with the jurisdiction to annul such concurrent findings.
13. The additional fact for non-suiting the respondents/plaintif fs was that admittedly the learned Court of first instance while dealing with their suit for specific performance decreed the same conditionally while directing them to deposit balance sale consideration of Rs.1,000/- within 30 days of that order , failing which suit would deem to have been dismissed. The sole related fact of the case to that extent is, whether the Civil Court had become functus officio or still having seisin over the decree was legally competent to pass an order to extend time for deposit of decretal amount by the private respondents. Moreover , the nature of decree would also to be considered as the preliminary or final and what should be the just and fair order to have been passed by a Court in this regard.
14. The aforesaid question after discussing the earlier judgments rendered by superior Courts in pros and cons on the proposition in hand has already been authoritatively clinched by this Court in the judgment reported as Muhammad Ismail Vs. Muhammad Akbar Bhatti (PLD 1997 Lahore 177) and the relevant para No. 7 thereof is reproduced hereunder:- "The ratio, deducible from the preceding examination, is: Firstly, that decree passed by court, in an action for specific performance of agreement of sale, is in the nature of preliminary decree. It actually partakes the character of a contract; vendee has to deposit the purchase price, cost for purchase of necessary stamps for the execution of conveyance deed and so on so forth; while the seller had to appear in the Court, sign the conveyance deed and receive purchase price. In these state of affairs, it clearly follows that decree, passed in such an action, is not final but preliminary in nature and the court passing the decree retain seisin over the lis and has power to enlarge/extend the time for payment of purchase price fixed therein. The court, however, had to pass such orders after objectively assessing the merits of such applications. Secondly, Specific Relief Act is an adjective law and substantive law is to be looked for elsewhere. It presents a codification of principles derived from long series of precedents and practices of English Courts of Equity.
Specific Relief Act so is based upon principle of Equity, reason and good conscience. The most leading principle is that 'who comes to get the equity, must do equity to others'. Thirdly section 35 of the Specific Relief Act lays down a procedure for rescission of the written contract. It applies to both vendor and vendee.
Any one of such party may move the Court by motion in the action for an order for putting an end to contract.
This mechanism is, however, subject to following limitation/namely where the trial court has decreed the suit for specific performance of contract subject to condition that purchase price shall be deposited in court within a specific time and also ordered that if that money is not put in within that time, the suit shall stand dismissed, the court has no power to extend the time as in such a case; that the decree by court is final and self-operative and in case of default of payment of purchase price; the mandate of court tantamounts to rescission of the contract. In such a case recourse to section 148 of C.P.C or section 151, C.P.C will not be permissible. Fourthly, the court will not allow the plea for extension of time if it finds that it will occasion a wrong to the other side. Furthermore, in order to succeed in an action for specific performance, the plaintiff had to show that he had been willing and ready to perform his part of contract."
This view has also been followed by this Court in case reported as Muhammad Iqbal through Legal Heirs Vs. Bashir Ahmad and 19 others ( PLD 2002 Lahore. 88 ).
15. Resultantly , this Civil Revision and connected Writ Petition No.4984 of 2012 are allowed, impugned judgments and decrees of two Courts below as well as order dated 15.03.2012 passed by the learned Revisional Court are hereby set aside and suit of respondents/plaintif fs besides their application for extension of time to deposit balance sale consideration while restoring order dated 09.12.2010 of the Court of first instance are dismissed. There is no order as to costs.