' CH. MUHAMMAD MASOOD JAHANGIR, J.--- For delivering this judgment reference to the pleaded facts in short compass is that original respondent, Ghulam Mohammad, now deceased represented through his legal heirs (hereinafter to be referred as the plaintiff) brought a suit for specific performance of an oral agreement to sell qua the suit property while claiming that Nazir Abbas, petitioner, now deceased represented through his legal heirs (hereinafter to be referred as defendant No.1) agreed to sell his owned property for total sale consideration of Rs.45000/- and received Rs.33,500/- through receipt (Mark-A). The plaintiff also sought for cancellation of agreement dated 12.9.1997 executed by Nazir Abbas in favour of rest of the defendants and the same will not be subject of the instant judgment as the separate suit for specific performance of agreement instituted by rest of the defendants against Nazir Abbas, defendant No.1 was dismissed by the learned Trial Court along with the suit instituted by the plaintiff through consolidated judgment and decrees dated 20-6-2005, which having not been assailed any further to such extent attained finality as the plaintiff only challenged the aforementioned decree by filing an appeal before the learned lower appellate court, who through impugned judgment and decree dated 10.7.2006 while accepting the appeal has decreed the suit of the plaintiff, hence this civil revision by defendant No.l.
2. Arguments heard. Record perused.
3. Before embarking upon the merits of the case, it will be advantageous to go through the definition of 'Agreement' as provided in Section 2 (e) of the Contract Act, 1872, which reads as under:-- "Agreement" Every promise and every set of promise, forming the consideration for each other, is an agreement."
' Whereas, the same term is defined in Black's Law Dictionary, Fifth Edition which reads as under:- "Agreement of sale; agreement to sell.--- An agreement of sale may imply not merely an obligation to sell, but any 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 said definition has further been elaborated by the august Supreme Court of Pakistan in a case reported as "Hafiz Tassadiq Hussain v. Muhammad Din through Legal Heirs and others" (PLD 2011 Supreme Court 241) and relevant extract from para-5 is reproduced hereunder for ready reference:- "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 (if not a conditional sale) is the conclusive transfer of an absolute title and ownership of the property unto the vendee in presented, 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."
4. It is thus clear that an agreement to sell is meant for accomplishing the object of sale in future and for all intents and purposes it pertained to future obligations of the parties thereto. The case of the plaintiff that he had purchased the disputed property from Nazir Abbas, defendant No.1 through an oral settlement of bargain. Neither any date, month or year of the bargain were found to have been mentioned in the plaint instituted by the plaintiff nor the names of witnesses were provided therein to prove that when, where and before whom the said transaction was settled. Therefore, the evidence if any led to prove the said fact is to be simply ignored. It is clear from Order VI, Rules 2 and 4 that a fact has to be pleaded before it could be proved. This court is fortified in forming this view by the dictum laid down in the judgments reported as "Visoount Dunedin, Lords Darling and Tomlin and Sir George Lowndes and Sir Binod Mitter Siddik Mahomed Shah v. Mst. Saran and others"
(AIR 1930 Privy Council 57), "Lord Simonds, Sir John Beaumont and Sir Lionel Leach" (AIR 1950 Privy Council 68) and "Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Co-Operative Bank Ltd., Jaranwala and others" (1968 SCM R 804). Moreover, a glance over the deposition of plaintiff (PW1) and Muhammad Ashraf (PW2) reveals that none of them disclosed the date, month, year and venue etc to explain that when and where the alleged sale was settled. I am afraid until corroborative evidence about the date, month, year, and the payment of consideration was produced, the plaintiff could not succeed to affirm his said oral transaction. Reliance can be placed upon the judgments reported as "Bashir Ahmad and others v. Abdul Latif and others" (2005 YLR 2655), Nazir Ahmad and another v. Yousaf" (PLD 2011 Supreme Court 161) and "Muhammad Nawaz through L.Rs v. Haji Mohammad Baran Khan through L.Rs. And others" (2013 SCM R 1300).
5. The case of the plaintiff solely hinges on receipt dated 10.4.1991 (Mark-A) allegedly executed by Nazir Abbas, defendant No.1, through which, the part sale consideration was received by him at different occasions. Nazir Abbas specifically denied the execution of said receipt while pleading it to be forged, fictitious and result of collusion. The pictorial view of the receipt (Mark-A), copy of which is available at page 121 of the instant file reveals that the same was not attested by any of the witnesses, whereas, Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984 provides that in the matters pertaining to financial or future obligation, if reduced into writing, the document shall be attested by two men or one man or two women and such document cannot be used as document until two witnesses at least were examined under Article 79 of the Order ibid for such purpose.
Learned counsel for the plaintiff has failed to offer any explanation as to why receipt (Mark-A) in question could not be witnessed by any one and its non-attestation by witnesses was highly unusual, particularly when the same contained recital relating to payment of amount. Such omission was not only significant, but has also destructed the case of plaintiff, particularly with regard to payment of amount specified therein. This discrepancy remained unexplained in the plaint as well as in the evidence led by the plaintiff.
6. From the perusal of statement of the plaintiff/PW1 it transpired that receipt Mark-A had been scribed by Nazir Abbas himself, who before the time of recording of his statement had already passed away and the document could not be confronted to him, but the fact remains that neither the said document was got attested by two witnesses nor the same could be proved on record as per law. Besides having remained fail to prove the said receipt (Mark-A) as per modes provided in Article 72 of the Qanun-e-Shahadat Order, 1984, the plaintiff was left with another mode provided under Article 61 of the Order ibid by applying to the court for getting the signatures of defendant No.1 compared from an expert. It is now well established principle of law that where the executant of a document has denied its execution, it becomes duty of the beneficiary under the document to apply to the court for getting the writing/signatures thereon compared from an expert. Although report of the expert is not conclusive proof, but in the peculiar circumstances of the case the plaintiff was left with the said mode only to prove his receipt, which was not availed by him. By not resorting to this exercise, the plaintiff has incurred a presumption against him that had the alleged writing/signatures of Nazir Abbas defendant No.1 on Mark-A been got compared from the Handwriting Expert, the report would have received against him. The plaintiff himself appeared as PW1 and got examined Muhammad Ashraf (PW2), the sole corroborating witness, to prove the original transaction of oral sale as well as payment of sale consideration at different occasions through the receipt, which was not only meager, insufficient and discrepant, but also did not fulfil the requirement of law.
7. The joint findings of learned lower appellate court on Issues Nos.7, 13, 15 and 16 appear to be based on the weaknesses allegedly available in the evidence of defendant No.1 or on a suggestion made by learned counsel for the defendant No.1 to the plaintiff when he being PW1 was cross- examined. It is well established law of the State that a party, who asserts a fact in affirmative, has to prove the same. In the case in hand the onus probandi, therefore, was on the shoulders of the plaintiff to prove the settlement of bargain, its terms and condition and the payment of sale consideration as well as execution of the receipt through production of affirmative evidence, but he could not succeed on the weaknesses or short comings of the evidence of his adversary. The stage of disproof or rebuttal only will come into play when the beneficiary of the transaction succeeded to produce positive evidence to prove his case. Likewise any suggestion advanced by counsel of a party IE against the case set up by his client in his pleadings cannot be made basis for delivery of a judgment against the said party. Thus any suggestion, which was not permitted would be of no legal value and would not mean that the claim of the plaintiff stood admitted by the defendant No. 1.
8. The nutshell of the above discussion is that, it was the duty of the plaintiff to have proved his oral sale by the production of convincing, cogent and reliable evidence, which is conspicuously missing and the learned trial court was perfect in dismissing the suit of the plaintiff, but the learned Additional District Judge for extraneous/supervening reasons while misreading and non-reading the material available on suit file has erred in law while allowing the appeal and decreeing the suit through the impugned judgment and decree, which cannot be maintained and bound to be set aside. Consequently instant civil revision is allowed, the impugned judgment and decree delivered by the learned lower appellate court is set aside and by upholding that of the learned trial court, the suit of the plaintiff stands dismissed with no order as to costs.