Shah Nawaz and Rab Nawaz (plaintiffs) respondents filed a suit against Muhammad Sarfraz who died during pendency of the suit on 03.12.2004 and replaced with his legal heirs and Province of Punjab through D.0 (R)/Collector Toba Tek Singh for declaration and specific Performance of an agreement dated 14.2.2001. According to the respondents' contention written agreement dated 14.2.2001 was executed between. them and deceased appellant to purchase land measuring 56 kanals 07 marlas for consideration of Rs, 8,00,000/-. The disputed land was allotted to said Muhammad Sarfraz under Dakhilkar' scheme. He was in need of some amount, offered the respondents disputed land and transaction was finalized in presence of witnesses. An amount of Rs, 7,30,000/- was paid and possession of land measuring 52 kanals 07 marlas was delivered to the respondents. Thereafter, Muhammad Sarfraz offered sale of remaining land i measuring 04 kanals for a consideration of Rs, 70,000/- and in respect agreement was reduced into writing on 14.2.2001 (Ex. well as receipt (Ex.P2) on the same day. It was further case respondents that Muhammad Sarfraz on 7.8.2002 filed an under Section 19 of the Colonization of Government Land Act, 1912 before E.D.O (R) Toba Tek Singh for permission to see land to the respondents. In this respect his statement was recorded which he admitted agreement dated 14.2.2001 and receipt of sale price. However, subsequently on the instigation of some others he turned around and resiled from the application so moved which was consigned to the record on 1.11.2004. With that background the suit as mentioned above was filed.
2. It is also apparent from the record that on 24.2.2005 consenting written statement through his power of attorney hold was filed by Sarfraz to decree the suit in favour of respondents, but before decision Sarfraz died. Before his death he moved an application against power of attorney and so filed consenting written, however, after the death of Sarfraz his legal heirs were impleaded as defendants, who filed written statement who are now appellants. The appellants in written statement contended that before filing of present suit the respondents filed a suit for permanent injunction titled Rabnawaz vs. Muhammad Sarwar and others, which was dismissed by a Civil Court on 27.11.2004, so the second suit present one could not be filed under Order II Rule 2, CPC. On facts the respondents contended that agreement and receipt are fictitious, result of-fraud and forgery and without consideration. In fact respondents are in possession of the disputed land as lessees (Muzaray). Further contended that a fictitious application is filed under Section 19 of the Colonization of Government Lands (Punjab) Act 1912 and when its filing came to the knowledge of Sarfraz deceased he appeared before the EDO (R), however, the said application was dismissed.
With above mentioned background and on completion of pleadings, learned trial Court framed the following issues:-- (1)Whether the defendant Muhammad Sarfraz deceased agreed to sell the disputed property to the plaintiffs and executed agreement dated 14.2.2001 and after receiving the whole sale consideration Rs, 8,00,000/- p ossession was given to the plaintiffs? OPP (2)If Issue No, 1 is proved in affirmative then whether the plaintiffs are entitled to get incorporated their name in the revenue record as being owners under the alleged agreement ?OPP (3)Whether suit is not maintainable in its present form ?OPD (4)Whether the suit is hit by Order II Rule 2 of CPC? OPD (5)Whether the plaintiffs are estopped to file the suit by their words and conduct? OPD
(6) Relief.
3.Respondents as plaintiffs produced 06 witnesses as well as documentary evidence agreement Ex.P1, receipt of payment Ex.P2, copy of register of deed writer Ex.P3, copy of Jamaican for the year 2001-2002 Ex.P4, copy of khasra girdawari Ex.P5, power of attorney Ex.P6, attested copy of application under Section 19 of Colony Act Ex.P7, attested copy of statements of Muhammad Sarfraz, Rabnawaz and Hamid Ali in the Court of DOR Toba Tek Singh Ex.P8, P9 and Ex.P10, attested copy of Mutation No, 1561 Ex.P11, attested copy of Mutation No, 1316 Ex.P12 and copy of death certificate Ex.P13.
4.The appellants also examined 03 witnesses and adduced' documentary evidence, copy of mutation of inheritance No, 1316 Ex.D1, copy of Jamabandi for the year 2004-2005 Ex.D2, copy of khasra girdawari Ex.D3, copy of application for cancellation of application under Section 19 of Colony Act with order of D.O.R. Toba Tek Singh Ex.D4, attested copies of order of Sajid Mahmood, Civil' Judge Toba Tek Singh dated 20.10.2010 to 03.12.2010 Ex.D5 and copy of plaint titled Rabnawaz etc. vs. Province of Punjab etc. Ex.D6.
5.Malik Abdul Wahid Advocate, learned counsel for the appellants stated that though the appellants denied execution of any agreement to sell with the respondents but even if there is any agreement it was not creating any right or ground to file suit as the respondents claimed land measuring 56 kanals 07 marlas, whereas at the time of execution of agreement dated 14.2.2001 the land was only 04 kanals and price was Rs, 70,000/-, 'whereas statedly an earlier agreement was oral entered into between the parties in which land measuring 52 kanals 07 marlas was agreed to be sold for consideration of Rs, 7,30,000/- which was neither paid nor any evidence was adduced in this respect. He next contended that even otherwise respondents failed to examine requisite witnesses in violation of mandatory requirement of Article 79 of `Qanun-e-Shahadat' Order 1984, as out of 02 marginal witnesses of Ex.P1 only one was examined and in this respect he placed reliance on the judgments "Islam-ud-Din through L.Rs and others vs. Mst. Noor Jahan through L.Rs and others" (2016 SCMR 986), "Mst. Akbar Jan through L.Rs, and 9 others vs. Mst. Kalsoom Bibi and 6 others" (2015 CLC Lahore 549) and "Meer Hassan (deceased) through his legal representative vs. Hakeem Muhammad Sana Ullah (deceased) throush his legal heirs" (PLJ 2015 Lahore 171).
6.He next contended that scribe of a document even if examined cannot be considered as second witness to prove due execution of document in terms of Section 79 of `Qanun-e-Shahadat' Order 1984. He also stated that the other witnesses examined by the respondents to prove legal execution of Ex.P1 and Ex.P2 were not sufficiently proving the factum of agreement and the payment of sale price or delivery of possession. Lastly contended that the conduct of respondents further disentitled them to claim and get any discretionary relief by way of decree for specific performance of an agreement and in this respect learned counsel placed reliance on the judgment of Apex Court "Farzand All and another vs. Khuda Bakhsh and others" (PLD 2015 S.C.187).
Learned counsel concluded his submissions that both the judgments rendered by the Courts below, were erroneous suffering with misreading and non-reading of evidence and incorrect appreciation of law, thus liable to be set aside. lie sought that this appeal may be allowed and the suit filed by the respondents be decreed.
7.Ch. Ishtiaq Ahmed Advocate, learned counsel for the respondents/plaintiffs contended that scope and margin of second appeal is very narrow and this Court cannot re-appraise the evidence. He added that judgments of both the learned Courts below were concurrent and High Court in second appeal could not disturb the findings of the Courts below and in this respect he cited "Gulzar Hussain through Attorney vs. Muhammad Asif Nazir" (2016 YLR 315) (Sindh). Next contended that out of two marginal witnesses respondents/plaintiffs examine one witness but second witness could not be examined because he died and in this respect the respondents produced in evidence death certificate of second marginal witness namely Muhammad Riaz son of Bahadar, who died on 15.9.2003 and in this respect eventuality the scribe of document was examined as PW-1 and he proved that both marginal witnesses signed agreement Ex.PI and Ex.P2 to fulfill requirements of Article 79 of `Qanun-e-Shahadat Order 1984'. On this point he relied upon judgment of Supreme Court "Hafiz Tassadaq Hussain vs. Muhammad Din through Legal heirs etc. (PLD 2011 S.C. 241), Haidar Ali vs. Rahat Iqbal" (2005 YLR 2533) (Lahore) and Mst. Allah Jewai widow and 04 others vs. Maqbool Shah and others " (PIA 2005 Lahore 1057). Learned counsel further contended that the suit filed and decreed in favour of respondents was not effected in any manner under Section 19 of the Colonization of Government Lands (Punjab) Act 1912 and in this respect he sought support from the judgment "Muhammad Rafique and others us. Tufail Muhammad" (2007 SCMR 1332). Learned counsel concluded his arguments while sought that this appeal is not competent may be dismissed.
8. In view of narration of facts and arguments addressed by learned counsel for the parties raised following points for determination:-- (a)Whether a valid agreement dated 14.02.2001 was executed between the parties which is enforceable under the law?
(b)Whether in absence of one marginal witness the statement of scribe can be considered as second marginal witness of the agreement to sell?
(c)Whether the conduct of respondents disentitled them to get any discretionary relief from the Courts under Sections 12 and 22 of Specific Relief Act?
9. Though I have formulated the points to be determined while deciding this appeal but these are inter-connected and appropriate to be decided co-jointly. On the basis of pleadings of the arties and issues formulated the contention of respondents/plaintiffs was that there was an agreement executed between them and Sarfraz deceased predecessor in interest of the appellants. The agreement was dduced as Ex.P1. Perusal of which shows that before writing of the aid document the parties agreed and acted upon for selling of land measuring 51 kanals 18 marlas for consideration of Rs, 7,30,000/- through an oral arrangement, which was acknowledged at the time of execution of this document by Sarfraz deceased not only selling but so receipt of sale price and thereafter he further sold land measuring 4 kanals 09 marlas for a consideration of Rs, 70,000/-.
The stamp paper was purchased by Sarfraz as is apparent from stamp paper ,sued by the stamp vendor that it was for the purpose of writing agreement with the respondents. It is further apparent that agreement was signed by two marginal witnesses Muhammad Sabir PW-3 and Muhammad Riaz. The respondents- examined Muhammad Sabir as. PW3, however, other marginal witness Muhammad Riaz died before appearing as witness and the respondents produced his death certificate as Ex.P13 that Riaz son of Bahadur had died on 15.09.2003 and Ex.P13 was neither rebutted by the appellants nor adduced anyi evidence to prove that the said document was not genuine. In these circumstances, it was natural that no one can produce a dead person in the Court as witness in alternate respondents examined the scribe of the dacument Muhammad Saeed Hashmi PW-1 who sufficiently deposed that the agreement Ex.P1 was signed by Sarfraz who also thumb marked as well as Muhammad Sabir and Riaz as marginal witnesses thumb marked and signed it respectively and in the same manner the receipt Ex.P2 was also executed. He further deposed and adduced in evidence copy of register of deed writing Ex.P3, to fortify all these facts.
10. There is no doubt that Article 79 of the "Qanun-e-Shahadat, Order 1984" mandate that two witnesses shall be examined to prove execution of a document. The relevant portion of said provision of Law may be reproduced hereunder: "If a document is required by law to be executed, 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. "
11.The word used in the aforementioned provision of law "if' there be two attesting witnesses alive" these words have its j significance and as is mentioned that the second witness Riaz had diet and in this respect death certificate is produced in evidence as Ex.P13. Thereafter the respondents were left with no option but to examined the scribe of Ex.P1 Saeed Hashmi .PW-1. In this respect following! judgments are relevant:-- 1."Haftz Tassaduq Hussain vs. Muhammad Din through Legal Heirs (PLD 2011 Supreme Court 241).
2.."Haider Ali vs. Rahat lqbal" (2005 YLR 2533) (Lahore).
3."Mst. Allah Jawai, Widow and 4 others vs. Maqbool Shah and 02 others" (PLJ 2005 Lahore 1057).
4."Fakhar-ud-Din vs. Muhammad Feroze and 02 others (2016 YLR 866 (Lahore). 12.It is pertinent to mention here that other marginal witness Muhammad Riaz died before recording his statement as mentioned above, that was the event which was beyond the control of any human being. Though during arguments learned counsel for the appellants stated that the respondents could have sought and examined secondary evidence but since they have not adopted that procedure for attestation and verification of signatures of Muhammad Riaz deceased on the disputed document are repelled as attestation and verification of the signatures of said deceased was done/carried out by the scribe of the document PW-1.
13. Next point as urged by learned counsel for the appellant that the respondents have been debarred to get any discretionary relief under Section 22 of the Specific Relief Act, because of the conduct first they managed to file consenting written statement on behalf of Sarfraz deceased and when it came to his knowledge he filed an application against alleged power of attorney executed by him and filing of consenting written on the strength of special power of attorney. Further that respondents managed to file application under Section 19 of the Colonization c f Government Lands (Punjab) Act, 1912 through fictitious person, even it is so, however, these arguments can be considered as only contentions, unless evidence was produced that these proceedings were conducted wrongly and with mala fide intention by the respondents they could not be deprived to get discretionary relief by way, of specific relief of agreement.
14.Before I conclude this judgment it is necessary to mention here that according to the contents of plaint that subject matter was total land measuring 56 kanals 07 marlas, however, the contents of agreement Ex.P1 contains some mis-description of land. However, on the basis of Jamabandi for the year 2001-2002 Ex.P4 clearing that Sarfraz deceased was holder of tenancy rights to the extent of land measuring 57 kanasl 07 marlas, out of which through oral agreement which was prior in time then agreement dated 14.02.2001 he had sold land measuring 52 kanals 07 marlas and this fact was acknowledged in the agreement Ex.Pl: and remaining 04 hanals land was sold through said agreement. Thus, I did not observe any illegality committed by the Courts below, reluctantly the instant appeal stands dismissed.
15.No order as to costs.