GHULAM MUST AFA MUGHAL, J. -- The captioned appeal by leave of the Court arises out of the judgment dated 21.3.2018 passed by the Azad Jammu & Kashmir High Court in civil appeal No, 154 of 2016.
2. The facts necessary for disposal of the captioned appeal are that Hameed Muhammad Hussain, appellant, herein, brought a suit for specific performance of contract in the Court of District Judge Mirpur on 26.7.2010. It was averred that Mehboob Hussain Hashmi, the father of defendants No, 1 and 2, executed an agreement-to-sell on 27.8.2009 for transfer of plot No, 621 in presence of the witnesses in favour of the plaintif f and undertook to transfer the plot through Municipal Corporation, but he died on 12.7.2010 before the transfer . It was claimed-that due to his death, the plaintif f did not ask the defendants for transfer of the plot, however , thereafter it was brought into their notice that the plot/house alongwith his possession has been transferred to the plaintif f and the same has been rented out by the plaintif f on 10.10.2 009, hence, either they execute sale-deed on the basis of agreement-to- sell dated 27.8.2009 or get the plot transferred in favour of the plaintif f through Municipal Corporation. The defendants appeared before the Court on 15.3.201 1 and contested the suit by filing written statement. It was claimed by them that the plaintif f has no cause of action and has filed the suit with unclean hands. It was further claimed that the suit is liable to be dismissed under Oder VII, rule 11, C.P.C. The learned Trial Court on 22.5.2012 framed issues. The parties were asked to produce evidence in support of their respective claim. At the conclusion of the proceedings, the learned District Judge vide judgment and decree dated 26.8.2016 dismissed the suit for want of proof. The appellant, herein, felt aggrieved from the judgment and decree dated 26.8.2016 challenged the legality and correctness of the same through an appeal before the Azad Jammu & Kashmir High Court on 24.11.2016. After hearing the parties, the learned High Court has dismissed the appeal through the impugned judgment dated 21.3.2018.
3. Sh. Masood Iqbal, the learned Advocate appearing for the appellant argued with vehemence that the judgment recorded by the District Judge as well as the learned High Court of Azad Jammu & Kashmir is against the record and badly suffers from misreading and non-reading by evidence. The learned Advocate argued that the learned High Court wrongly held that agreement-to-sell was not accepted by the vendee because no signatures are put on the agreement-to-sell dated 27.8.2009. The learned Advocate argued that once a proposal is made with the free consent of a party for consideration and the same is accepted, it becomes agreem ent notwithstanding the fact that signatures of the vendee are available on the document. The learned Advocate argued that the reasons listed by the High Court in support of the impugned judgment are erroneous and contrary to the well-settled proposition of law. He argued that the execution of agreement-to-sell was proved by producing stamp vendor , the marginal witnesses namely Shakeel Shoukat and Khalid Pervaiz and nothing else was required for proof of document, but the District Judge as well as the learned High Court has misread the evidence of these witnesses and drew a wrong and erroneous conclusion from the same. The learned Advocate argued that as the agreement-to-sell was implemented by transfer of the possession and thereafter the appellant, herein, rented out the house in question and the tenant also appeared as witness, who has supported the version of the appellant that he has obtained the house in question from the appellant on rent and is paying the electricity and water charges bills regularly . The learned Advocate argued that onus of proof was wrongly shifted by the learned High Court on the shoulder of the appellant because once execution is proved the onus stood shifted on the defendant to prove that agreement-to- sell was not executed by their father and was concocted one.
4. Sardar Muhammad Azam Khan, the learned Advocate appearing for the respondents argued that the appeal before this Court is not competent because the power-of-attorney on the basis of which the defendant has filed the appeal does not authorize him to file the appeal before this Court. He argued that the attorney was bestowed with the authority for prosecution of the stay order application only, therefore, the very institution of the appeal before this Court is invalid. In support of his submission; the learned Advocate placed reliance on the cases reported as PLJ 1980 SC (AJ&K) 60 and 2014 SCR 1012. The learned Advocate further argued that as the plaintif f was beneficiary of the document, therefore, it was enjoined upon him to prove the execution of the document on the basis of cogent evidence. The learned Advocate argued that the stamp vendor has denied putting of signatures on the agreement-to-sell by the vendee in his presence and he has even not saw him on the relevant day. The learned Advocate further argued that agreement-to-sell was not put to Shakeel Shoukat, P.W. when he appeared before the Court for getting his statement recorded, therefore, an adverse conclusion was liable to be drawn to the effect that had the agreement-to-sell been put to, him he would have supported the same. The learned Advocate argued that even the statement of Khalid Pervaiz P.W. is not confidence inspiring The learned Advocate argued that. Notary Public, who was an important witness in this case, was not produced as witness. The learned Advocate argued that both the Courts below have rightly perused the evidence and their conclusion is unexceptional and hardly requires any interference by this Court.
5. We have heard the learned Advocates representing the parties and have gone through the record of the case. A perusal of the record reveals that a suit for specific performance of contract was filed by the appellant, herein, before the District Judge on 26.7.2010. The agreement-to-sell was allegedly executed by Mehmood Hussain Hashmi on 27.8.2009. After execution of the agreement-to-sell he died. The plot in question was duly transferred in the name of the legal heirs of the deceased, however , during the pendency of the case, the same was cancelled but again it was restored vide order dated 20.12.2016. The moot point in the case is as to whether the agreement- to-sell dated 27.8.2009 has been proved by the plaintif f. The plaintif f has produced Shakeel Shoukat one of the marginal witnesses, who has supported him but his signatures on the agreement-to-sell are not shown to him.
Similarly , the stamp vendor , who has allegedly written the document, also disowned the fact that Mehboob Hussain Hashmi put his signatures on the document in his presence rather he has stated that he did not saw him on the day of execution of the document. His signatures were obtained on the stamp paper through some other persons, who have not been produced by the plaintif f. The other important witness was Notary Public before whom Mehboob Hussain Hashmi appeared and affirmed the contents of the documents (agree ment-to-sell). He was also not produced, There left only Khalid Pervai z, who, though, has supported the version of the plaintif f but the fact remains that as per law at least two marginal witnesses in order to prove the execu tion of agreement-to-sell in view of the provision of Article 17(2) f Qanoo n-e-Shahadat Order , 1984 are required. We have also noticed that the vendee has not put his signatures on the agreement-to-sell although he was present there. The learned High Court while dealing with this question has referred two judgments from Pakistan jurisdiction i,e, 2016 CLC 114 and 2013 YLR 1017 . In the first case it was observed as under:--- "I have noticed that the alleged agreement to sell oil the basis of which plaintif f has lodged his claim, is otherwise on the basis of unregistered General Power-of-attorney (Exh.P4), is not a valid power-of-attorney to give right to the attorney to transfer the plot. Further Exh. P. 3 agreement-to-sell is not signed by the plaintif f-respondent, therefore, I am of the considered view that an agreement to sell not signed by one of the parties cannot be said to be an agreement to sell in the eye of law when the parties to the agreement have to do something for performance of the said agreement. I am clear in my mind that when the alleged agreement is not signed by plaintif f himself he was not entitled to press the said agreement before the Court and further the main thrust of the plaintif f is that he be declared as owner of the suit plot."
And in the second case it was opined as under:-- "In my view, performance of an agreement is required by both the parties and if it is unilateral and signed by one party and signature of the other party is not available on the said document, the same is not an agreement enforceable under law ."
6. The contention of the learned Advocate for the appellant that it was respond ent who had to prove that the document was fraudulent, is devoid of any force. It is well-settled law that where fraud/concoction with respect to the execution of a document is alleged, it is the beneficiary of the document who has to prove the same. The contention of Sardar Muhammad Azam Khan, the learned Advocate for the respondents that the appeal has incompetently been filed, has no force. Though in the power-of-attorney the word "stay order application" is mentioned but as the application for interim relief is a part of main appeal and it has been categorically stated that the case can be prosecuted by the attorney upto this Court, therefore, it cannot be said that the appeal has been filed incompetently .
7. Mr. Masood Ahmed Sheikh, the learned Advocate appearing for the appellant requested for amendment in the pleadings on the ground that the plot in question has been restored during the pendency of the case to the legal heirs of Hameed Hashmi. As the case is otherwise not proved, therefore, allowing the amendment will net bring any fruit for the appellant, herein. Had the case been proved in accordance with law, the restoration of document could have been avoided on the basis of princip le of lis pendens as is enshrined in Section 52 of the Transfer of Property Act.
The upshot of the above is that finding no force in this appeal, it is hereby dismissed with no order as to costs.