This revision petition arises from judgments of the courts below dated 09.2.2018 and 15.6.2019 in terms whereof the suit for specific performance was dismissed and appeal against the same was declined.
2. Petitioners/plaintiffs filed a suit for specific performance of an agreement of sale dated 30.12.2000, claiming that in terms of the alleged agreement respondent No.4 contracted to sell land measuring 100 kanals for a total sum of Rs.6,50,000/-. It was further alleged that respondent received Rs.3,85,000/- as earnest money and thereafter balance consideration was discharged on 16.11.2009 and 16.5.2012 by respective payments of Rs.2,00,000/- and Rs.1,00,000/- and that the alleged sums were acknowledged through receipts. It was also alleged that the respondent was to seek permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 for the alienation of the suit property which was avoided and ultimately refused and in view thereof the suit for specific performance was instituted to enforce the agreement. Respondent No. 4 contested the suit, denied the existence or execution of sale agreement or the receipts of any payment pursuant to any agreement as alleged. The suit was dismissed by the learned trial court vide judgment dated 09.2.2018, after considering the evidence of parties. Appeal of the petitioners against dismissal of suit was also turned down by the learned Addl. District Judge on 15.6.2019. In this revision petition the validity of both the judgments is now under challenge.
3. Learned counsel for the petitioners argued that the impugned decisions of the learned courts below were a result of misreading and non-reading of evidence; the respondent No.1 having denied the execution/thumb impression/signatures, the onus was upon him to prove that the document was not genuine; the oral and documentary evidence produced by petitioners including the testimonies of stamp vendor and deed writer were good enough to prove the execution which were illegally disbelieved; and that the petitioners had discharged the onus of proof through cogent evidenc e which could not be rebutted by the opposite side and in these circumstances, the judgments of two courts below could not sustain.
4. Learned counsel for the respondents, who was in attendance on watching brief, was also allowed to argue the case in rebuttal. He submitted that concurrent findings of fact were recorded by two courts, no specific misreading or non-reading of evidence could be pointed out, execution of the document or the payment under it as alleged were never established or proved throug h any admissible evidence and that interference in revisional jurisdiction against findings of facts concurrently recorded by the courts below , in the absence of gross misreading of evidence, is never allowed.
5. Deeper analysis of the material placed on record reveals that the petitioners' claim was based on the agreement of sale dated 30.12.2000 which was categorically denied by respondent No. 4 who termed the entire story as fictional. In view of the positive assertion as to the alleged execution of agreem ent and claim for payment of earnest money heavy onus was upon the petitioners to prove the agreement and payment under it in accordance with the provisions of Articles 17 and 79 of Qanun-e-Shahadat Order , 1984. These provisions mandate that two attesting witnesses shall appear to prove the execution of document. In this case only one attesting witness was produced and about the other attesting witness it was claimed that he had died. Son of the deceased witness appeared as P.W.2, whose testimony was disbelieved by both the courts below and rightly so. Obviously , he was not a witness to the execution of document or to the settlement of transaction nor he claimed so in his deposition.
He was also not a witness to any alleged payment of earnest money . His testimony under the circumstances could only be to the extent of signatures of his father which too was not free from doubts.
6. Nazir Ahmad son of Imam Bakhsh who appeared as P.W.2 in the place of his deceased father , claimed in his examination-in-chief that the signatures on Ex.P.1 and Ex.P.2 were of his father . In cross-examination he admitted that he was illiterate. He produced a copy of the National Identity Card of his father where his specimen signatures were as "Imam Bakhsh Baqalm Khud". The witness admitted that his father used to suffix the words "Baqalm Khud" with his signatures and that on Ex.P.1 and Ex.P.2 the words "Baqalm Khud" were missing. The witness did not produce any agreement/conveyance to show any practice of his father to sign with or without the words "Baqalm Khud". It was for the petitioners to prove that the deceased was in the habit of making signatures with and without the word "Baqalm Khud" but no such effort was made nor any attempt was made to seek expert opinion as to the alleged signatures of the witness on Ex.P.1 and Ex.P.2 in comparison with his signature on National Identity Card where he had signed as "Imam Bakhsh Baqalm Khud". The argument that the deed writer 's statement could prove the execution is legally unsound and untenable as the deed writer is not an attesting witness nor he claims to have signed the disputed document Ex.P.1 and Ex.P.2 or Ex.P.3 and Ex.P.4, as attesting witness. So much so these documents do not bear his signatures in any capacity . In "Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others" (PLD 2011 SC 241) it was observed by the august Supreme Court that the scribe of the document could only be a competent witness in terms of Articles 17 and 79 of Qanun-e -Shahadat, 1984 if he had affixed his signature as an attesting witness of the document and not otherwise and that signing of the documents in the capacity of a deed-writer did not fulfill and meet the mandatory requirement of attestation by him separately.
Similar observations were made in the case of "Farzand Ali and another v. Khuda Baksh and others" (PLD 2015 SC 187) wherein the honourable Supreme Court observed to the effect that the scribe of the agreement was not a substitute for an attesting witness and did not legally qualify to be so, therefore, his evidence may have a supporting value but was neither in line with the mandate of law nor did it meet the test of Article 79 of Qanun-e- Shahadat, 1984. In view of the rule supra, the arguments advanced by learned counsel for the petitioners on the basis of the alleged statement of the deed-writer do not have legal substance. Even otherwise, it has been observed from the statement of deed-writer that he had admitted that he did not have any license of deed-writing.
7. The argument that having disputed the thumb-impression and also the signature, respondent No.4 was under onus to prove the same, is legally unsound and contrary to settled rule. It has been repeatedly observed that a person pleading positively the existence of transaction, execution of documen t, the thumb- impression and signature of the alleged executants, will be under a heavy onus to prove the same and that as a matter of rule the beneficiary of the document is always required in law to establish the transaction and also the alleged execution by producing two attesting/marginal witnesses and in the cases of thumb-impression by seeking forensic examination of the thumb-impression in comparison with the admitted thumb-impression.
Failure to do the needful will obviously operate negatively against the alleged beneficiary . Reference can be made to "Wali Muhammad Khan and another v. Mst. Amina and others" (2018 SCMR 2080 ). Likewise, in "Khaliqdad Khan v. Mst. Zeenat Khatoon" (2010 SCMR 1370 ) it was observed that onus to prove the transaction embodied in the mutation would essentially lay upon its beneficiary who had to establish that the same was a result of conscious application of mind and not under influence of fraud played upon him and that the beneficiary must prove it by producing evidence in accordance with the accepted principles of Qanun-e- Shahadat Order , 1984. In "Fida Hussain v. Murid Sakina" (2004 SCMR 1043 ) it was observed that where the mutation is challenged on the plea of non-existence of transaction, the burden squarely lies on its beneficiary to prove not only the mutation but also the original transaction which he is required to fall back upon.
8. The other important aspect as also noted by the courts below , was that petitione rs in their plaint claimed that the sale agreement was allegedly executed on 30.12.2000 when Rs.3,85,000/- was allegedly paid as earnest money and receipt Ex.P.2 was executed in acknowledgement thereof. The perusal of Ex.P.1 also shows that in its recital the alleged earnest money was shown as Rs.3,85,000/- and same is reflected in the body of the document as well, which was allegedly paid in the presence of the witnesses at the time of alleged agreement. In his deposition, the petitioner as P.W.1 stated that the respondent was allegedly paid Rs.3,50,000/- and not Rs.3,85,000/- at the time of alleged agreement. He was confronted in cross-examination with the statement of plaint but it did not support either the contents of agreement or his statement in plaint. This being so there was a material contradiction in the oral and the documentary evidence. Same is the position with the statement of other witnesses, who did not depose in terms of Ex.P.1 or in terms of the statement in plaint regarding alleged earnest money . The two courts below , therefore, rightly observed that the contra dictions in oral as well as documentary evidence were another relevant factor to show hollowness in the stance of petitioners.
9. The next aspect is that Ex.P.1 shows that the alleged agreement was signe d and thumb-marked by Allah Bachaya respondent No. 4. The petitio ner could have taken steps to obtain specimen thumb-impression of respondent No.4 which could be sent, along with the disputed thumb-impression, for expert view through forensic test but no such effort was made. Obviou sly, the onus was upon the petitioners who were expected to explore all possible means to prove the document, and to bring all relevant evidence to establish execution. Failure on their part to do so, speaks volumes to negate the plea of execution. It is also manifest from the record produced that the petitioner claimed transfer of possession under the alleged sale agreement but they could not produce any documentary evidence, like Roznamcha Waqiati to support the plea and show any change in the revenue record so as to insert the words "possession ba-tasawar baee". No such entry having been made the plea of transfer of possession under the alleged sale agreement stood belied.
10. In the cases where the plaintiff claims a transaction of sale, execution of an alleged agreement, the payment of earnest money, the entire onus is upon him to prove, firstly, the settlement of terms and conditions of alleged transaction and, thereafter, to prove the execution of the alleged agreement and payment of earnest money. It is always expected that the person claiming agreement should know the day, date and month when the claimed transaction was allegedly executed or settled and the agreement executed. Reference can be made to the observation in "Muhammad Nawaz through LRs. Vs. Haji Muhammad Baran Khan through LRs and others" (2013 SCMR 1300). In the present case the petitioner as P.W.1 was unable to depose the day, date, or month and claimed that he could only recollect the year 2000 which would make his stance doubtful. The alleged agreement shows date of completion of transaction and date fixed for payment of balance price as 30.5.2001 but the petitioners were silent as to what happened for next eight years of the alleged agreement, as during those eight years they made no correspondence to claim agreement or ever insist for the procurement of permission from the Collector under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 nor did they file a suit for enforcement of the agreement. It is only after nine years that receipts Ex.P.3 and Ex.P.4 were fabricated and in terms whereof it was claimed that Rs.2,00,000/- were paid on 30.12.2009 which too could not be proved as the depositions in this regard were self-contradictory and unbelievable and rightly so disbelieved by the courts below. The petitioners fabricated the stance of alleged payment on 16.11.2005 and 15.5.2012 which is inexplicable hiatus in years from the date of alleged document. As rightly held by the courts below, an attempt was made to cover up the lacuna by concocting two receipts of alleged payment of balance sale consideration which were produced as Ex.P.3 and Ex.P.4 but the same could not be proved through any credible evidence. It cannot be ignored that respondent No.4 was an illiterate persons as also confirmed by him in his statement on oath as D.W.1, but despite that the agreement is not shown to have been witnessed by any of the close relatives, like son nor any evidence of independent advice is claimed and this sufficiently raised serious doubts in the claim of petitioners.
11. The cumulative effect of all these factors and circumstances proved beyond doubt that the entire case of the petitioners was ill-founded, the alleged transaction, the agreement and also the alleged receipts were never proved by any credible or admissible evidence. The learned courts below after indepth scrutiny of the evidence, concurrently held that the petitioners had failed to prove the existence or execution of alleged transaction/agreement. No specific misreading or non-reading of evidence, affecting the findings could be pointed out in the course of hearing of this petition nor any misreading or non-reading was observed.
12. The findings recorded by the courts below are based on correct analysis and appreciation of evidence which suffer from no error of law, hence do not call for any interference. In result this revision petition is devoid of merit which is dismissed .