Rasaal Hasan Syed, J. In the instant revision petition, judgment and decree dated 25.9.2018, of learned Addl.
District Judge reversing the judgment and decree of the court below in appeal, has been challenged.
2. Precisely the facts necessary for the decision of this revision petition are that respondent filed a suit for possession through specific performance of an agreement of sale dated 17.10.2012, asserting that in terms of the said agreement the petitioner agreed to sell house building on land measuring 3 marlas 41/2 Sirsahi, in Chak No. 203/RB, Manawala for consideration of Rs. 11,50,000/-, received Rs.2,00,000/- as earnest money , stipulated date for the sale deed was fixed as 30.11.201 2, the respondent allegedly approached the petitioner with the request to receive the balance amount and execute the sale deed which the petitioner allegedly refused and this resulted in filing of suit. Petitioner contested the suit and pointed out that the alleged agreement dated 17.10.2012 was forged and bogus document which was never signed or executed by him, the petitioner never agreed to sell his property in favour of the respondent, nor received any amount as earnest money, the plea of purported sale was mala fide, false, and based on forgery and fraud, the suit was filed to illegally harass the petitioner which was liable to be dismissed with special costs. Issues were framed and evidence was recorded, after which the learned Civil Judge disposed of the suit vide judgment dated 18.1.2017, which was set aside in appeal vide judgment dated 29.9.2017, and case was remanded for decision afresh with permission to the parties to produce documentary evidence.
3. In post remand proceedings, the learned Senior Civil Judge, Faisalabad after considering the entire evidence and attending to the respective submissions of both sides dismissed the suit vide judgment and decree dated 19.4.2018 and recorded findings to the effect that the respondent/plaintif f had failed to prove the execution of agreement and was not entitled to any relief. In appeal the learned Addl. District Judge reversed the judgment and decreed the suit of respondent vide judgment dated 25.9.2018 which is subject matter of challenge in the instant revision petition.
4. It was argued by learned counsel that the learned Senior Civil Judge on indepth scrutiny of evidence concluded that the execution of agreement was not proved which findings were reversed by complete misreading of record, non reading of material portions thereof and by ignoring the provisions of Qanun-e-Shahadat Order 1984.
Proceeding further , it was pointed out that the requirement of Articles 17 and 79 of Qanun-e -Shahadat Order 1984 were not fulfilled, the two witnesses were not produced, the alleged transaction was never established, one of the marginal witnesses never appeared in the witness box, the stamp vendor could not be a substitute of the attesting witness, no receipt of alleged earnest money , though claimed, was produced and that the reasoning recorded by the learned trial court were completely overlooked.
5. Supporting the judgment the learned counsel for the respondent submitted that the first appellate court did examine the entire evidence and recorded findings of fact against the petitioner which do not call for any interference and that the respondent had produced sufficient evidence to prove the existence and execution of agreement as also the payment of earnest money.
6. Perusal of the record annexed with the revision petition reveals that respondent' s claim was that on 17.10.2012, an agreement to sell was executed, a sum of Rs.2,00,000/- was paid as earnest money , the price settled was Rs.
11,50,000/-, the balance sale consideration was payable till 30.11.2012, the petitioner refused to transfer the property though the respondent allegedly offered the payment of balance sale consideration. Petitioner categorically disputed the execution or existence of any sale agreement or the receipt of any earnest money and termed the plea of sale as a fraud and conspiracy . In view of the denial of execution, the respondent was under a heavy onus to prove the transaction, the existence of sale transaction, the execution of sale agreement and payment of Rs.2,00,000/- as earnest money. It is settled rule that where the execution of a document is disputed, the beneficiary claiming execution is under onus to prove its execution beyond any iota of doubt and also the transaction as well as the alleged payment of earnest money in terms thereof. The alleged agreement was tendered as Ex.P.1, which statedly bore the signatures of Muhammad Tariq and Muhammad Aslam as attesting witnesses. Muhammad Tariq, one of the attesting witness was produced as P.W.1 while Muhammad Aslam, the other alleged attesting witness, did not appear in the witness box. At the fag-end, his death certificate was produced as Ex.P.5, from which it appears that he had died on 21.8.2014. The evidence of the respondent/plaintif f in the case was commenced from 21.7.2013 when the witness was still alive. Article 17 read with Article 79 of Qanun-e- Shahadat Order 1984 mandate s that a document required to be attested cannot be used until two attesting witnesses have been called for the purpose of proving execution thereof if the two attesting witnesses are alive. Article 80 of Qanun-e-Shahadat Order, 1984 provides that if the attesting witness cannot be found or proved to have died, the document' s execution by the person who purports to have done, needs to be proved by adopting other modes. In the present case, at no point of time any medical certificate of the witness was ever produced to satisfy the court as to the date, month, year when the witness statedly had an attack of paralysis. It was verbally claimed that Muhammad Aslam was suffering from paralysis but no effort was made to produce the requisite medical evidence in support thereof to prove/establish the date from which he was allegedly suffering from paralysis and also the condition of Muhammad Aslam so as to ascertain whether he could depose. It was also not explained as to what part of the body was affected by the paralysis and whether it had irredeemably impaired his speech. The witness remained alive for a year after the commencement of the evidence but no attempt or effort was made for recording his testimony on commission or if it was not possible to place on record any medical evidence to allege and prove that he was incapable of making any speech or recording his statement. These circumstances of course raised an adverse inference against the respondent.
7. So much so, even after his death, the petitioner was supposed to summon his close relative or the person who was familiar with his signature that could have deposed before the court which was never done. In "Anwar Ahmad v. Mst. Nafis Bano through legal heirs" (2005 SCMR 152) it was observed by the honourable Supreme Court to the effect that the fact that the witnesses could not be available by the reason of death, shall be established whereafter the step should be taken to adduce secondary evidence with the leave of the court and simply because no objection was raised to the production of the document would not render the documents proved. In this case neither the son of the witness nor any of his close relative was ever summoned or produced in the court nor any request for the production of secondary evidence was ever made. In "Miran Buksh v. Muhammad Ismail and others" (2016 YLR 420) it was observed to the effect that if the marginal witness is reported to be dead, then the mode of proving, suchlike cases will be to lead secondary evidence like comparison of signatures/thumb impression, with deeds or documents on which they impressed their thumb impression or signed the same which are admitted and secondly to prove the signature of dead witness through identification of their signatures from any one of their relative like son, brother etc. In another case "Mst. Ruqiya Bibi and 10 others v. Allah Ditta and 17 others" (2018 YLR 2118) it was observed to the effect that the document could only be used as evidence if two attesting witnesses, at least, had been called for the purpose of proving its contents, execution and construction.
In the event of death of the witness, the son of the deceased marginal witness shall be summoned to testify the signature of his father and the non-adherence to the rule could result in drawing adverse inference against the concerned party. Undeniably the respondent did not produce any of the close relatives of the deceased witness nor made any attempt to establish the pre-requisites which obviously speaks volumes in showing that the execution of the document was not established.
8. As regards the other attesting witness Muhammad Tariq who appeared as P.W.1, his testimony suffers from many lacunas. In his examination-in-chief he claimed that the document was executed but in cross-examination, he stated that he has no knowledge about the writing or contents of the agreement and he was not aware about the receipt of alleged payment. He was also not aware of the name of the deed-writer and was unaware about the square number , Khewat number and other details of the property . P.W.2, Muhammad Idrees, was not the marginal witness nor his presence could be established from the document itself. Be that as it may, even this witness contradicted the statement of P.W.1 in many respects. The deed-writer who allegedly drafted the document was never produced in the evidence. Respon dent claimed payment of Rs.2,00,000/- as earnest money but no receipt was produced to prove the same.
9. With a view to prove the agreement the respondent was required to produce two marginal witnesses to prove the agreement as also the transaction. The transaction was claimed to have been settled in the baithak of respondent while the alleged agreement was statedly drafted in District Courts. This being so, the transaction was required to be established by producing authentic evidence which is lacking in this case. There were contradictory statements about the alleged payment of earnest money as in cross-examination one excludes the presence of others. Since one of the witnesses was not produced and steps were not taken to seek permission for the secondary evidence nor any close relative of Muhammad Aslam was ever produced. The respondent had failed to prove the agreement as also the transaction. The respondent was also expected to seek the opinion of expert about the thumb impression and also the signature on Ex.P.1; and for this purpose the opinion of the forensic expert could have been solicited but no such effort was ever made. This being so, the execution of the alleged agreement as also the alleged payment of the earnest money could not be proved.
10. The learned Civil Judge took note of all these material requirements of law and the lacunas on record and recorded findings on considering the testimonies but strange enough, the learned Addl. District Judge, ignored all the discrepancies and factors which were noted by the learned trial court. The learned Addl. District Judge, in para 16 of the judgment observed that "though the defendant/respondent has denied the execution of disputed agreement to sell and alleged it to be a result of fraud and forgery but he has orally denied the assertion of plaintiff and did nothing to rebut the evidence, because he has not filed any suit for cancellation of this document, even he has not opted to get comparison of the thumb impression over the disputed agreement to sell with the original thumb impression. Even after the death of one witness the evidence on record is sufficient to support the version of the plaintiff...".
11. These observations of learned Addl. District Judge rested on novel assumption of law. Undeniably , one who alleges a positive fact is under obligation to prove it. Any one claiming execution of the document, the execution whereof is denied, is under a heavy onus to prove the transaction and also the execution of the document by fulfilling the pre-requisite of Article 17 and 79 of the Qanun-e-Shahadat Order , 1984. The person claiming to be beneficiary of document, the existence and execution whereof is denied, is required in law to prove beyond doubt the transaction and also the execution both. It was sufficient for the petitioner to deny the execution and then it was for the respondent to prove the positive plea of execution and also the payment. And for doing so he was required to produce two marginal witnesses; and if one witness was not available or allegedly had died, secondary evidence could have been led, which was never done. The deed-writer could have been produced report of forensic expert could have been sought but nothing in this regard was done by the respondent. The onus was upon the respondent and not the petitioner to prove in negative. It was not required by law for the petitioner to have filed a suit for cancellation of a document which he claims to have never executed. It was a case wherein the respondent had approached the court to enforce the alleged agreement, the execution whereof was simply denied and the transaction was also not admitted. The respondent as a plaintiff, with a view to seek relief, was therefore under bounden duty to bring on record the entire evidence by which the transaction could be proved and execution could be established. This having not been done, the respondent was to suffer but the petitioner had to suffer. The learned Civil Judge minutely examined all these factors and thereafter recorded finding to the effect that the execution of the agreement or the alleged payment of earnest money or the alleged existence of transaction was never proved; while the learned Addl. District Judge, by ignoring the entire reasoning which prevailed with the learned trial court and also the evidence on record reversed a well-reasoned judgment of learned trial court, which cannot be countenanced.
12. For the reasons above, this revision petition is allowed and the impugned judgment dated 25.9.2018 of the learned Appellate Court is set aside; in result, the judgment of the learned trial court dated 19.4.2018 is restored and the suit of the respondent for specific performance shall remain dismissed .