SHAHID BILAL HASSAN, J.----Learned counsel for the appellants does not press this appeal to the extent of respondent No.2 and seeks its withdrawal. In this view of the matter , the instant appeal stands dismissed as withdrawn to the extent of respondent No.2.
2. Facts, in brevity , are as such that respondent No.1/plaintif f instituted a suit for specific performance of agreement to sell dated 13.04.2003 in respect of land measuring 19 acres situated at Dab Kalan, Tehsil Shorkot, District Jhang. It was asserted that originally the respondent No. 1/plaintif f obtained the land in dispute on lease from Muzaf far Abbas, father of the appellants and an amount of Rs.232,750/- was paid as lease money from 01.01.2003 to 30.06.2006. Further maintained that appellant were defaulters of Zarai Taraqiati Bank Shorkot, District Jhang, so they showed their willingness to sell the disputed land, so the bargain was struck for Rs.19,00,000/- and alleged agreement to sell was executed on 13.04.2003; that Rs.300,000/- was paid as earnest money; that the respondent No.1/plaintif f paid the agricultural loan in Zarai Taraqiati Bank Shorkot, District Jhang to the tune Rs.10,41,230/-, paid agricultural tax amounting to Rs.87 ,853/- and one car was purchased from Ghulam Muhammad by the appellants for a consideration of Rs.30 0,000/- which was allegedly paid by the respondent No.1/plaintif f and remaining amount Rs.171,617/- had also been received by the appellants in cash, so entire consideration had been paid but the appellants refused to transfer the disputed land in favour of the respondent No.1/plaintif f; hence, he was forced to institute the suit.
The suit was contested by the present appellants by submitting written statement. Muhammad Rafique, respondent No.2 submitted separate written statement. Out of divergent pleadings of the parties, issues were framed and evidence of the parties, oral as well as documentary , was recorded. The learned trial Court vide impugned judgment and decree dated 26.09.2009 decreed the suit in favour of the respondent No.1/plaintif f subject to payment of Rs.471,617/- within 30 days. The appellants, being aggrieved of the said judgment and decree preferred an appeal, but the same was dismissed vide impugned judgment and decree dated 16.04.201 1 passed by the learned Addl. District Judge, bang. Hence, the instant regular second appeal.
3. Heard.
4. Considering the arguments advanced at bar by learned counsel for the parties and going through the record, it is observed that allegedly the disputed land is in possession of the respondent No.1, which was obtained by him as lease holder from the father and husband of the present appellants, on 01.01.2003 for a period of four and half years, but within a period of three months of said lease, the alleged agreement to sell Ex. P1 was reached at between the parties as has been pleaded by the respondent No.1, though the same has been differed by P.W.2, who, during cross examination stated that the respondent No.1/plaintif f had been cultivating the disputed land on lease for the last one year from the date of arriving at the disputed agreement to sell. There is nothing on record to suggest as to when, where and in whose presence the alleged bargain of agreement to sell was struck which resulted into Ex.P1 (which was admittedl y written down by the respondent No.1 himself on a white paper) and it was an unregistered document. This very fact casts doubt about the veracity and authenticity of the alleged agreement to sell (Ex.P1) especially when the respondent Nc.1/plaintif f did not produce the alleged lease agreement in evidence. In Abdul Majid Mia v. Moulvi Nabiruddin Pramanik and 3 others (PLD 1970 Supreme Court 465) it was held:- 'waving seen the original ourselves, we are inclined to think that it is a spurious document. It was not written by a regular deed writer , and the plain paper on which it was written, with revenue stamps affix on it, adds to its suspicious character .'
Here, in this case, on the alleged agreement to sell Ex.P1 even no stamp was affixed at the time of its execution.
In addition to this, after specific denial about execution of the said agreement to sell by the appellants and affixation of thumb impression and making of signatures over it, the respondent No.1 did not make any exertion to get the same compared with admitted signatures and thumb impression by moving an application in this regard, which fact also goes against the respondent No.1/pl aintif f, but this aspect has also been ignored by the learned Courts below while passing the impugned judgments and decrees.
Moreover , P.W.2 is real brother of the respondent No.1/plaintif f, so his evidence cannot be relied upon especially when he contradicted the stance of the respondent No.1 about the period of his possession over the disputed land on lease and reaching at of the disputed agreement to sell. So, the possession of the respondent No.1 over the disputed land is also not proved to be in pursuance of the alleged agreement to sell Ex.P1.
5. Apart from the above, payment of alleg ed earnest money amounting to Rs.300,000/- was also not proved by the respondent No.1, because besides his solitary statement the other witnesses produced by him i.e. P.W.2 and P.W.3 have not uttered a single word in this regard. P.W.4 is Patwari Halqa, who served notices for agricultural tax and he categorically deposed that Azhar Abbas handed him over three challans valuing Rs.87,153/- after depositing.
Though in his examination in chief he deposed that plaintif f told him that he had bargained with the appellants about the sale of the disputed land, so he handed over the challans to him, but in his cross-examination he stated that it was incorrect that Azhar Abbas told him about bargain, meaning thereby his earlier deposition that Azhar Abbas told him about said alleged fact at his Dera was not correct. Moreover , this witness did not produce the original receipts germane to payment of agricultural tax rather submitted photocopies of the same as Mark-A to Mark-D, which cannot be relied upon because "marked" documents have no legal value and sanctity in the eye of law; in this regard Rule 4 of Order XIII, Code of the Civil Procedure, 1908 is relevant, which reads:- '4. Endorsements on document admitted in evidence.--(1) Subject to the provis ions of next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:-
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted: and the endorsement shall be signed or initialed by the Judge.
(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the Judge. '
The above provision of law makes it vivid that when a document is not brought on record through witness(s) and duly exhibited, the same cannot be taken into consideration by the Court. When sun a matter came up before the apex Court of country , it was held in reported judgment Federation of Pakistan through Secretary Ministry of Defence and another v . Jaffar Khan and others (PLD 2010 Supreme Court 604):- 'The document which has not been brought on record through witnesses and has not duly exhibited, cannot be taken into consideration by the Court. '
The same was followed in Abdullah v. Provincial Government through Secretary Board of Revenue and 3 others (2014 CLC 285 Balochistan) and similar view was adopted in Inspector -General of Police, Balochistan, Quetta and 4 others v. Ghulam Rasool (2012 CLC 1645 - Balochistan). Even prior to it, the Hon'ble Supreme Court in a case reported as State Life Insurance Corporation of Pakistan and another v . Javaid lqbal (2011 SCMR 1013 ) held:- 'We are not convinced that, such document, which has not been produced and proved in evidence but only "marked" can be taken into account by the Courts as a legal evidence of a fact.'
The ratio of said judgment was followed and relied upon along with Anwar Ahmad v. Mst Nafiz Bano through Legal Heirs (2005 SCMR 152), in Syed Abdul Manan and others v. Malik Asmatullah and others (2019 CLC 1096 - Balochistan).
6. Mere marking of a document as an exhibit would not dispense with requirement of proving the same and the same cannot be exhibited unless it is proved. In the present case the situation remained the same, but the learned Courts below have not considered and dilated upon the requirement of law because admitting photocopy of a document in evidence and reading the same in evidence without observing legal requirements of Article 76 of the Qanun-e-Shahadat Order , 1984 would be illegal. Reliance is placed on Feroz Din and others v. Nawab Khan and others (AIR 1928 Lahore 432) Fazal Muhammad v. Mst. Chohara and others (1992 SCMR 2182 ) and Abdul Rehman and another v. Zia-Ul-Haque Makhdoom and others (2012 SCMR 954). Neither authors of the documents nor the witnesses nor such documents in original have been produced in Court for inspection purposes. Thus, such documents, without formal proof, cannot be relied upon; reliance is placed on Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160), but as against this, the learned Courts below placing reliance on such documents have proceeded to pass the impugned judgments and decrees, Which cannot be allowed to hold field.
7. Even, the respondent No. 1/plaintif f could not prove making of payment of Rs.300,000/- towards purchase of car by the appellants, because the witnesses produced by him are silent in this regard. However , this fact has totally been ignored and non-read by the learned Courts below .
8. For the foregoing reasons, when glare misreading and non-reading of evidence is on record, the impugned judgments and decrees cannot be allowed to hold field further and concurrent findings can be interfered with in exercise of jurisdiction under section 100 of the Code of Civil Procedure, 1908 because such findings are not sacrosanct that they cannot be disturbed. Resultantly , the appeal in hand is allowed, impugned judgments and decrees passed by the learned Courts below are set aside, consequent whereof suit instituted by the respondent No.1/plaintif f stands dismissed with no order as to the costs.