Precisely, the respondents/plaintiffs instituted a suit for specific performance of an agreement to sell dated 10.11.1987 in respect of plot situated in Khasra No.759/242, previous Khewat No.15 and present Khewat No.21, Khatuni No.43, as per register Record of Rights for the year 2000-2001, Mauza Saidrah Khurd, District Sialkot, contending therein that predecessor in interest of the petitioners namely Noor Muhammad entered into an agreement to sell with the respondents in respect of the suit land and received Rs.10,000/- as earnest money and promised to execute the sale deed after three months after receiving the remaining sale consideration Rs.30,000/- and he made an endorsement in presence of the witnesses at the back side of the agreement to sell in question. It was further asserted that the predecessor in interest of the petitioners handed over the peaceful possession of the plot to the respondents and through the said endorsement Noor Muhammad agreed to execute the sale deed after redemption of the suit land. After death of Noor Muhammad the respondents came to know that the land in question has been redeemed from the Bank but his legal heirs refused to transfer the suit land.
The suit was contested by the present petitioners/ defendants by way of filing written statement wherein they controverted the averments of plaint and prayed for dismissal of the suit. The divergence in pleadings of the parties was summed up into issues and evidence of the parties in pro and contra was recorded. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 16.02.2010 decreed the suit in favour of the respondents/plaintiffs. The petitioners being dissatisfied preferred an appeal against the same but the learned appellate Court vide impugned judgment and decree dated 06.12.2012 dismissed the appeal; hence, the instant revision petition.
2. Heard.
3. Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984 provides that in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly;' meaning thereby when two persons enter into any agreement pertaining to financial or future obligations, the instrument should be attested by two men or one man and two women, so that one may remind the other.
Article 79 of the Qanun-e-Shahadat Order, 1984 enumerates the procedure of proof of execution of document required by law to be attested; for ready reference the said provision of law is reproduced here:- 'If a document is required by law to be attested, 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.'
In the present case, the respondents/plaintiffs claim decree for specific performance of agreement to sell (Ex.P1) with regards to the property in dispute allegedly entered into by predecessor in interest of the petitioners namely Noor Muhammad with them, but the respondents/plaintiffs, in order to prove the execution of the alleged agreement to sell (Ex.P1), have failed to produce marginal witnesses of the same and only produced Muhammad Akram (P.W.3) and Muhammad Sarwar (P.W.4), who are witnesses of alleged statement made overleaf on 25.01.1988 and not of alleged agreement to sell dated 10.11.1987, besides other witnesses, meaning thereby the original agreement to sell dated 10.11.1987 has not been proved as per requirements of law as enunciated under Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 and in this regard, this Court seeks guideline from the celebrated judgment reported as Hafiz Tassaduq Hussain Vs. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241) and Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089).
In addition to the above, admittedly, the respondents did not agitate the matter before any forum or issued any legal notice to the predecessor in interest of the petitioners for performance of his part of alleged agreement in his life time despite the fact that he remained alive for a considerable period of five years after execution of alleged agreement to sell (Ex.P1), which casts doubt about the veracity and authenticity of the same. It is also notable that the respondents pleaded that the petitioners have got redeemed the suit property and intended to sale out the same but while appearing in the witness box P.W.9- Muhammad Rafique, one of the plaintiffs during cross examination deposed that he did not know as to when the property was redeemed and further stated that when suit was instituted the property was still mortgaged with the Bank but the plaintiffs did not implead the concerned Bank in the array of the defendants. All these facts lead this Court to the conclusion that the document i.e. agreement to sell Ex.P1 has been maneuvered only to deprive the petitioners of their valuable rights.
4. Pursuant to the above, the learned Courts below have misread and non-read evidence of the parties and have committed material illegalities and irregularities. Both the Courts have failed to exercise vested jurisdiction as per mandate of law, which has resulted in miscarriage of justice as the respondents were seeking relief under Specific Relief Act and overwhelming as well as unimpeachable evidence was required to prove their stance, wherein they failed because they did not produce the marginal witnesses of the alleged original agreement to sell and even did not produce any evidence as to when, at what place and in whose presence the bargain with regards to sale of the disputed property took place, which culminated into execution of alleged agreement to sell. When the position is as such, the discretionary relief of specific performance cannot be extended to the respondents/plaintiffs.
5. In view of the above, the revision petition in hand is accepted, impugned judgments and decrees dated 16.02.2010 and 06.12.2012, respectively, are set aside, consequent whereof, suit of the respondents/plaintiffs for specific performance stands dismissed. No order as to the costs.