Ghulam Mustafa and his wife Razia Mai (respondents' No. 1 and 2) were summoned even through publication made in daily Nawa-i-Waqt but they did not turn up, where after again notices were issued to them. This time both have been served but did not appear despite the fact that file was kept pending till 02:30 pm, so they are proceeded ex-parte.
2. Initially suit for specific performance was filed by Allah Bakhsh (appellant) against Ghulam Mustafa/respondent No. 1 on 29.09.2010. Later on, an application (27.10.2010) was submitted by appellant for amendment, as suit property (disputed land) was transferred by Ghulam Mustafa to his wife Razia Mai/respondent No. 2. It was allowed, so on 11.12.2010 an amended plaint was filed and Razia Mai was impleaded as defendant No. 2. When they did not appear in response to notices, they were proceeded ex-parte vide an order dated 19.02.2011. Subsequently, another application for amendment, on 03.03.2011, brought by appellant was allowed resulting into submission of final amended plaint on 17.03.2011. On 21.03.2012, suit was decreed ex-parte in favour of appellant. It was 06.03.2013, when respondents filed a petition for setting aside ex-parte proceedings and decree, that was accepted vide an order dated 07.11.2013 and the decree was set aside.
3. Disputed land in this case is measuring 4-Kanals, situated at Basti Sultan, Tehsil Mailsi district Vehari. In plaint appellant pleaded that he entered into an agreement to sell with respondent No. 1 on 02.08.2010 (P1) against a consideration of Rs.5,75,000/- (five lacs and seventy five thousands); an amount of Rs.5,25,000/- (five lacs and twenty five thousands) was paid as earnest money; possession was also delivered to appellant; sale deed was agreed to be executed on or before 20.01.2011; later on, it transpired that respondent No. 1 transferred the disputed land to his wife/respondent No. 2 through a mutation of gift No. 1592 dated 18.08.2010 (D-3) on the basis of so- called report entered in Roznamcha Waqaiti on 05.08.2010, which was liable to be cancelled.
Ultimately prayer was made for the decree of specific performance.
4. In joint written statement submitted by respondents, their version was that disputed land was transferred to respondent No. 2 by respondent No. 1 in lieu of dower. It was further asserted that agreement to sell was based on fraud, result of connivance as respondent No. 1 never agreed to alienate disputed land and he also did not affix his thumb impression anywhere. Dismissal of suit was prayed for.
5. From pleadings of the parties following issues were framed by the learned trial court: - i. Whether the defendants agreed to sell suit land for consideration of Rs.5,75,000/- receiving Rs.5,25,000/- as earnest money and getting registered sale agreement deed No. 31/02.08.2010 in presence of witnesses? OPP ii. Whether the gift mutation No. 1592 dated 18.08.2010 was got attested by the defendant No. 1 in favour of defendant No. 2 was against law and facts, outcome of malafide and connivance and liable to be cancelled? OPP iii. If the above issues are proved in affirmative, whether the plaintiff is entitled to get a decree for specific performance of sale agreement as prayed for? OPP iv. Whether the plaintiff is estopped by his words and conduct to file this suit? OPD v. Whether the suit of the plaintiff is barred by law? OPD vi. Whether plaintiff has no cause of action to file this suit? OPD vii. Whether the suit of the plaintiff is liable to rejected u/o 7 rule 11 of CPC? OPD viii. Whether the plaintiff has filed this suit only to harass and blackmail the defendants and the defendants are entitled to recover special costs u/s 35-A of CPC? OPD ix. Relief
6. In evidence appellant, Allah Bakhsh himself appeared as Pw-1 and he also produced Sh.
Muhammad Iqbal (Pw-2), Kareem Bakhsh (Pw-3), Haji Faiz Bakhsh (Pw-4), Asghar Majeed Baloch (Pw-5), Hamid Ali Shah (Pw-6) and Malik Naseem Abbas Advocate (Pw-7).
7. On the other hand both respondents appeared as Dw-1 and Dw-2 respectively, whereas one Rab Nawaz was brought in witness box as Dw-3.
8. Pursuant to a judgment and decree dated 30.10.2014 passed by the learned civil Judge, Tehsil Mailsi district Vehari, suit was decreed in favour of appellant. However an appeal filed by respondents was allowed vide judgment and decree dated 06.06.2017, passed by the learned Additional District Judge Tehsil Mailsi, district Vehari and suit was dismissed, hence this regular second appeal by appellant.
9. HEARD.
10. This is regular second appeal and I am conscious of the fact that it can be filed on the grounds that the decision being contrary to law or to some usage having the force of law or that the decision having failed to determine some material issue of law or usage having the force of law or a substantial error or defect in the procedure provided under CPC or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. In the case in hand while reversing the decision of learned trial court, as there is complete failure and miscarriage of justice by the learned Additional District Judge who is responsible for mis reading and non reading of evidence and wrongly determined the issue of fact by reason of omission and error therefore, evidence needs to be reappraised to do the complete justice. In Madan Gopals' case leave to appeal was granted to consider that the High Court had acted without jurisdiction in upsetting, in second appeal, the findings of fact arrived at by the First Appellate Court and it was held as under: - "The legal position does not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with1 that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon its merits. Interference would also be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law or has failed to determine some material issue of law or usage having the force of law. If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal" (Emphasized)
11. Appellants' case is that respondent No. 1 entered into an agreement to sell with him on 02.08.2010 (P-1). On that day as certified copy of Jamabandi was not with seller, so document could not be registered. It was 10.08.2010, when agreement was placed before Sub-Registrar Mailsi, where it was duly registered. On the other hand version of respondents is that, respondent No. 1 transferred the disputed land to respondent No. 2 through a mutation of gift No. 1592 (D-3) in lieu of dower. The event was recorded in Roznamcha Waqaiti on 05.08.2010 and finally mutation was sanctioned on 18.08.2010. It was further claimed that respondent No. 1 never entered into any agreement to sell or thumb marked any document.
12. The stamp papers were issued on 02.08.2010 by Sh. Muhammad Iqbal (Pw-2), who appeared in Court and made a statement in this regard. It is important to mention here that the examination- in-chief, which he made in ex-parte proceedings was admitted to be valid by respondents, so he was simply cross-examined in post revival proceedings. In his examination-in-chief, he had produced in court the original register and copies thereof (Mark-A and Mark-B) were also placed on record. As cross-examination was made after about three years and till that time the register was consigned to record room, therefore, only focus in cross-examination was about non- availability of original registrar. He had undergone lengthy cross-examination but his credibility could not be shattered. The documents (Mark-A and Mark-B) he produced, made it clear that both the parties appeared before him and purchased the stamp papers, where both sides not only affixed their thumb marks but numbers of their CNICs were also noted down. The property which they agreed to sell, its details beside the sale consideration were also recorded there. The fact that thumb impressions had to be at what place of register and CNIC numbers had to be recorded above or under the thumb impression of a particular person cannot be a reason to discard the entries and statement of an independent person who was a licensed stamp vendor. Agreement (P-1) is also having signatures of respondent No. 1 Ghulam Mustafa at all relevant places where he affixed his thumb impressions. At this juncture I will like to highlight the conduct of respondent No. 1, whose case was that he never affixed his thumb impressions on the document. In cross- examination he specifically replied that he cannot sign and he only affix his thumb impression. He did not produce his original or copy of CNIC. He offered a lame excuse that his CNIC was misplaced because he wanted to suppress his signature there. Perusal of Vakalatnama, application for setting aside ex-parte decree, affidavit, application for suspension of decree, affidavit and written statement show that on all these documents he had made his signatures and when he was cross- examined on this particular subject he replied as under: -
13. Ghulam Mustafa, in view of above, appears to be a desperate litigant who felt no fear to depose falsely on the facts for which he had no margin for denial. He negated his signatures on all admitted documents only for the reason that his signatures were available on the agreement to sell. Therefore, he is proved to be a lier and lost his worth.
14. It is relevant to add here that later on original registrar of stamp vendor was also produced in court by Hamid Ali Shah Record Keeper (Pw-6).
15. The agreement (P-1) was written, signed, thumbs marked and presented before the Sub- Registrar Tehsil Mailsi, where it was duly registered in accordance with law by assigning serial No. 1129 on 10.08.2010. Although under Article 129 (e) of the Qanoon-e-Shahadat Order, 1984 the court may presume that official acts have been regularly performed, but appellant also produced Asghar Majeed Baloch Sub-Registrar (Pw-5) who confirmed the registration of agreement by him on appearance of both the parties. According to his examination-in-chief: - i. Both the parties appeared before him for registration of agreement. ii. Ghulam Mustafa made a statement that he had agreed to sell his land measuring 4 Kanal for Rs.5,75,000/- iii. Ghulam Mustafa admitted that he had received Rs.525000/- and remaining Rs.50000/- he will receive on 20.01.2011 at the time of registration or mutation. iv. Both the parties were identified by Malik Naseem Abbas Advocate and Kareem Bakhsh Khewat Dar. v. Both the parties signed and thumbs marked in his presence. vi. CNICs numbers of both the sides were noted in his presence. vii. Both the parties made statements about agreement with their free well and consent.
16. This gentleman, too, faced considerable cross-questioning, but with no outcome in favour of respondents who were completely failed to disturb his worth as he had no reason to make an incorrect statement in favour or against any of the parties.
17. Malik Naseem Abbas Advocate, who had identified both the parties before the Sub-Registrar, also came in witness box as Pw-7. The conduct of learned Advocate seems to be dubious who instead of helping the court to arrive at a just decision, decided to keep him away from both the parties. In witness box, he stated that he did not want to say anything about Ex-P1 and the parties may prove the document by producing their evidence. He was declared as hostile and cross- examined by both the sides. Some of the important replies he made were as under:- i. It is correct that Ex-P1 carries my signature. ii. I do not remember that I had signed in token of identification of both the parties to the document. iii. I have no knowledge that I had identified the parties however Ex-P1 is before the court and whatever the record is there the position is in accordance with that record. iv. I do not want to say anything about the document as it is a matter between the parties.
18. When the statement of learned Advocate is read as a whole without any pick and chose, it is manifest that he was present before Sub Registrar at the time of registration of agreement where he had identified both the parties.
19. Kareem Bakhsh is one of the marginal witnesses of the agreement. He also in the same manners, as alleged by appellant, pleaded that on 02.08.2010 both parties entered into agreement to sell which was registered on 10.08.2010. He categorically added that both Allah Bakhsh and Ghulam Mustafa besides the marginal witnesses had signed and affixed their thumbs impressions.
Even his credibility could not be shattered by the rival during cross-examination.
20. The learned Additional District Judge only on the ground that second marginal witness was not produced had reserved the decision of the learned trial court. He did not take notice of the fact that the other witness Sardar Muhammad is the first cousin of respondent No. 1, who had connived with him therefore he was not brought in witness box. The first appellate court further skipped the fact that stamp vendor who is also the author of the agreement could be validly considered a witness to the transaction. Statement of Sh. Muhammad Iqbal (Pw-2) makes it clear that he scribed the agreement at the desire of both the parties, it was read over to both of them, they accepted it as correct and then signed and thumb marked. The agreement in addition to the parties and the witnesses was also signed by the said stamp vendor, which he identified as Ex-P1/1-4.
21. Responding to identical question, the apex Court in Nazir Ahmad's case was pleased to hold as under: - "In the instant case, the defendants-appellants have taken the stance that the agreement was executed by Nazir Ahmad appellant No.1 only and not by both of them i.e. Nazir Ahmed and Rashid Ahmed, appellants, meaning thereby that the execution of the document by both the appellants has been denied and in case of denial of execution of document, the party relying on such document must prove, its execution in accordance with the modes of proof as laid down in Qanun-e-Shahadat Order, 1984 and the party is required to observe rule of production of best evidence. 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". To prove the execution of the agreement, the plaintiff produced the "Scribe" of the document P.W. 1 Allah Ditta, Petition-Writer who while appearing in Court admitted the execution of the agreement Exh.P.1 and categorically stated that it carried the thumb impressions and was signed by the executant and the marginal witnesses. His statement was supported by P. W.3 Abdul Majeed attesting witness of the document (Exh.P.1) who also verified his signatures on the same. The attesting witness is one who not only sees the document being the executant but also signs it as a witnesses. Reliance in this behalf is laid down to the cases of Shamu Patter v. Abdul Kadir Rowthan and others 1912 IC 250 (PC), Burdett v. Spilsbury (1842) 10 CI and F 340 and Ram Samujh Singh v. Mainath Quer AIR 1925 Oudh 737 and a person who writers or is scribe of a document is as good a witness as anybody else, if he has signed the document as a witness. No legal inherent incompetence exists in the writer of a document to be an attesting witness to it. Where in addition to one of the marginal witnesses, "Scribe" of the document appeared in the trial Court and deposed that the agreement was scribed by him and thumb impressions and signatures were put by the defendants such statement of the scribe can be considered to be a statement of marginal witness in the circumstances as laid down by the superior Courts in Raja Ram v. Jagannath and others AIR 1926 Oudh 209, Yakubkhan Daimkhan Serguro and others v. Guljarkhan Abdulkhan and others AIR 1928 Bom. 267,2 Thakurdas and another v. Topandas and others AIR 1929 Sindh 217, Ghanzhamsingh Triathsing and another v. Mohmed Yacoob AIR 1933 Sindh 257, Muhammad Zaman Khan v. Sher Afzal Khan and 8 others PLD 1984 SC (AJ&K) 138 and Mst. Noor Bibi and 9 others v. Ghulam Rasool 1991 SCMR 1281" (Emphasized)
22. Again same question of non-production of other marginal witness of an agreement to sell came for consideration before the Honorable Supreme Court of Pakistan in Sajjad Ahmad Khan's case where it was held that: - "As far as non-appearance of the second attesting witness of the agreement Ex-PW-2/1, is concerned, that has undisputedly been brought on the record that the other witness, Dr. Fazal Sher Khan was not available and was residing in America. The provisions of Article 79 (Q.S.O., 1984), are applicable only in those cases where execution of a document is disputed between maker of document and the person in whose favour purportedly the same is executed. Here in this case, execution of the agreement Ex-PW-2/1, though has been denied and disputed by Respondent No.1 by filing his joint written statement but mere denial would not be sufficient in presence of plethora of overwhelming evidence on the record. Such an evidence cannot be discarded merely for non- production/appearance of second marginal; witness. The prime and foremost requirement of Article 79 (Q.S.O., 1984) is to prove execution of a document in case of a denial of execution by producing two marginal witnesses. When. the allegation goes un-rebutted that Respondent No.1 himself was the author/scribe of the document. When again un-rebutted fact is there on the record that the other witness being abroad was not capable of giving evidence, when the stance of Notary Public regarding attestation of agreement goes un shattered, when PW-1, Hamayoon Shinwari not only confirms the execution rather gives each and every detail of the transaction between petitioner and Respondent No.1 and PW-4 is also the witness of execution and the entire evidence supported by the petitioner himself then in the given circumstances mere non- production of other attesting witness of Ex-PW-2/1 being not available would be nothing much less a hyper technicality and not the violation of Article 79 ibid. We may observe that concurrent findings of dismissal of suit by the three courts are a bitter and distressing example of misreading and non-reading of material evidence available on the record and misapplication of law"
23. Reverting to the case of respondents, as mentioned earlier, it was claimed that respondent No. 1 gifted the disputed land to his wife/respondent No. 2 in lieu of dower. The marriage between respondents had taken place in 2005. What happened all of a sudden that respondent No. 1 decided to transfer the disputed land to respondent No. 2? What necessitated that urgently matter of gift was reported on 05.08.2010 and it was finally attested on 18.08.2010 exactly in the same days when agreement to sell (P-1) was executed between both the sides on 02.08.2010 and was registered on 10.08.2010? This speaks malafide conduct of both the respondents.
24. Respondents never bothered to produce original Nikah Nama but tendered a certified copy thereof (D-4), which was minutely perused by the learned trial court who observed that the handwriting showing entry in column 17 was entirely different from the handwriting of remaining document. I have also noticed so. Pursuant to Rule 10(2) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, the duplicate and triplicate of the Nikah Nama filled are to be supplied to bride and bridegroom respectively, so the question arises that why any of those was not produced by the respondents if they were true in their claim? I find no difficulty to hold that both the respondents having connivance with each other managed a so-called story and suppressed the best available evidence that was the duplicate or triplicate Nikah Nama, therefore under Article 129(g) of the Qanoon-e-Shahadat, Order 1984 it will be safely presumed that the said document was not favoring them.
25. The findings recorded by the learned Additional District Judge, in above circumstances, are result of mis-reading and non-reading of evidence as well as outcome of non-application of3 judicial mind to the facts and circumstances of the case, hence cannot sustain.
26. The discussion made above takes me to the ultimate conclusion that this appeal succeeds and allowed with costs throughout. Impugned judgment and decree dated 06.06.2017 passed by the learned Additional District Judge are set aside, whereas judgment and decree dated 30.10.2014 rendered by the learned civil judge Mailsi district Vehari is restored. Madan Gopal & 4 others vs. Maran Bepari & 3 others PLD 1969 SC 617 Nazir Ahmad & another vs. M. Muzaffar Hussain 2008 SCMR 1639 Sajjad Ahmad Khan vs. Muhammad Saleem Alvi & others 2021 SCMR 415