Through this Civil Revision filed under Section 115 of Code of Civil Procedure, 1908, petitioners have called in question the validity and legality of judgments and decrees of learned Courts below whereby their suit for declaration or in alternate specific performance alongwith consequential relief was dismissed concurrently.
2. Facts in brevity are that petitioners instituted a suit for declaration by contending therein that predecessor of Defendants No. 1 to 40 namely Haji Muhammad Khan was owner of land measuring 44 Kanal in Moza Bara, Tehsil and District Rahim Yar Khan, who agreed to sell land measuring 33 Kanals out of his 40 Kanals to the predecessor of the plaintiffs/petitioners namely Ameer Bakhsh alias Ameera for a consideration of Rs. 1200/- on 10.08.1943 and in this respect an agreement was also reduced into writing in presence of witnesses and possession was accordingly handed over to the predecessor of the petitioners; that there were cordial relations between the parties, hence, predecessor of the petitioners did not get transfer the land through sale deed or mutation; that predecessor of the respondents and after his death, respondents never disturbed the possession of the petitioners and always admitted their right as owners of the suit property; that petitioners have also been paying all the Government dues since the year 1943; that after the death of predecessor of the respondents his legal heirs namely Mannu Bibi, Ghulam Maryam, Sardar Begum, Manzoor Ahmad also passed away whose inheritance mutations were confirmed and later on different mutations of Tamleek, exchange and sale had also been sanctioned which are against the facts and .law and liable to be cancelled; that predecessor of the respondents has handed over the possession of the suit property to the predecessor of petitioners after receiving whole consideration amount and also executed agreement dated 10.08.1943 which is more than 55 years old document to which presumption of correctness is attached; that the petitioners time and again asked the predecessor of respondents and the respondents to refrain from denying their ownership over the suit property and also get cancel the mutations got incorporated by them but they refused to do so, which constrained them to institute the suit for declaration and in alternate sought specific performance of agreement to sell dated 10.08.1943. They also challenged the consolidation proceedings by assailing the order of Consolidation Officer dated 30.06.1998, order dated 07.06.2001 of Additional Deputy Commissioner (Consolidation) and order dated 03.10.2002 of Executive District Officer (Revenue). They prayed for issuance of permanent injunction to the effect that defendants be restrained to further alienate the suit property and to disturb their possession.
Respondents/defendants contested the suit by filing written statements in contrast. Learned Trial Court reduced the controversy into necessary issues and after recording evidence of the parties pro and contra, oral as well as documentary, dismissed the suit vide judgment and decree dated 22.12.2012. Feeling aggrieved, petitioners preferred an appeal which also met the same fate and dismissed by the learned Appellate Court via judgment and decree dated 17.12.2015. Being dissatisfied, petitioners have filed this petition.
3. I have heard learned counsel for the parties at length and perused the record with their able assistance:
4. Perusal of the record it appears that petitioners' suit consisted upon four claims. Firstly, they sought declaration of their title over the suit property on the basis of oral sale. Secondly, as an alternate relief they prayed for specific performance of an agreement to sell dated 10.08.1943.
Thirdly, they challenged the subsequent alienations of the suit property and lastly, they impugned the consolidation proceedings, order dated 30.06.1998 passed by the Consolidation Officer and subsequent orders dated 07.06.2001 and 03.10.2002.
5. Petitioners have to firstly prove that they are owners of the suit property on the basis of oral sale or entitled for a decree of specific performance on the basis of agreement to sell dated 10.08.1943, then their subsequent claims can be looked into. If they failed to prove their first two claims, then there is no need to discuss other claims.
6. Admittedly, suit property belonged to Haji Muhammad Khan (predecessor of the respondents).
Petitioners claimed that their predecessor namely Ameer Bakhsh alias Ameera purchased the suit property through oral sale for a consideration of Rs. 1200/-and in this regard relied upon agreement to sell dated 10.08.1943. Certainly, the suit property was having worth Rs. 1200/-in the year 1943, therefore, it could not be sold through oral sale. In the light of Section 54 of the Transfer of Property Act, 1882, the property worth of more than Rs. 100/-can only be sold through a registered document. However, rural property can be transferred through oral sale mutation.
Indeed, the suit property was situated in the Bahawalpur State wherein a part of Section 54 of the Transfer of Property Act, 1882 to the effect that "the sale of immoveable property valued at more than Rs. 100/-shall be a registered instrument" was promulgated by the former Bahawalpur Government through notification issued on 8th of May, 1931.
7. No doubt, an agreement to sell does not create any interest in, or charge on any immoveable property; rather the same only creates a right to obtain another document conferring title in respect thereof. A contract for the sale of immoveable property is a contract that a sale of such property shall take place on the terms settled between the parties. The declaration can only be claimed in terms of Section 42 of the Specific Relief Act, 1887 with regard to any entitlement to any legal character or to any right to property which is denied by the opposite party.
In the light of above discussion, it is better to see the agreement to sell dated 10.08.1943 (Exh.P.1) before further discussion which reads as under:
8. It is evident from the language of this document that sanction of mutation or execution of registered deed was also settled by the parties. Plain reading of this document depicts that it is merely an agreement that creates a right to obtain another document conferring title in respect thereof. Therefore, title over the suit property could not be acquired without sanctioning of mutation or execution of sale deed. It is a matter of fact that neither any registered sale deed nor any oral sale mutation was even executed in favour of the predecessor of the c petitioners.
Petitioners' case does not fall within the ambit of Section 42 of the. Act ibid, hence, they cannot seek declaration of their title over the suit property.
9. However, they can seek specific performance of the agreement to sell which they have claimed as an alternate relief. Petitioners sought performance of the agreement to sell dated 10.08.1943 whereby predecessor of the respondents namely Haji Muhammad Khan s/o Sultan Mahmood Khan agreed to sell the suit property for a consideration of Rs. 1200/-to the predecessor of the petitioners namely Ameer Bakhsh alias Ameera s/o Godha.
10. Petitioners brought on record said agreement to sell as Exh.P.1 (under objection) in the statement of P.W.1 Jaleel Ahmad, one of the plaintiffs. The respondents raised an objection to the effect that said document could not be brought on record in the statement of P.W.1 as he is neither scriber of the document nor its attesting witness. Learned Trial Court maintained the said objection by declaring that this document has not been brought on record by adopting proper procedure, hence, it has no evidentiary value.
11. It is evident from the agreement to sell (Exh.P.1) that it was scribed by Allah Ditta s/o Ameer Bakhsh and witnessed by Yar Muhammad s/o Elahi Bakhsh and Muhammad Ramzan s/o Qadir Bakhsh. Both the attesting witnesses put their thumb impressions, whereas scriber and executant Haji Muhammad Khan made their signatures on it.
12. In order to get the decree for specific performance, petitioners have not only to prove the valid execution of the agreement to sell but also have to establish its contents through primary or secondary evidence. A document can be proved (i) by calling the person, who signed or wrote the document, (ii) by calling a person in whose presence the document was signed or written, (iii) by calling a handwriting expert, (iv) by calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written, (v) by comparing in Court, the disputed signatures or writing with some admitted signatures or writing, (vi) by proof an admission by the person who is alleged to have signed or written the document that he signed or wrote it. In the light of what has been discussed, when evidence of the petitioners is scanned, it appears that petitioners miserably failed to prove the valid execution of the agreement to sell (Exh.P.1) through reliable and trustworthy evidence.
13. It is evident that agreement to sell (Exh.P.1) was written on a plain paper. Neither signature of the executant namely Hai Muhammad Khan nor the writing of the document was proved Although, version of the petitioners is that executant, scriber as well as attesting witnesses have passed away but they failed to substantiate their stance, as no death certificate or any other proof with regard to the death of these persons has been produced on record by the petitioners.
14. Although, petitioners/plaintiffs have produced as use seven witnesses as P.W.1 to P.W.7 but none of them was having any direct or indirect nexus with the alleged agreement to sell (Exh.P.1) P.W.1 namely Jaleel Ahmad s/o Ameer Bakhsh (one of the plaintiffs) appeared in the witness box and deposed that the brother of his father namely Allah Ditta scribed the agreement (Exh.P.1) who has passed away and posed himself to have acquaintance with the signature and writing of said scriber namely Allah Ditta. During cross-examination, he admitted that at the time of execution of alleged agreement to sell his age was 11/2 years. He admitted that he is an illiterate person. During cross-examination, while replying to a suggestion he admitted it correct that he cannot read the writing of Exh.P.1 as he is an illiterate. How an illiterate person can identify the writing and signature of a person, especially in the circumstances when he was not present at the time of alleged execution of agreement to sell.
15. During the course of arguments, learned counsel for the petitioners much emphasized that P.W.1 appeared in the witness box as secondary witness of the scribe, who identified the signature and handwriting, hence, execution of the document has been proved by claiming that scribe is also an attesting witness. He adds that document was written in the year 1943, therefore, in the light of the Evidence Act, 1872, a document can be proved by producing a single witness.
It has been observed that a scribe cannot be equated to be a marginal witness until and unless he has signed the document as attesting witness too. Where the scribe has not specifically signed the document as an attesting witness, his evidence cannot be recorded as marginal witnesses. Scribe of an agreement to sell is not a substitute for an attesting witness and does not legally qualify to be so.
16. If such witness is allowed to be considered as the attesting witness, it shall be against the very concept, the purpose, object and the mandatory command of the law. It has been held in the case titled "Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639): "Attesting witness was that one who had not only seen the document being executed by the executant but also signed same as a witness---Person who wrote or was 'scribe of a document was as good a witness as any body else, if he had signed the document as witness (Emphasis supplied). No legal inherent in competency existed in the writer of a document to be an attesting witness to it."
17. The august Supreme Court of Pakistan, while dealing with the proposition that whether a scribe of the document can be a substitute for the attesting witness in a judgment titled "Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others" (PLD 2011 Supreme Court 241) observed as under: "To the same effect are the judgments reported as Qasim Ali v Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Kadir Rowthan and others (1912 (16) IC 250). Therefore, in my considered view a scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness of the document and not otherwise: his signing the document in the capacity of a writer does not fulfil and meet the mandatory requirement of attestation by him separately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute."
18. In view of the above, a scribe of a document can only be a competent witness if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfil and meet the mandatory requirement of attestation by him separately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witness.
19. P.W.1 Jaleel Ahmad (one of the plaintiffs) during cross-examination maintained that attesting witnesses of agreement to sell (Exh.P.1) have been died, however, their offspring is alive. But none of them have been produced in the witness box as secondary evidence. Moreover, no documentary proof with regard to death of the attesting witnesses has been produced in evidence. Mere oral assertion is not enough to prove the factum of their deaths and do not discharge the burden to locate and produce them.
20. Article 80 of Qanoon-e-Shahadat Order, 1984, provides the procedure that how to prove when no attesting witness is found. It is obligatory upon the party to prove the factum of death of his witnesses that they have been died or cannot be traced out. Article 80 of Qanoon-e-Shahadat Order, 1984 is as under:- "Proof where no attesting witness found. If no such attesting witness can be found, it must be proved that witnesses have either died or cannot be found and that the document was executed by the person who purports to have done so."
In this regard the august Supreme Court of Pakistan held in Case "Sheikh Muhammad Muneer vs. Mst. Feezan" (PLD 2021 Supreme Court 538) as under: "The Article states that it must be proved that the witness had either died or could not be found.
Simple alleging that a witness cannot be found did not assuage the burden to locate and produce him. The petitioner did not lead evidence either to establish his death or disappearance, let alone seek permission to lead secondary evidence."
It was further held in "Ghulam Sarwar (Deceased) through L.Rs., and others versus. Ghulam Sakine" (2019 SCMR 567) as under: "Mere assertion that marginal witnesses of the mutations had died would not discharge the burden of a party. There is nothing to establish the death of said witnesses."
21. The petitioners failed to lead any evidence to establish death or disappearance of the said witnesses. The petitioners had a way to prove the factum of death by leading secondary evidence but they failed to do so. In this way, best evidence was withheld without showing any justification, thus inference of Article 129(2) of Qanoon-e-Shahadat Order, 1984 has to be drawn against them.
Reliance in this regard can be placed upon the case 'Muhammad Sarwar versus. Mumtaz Bibi and others" (2020 SCMR 276) wherein it was held as under: "It is also noticeable that the concerned Tehsildar who had allegedly sanctioned the mutation namely Rehmat Ali and another witness of the mutation namely Anwar Hussain (Patidar) were material witnesses of the alleged gift mutation. They were however not produced for any valid reason. Therefore, the presumption of Article 129 of the Qanum-e-Shahadat Order by reason of withholding of the best evidence can also be drawn against the petitioner."
22. By producing other witnesses, petitioners have tried to prove their possession over the suit property. Petitioners have to prove the possession in consequence of the agreement to sell. When the petitioners failed to establish the valid execution of the agreement to sell by producing cogent, trustworthy and confidence inspiring evidence, then their possession is not of any significance.
Even otherwise, there is no evidence on record which suggest that petitioners are in possession of the suit property on the basis of agreement to sell.
23. As the petitioners failed to prove their claims with regard to declaration of their title over the suit property or claim of performance of agreement to sell, therefore, they have no right to challenge the further alienations as well as consolidation proceedings.
24. The learned Courts below keeping in view facts and circumstances of the case as well as evidence available on record have rightly dismissed the suit of the petitioners concurrently.
Learned counsel for the petitioners failed to point out any illegality, irregularity or jurisdictional 'defect in the impugned judgments and decrees of the Courts below. There are concurrent findings of facts in the matter recorded by learned Courts below and the Courts below while passing the impugned judgments and decrees have considered every piece of evidence, oral as well as documentary, produced before them and nothing is shown to have been overlooked any part of the record from their judicious consideration. The findings of the learned Courts below on question of facts and law having based upon proper appreciation of oral as well as documentary evidence produced in the suit, are not liable to be reviewed or substituted by this Court while exercising jurisdiction under Section 115 of the CPC. In this regard, reliance is placed upon "Syed Husnain Naqvi and others versus Mst. Begum Zakara Chatha through LRs and others" (2015 SCMR 1081), "Noor Muhammad and others versus Mst. Azmat-E-Bibi" (2012 SCMR 1373), "Muhammad Akhtar versus Mst. Manna and 3 others" (2001 SCMR 1700), "Ghulam Muhammad and 3 others versus Ghulam Ali" (2004 SCMR 1001), "Abdul Mateen and others versus Mustakhia" (2006 SCMR 50) and "Malik Muhammad Khagan versus Trustees of the Port of Karachi (KPT) and another" (2008 SCMR 428).
25. For what has been discussed above, the instant Civil Revision is without any merits, hence, the same is hereby dismissed with the order as to costs.