Succinctly, the facts, as incorporated in this petition, are that Ashiq Hussain, predecessor-in- interest of the present petitioners, filed suit for specific performance of agreement to sell (Exh.P.1), dated 01.07.1997, alongwith permanent injunction in addition to challenging vires of mutation No.428, attested on 20.07.2009, in favour of Muhammad Ishaq (respondent No.7). Since Ashiq Hussain died during pendency of the suit, the petitioners, being his legal heirs, were arrayed as party. After framing of requisite Issues, recording of evidence of the parties and hearing their respective arguments, the learned Civil Judge, Sangla Hill ("learned Trial Court") dismissed the suit vide judgment & decree, dated 28.01.2016, against which the petitioners filed an appeal but without any positive result as the same was dismissed by the learned Additional District Judge, Sangla Hill ("learned Appellate Court") vide judgment & decree, dated 25.10.2016; hence this petition.
2. The submissions made by the learned counsel for the petitioners can be summed up in the words that both the courts below failed to consider that after receipt of entire consideration amount, Abdul Hameed (vendor) handed over possession of the suit property to the predecessor- in-interest of the petitioners, hence, the suit filed by him could not be dismissed; that observation of the learned Trial Court that the name of predecessor-in-interest of the petitioners was not appearing in the Khasra Gardawri as occupant stands nullified from the contents of the Khasra Gardawri brought on record by the petitioners as Exh.P-8, according to which one Khan Muhammad, real paternal uncle of the petitioners, has been shown in possession of the suit property; that no adverse opinion could be drawn against the petitioners merely on the ground that marginal witnesses of the agreement to sell were not produced especially when they died before recording of evidence by the learned Trial Court; that when the petitioners produced family members of the marginal witnesses to prove their signatures/thumb impression on the agreement to sell, they discharged their liability; that since proprietary rights in favour of Abdul Hameed (vendor) were granted in the year 2009, the suit filed by predecessor-in-interest of the petitioners in the year 2010 could not termed as time barred; that when possession was handed over to the predecessor-in-interest of the petitioners by the vendor upon receipt of entire amount, the case of the petitioners was covered under section 53 of the Transfer of Property Act, 1882 and the execution of sale deed was just a formality and that as predecessor-in-interest of the petitioners was in possession of the suit land, on the basis of an agreement to sell, his name could not be incorporated in the Khasra Gardawri.
3. Learned counsel for respondents No.7 to 9, while defending the impugned judgments and decrees, states that without proving that the marginal witnesses were no more alive at the time of recording of evidence of the parties, the petitioners could not be allowed to produce family members of the marginal witnesses, without seeking permission of the court; that PW-3 tried to improve her case by stating that she was present at the time of execution of agreement to sell despite the fact that it was not so averred in the plaint, hence, said portion of the statement of PW- 3 could not be read in evidence, while deciding lis between the parties; that admission on the part of PW-1 that he retained register relating to sale of stamp papers, pertaining to the year 1997, despite death of his father in whose favour the said register was issued, speaks loud about the fact that transaction between the parties was spurious in nature and that mentioning of name of one Abdul Rashid, against issuance of stamp papers, which were purportedly used for scribing agreement to sell between the parties, leaves no ambiguity that vendor never got issued stamp papers to execute formal agreement to sell in favour of predecessor-in-interest of the petitioners.
Relies on Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044).
4. As none appeared on behalf of respondents No.1 to 6 despite their service through publication in "Daily Jang" they were proceeded against ex-partevide order, dated 15.01.2025.
5. I have heard the learned counsel for the parties at considerable length and have also gone through the documents, appended with this petition, in addition to the case-law, cited at the bar.
6. The entire case of the petitioners hinges upon agreement to sell (Exh.P-1), dated 01.07.1997. A perusal of said document shows that there is no mention of condition that the vendor was bound to transfer the land in favour of the vendee consequent upon grant of proprietary rights rather in the said document it has been mentioned in clear cut words that the land, subject matter of the agreement to sell, was inherited property of the vendor. In this background, the assertion of the learned counsel for the petitioners that since proprietary rights were granted in favour of Abdul Hameed (vendor) in the year 2009, the predecessor-in-interest of the petitioners rightly filed suit in the year 2010, does not appeal to a man of prudent mind.
7. As per Article 113 of Limitation Act, 1908, a vendee can file suit for specific performance of an agreement to sell within three years starting from the date fixed for its performance. Insofar as the case in hand is concerned, admittedly, the predecessor-in-interest of the petitioners sought specific performance of agreement to sell, dated 01.07.1997, by filing suit in the year 2010, which casts serious doubt about veracity of the claim of the petitioners. Moreover, non-filing of suit by the predecessor-in-interest of the petitioners during life time of Abdul Hameed (vendor) also raises serious concern about the genuineness of claim of the petitioners.
8. It is well established by now that every document conveying title of immovable property worth more than Rs.100/- is compulsorily registerable under section 17 of the Registration Act, 1908 but non-registration of agreement to sell, subject matter of this petition, with the Sub Registrar concerned, rendered it inexecutable. Reliance in this regard is placed on the case reported as Govt. of Sindh through Secretary and Director General, Excise and Taxation and another v.
Muhammad Shafi and others (PLD 2015 SC 380).
9. It is very strange to note that the petitioners, on the one hand, claimed that soon after the execution of agreement to sell between the parties, their predecessor-in-interest took over the possession of the suit land upon payment of entire amount of consideration but on the other claimed that their possession over the suit land was established through Khan Muhammad, their real uncle. Both these things do not co inside with each other for the reason that if predecessor-in- interest of the petitioners was in possession of the suit land, his name was to be incorporated in the Khasra Gardawri for the relevant year. Though, learned counsel for the petitioners has tried to establish that since only agreement to sell was executed in the name of predecessor-in-interest of the petitioners, his name could not appear in the Khasra Gardawri but I do not agree with the learned counsel for the reason that in column of cultivation name of a person, who is even in illegal occupation of a piece of land, is also reflected in the column of cultivation. If the predecessor-in- interest of the petitioners was in physical possession of the suit land as to how his name could be skipped merely on the ground that he was in possession of the suit land on the basis of mere agreement to sell, thus, the said assertion of learned counsel for the petitioners cannot be given any weightage.
10. While addressing the Court, learned counsel for the petitioners put much emphasis on the fact that the petitioners not only examined PW-1 (son of the stamp vendor) but also got exhibited copy of register of stamp vendor (Exh.P-2) relating to purchase of stamp papers used for execution of agreement to sell. To appreciate the contention of learned counsel for the petitioners, I have gone through the contents of Exh.P-2, according to which, stamp papers against Sr. No.007 were got issued by one Abdul Rashid. Though learned counsel for the petitioner addressed the Court at a reasonable length but has not been able to establish any connection between the vendor and said Abdul Rashid. The Hon'ble Islamabad High Court, in the case of Kaniz Fatima through Muhammad Imran Irshad v. Tamizul Haque and 2 others (2024 YLR 890), while dealing with a question relating to non-registration of an agreement to sell and its scribing on doubtful stamp papers, has inter- alia concluded as under: - "17. The agreement to sell (Exh.P3) and sale agreement (Exh.PS) are unregistered documents. The person who had notarized the agreements also did not enter the witness box. The date on which the agreements were notarized have also not been mentioned. The mode of issuance of stamp papers for both the agreements is doubtful. The stamp papers are not properly endorsed by the stamp vendor. The purpose for which the stamp papers were issued, has not been mentioned. The stamp vendors were not produced as witness to depose in her favour of by the plaintiff/Appellant.
The agreements are silent with regard to the agreed mode of payment. As per statement of Adil Hussain (DW-1) the Property is in the name of respondent/ defendant/Owner. Even in the absence of evidence to the contrary, in order to get a judgment as to her legal rights, the plaintiff/Appellant was burdened with onus under Article 117 of the Qanun-e-Shahadat Order, 1984, to prove on the basis of unimpeachable evidence that such right legally existed in her favour."
If the authenticity of the stamp papers used for preparation of agreement to sell, subject matter of this petition, is considered in the light of afore-referred judgment of Hon'ble Islamabad High Court it becomes crystal clear that due to dubious status of the stamp papers, issued on the move of one Abdul Rashid, the petitioners were not entitled for decree prayed for.
11. Another important facet of the matter in hand is that though it has been mentioned at the back of Exh.P-1 that the stamp paper was issued for execution of agreement to sell on behalf of Abdul Hameed (vendor) in favour of Ashiq Hussain but the said document is bereft of any signatures/ thumb impression of the person, who got issued the said stamp paper. When the said fact is considered while putting in conjunction with the contents of Exh.P-2, there leaves no ambiguity that the petitioners miserably failed to prove issuance of stamp papers by the vendor to execute formal agreement to sell in favour of their predecessor-in-interest.
12. As per Article 79 of the Qanun-e-Shahadat Order, 1984, in order to prove contents of written document, the parties concerned are bound to produce at least two marginal witnesses. There is no cavil with the fact that in cases where marginal witnesses die before recording of evidence or they are untraceable, a person acquainted with their handwriting/thumb impression, including his family members, can be produced to prove their signatures/thumb impression on the relevant document but the same is subject to the condition that firstly it is to be proved by the party concerned that they are no more live or untraceable and secondly, the same can only be done with permission of the court. The Apex Court of the country, in the case of Sheikh Muhammad Muneer v. Mst. Feezan (PLD 2021 SC 538), while highlighting the guidelines to prove contents of a document in the event of death of marginal witnesses or where they are untraceable, has inter- alia held as under: - "15.*The Article states that it must be proved that the witness had either died or could not be found. Simply 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."
Insofar as case in hand is concerned, a perusal of the impugned judgment and decree passed by the learned Trial Court shows that neither the petitioners bothered to establish that marginal witnesses of the acclaimed agreement to sell were no more alive at the time of recording of evidence of the parties nor they sought permission of the court to produce their family members to prove their signatures/thumb impressions despite the fact that complete mechanism in this regard has been provided in the Qanun-e-Shahadat Order, 1984.
13. It is very astonishing to note that on one hand, the petitioners have claimed that their predecessor-in-interest had been enjoying possession of the suit property during his life time and thereafter the petitioners have been in possession thereof but on the other admitted the contents of Exh.D-5 as correct according to which respondent No.7 has been shown in possession of the suit property. If the petitioners were in possession of the suit property, they were bound to prove as to how and when they were dispossessed by respondent No.7. Since they did not lead even an iota of evidence in that regard, their oral assertion that name of respondent No.7 was incorporated in Khasra Gardawri as a result of execution of sale deed in his favour by the legal heirs of the vendor, cannot be considered as gospel truth. Moreover, if respondent No.7 was shown as owner-in possession of the suit property as a result of the sale deed executed by Abdul Hamid (vendor), the same stands supported from the title document, thus, any objection raised by the petitioners against said entry is worthless.
14. While assisting the Court, learned counsel for the petitioners repeatedly referred to the statement of PW-1 to show that they discharged their onus by producing son of stamp vendor, who issued stamp paper, which were used for execution of agreement to sell, subject matter of this petition. A cursory glance over the statement of said witness shows that during the course of cross examination he admitted that in the relevant column of the register, signatures of one Abdul Rashid were present. Though learned counsel for the petitioners addressed the Court vigorously but miserably failed to establish any liaison of the vendor with Abdul Rashid. It is not case of the petitioners that said Abdul Rashid acted on behalf of the vendor in the capacity of attorney etc., thus, issuance of stamp papers which were subsequently used for preparation of agreement to sell renders the entire case of the petitioners dubious.
15. Considering from another angle, when the petitioners-plaintiffs saw that PW-1 was not supporting their case, they got declared him hostile and put him to test of cross-examination.
Though very pertinent questions were put to the said witness by the petitioners-plaintiffs, during cross-examination, but they failed to impeach his credibility inasmuch as he remained consistent on material points especially in respect of name/signature of the persons who got issued the stamp papers which were utilized for preparation of agreement to sell.
16. A perusal of statement of PW-3 shows that with a view to establish that she was present at the time of execution of agreement to sell between the parties, she asserted so in her evidence despite the fact that no such plea was taken in the plaint. It is well entrenched by now that parties cannot be allowed to lead evidence beyond pleadings and if they succeed to do so said portion cannot be read while deciding a lis between the parties. Reference in this regard can be made to the cases of Muhammad Wali Khan and another v. Gul Sarwar Khan and another (PLD 2010 SC 695) and Karam Elahi through L.Rs v. Muhammad Ashraf and others (2013 YLR 2347).
17. Even otherwise, concurrent findings of facts recorded by the courts below cannot be upset by this Court in exercise of its revisional jurisdiction in a casual manner until and unless the same are proved to be perverse, arbitrary or based on misreading or non-reading of evidence which is not the position in the case in hand. In this regard, reference can safely be made to the cases reported as Haji Muhammad Younas (deceased)through Legal Heirs and another v. Mst. Farukh Sultan and others (2022 SCMR 1282) and Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCMR 5).
18. For what has been discussed above, I see no force in this petition which is hereby dismissed with no order as to costs.