Anwaar Hussain, J. Through this single judgement, the present as well as connected Regular Second Appeal, bearing RSA No.51 of 2014, are being simultaneously decided, as both involve common facts; legal question; and are also directed against the same impugned judgment. The present appeal emanates from the suit of respondents No.1 & 2 for specific performance of contract whereas the connected appeal relates to the suit of the appellants, for the same relief.
2. Necessary facts are that the appellants filed a suit for specific performance of an agreement to sell dated 23.11.1999, purportedly executed by respondent No.3, namely, Shahida Parveen, who was also the lessor of the property in dispute, at the relevant time and the appellants were in possession of the suit property. In her written statement, respondent No.3 vaguely admitted execution of the agreement as well as the possession of the appellants albeit as lessee, however, later on she appeared before the Trial Court and conceded that she has also received the sale consideration, from the appellants. The suit of the appellants was instituted on 04.12.1999 and the statement of respondent No.3 was recorded on 27.03.2000. On 14.06.2000, respondents No.1 and 2, who are step sisters of respondent No.3, filed an application under Order I Rule 10, Code of Civil Procedure, 1908 ("CPC"), with averments that the suit property was sold to them by respondent No.3 through a prior agreement to sell, dated 09.09.1999, for total sale consideration of Rs.
400,000/- out of which Rs.350,000/- was paid by them to respondent No.3. The said application was allowed and through the amended plaint, the appellants before this Court also sought declaration that purported prior agreement to sell dated 09.09.1999 is based on fraud.
Respondents No.1 and 2 also filed a separate suit, inter alia, for recovery of possession wherein respondent No.3 was proceeded against ex-parte. Notably, during the pendency of the suits, respondent No.3 also got registered a sale mutation in favour of respondents No.1 and 2, on 29.04.2003. The two suits were consolidated and through judgment dated 04.09.2010, the Trial Court decreed the appellants' suit and dismissed the suit of respondents No. 1 and 2, primarily relying on admission of respondent No.3 of the agreement in favour of the appellants, continuous possession of the appellants, and the improbability of version of respondents No.1 & 2, however, on appeal, the Appellate Court below reversed the findings, through impugned judgment and decree dated 30.11.2013, inter alia, on the ground that both the attesting witnesses of the appellants' agreement were not produced.
3. Ex-parte arguments of learned counsel for the appellants have been heard. Record has been perused.
4. Following questions of law are required to be determined by this Court, in terms of Section 100, CPC: i. Whether the execution of an agreement to sell can be deemed unproved, merely, for non- production of both attesting witnesses, when the vendor admitted the execution of the agreement and delivery of possession, before the Trial Court, keeping in view import of Article 79 read with Article 113 of the Qanun-e-Shahadat Order, 1984 ("QSO")? ii. Whether the Appellate Court below misdirected itself in law by reversing the Trial Court's decree on technical grounds, without properly analyzing the vendor's admission coupled with the appellants' possession, while ignoring the legal burden upon the respondents No.1 & 2 to prove their prior agreement?
5. The Trial Court decided the matter in favour of the appellants in following terms: "15. On the other hand, defendants No.2 and 3 have got an agreement to sell which shows the date prior in time than the agreement to sell in favour of the plaintiffs alongwith mutation on behalf of Shahida Parveen. It is a point to be observed in case the defendants No.2 and 3 purchased the suit property from Shahida Parveen even prior to the alleged agreement in favour of the plaintiffs, why they kept the plaintiffs as their tenants after filing of the suit by them claiming the suit property as their own? Whole of the pleadings of the defendants No.2 and 3 and their evidence is silent on this point. They have submitted register khasra girdawri, which shows Rafique etc as their tenants but this status should had been changed by the defendants themselves through some application before competent forum because of head to head and neck to neck litigation. Another point which has been observed by me in respect of signatures of Shahida Parveen present on second stamp paper of Ex.D.1 alongwith a clear double over writing evident from looking beneath the digits of NIC of Shahida Parveen, so definitely the plaintiffs are at stronger position inspite of the fact that they have not produced the marginal witnesses of agreement to sell. Over and above all the evidence submitted by both the parties, the statement of Shahida Parveen got recorded by her in the court is the most reliable piece of evidence. The issue is thus answered in favour of the plaintiffs."
(Emphasis supplied)
On the other hand, the Appellate Court below held as under: "11.....Perusal of record shows that on 23.7.2000 conceding statement has been recorded on behalf of this Shaheen Perveen. But it is to be noted that by that time the appellants were not party to the suit. According to the appellants Shahida Perveen has sold this land to them on 9.9.99. It means that at the time of making this statement Shahida Perveen has already executed an agreement to sell. So her statement is not binding upon the appellants and cannot be taken into consideration. Perusal of the file of the suit filed by the respondents No.1 to 6 further shows that suit has been filed on 4.12.99 but file contains an application and an affidavit submitted by Shahida Perveen in the court on 23.11.99. In her this application she has submitted that next date of hearing of the suit is 6.12.99 and she wanted to get recorded conceding statement. But the suit has not been filed by the time when Shahida Perveen had submitted this application Again suit file contains another such application dated 6.12.99 wherein Shahida Perveen has shown her willingness to make such conceding statement. Perusal of the file further shows that respondent No.7 Shahida Perveen has filed the contesting written statement in the court on 21.12.99. If Shahida Perveen had admitted the claim of the respondents No.1 to 6 before the institution of suit, then she would not have filed this contesting written statement..... During the proceeding of the appeal, the appellants filed an application for summoning the file of application U/S 12(2) CPC filed by Shahida Perveen for the cancellation of her this statement. Though this application was turned down but this fact shows that Shahida Perveen also did not admit her conceding statement..... All these facts make appearance of Shahida Perveen in the court and making conceding statement by her in favour of the respondents No.1 to 6, highly doubtful. Further more perusal of record shows that suit was not decreed in favour of respondents No.1 to 6 at that time when Shahida Perveen got recorded her conceding statement. After that the appellants have filed other suit and both suits were tried side by side. In such a situation the respondents No.1 to 6 were duty bound to establish their version by producing marginal witnesses of the agreement to sell allegedly executed in their favour. But they had not produced in the witness box any of the attesting witness of this document. So it is declared that version of the respondents that Shahida Perveen has sold the suit land to them, is not established."
(Emphasis supplied)
6. Before reappraising the matter for determining as to which of the two Courts below have decided the case correctly, it is worth mentioning that once the Trial Court exercises its discretion in one way or the other after appreciation of the evidence and material on record, the Appellate Court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. In present case, it was incumbent upon the Appellate Court below to have firmly concluded that the agreement to sell in favour of respondents No. 1 and 2 had been genuinely executed prior in time, without relying on the fact that the appellants did not produce marginal witnesses of the agreement, which was admitted by respondent No.3 while appearing before the Trial Court and affixing her signatures and thumb impression on the order sheet. Suffice to state that sanctity is attached to the judicial proceedings. Mere fact that there is some discrepancy regarding the date mentioned on the application of respondent No.3 to record conceding statement cannot undermine the sanctity of the judicial proceedings inasmuch as it cannot be believed upon that the Trial Court did not ascertain about identity of respondent No.3 before recording her conceding statement, more particularly, when respondent No.3 filed an application under Section 12(2), CPC and said application was dismissed.
7. There is no cavil to the proposition that under Article 79 of the QSO, a document required by law to be attested must be proved by at least two attesting witnesses, if available. However, the effect of an unequivocal admission by the executant of the document, more importantly, when recorded before the Court of competent jurisdiction, must be read harmoniously with Article 113, of the QSO, which provides that facts admitted need not be proved but the Court is vested with the discretion to require the proof of even admitted facts. When the executant admits execution of an agreement coupled with delivery of possession, the rigors of Article 17 read with Article 79 of the QSO become inapplicable and the requirement of producing two attesting witnesses loses significance.
Therefore, in the instant case, the non-production of the attesting witnesses of the agreement to sell in favour of the appellants did not render the agreement of the appellants unproved. The Appellate Court below reversed the Trial Court's findings primarily on two counts--non- examination of both marginal witnesses and purported suspicion regarding the conceding statement of respondent No.3, while failing to evaluate factual matrix and the over-all evidentiary resume of the case.
8. It is worth mentioning that while the purported prior agreement in favour of respondents No.1 & 2 is thumb marked by the marginal witnesses as well as respondents No.1 and 2, the thumb impression of respondent No.3 is conspicuous by its absence. It is imperative to mention that in a suit for specific performance of an agreement to sell, the most critical element for establishing the authenticity and execution of the document is the act of the vendor--the person transferring ownership rights. While attesting witnesses and vendee's signatures or thumb impressions thereof are supportive, they are not substitutes for the independent verification of the vendor's execution, especially where the vendor's own conduct is under scrutiny. No doubt that two witnesses of their agreement were produced by respondents No.1 and 2, however, proving the handwriting and signatures of the vendor/transferor/executant--including thumb impressions--as evidence of the execution becomes more relevant particularly, in matters involving alleged manipulation, or collusion as in the present case, where respondent No.3 and respondents No.1 and 2 (claiming to be the prior vendees) are step-sisters whereas the appellants are strangers. In fact, the thumb impression of the vendor becomes central to rule out forgery or fabrication. Mere signature, in such sensitive and contested transactions, does not offer the same level of forensic reliability as a thumb impression. Suffice to state that in agreements involving transfer of immovable property, it is the vendor who is divested of the title, and hence, their authentication carries the greatest evidentiary weight. The affixation of thumb impression by the vendor is materially more significant than that of the witnesses or the vendee, as it serves as a biometric confirmation of consent and execution. In the present case, the omission of respondent No.3's (the vendor's) thumb impression on the purported prior agreement--despite presence of thumb impressions of the others seriously undermines its credibility. This concern is compounded by the failure to produce the stamp vendor or related register, which could have corroborated whether the document used for the execution of the prior agreement was in fact obtained on the relevant date and thereafter executed by respondent No.3 herself. The absence of such corroborative evidence weakens the claim of respondents No. 1 and 2 asserting and claiming under a prior agreement. In fact, respondents No.1 and 2 moved application to summon stamp vendor and scribe but said application was dismissed and order of dismissal was not further challenged.
9. At this juncture, it will be advantageous to scrutinize various signatures of respondent No.3 on different instruments including agreements in favour of the appellants and respondents No.1 and 2.
The signatures of respondent No.3 appear at three different places on the back of the stamp paper indicating its issuance by respondent No.3 herself; at the end of agreement along with the marginal witnesses; and after an additional endorsement indicating that there were some differences between respondents No. 1 and 2 on the one hand and respondent No.3 on the other-- all bearing visibly differing styles. The scanned signatures on three different places, on agreement in favour of respondents No.1 and 2 are as under: "Signature at the back of the stamp paper, made at the time of purchase of the stamp paper are as under: Singature at the end of the agreement to sell are as follows: Signature after additional endoresement dated 14.05.2001 are as under: Even with a naked eye, it can be seen that the first two signatures appear to be affixed by one and the same person, however, the third is visibly different. Such inconsistency becomes critical in light of Article 84 of the QSO, which permits the Court to compare disputed writings with admitted signatures or writings of a person. Although this Court is aware that the mode of proof by way of Article 84 is not the most desirable of modes in that, the signature and hand-writing of a person may vary with time and age, however, the said factors are not relevant as both the agreements and all the endorsements on the agreement of respondents No.1 and 2 were made in short span of time and a visual comparison of signatures on an instruments can be conducted by the Courts. I am fortified by the law laid down in case reported as Mst. Nazeeran and others vs. Ali Bix and others (2024 SCMR 1271). The manner in which the signature of respondent No.3, namely, "Shahida Parveen", appears in a differently placed section and stylistically diverges from the other, more particularly, when the letters ( )and ( )are examined, the same supports the contention that the vendor's participation is doubtful.
10. On the contrary, signatures and thumb impression of respondent No.3 (Shahida Parveen) available on the agreement in favour of the appellants and the impugned mutation in favour of respondents No.1 and 2 as also on the order sheet of the Trial Court dated 27.03.2000 depicts different picture. Scanned signature of respondent No.3 on the mutation dated 29.04.2003 are as under: Signature on the agreement of the appellants are as under: Scanned signatures, on the order sheet dated 27.03.2000 where statement in favour of the appellants was recorded, are as under: Through a cursory glance, when signatures at endorsement dated 14.05.2001 as also impugned mutation dated 29.04.2003 are put in juxta position with signatures of respondent No.3 available on the agreement of the appellants and the order sheet of the Trial Court when statement was recorded in favour of the appellants, the same indicates that it is of the same person. Therefore, approach of the Appellate Court below highlighting weakness of the appellants' case and in ignoring the complete lack of biometric endorsement by the vendor (respondent No.3) as also the comparison of signatures indicates that the impugned judgment is legally flawed and contrary to the established principles of proof and authentication and the principle that civil cases are to be decided on the basis of preponderance of evidence.
11. Matter can be examined from another angle i.e., the conduct of respondents No.1 and 2, their assertions, and the timeline. The agreement relied upon by respondents No.1 and 2 (dated 09.09.1999) is more than nine months prior to the institution of their suit (on 14.06.2000), which was filed only after the appellants had instituted their suit for specific performance and after respondent No.3--the common vendor--had not only filed a written statement but also recorded a conceding statement in favour of the appellants before the Trial Court, on 27.03.2000, as well as filing of application, on 14.06.2000, by respondents No.1 and 2, under Order I, Rule 10, CPC to become party in the suit of the appellants. All these developments had transpired well before 14.05.2001, which is the date appearing in respect of the endorsement on the second page of the respondents' agreement to sell dated 09.09.1999, allegedly made by respondent No.3, acknowledging receipt of an additional Rs. 100,000/- from respondents No.1 and 2 and confirming final settlement of sale. The question that naturally arises is: when litigation was already pending and respondents No.1 and 2 were fully aware of the conflicting claims and of their stepsister's (respondent No.3's) support to the appellants, what prevented them from requiring her (respondent No.3) to appear before the Trial Court and record a statement verifying the endorsement and the sale transaction in their favour and demanding respondent No.3 for contesting the suit of the appellants? Their failure to do so, despite the availability of procedural opportunity and the critical nature of such testimony of respondent No.3, undermines the authenticity of the endorsement and reflects adversely on the credibility of the claim of respondents No.1 and 2. Their silence and inaction during such a vital phase of the litigation further supports the inference that the endorsement dated 14.05.2001 on the prior agreement to sell was either not genuine or an afterthought or based on collusion, just to counter the appellants suit.
12. At this juncture, it is imperative to state that one aspect becomes undeniably clear--that respondent No.3, the common vendor, was either defrauding both the contesting parties--the appellants on the one hand and respondents No.1 and 2 on the other or was acting in collusion with one of them. The answer to who benefitted from such conduct becomes discernible from the attending circumstances of the case and is not difficult to ascertain. A comparative examination of the signatures appearing on the alleged agreement relied upon by respondents No.1 and 2 and those affixed upon the endorsement dated 14.05.2001 reveals visible discrepancies, which cast serious doubt on the genuineness of the endorsement. This concern is further deepened by the fact that, during the pendency of litigation between the parties, respondent No.3 facilitated the sanctioning of mutation in favour of respondents No.1 and 2 while putting the signatures akin to those available on the endorsement dated 14.05.2001 and on the agreement of the appellants and also affixing her thumb impression (on the mutation), while bypassing judicial scrutiny and undermining the pending dispute in terms of doctrine of lis pendens. Such conduct, taken cumulatively, suggests that the collusion was between respondents No.1 and 2 and respondent No.3, particularly, when contrasted with the admitted possession of the appellants, the earlier tenancy of the appellants of more than ten years, and forthright litigation initiated by the appellants on the strength of their agreement to sell.
13. In view of the above discussion, the impugned judgment and decree dated 30.11.2013 passed by the Appellate Court below is legally unsustainable, having been rendered in derogation of well- settled legal principles concerning admissions and burden of proof. The present as well as connected appeal are allowed. The judgment and decree of the Appellate Court below is set aside, and that of the Trial Court is hereby restored.