MUNIR A. SHEIKH, J.- This judgment will also dispose of Civil Revision No. 249/D of 1988 as the said revision petition also arise from the same suit and is directed against the same judgments and decrees of the Courts below and common questions of law and facts are involved in both of them.
2. The facts giving rise to this and the connected revision petition are; that Sardar Khan respondent filed a suit for specific performance of agreement of sale dated 26.8.1978 against the present petitioner and three others. The execution of the said agreement of sale was denied by the defendants. The learned trial Court after considering the evidence produced by te parties came to the conclusion that execution of agreement of sale was. Established. The suit was consequently decreed to the extent of share of the present petitioner in the land as it was found that it was he who executed the agreement of sale and the same was binding on him to the extend of his share in the land and not the other defendants and the same against the other defendants qua their share in the land was dismissed by the learned trial Court through judgment dated 19.3.1987. The present petitioner/defendant No. 1 as also the plaintiff Sardar Khan feeling aggrieved from the judgment and decree of the learned trial Court filed appeals before the learned lower appellate Court. The learned lower appellate Court through judgment dated 23.11.1987 dismissed both the appeals thereby maintaining the judgment and decree passed by the learned trial Court in respect of share of the present petitioner/defendant No. 1 in the land in dispute.
3. Defendant No. 1/petitioner has filed this revision petition whereas Sardar Khan respondent/plaintiff has filed Civil Revision No. 249/D-88. The prayer of the petitioner is that the judgment and decrees of both the Courts below against him be set aside and the whereas respondent/plaintiff has prayed that his suit be decreed against the other defendants also in respect of the entire land.
4. I have heard learned counsel for both the parties. The main contention of the learned counsel for the petitioner/defendant No. 1 was that the two Courts below mis-read and mis-construct the evidence produced with regard to execution of agreement of sale and as a matter of fact ignored material discrepancies in the evidence of the respondent/plaintiff, therefore, the judgments and decrees of both the Courts below are not sustainable. In order to appreciate the contention I have gone through the evidence produced by the parties and examined the findings of the Courts below. The agreement of sale has been produced as Ex.P.I. There are two marginal witnesses of this agreement namely Muhammad Tufail and Muhammad Din. The respondent/plaintiff examined only Muhammad Din was PW.2, whereas the other marginal witness Muhammad Tufail was not examined as a witness to prove the execution of the agreement. I have also noticed that even the scribe of this document was not examined as witness. The learned lower appellate court held that the agreement of sale could be proved by examining marginal witness of the document and in this case a marginal witness having been examined, therefore, the execution of agreement of sale was legally established. I have also noticed that the learned lower appellate Court did not scrutinize evidence of the witnesses along with the statement of the respondent/plaintiff himself in order to determine the evidentiary value of their evidence. No finding could be recorded regarding execution of agreement merely because the marginal witness was examined without scrutinizing the evidence of the said witness. PW.1 Bashir Ahmad stated that the bargain was struct in his baithak for an amount of Rs.25,000/-. He also stated that Rs. 17,500/- was agreed to be paid as earnest money at the spot but the amount was not paid in his presence. He also admitted that no person from the village was present at the time of settlement of bargain. This witness is not a witness of passing of earnest money of Rs. 17,500/-. There is no explanation as to why no person from the village was present and joined, which was unusual and the baithak of this Witness was selected to strike the bargain which is admittedly not in the same village. Muhammad Did PW.2 is the marginal witness of this document Ex.P.I. He stated that he is a witness of this document and an amount of Rs. 17,500/- was paid as earnest money in his presence which was paid by Shamsher Ali present petitioner. The remaining amount of Rs. 7,500/- according to him was to be paid at the time of registration of document. He stated that petitioner Shamsher Ali put his signatures on this document whereas the other marginal witness Tufail thumb marked the same. He admitted in his cross-examination that the village in which he was residing was situated 6/7 miles away from the village of the plaintiff and the land of the other witness Muhammad Tufail was adjacent to the village of this witness. He admitted that Sardar Khan plaintiff and Tufail other marginal witness were related to each other. He claimed that Shamsher Ali present petitioner purchased the stamp paper but when question could not state as to from whom the same was purchased. He also admitted that Shamsher Ali did not put his signatures in his presence at the time of purchase of stamp paper. According to this witness the agreement was executed in respect of land measuring 21 kanals some marlas whereas according to PW.1 it was in respect of land measuring 26 kanals 6/7 marlas. He also stated when questioned that he did not know as to in respect of land situated in which village the agreement related. Sardar Khan plaintiff examined himself as PW3 who stated that an amount of Rs. 17,560/- was paid as earnest money whereas according to evidence of PW.2 that an amount of Rs. 17,500/- was paid as earnest, money. He stated in the cross-examination that the matter regarding earnest money was also reduced into writing whereas no document was produced in evidence. His case was that whenever any amount was paid to the vendor he had been obtaining his signatures but no document was produced in evidence. He denied that Muhammad Tufail the other marginal witness was his real sister's son. On the other had Muhammad Din admitted that Sardar Khan plaintiff and Tufail the' other marginal witness were related to each other. In these circumstances non-production of Toprail the other marginal witness is very material and a presumption c^n safety be raised that he had been produced he would not have sported the plaintiff. \The scribe was not produced. No attempt was made to get the disputed signatures of the executant on Ex.P.I compared with his admitted signatures and examined by a had writing expert. There is no reason as to why at the time of striking the bargain the baithak of Bashir was selected which was situated admittedly at a distance of 6/7 miles from the village where the land was situated and no person from the village witnessed the settlement of the bargain or the execution of agreement of sale. The two Courts below ignored and did not properly consider these discrepancies and weaknesses of the evidence of the petitioner which rendered the entire evidence untrust worthy. The onus was on the plaintiff to prove execution of the agreement beyond reasonable doubts, the execution thereof having been denied by the petitioner.
Learned counsel for the respondent faced with this situation submitted that there are inherent weaknesses in the evidence of the respondent/defendants such as he attempted to deny his signatures on the power of attorney and other documents on the record. The law is well settled that the plaintiff was to succeed on the strength of his own case and not on the basis of weaknesses of the case of the defendant. The evidence produced by the petitioner in these circumstances does not inspire confidence. The two courts below, therefore, in my view while holding that the execution of agreement of sale was proved not only mis-construed the evidence but also did not take into consideration the discrepancies of substantial nature and as such they committed material irregularity and illegality in exercise of jurisdiction vested in them under the law.
5. For the foregoing reasons the findings of the two Courts below that the execution of agreement Ex.P.I was proved are not sustainable which are hereby set aside. As a consequence of my findings this revision petition No.670/D- 88 filed by Shamsher Ali is hereby accepted whereas the connected revision petition No.249/D-88 filed by Sardar Khan plaintiff is dismissed with no order as to costs.
The judgments and decrees of both the courts below are set aside and the suit filed by the respondent Sardar Khan is hereby dismissed.