' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 25-4- 1991 passed by a learned Single Judge of the High Court of Sindh in Second Appeal No,13 of 1984, filed by the appellant against the judgment and decree dated 22-12-1983 passed by. The learned 1st Additional District Judge, Hyderabad, upon the respondents' Civil Appeal No,77 of 1982, allowing the same and reversing the judgment and decree for specific performance dated 28-2-1982 passed by the learned Civil Judge, Tando Allah Yar in favour of the appellant, dismissing the same and maintaining the above appellate judgment and decree.
2. The brief facts are that respondent No,1 and his real brother Naseer Ali entered into a sale agreement dated 25-9-1966 (Exh.54) with the appellant hereinafter referred to as first agreement whereby they agreed to sell agricultrual land bearing Survey No,88, measuring 3.14 acres and an area 4.26 acres from Survey No,92; thus making a total area of 8 acres situated in Deh Meraji Toppo at Tando Allahyar, hereinafter referred to as the land, for a sum of Rs,8,800 i.e, at Rs,1,100 per acre.
As per averment of the appellant, at the time of execution of the above agreement he paid a sum of Rs,6,000 i.e, Rs,4,000 in cash to respondent No,1 and Rs,2,000 through cheque to Naseer Ali, who was not a party to the suit and is not a party to the present appeal. It further seems that respondent No,1 and said Naseer Ali executed another agreement dated 7-9-1971 (Exh.59), hereinafter referred to as the second agreement, re-affirming the first agreement and also acknowledging the receipt of the entire consideration. It may be pointed out that according to the averments in the plaint, the appellant after entering into the above transaction discovered that respondent No,2's name (who is the wife of respondent No,1) was also mutated in the revenue record. Upon inquiry, respondent No,1 and Naseer Ali had allegedly assured the appellant that respondent No,2 had already surrendered her share and that the record would be changed. It further seems that Naseer Ali executed and got registered a sale-deed dated 9-12-1979 in favour of the appellant conveying his share in the land measuring 3 acres but the respondents refused to execute the same. Since respondents refused to complete the above sale transaction, the appellant filed Suit No,2 of 1980 in the Court of Civil Judge, Tando Allah Yar for specific performance of contract and injunction. The above suit was resisted by the respondents, inasmuch as they filed a written statement wherein they denied the execution of above Exhs. 54 and 59 and alleged that the same were forged and fictitious and did not bear signatures of respondent No,1 and Naseer Ali.
They also denied the receipt of consideration. It was also averred by them that the land was given on lease to the appellant's husband, Haji Mahboob Ali, at the rate of Rs,900 per year and the said lessee had paid the lease money upto 1971 and thereafter defaulted. They also denied the knowledge about the execution of sale-deed by Naseer Ali.
3. The learned trial Court, after framing Issues, recording evidence and after hearing the parties by its judgment/decree dated 23-2-1982, decreed the suit. Against the above judgment/decree, the respondents filed First Appeal No,77 of 1982 in the Court of First Additional District Judge, Hyderabad, which was allowed on the ground that there were contradictions on the material points between the testimony of the attesting witness, namely, Munir All and the appellant about the execution of Exh.54 and also contradictions between Munir Ali and Abdullah, who were attesting witnesses in their evidence. Thereupon, the appellant filed Second Appeal No,13 of 1984, which was dismissed by a learned Judge in chamber through the judgment under appeal. Leave to appeal was granted to consider, whether the learned first and second appellate Courts have not appraised the evidence on record in proper perspective, and whether the reversal of the judgment/decree of the trial Court was founded on minor contradictions or variations in the statements of the appellant and the attesting witnesses.
4. In support of the above appeal, Mr. Iqbal Kazi, learned Sr. A.S.C. Appearing for the appellant, has vehemently contended that the learned first appellate Court was not justified in reversing the judgment and decree of the trial Court on the basis of the reasons found favour with it as they were not of the nature which warranted interference and that the learned Judge in chamber also erred in not rectifying the above legal mistake committed by the first appellate Court. He has also submitted that material facts have either not been taken into consideration or have not been properly considered by the first appellate Court and the learned Judge in chamber.
' On the other hand, Mr. Anwar Zaheer Jamali, learned A.S.C. Appearing for the respondents, has contended that the learned first appellate Court was justified in reversing the judgment and decree of the trial Court and so also the learned Judge in chamber was justified in maintaining the above appellate judgment and decree.
5. We have gone through the evidence on record and the two judgments impugned before us. It seems that the learned first appellate Court has set aside the judgment and decree of the trial Court for the reasons recorded by it in para.19 of the judgment, which reads as follows:-- "19. With regard to first agreement of sale Exh.54, the respondent's-attorney Mahboob Ali Exh. 52 has stated that the appellant No,1 and his brother Nasir Ali had executed the sale-deed in presence of witnesses who had signed the same. He also stated that he had paid Rs,6,000 to them at the time of the execution of the agreement of sale Exh.54. An amount of Rs,4,000 was paid in cash while the remaining amount of Rs,2,000 was paid in the shape of cheque. I had gone through the agreement wherein it has been specifically mentioned that Rs,4,000 were paid in cash and Rs,2,000 were paid in the cheque has also been mentioned. I also find in the agreement that the agreement appears to have been signed by Nasir Ali, Majid All and two witnesses. But there is no signature of the attorney of the respondent. One of the attesting witnesses of Exh.54 Munir Ali, in his deposition, has stated that the parties had executed the agreement in his presence. Majid All had signed the agreement in his presence while Nasir Ali had signed the agreement after 3 days. He has also stated that the amount of Rs,4,000 was given to Majid Ali and thereafter a cheque of Rs,2,000 was given to Nasir Ali in his presence after 3 days. From the statements of both these witnesses, it is clear that their statements are contradictory on the material point. As regards the signature of the appellant and Nasir Ali, the case of the respondent is that they had signed at the time of executing Exh.54 while the attesting witness has categorically stated that only Majid Ali had signed the agreement at the time of executing Exh.54 and after 3 days Nasir Ali was called who had signed Exh.54. As regards the mode of payment is concerned, the respondent-attorney has stated that he had paid Rs,4,000 in cash and a cheque of Rs,2,000 was issued while the attesting witness Munir Ali has not supported him and has stated that only Rs,4,000 was paid at the time of,execution and after 3 days cheque of Rs,2,000 was paid to Nasir Ali in his presence. Thus, the evidence of both these witnesses are contradictory to each other. As such, it is unsafe to rely upon them."
6. A perusal of, inter alia, the above portion of the judgment indicates that the learned first appellate Court set aside the judgment/decree of the trial Court for the following reasons:--
(i) That Exh.54 did not contain the signture of the attorney of the appellant;
(ii) that one of the attesting witnesses Munir All in his deposition has stated that the parties had executed the agreement in his presence and that Majid All had signed the agreement in his presence while Nasir Ali had signed the agreement after 3 days;
(iii) that above attesting witness Munir All also stated that the cheque amount of Rs,2,000 was given to Nasir All in his presence after 3 days, whereas the appellant's attorney stated that the same was paid on the day of execution;
(iv) that Munir All stated that the negotiation had taken place in his house, whereas Abdullah deposed that negotiations had taken place in his house.
7. It may be observed that the learned Judge in chamber found that the last fourth reason, was not sustainable as Abdullah was in fact living in the house of Munir Ali and, therefore, the statement of both the above witnesses were concilable.
' Adverting to the above first reason, it may be stated that Exh.54 is in the form of an Iqrarnama' and, therefore, the signature of the appellant's attorney was not required. It is a matter of common knowledge that most of the sale-deeds are signed by the vendors only and not by the vendees.
The above reason is, therefore, not well-founded.
' As regards the remaining two reasons, it may be stated that the witnesses were examined after nearly 15 years from the date of execution of Exh.54 and, therefore, the above variations were understandable. The trial Court has drawn proper inferences from the evidence on record.
8. The learned first appellate Court as well as the learned Judge in chamber have not either considered or have given due importance to the following facts, which lend support to the case of the respondents, namely:
(i) That the title documents were in possession of the appellant. The learned Judge in chamber has concluded that the above documents were obtained by the appellant's attorney surreptitiously from the revenue department. This conclusion is untenable. In this regard, it may be pertinent to quote the following portion of the statement of respondent No,1 from his cross-exam ination: ' I never delivered Khatooni and other documents Fard-e-Haqiat to plaintiff. At present I do not have Khatooni and Fard-e-Haqiat because I had delivered the same to the revenue authorities for making necessary entries in the record. These documents were delivered by me to the Revenue Authorities in 1979. There is possibility that my brother Nasir Ali may have delivered Khatooni and Fard-e-Haqiat Exhs.55 and 56 to the plaintiff."
' It was not even the case of the respondents that the appellant had obtained the above documents surreptitiously from the revenue department. Respondent No,1 has stated that there is possibility that my brother Nasir All may have delivered Khatooni and Fard-e-Haqiat (Exhs.55, 56) to the appellant, but this statement was not supported by any material on record. Nothing was brought on record that respondent No,1's brother Nasir All had allegedly obtained the above documents from the revenue department and thereafter handed over to the appellant. The factum that the documents of title were in possession of the appellant, is a very important factor which should have been given due consideration by the learned first appellate Court and the learned Judge in chamber for arriving at the correct decision, as to whether factually respondent No,1 had entered into the above agreements Exhs.54 and 59.
(ii) That respondent No,1's brother Nasir All as stated hereinabove, executed and got a sale-deed dated 9-12-1979 registered in favour of the appellant in respect of his share of three acres. There is nothing on record to indicate that he was not on good terms with respondent No,1 or has any personal reason to cause any loss to respondent No,1. The execution of the sale-deed and its registration is in fact an affirmation of the factum of having entered into the above sale agreements Exhs.54 and 59.
(iii) That the above Exhs.54 and 59 were proved by examining attesting witnesses. The learned trial Court was justified in comparing the admitted signature with the signature on the above exhibits.
We have also compared the signature on Exhs. 54 and 59 with the admitted signature of respondent No,1 on his written statement and we are inclined to take the view that Exh.59 contains the signature of the same person who signed the above written statement. The signature on Exh.54 is at some variation but the above factum loses importance, as the above agreement has been re-affirmed in Exh.59. It is not unusual that a person who is not well-educated signs differently.
9. However, Mr. Anwar Zaheer Jamali, learned counsel for the respondents, has vehemently contended that factually the appellant's husband and attorney Haji Mahboob Ali was the lessee of the land, which fact stands proved by his statement in his cross-examination about the payment of the lease money. His further submission was that the weakness in the respondents' case does not improve the case of the appellant as it is a well-settled proposition of law that a plaintiff is to succeed on his own evidence and any weakness in the defence evidence will not absolve the plaintiff from discharging his burden of proof. He has also invited our attention to the filing of application dated 18-10-1979 by respondent No,1 before the Martial. Law Authorities, wherein it was alleged that the appellant's husband Haji Mahboob Ali was the lessee of the land and that he was not vacating after the expiry of the lease period. According to him, respondent No, 1 through letter dated 23-1-1980 was informed by the Assistant Commissioner, Tando Allah Yar, that he should approach the Civil Court for taking the possession. On the basis of the above documents, his submission was that as a counterblast, the appellant filed suit on 29-1-980.
10. The above contentions seem to be devoid of any force. Even if it is to be accepted that originally the appellant's husband was the lessee, it would not make any difference if it is to be held that Exhs.54 and 59 are genuine documents. It is true that a plaintiff is to succeed on the basis of his own evidence and not on the basis of weakness of the evidence of the defence, but at the same time it is also a well-settled proposition of law that a civil matter is to be decided on the basis of preponderance of evidence and the Court is to consider the entire evidence on record, whether it is of the plaintiff or of both in order to arrive at the correct conclusion. Once the evidence is brought on record, the question of burden of proof loses its significance.
11. The above application of respondent No,1 dated 18-10-1979 before the Martial Law Authorities and the above Assistant Commissioner's letter dated 23-1-1980 in response thereof, cannot negate the other evidence on record. There is nothing on record to show that the appellant was aware about the filing of the above application by the respondents in order to infer that the above suit was filed by him as a counterblast.
12. There is sufficient evidence on record to conclude that respondent No,1 and his brother Naseer Ali had entered into the above agreements Exhs.54 and 59. However, there is not sufficient evidence to conclude that respondent No,2 (who is the wife of respondent No,1 and the daughter of Mst. Kali) was a party to the above sale transactions. It may be pointed out that two sisters Mst.
Ghafooran and Mst. Kali had verified claim in respect of agricultural land from the agreed area.
Before their claims could be settled by the Settlement Department, both the above sisters expired.
Mst. Ghafooran left behind respondent No,1 and Naseer Ali as her legal representatives, whereas Mst. Kali left behind respondent No,2 as the only daughter. She succeeded to the extent of share admissible to a daughter under the Hanafi Law. The remaining portion was inherited by respondent No,1 and Naseer Ali.
13. Since there is no reliable evidence on record to conclude that respondent No,2 had entered into an agreement for sale of her share and as admittedly she is not a party to the above Exhs.54 and 59, no decree can be passed in respect of her share.
14. The upshot of the above discussion is that we would allow the above appeal to the extent of share of respondent No,1 in the suit land and would set aside the judgments of the first appellate Court and the learned Judge in chamber, but would maintain the judgment of the first appellate Court and of the High Court of dismissal of the suit to the extent of respondent No,2's share. The appeal stands disposed of in the above terms, with no order as to costs.