In this revision petition concurrent finding of fact recorded by both the Courts below regarding execution of agreement of sale in dispute by the petitioner in favour of the respondent on the basis of which suit filed by the respondent for specific performance has been decreed, has been challenged.
2. Learned counsel for the petitioner argued that two witnesses at least according to Article 79 of the Qanun-e-Shahadat were required to be produced whereas in this case apart from scribe only one of the marginal witnesses was examined as such the execution of agreement of sale could not have been held to have been proved.
3. Article 79 of Qanun-e-Shahadat, 1984 is applicable where an instrument is required by law to be attested by two witnesses by or under any law. Learned counsel for the petitioner could not refer to any provision of law where an agreement of sale was required by any law at the relevant time i.e. in 1964 to be attested by two witnesses.
4. Learned counsel for the petitioner argued that according to definition of the word "attested" as given in the Transfer of Property Act with reference to non-testamentary instrument it means attestation by two witnesses. I am afraid this cannot advance the case of the petitioner inasmuch as that is only a definition clause and the petitioner was still to show that the instrument was required by law to be attested and he failed to do so.
5. Learned counsel for the petitioner failed to convince me that the finding of fact recorded by both the Courts below suffer from misreading, non-- reading or misconstruction of evidence. He argued that the pleas raised in the plaint for execution of the agreement are different from the recital in the agreement inasmuch as in the plaint it was stated that an amount of Rs.168.00 was paid as consideration whereas in the agreement an amount of Rs.30 was stated to have been paid.
6. I have examined the plaint, the evidence and the agreement of sale itself. There is no inconsistency. The case of the respondent was that an amount of Rs.30 was paid at the time of execution of agreement of sale. According to agreement of sale the price of the plot which was to be determined by the Settlement Department was agreed to be paid by the respondent. The respondent stated in the evidence that price determined by the Settlement Department was Rs.138 which amount was paid by him on behalf of the petitioner in pursuance of the said agreement of sale. It was in this context that in the plaint it was stated that an amount of Rs.168.00 was paid as price of the plot. The payment of Rs.138.00 to the Settlement Department on behalf of the petitioner can be treated to be payment to the petitioner.
7. The respondent is admittedly in possession who has produced in evidence documents duly exhibited that he made successive applications for sanction of plan to raise construction over the plot in question. The respondent produced in evidence transfer order issued by Settlement Department in respect of plot in question.
8. Learned counsel for the petitioner submitted that the copies of the forms regarding sanction of plan were not public documents and could not have been exhibited without formal proof.
Admittedly, no objection was raised when the said documents were tendered in evidence and exhibited, therefore, according to well-settled law such an objection cannot be allowed to be raised at this stage.
9. No case has been made out for interference under section 115 as the Courts below have not been shown to have committed any material irregularity and illegality in exercise of jurisdiction vested in them under the law. The revision petition fails which is hereby dismissed in limine.