' NAIMUDDIN, J.---This appeal by leave is from the judgment of the High Court of Sindh, Sukkur, Branch, dated 14-4-1983, passed in Civil Revision Application No,6 of 1979 whereby the revision application was dismissed.
2. Leave was granted in the following circumstances.
3. The appellants are legal representative of Saheb Khan who was the father-in-law of the respondent and was residing with him. On his death the appellants were substituted in his place during the pendency of the revision application in the High Court.
4. Saheb Khan had brought a suit for specific performance of an agreement dated 30-10-1962 whereby the respondent is alleged to have agreed to sell to Saheb Khan half share in the House bearing No,C.S. 1937/15, Ward B', Karma Bagh, Larkana, in the Court of Civil Judge, Larkana.
5. The main issue between the parties was whether the respondent had executed the alleged agreement. The trial Court having found in favour of Saheb Khan, decreed the suit for specific performance of the contract.
6. The respondent being aggrieved by the judgment and decree filed an appeal with the Additional District Judge, Larkana, who by reversing the finding on the abovesaid issue held that the evidence on record did not prove the signature of the respondent on the document incorporating the alleged agreement between the parties and allowed the appeal.
7. In coming to the above conclusion the learned District Judge took into consideration mainly the fact that the document was got attested by an Oath Commissioner after a long delay of nine years from the date of its alleged execution and that there was contradiction in the evidence of two attesting witnesses as to the place of the execution of the agreement. He also compared the disputed signature of the respondent with the admitted signature and was of the opinion that there were dissimilarities between the two. He held that it was the duty of the appellant to examine the handwriting expert to prove the signature.
8. Feeling aggrieved by the judgment and decree Saheb Khan approached the Sindh High Court in revision to challenge the same. However, the High Court as is stated herein before dismissed the application holding that "I while sitting in revision cannot disturb the above finding of fact, unless 1 find it is perverse or contrary to record".
9. In granting leave this Court observed as follows:- "After perusing the judgment of the learned Additional District Judge we find that he appears to have approached the question of the proof of the basic document on which the suit was brought on the basis that the plaintiff was required to prove that it was signed by the defendant beyond any reasonable doubt before being entitled to a decree for Specific Performance. Further, as already stated, he also proceeded on the assumption that it was necessary for the plaintiff to examine a handwriting expert in proof of the disputed signature. In view of these circumstances we feel that the approach of the learned Additional District Judge seems to be contrary to the well- established rule of decision in civil proceedings, namely, the preponderance of evidence adduced on either side. In this case the plaintiff had examined the scribe of the agreement in question and the two attesting witnesses who seem to have supported the plaintiff that the document was signed by the respondent in their presence in token of the acceptance of the terms of agreement.
As regards the attestation by the Oath Commissioner it was pointed out that an agreement for sale does not require attestation in law and even otherwise it was attested by marginal witnesses and, therefore, the sthsequent attestation by the Oath Commissioner after the lapse of nine years was not a material circumstance which has been made one of the main considerations for holding the document as spurious. It was further argued that although the High Court accepted the proposition that it is not a legal requirement for the proof of handwriting or signature to examine an expert, yet the High Court failed to consider the effect of this proposition on the evidence as a whole submitted by the plaintiff in proof of the contract between the parties."
10. Accordingly, leave was granted to consider the question of law whether in the facts and circumstances of this case the High Court was right in holding that the revisional jurisdiction under section 151 of the C.P.C. Was not attracted in this case and more particularly whether the learned District Judge acted in the exercise of his jurisdiction illegally with material irregularity affecting the final decision in appeal before him.
11. Mr. Usman Ghani Rashid, learned counsel for the respondent submitted that the civil revision application was not maintainable against the finding of fact as was held by the High Court. But it is well settled that if a material document or material evidence is not duly considered, the High Court could interfere in revision. It is also settled that if an appellate Court bases its decision on a wrong proposition of law the High Court in its revisional jurisdiction could interfere with it. We may refer here to the case of Nasir Abbas v. Manzoor Haider Shah wherein this Court has observed as follows:--- "It is also settled that if lower Court misreads evidence on record and fails to take notice of a vital fact appearing therein and comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by High Court."
12. Therefore, it is necessary to examine the facts of this case in detail to know whether the principles stated above are attracted to it or not.
13. In the suit the Trial Court had framed the following issues:---
(1) Whether the Defendant has agreed to sell the house in question to the extent of half, as shown in the Plaint?
(2) Whether the Plaintiff had paid the amount as consideration to the Defendant as shown in the Plaint?
(3) What should the decree be?
14. It decided the issue No,1 in favour of the appellant but issue No,2 against the appellant for the reason that there was word against word with regard to the alleged payment and he therefore, did not accept it.
' The reasons which weighed with the learned trial Court in deciding the first issue in favour of the appellant were that he was in possession of the property in question and the respondent who was his son-in-law also resided with him in the house. Respondent had filed L.H. Form before the Deputy Settlement Commissioner, Larkana, for the transfer of the house on agreement with him that after getting the transfer in his name, he would give the appellant 0-50 paisas share in the house. The transfer price of the house was Rs,1,680. The respondent executed in writing such agreement through Abdul Ghafoor scribe. It was attested by Ashraf Ali Shah and Mumtaz Ali.
15. The trial Court referred to the evidence of the respondent (Exh.103) who admitted that he with his wife jointly used to live in the house of the appellant since 1952, and that the appellant was his father-in-law and he was married to his daughter. He also stated in his evidence that before the marriage with the appellant's daughter he used to live with his parents in a house adjacent to the house in dispute. He also stated that appellant was in possession of the house prior to 1952 and he came in the house following his marriage with the daughter of the appellant. He also admitted that legally the appellant being in possession of the house in dispute had to file the L.H. Form for the transfer of the house. He also admitted that the appellant was still living in the house in dispute and that he divorced his wife after the institution of the suit. He however, denied the execution of the agreement.
16. The trial Court on the basis of evidence of Abdul Ghafoor scribe who had stated that the agreement (Exh.82) was written by him at the instance of respondent on 30-10-1962 in the presence of Mumtaz Ali and Ashraf All witnesses and after discussing their evidence in the judgment observed:--- "I find nothing in the evidence of Abdul Ghafoor scribe and Ashraf All Shah that they are going against the Defendant because of their enmity with him. The credit of these witnesses has not been impeached in cross-examination and there is no reason why they should not be believed. As per the evidence of the Plaintiff Exh.82 was signed by the defendant and was written by petition-writer Abdul Ghafoor. Abdul Ghafoor has supported the Plaintiff that Exh.82 was written by him and same Abdul Ghafoor and attesting witness Ashraf All Shah both have supported the Plaintiff that Exh.82 was signed by defendant and there is no reason that why these witnesses should give evidence against the Defendant."
17. The trial Court also compared the admitted signature of the respondent with the disputed signature on Exh.82 and held that both are in the same hand and there is no difference between the words 'Muhammad' of the disputed signature on the disputed document and that of admitted signature, and that the word Tanah' is also in the same stork- on the admitted document and the disputed document.
18. The trial Court also took into consideration the conduct of the respondent who after receipt of the notice copy whereof was produced (as Exh.83) and the acknowledgement receipt bearing the seal of the post office and also respondent's signature (Ex.87) had denied to have received the notice. It also took into consideration the fact that the respondent had denied the reply letter (Exh.88) which was sent to the appellant in reply to his notice. The respondent even denied his signature on the reply letter. The trial Court therefore, concluded that it was difficult to believe that the appellant might have forged the signature of the respondent at every stage. It also observed as follows:--- "If the version of the defendant (respondent) is believed that the signature on Exh.87 is not the signature of the defendant then this means that we should believe that the postal authorities were in collusion with the plaintiff (appellant) to forge the signature of the defendant on Exh.87 and that 'it was impossible to imagine that in view of Section 114 of the Evidence Act'."
19. The trial Court also referred to the attending circumstances of the case which favoured the execution of the agreement. In this regard it observed that "it was the plaintiff alone who was original occupant of the property and it was his right exclusively to file L.H. Form for the transfer of the house. The fact that instead he allowed the respondent to apply for the transfer of the case in his own name because of agreement to transfer of 0-50 paisas share in the house to the appellant by the respondent. The respondent was son-in-law of the appellant and there was bound to be a faith and trust between the parties on account of that relationship. The respondent has not been able to prove as to why the appellant should give up right of transfer of the house when he himself could apply on the basis of his possession for the transfer of the house. This circumstance went against the respondent.
20. On appeal, the learned District Judge set aside the judgment as stated before on the consideration that it was an admitted fact that the respondent had filed the L.H. Form in his own name for the house in question and the only question for consideration was whether the appellant was requested by the respondent to file L.H. Form and promised to transfer half of the house.
Dealing with this question the learned Additional District Judge observed that this was a question of fact and the respondent had not satisfactorily proved that he was requested by the appellant to file L.H. Form and promised to transfer half of the house because there was only word of the respondent to that effect.
' In this regard the learned District Judge completely ignored the observations and the circumstances dealt with by the trial Court that the appellant with his daughter was residing in the house in question before he gave the hand of his daughter to the respondent in 1952 when the respondent also started to reside in his house.
21. As regards the agreement dated 30-104962, the learned Additional District Judge found that the ink used in the agreement is different from the ink used by the attesting witnesses. We fail to understand how and by what logic the different inks in which the agreement was written and attesting witnesses had signed the agreement could prove that the agreement was not executed.
Another very important factor according to the learned District Judge was that one attesting witness Ashraf Ali attested the agreement on 30-10-1962 and again on 20-8-1971 he attested the agreement when Haji Saghir Hussain Ghori, Oath Commissioner also attested it. He therefore, concluded that "the agreement was entered into on 30-104962 and was attested by the Oath Commissioner on 20-8-1971 which was exactly after 9 years."
' In this regard it may be observed that when Ashraf Ali signed the agreement as an attesting witness on 3040-1962, the agreement was not attested by the Oath Commissioner but when Ashraf Ali second time signed the agreement on 20-8-1971 he did so in the presence of Oath Commissioner. Therefore, Ashraf Ali's evidence that the agreement was signed by the respondent on 30-10-1962 is not affected by his signing the agreement in the presence of the Oath Commissioner. Even if the second attestation by Ashraf All and the attestation by the Oath Commissioner are ignored it would not make any difference if the execution of the agreement by the respondent on 30-10-1962 was otherwise proved. Ashraf All might have signed the agreement second time on the insistence of the Oath Commissioner. It was not necessary under the law that a sale agreement should be signed by the parties or the witnesses in the presence of Oath Commissioner, notary public or any other officer or authority.
22. The learned Additional District Judge referred to the contradictions in evidence of witnesses on some points. In this regard he highlighted the following aspects:
(i) the appellant has stated in his deposition that the agreement was written at 10 or 11 A.M. In the presence of his wife and witnesses but there was no other person present when the agreement was executed except the wife and daughter of the appellant.
The appellant could not have been non-suited on this minor contradiction moreso when the statements were recorded after several years.
' Ashraf All (Exh.95) stated that he did not know as to where the agreement was written and that his signature was obtained outside the house of the respondent near the door.
' This statement is not inconsistent with the statement of the appellant that it was written in his house because Ashraf All might not be present at the time when Abdul Ghafoor wrote the agreement in his house. He might have come afterwards and attested it as a witness.
' The attesting witness Ashraf All stated that he and other attesting witness Mumtaz All were brought by the appellant.
' It is however, not understandable how this statement could be used as a contradiction in evidence.
(iv) The appellant has stated that Ashraf All signed the alleged agreement first whereas Abdul Ghafoor stated that Mumtaz All signed the alleged statement first.
The learned Additional District Judge lost sight of the fact that the witnesses were examined in 1977 while the agreement was executed on 30-10-1962. This again is a minor contradiction.
(v) The agreement was written on 30-10-1962 and was attested by the Oath Commissioner on 20- 8-1971 but Abdul Ghafoor scribe stated that the witness went to get the document attested on the same day.
' There is nothing wrong with the statement. The first signatures of the witness are unattested and second signatures were attested on 20-8-1971.
(vi) Reference has also been made that Ashraf Ali's evidence who categorically stated that the agreement was attested after 10 or 11 years and the appellant Muhammad Panah was not present at the time of attestation.
' It may be stated that Ashraf All had signed the agreement according to his evidence on the same day it was executed but he again signed it on 20-8-1971. Obviously the Oath Commissioner must have required him to sign it again in his presence so that he could attest his signature.
23. Another reason which weighed with the learned Additional District Judge was that since the respondent had denied his signature, the appellant ought to have called the handwriting expert to compare the signatures. He observed that the "failure" on the part of the appellant to examine the handwriting expert destroys his case. Further, it is here where the learned Additional District Judge made an error of law because under Section 73 of the Evidence Act as then applicable one of the modes of proof of signature provided therein is as follows: "73. Comparison of signature. Writing or seal with others admitted or proved---In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
' The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."
24. Moreover, he himself compared the disputed signature with the signature on the admitted document and opined that there was difference Between two signatures but he failed to specify any difference or differences. His finding that the two signatures are different is based on no reasons or criteria.
25. It may be stated here that according to M. Monir the modes of proof of signature or handwriting are as follows:
(i) By calling the person who signed or wrote the document.
(ii) By calling a person in whose presence the document was signed or written.
(iii) By calling a handwriting expert.
(iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written.
(v) By comparing in Court the disputed signature or writing with some admitted signature or writing.
(vi) By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it.
(See Principles and Digest of the Law of Evidence, page 741)
26. Accordingly, the Civil Judge adopted one of the modes provided in the Evidence Act when he compared the two signatures. It was open .To the Additional. District Judge to have compared himself the signatures, but then while expressing different opinion he should have pointed out where the Civil Judge was wrong or committed mistake when he held that the two signatures were same/similar/identical and he should himself point out how the disputed signature with the admitted signature differed or in what respect they did not tally.
27. Since the opinion of two Courts differed on the signature of the appellant one course open to us is to remand the case for examining the handwriting expert so that he may give his opinion. The other is that we should ourselves examine the signatures. In view of the fact that the suit was instituted in 1971, we decided not to adopt the first course but have ourselves compared the signature on the written statement and also on the agreement and find that the opinion of the trial Court is correct as it is based on congent reasons and consequently hold that the agreement is signed by the respondent.
28. Another reason which weighed with the Additional District Judge is that both the parties were at daggers drawn prior to the said agreement. In this regard he referred to the cross-examination of the appellant who admitted that his son Ramzan died at the age of 3 years and he had filed murder case against father, uncle and brothers of appellant Muhammad Panah regarding death of his son but they were acquitted of the case and that the appellant's wife was detained and she was divorced and as such the enmity between the parties was established and therefore there was reasonable apprehension that the said agreement had been forged to deprive the appellant of lawful title and ownership of the house in question. We may say this conclusion is based on conjecture and surmise. Further, the Additional District Judge has not considered the important document which is the reply of the respondent to the notice (Exh.85) of the appellant dated 5-5- 1971. Paras 1 and 2 of the notice read as follows: "(1) I give you this notice we both are the occupants of C.S. No,1937/15 situated in Karma Bagh, Larkana since last many years. You had promised with me as privately that I am filling the L.H. Form and on getting the permission we will distribute this property in half. There was agreement that amount so spent will be half and half. Accordingly I have got written from you on the stamp in year 1962 on 30-10-62, in presence of the under-mentioned witnesses.
(2) According to written statement you have taken half of the amount for this property. Now since you have obtained F.T.O. Form and City Survey record and finally it has been with by the Settlement Authorities, Larkana."
' In reply (Exh.88), the respondent stated as follows: ' that I am the occupant of the house in question. You are merely licencee, and you have been there in the house as a matter of courtesy and with my permission. You don't have independent right.
(2) that the house has been purchased by me on L.H. Form and you have nothing to do with it.
Since you are my father-in-law, I have allowed you to stay in it.
(3) that it is also false that you have paid me half the price of the house as shown in the notice. In fact you see in law, I wanted to make you partner (emphasis supplied) but you did not pay the amount, hence the question of being aware of the half does not arise.
(4) that if there is any agreement, please supply me a true copy of that without delay so that I should give you further reply about that so-called agreement."
30. It is quite clear from the above that in this agreement the respondent has admitted that the appellant was also residing with him in the house and that the respondent wanted to make the appellant partner. Indeed this admission supports the case of the appellant and tends to prove the execution of the agreement by the respondent which is for half of the house.
31. We therefore accept this appeal and set aside the judgment and decree dated 5-2-1979 of the Additional District Judge, Larkana and the impugned judgment of the High Court and restore the judgment and decree dated 19-3-1978 passed by the Civil Judge, Larkana., However, in the circumstances of the case, parties are left to bear their own costs.