1. ' This revision petition under section 115, Civil P.C. By the successor-heirs of the original plaintiff since deceased was from the judgment given in appeal by learned District Judge, Sialkot by which judgment of the learned trial Court decreeing specific performance of an agreement to sell a piece of land was reversed and suit was dismissed on the ground that the agreement for sale was not proved.
2. ' Facts giving rise to the litigation between the parties briefly stated were these: Muhammad Iqbal son of Lal Din of Wadhowali, in Tehsil Pasrur of District Sialkot, was owner of 4 Kanals, 1 Marla of land in revenue estate Bherah, in Tehsil and District Sialkot. It was half share of total land measuring 8 Kanals, 2 Marlas comprised in Khasra numbers 40 and 41. On 16-2-1986, Muhammad Iqbal was alleged to have agreed for the sale of his above piece of land to Ludhar Khan son of Maula Baldish for the sale price of Rs,34,000. A sum of Rs,1,000 was allegedly received by him in advance and the balance of sale price was payable within a month at the time of finalization of the sale before a Tehsildar. Agreement was scribed by Zafar Ali son of Bootey Khan of village Bherah on a plain paper with revenue stamps of eighty paisas affixed on it. Muhammad Iqbal and Ludhar Khan allegedly thumb-marked the deed of agreement; Muhammad Khan Lambardar of village Shadiwal, Muhammad Ehsan son of Muhammad Hussain of village Bherah, Muhammad Sardar son of Manzoor Hussain of village Bherah affixed their signatures to the agreement. It did not specify the description of the land agreed to be sold with reference to its Khasra or Khewat numbers. It was marked Exh.P1 on the file of the case. Sale was not finalized between the parties in terms of the agreement. Instead, Muhammad Iqbal exchanged his above land with Muhammad Boota son of Hakim Din, on 22-3-1986, through a registered deed. Exh.P1 indicated that Muhammad Iqbal owned 1/2 share in land measuring 13 Kanals 4, Marlas in the revenue estate. It was comprised in Khasra Nos.40, 41 and 240.
3. ' On 17-4-1986, Ludhar Khan since deceased, instituted a civil suit for specific performance of agreement to sell in his favour for completion of the sale of the land by Muhammad Iqbal. On the application by the plaintiff, Boota Khan who then held the land in exchange from Muhammad Iqbal was added as defendant No,2 in the suit. Defendants denied the agreement; receipt of advance money under it and pleaded genuineness of inter se exchange of the land between them through a registered deed. Original plaintiff died in course of trial of the suit. Thereupon, his successors were substituted for him on record and they proceeded with the trial of the suit.
4. ' The trial Court settled necessary issues for determination. These were found in its judgment and it was unnecessary to reproduce them. On behalf of the substituted plaintiffs, Muhammad Iqbal, Muhammad Sardar gave evidence to prove execution of agreement for sale of the land and payment of advance money under it and, one of them, namely Muhammad Khan appeared in support of their case. In addition to sale agreement Exh.P1, an extract from register Haqdaran Zameen for the year 1981-82 pertaining to the land in suit was tendered in evidence and the affirmative side of it was closed. Muhammad Sharif deed-writer, Muhammad Iqbal defendant No,1 and Muhammad Boota defendant No,2 gave evidence in defence to refute agreement to sell and to prove the bona fides and genuineness of the exchange transaction. It was necessary to notice that neither scribe of the agreement, nor, Muhammad Khan Lambardar of Shadiwal entered the witness-box to give evidence on either side. Satisfactory explanation for this omission was not forthcoming on the present record. There could be no dispute that both were important witnesses to the unfolding of the truth of the matter in dispute.
5. ' Upon review of the record, the trial Court believed the plaintiffs" version of the event; relied upon the evidence adduced by them in preference to that of the defendants and decreed their suit on 19-12-1991 subject to payment of Rs,33,000 as sale price within one month.
6. ' Defendants preferred a joint appeal against the decree of the trial Court. It was allowed by learned District Judge, Sialkot on 7-4-1994, who in disagreement with the assessment of record by the learned trial Court held that agreement to sell in favour of Ludhar Khan was not proved. This finding put a final seal on the fate of the suit instituted by the plaintiffs. So they were in revision before this Court.
7. ' At the hearing of civil revision, Mr. Taki Ahmad Khan, Advocate, learned counsel for the petitioners raised three-fold submissions. It was argued that appreciation of oral evidence by the trial Court and its view on credibility of witnesses must prevail in preference to that of the Court of first appeal; enmity of P.Ws. Was not borne out from the record, and, therefore, they ought not to have been disbelieved by the lower appellate Court and lastly that in order to arrive at truth and fair decision, Muhammad Iqbal respondent No,1 may be summoned to swear on Holy Oath about the execution of agreement to sell Exh.P1 by him. I have given full weight to the above contentions but none of them had any real substance in it. Prime point for decision was the execution of Exh.P1 by the owner of the land in favour of the promisee for sale of his land on terms stated in it. Upon careful scrutiny of record and its sifting analysis, it was evident that the plaintiffs had signally failed to establish execution of agreement for sale of his land by Muhammad Iqbal leading to an inevitable consequence that Exh.P1 was not a document beyond clear doubts and suspicions. As observed above, Exh.P1 was scribed on a plain paper by a boy. Zafar Ali. It was not scribed by a licenced deed-writer on a proper stamp paper. The facility of both the deed-writer .And stamp paper were available at a nearby - place in Sialkot City. It was hardly at a distance of five to six miles. Reason for bypassing the deed-writer and scribing the deed on stamp paper were not visible on the present record. It may have its own meaning to convey. Furthermore, scribe of the agreement and an important marginal witness were not produced in evidence to remove all possible doubts about its execution. P.W.1 Muhammad Ehsan deposed that agreement was scribed at the Dera of Muhammad Khan in his presence. If so, there was no reason for shifting the venue for execution of agreement to a place in different revenue estate. This circumstance further highlighted the importance of evidence of Muhammad Khan marginal witness of Exh.P1. His omission from the witness-box raised a clear adverse inference against the plaintiffs. P.W.1 or his family was ditched in litigation with defendants. Therefore, his testimony could not be disinterested. He was a relation of defendant No,2 Boota Khan. He was son of his sister-in-law. Yet he gave evidence against him. It was an unusual conduct in our backdrop of the society. Defendant No,2 in his statement deposed that their relations were strained: Therefore, it was not a mere compunction of conscience to speak truth but a clear desire to avenge the enmity which made P.W.1 to enter the witness-box against the interest of defendants. P.W.2 gave evidence to support execution of agreement Exh.P1 at the instance of Muhammad Iqbal and deposed that deed of agreement was scribed by Zafar and thumb-marked by Muhammad Iqbal. In cross-examination, the witness admitted his thumb- impression on his affidavit Exh.D1. In his. Affidavit, he had disowned his knowledge about the sale agreement. Plaintiffs did not have P.W.2 declared hostile to cross-examine him, on his conduct shown in Exh.D1. Muhammad Khan plaintiff deposed that Muhammad Iqbal had agreed to sell his 4 Kanals, 1 Marla of land to his father and executed an agreement in his favour. He deposed that he was present at the time of execution of the sale agreement but did not sign the document.
8. Reference to defence evidence shall reveal that it consisted of the statement of Muhammad Sharif deed-writer D.W.1 and testimony of two defendants wherein they consistently denied execution of agreement for sale of land and asserted genuine exchange of their lands through a registered deed. Mr. Taki Ahmad Khan, Advocate argued that since the defendants had petitioned the trial Court for inclusion of Zafar Ali as a witness for their side in the list of witnesses, plaintiffs did not produce him in their affirmative evidence. The contention had little weight in it. Application under Order XVI, Rule 1, Civil P.C. For inclusion of name of Zafar Ali was dated 29-10-1989, whereas the plaintiffs had already concluded their evidence on 25-9-1989. Even if the defendants did not examine Zafar Ali, the plaintiffs could have introduced his evidence as additional evidence with permission of the Court or at least could have applied for it which they never did. It showed that Zafar Ali was not their supporting witness. In case of clear dispute about execution of a document and doubts cast on its genuineness, the plaintiffs in order to remove all suspicions must have produced all the marginal witnesses and scribe of the deed. Furthermore, no effort was made to establish identity of thumb-impression of Muhammad Iqbal on the disputed document Exh.P1 with his sample thumb-impression taken in Court for comparison by an expert witness. Onus to prove execution of agreement to sell lay upon the plaintiffs and it was for them to exhaust all satisfactory modes of its execution. Also, the sale price stated in Exh.P1 was far below the prevailing market price of the land in dispute. Therefore, the view taken of evidence regarding proof of execution of Exh.P1 by learned District Judge was neither incorrect nor implausible. As a final Court of fact sitting in first appeal, he was competent to review the evidence and the credibility of witnesses and for good reasons, he rightly disbelieved the P.Ws. The complaint on this score was unsound.
9. ' For the aforesaid grounds, I would uphold the judgment of the learned lower appellate Court and dismiss the civil revision in limine.