MALIK MUHAMMAD QAYYUM, J.---This judgment shall dispose of Regular First Appeal No. 150 of 1992 and Regular First Appeal No.71 of 1995 which arise between the same parties and pertain to the same property.
2. On 18-11-1989 Muhammad Sultan, hereinafter referred to as appellant, filed a suit for specific performance of agreement dated 21-11-1983 against Kabir ud Din, hereinafter referred to as respondent, claiming that on 21-11-1983, respondent had agreed to sell his shop situate to Main Bazai Ichhra, Lahore to the appellant for a consideration of Rs.2,50,000. It was alleged that at the time of execution of the agreement a sum of Rs.2,00,000 was paid to the respondent upon which the possession of the shop was handed over to him. According to the appellant, the respondent subsequently refused to execute sale-deed on the receipt of balance amount of Rs.50.000 which obliged the appellant to file a suit.
3. In his written statement the respondent denied having entered into any agreement for sale with the appellant or having received any amount as consideration. It was claimed that the appellant was in possession of the shop as a tenant and had fabricated agreement for sale with a view to avoid his eviction from the plot. From the pleadings of the parties the learned trial Court framed the following issues on which the parties went to trial:-- (1)Whether the suit is within time? OPP (2)Whether the piainttff has no cause of action and locus standi? OPD (3)Whether the suit is not maintainable in its present form and defendant is entitled to special costs? OPD (4)Whether the plaintiff is entitled to decree for specific performance as prayed for? OPP (5)Relief.
4., The suit of the appellant was dismissed by the trial Court vide its judgment and decree dated 5- 5-1992 which has. Been impugned in this appeal. It was found that the agreement relied upon by the appellant was fabrication and has not been executed by the respondent who did not receive any consideration as alleged by the appellant.
5. Malik Muhammad Nawaz, learned counsel appearing on behalf of the appellant has contended that execution of agreement EXb_P-1 stood proved on the record and the trial Court while holding to the contrary has misread the evidence and has omitted to consider material evidencc.
6. The learned counsel emphasised that the trial Court mis-directed itself in holding that as the agreement in question had not been attested by two marginal witnesses it was inadmissible in evidence under Article 17(2)(a) of Qanoon-e-Shahadat Order, 1984 read with Article 79 of the said Order inasmuch as the document having been-executed before the enforcement of Qanoon-e- Shahadat Order, 1984, the cited provision had no applicability.
7. We have also heard the learned counsel for the respondent who has defended the impugned judgment and decree.
8. The argument of the appellant's learned counsel that as the agreement was executed prior to the coming into force Qanoon-e-Shahadat Order. 1984, it could not be ruled out of consideration in view of Articles 17 and 79 of the A aforesaid Order, which require every document creating financial obligation to be attested by at-least two witnesses is correct. To the extent it goes. However, it is evident from the perusal of the impugned judgment of the trial Court that this was not the sole reason for ruling out of consideration the agreement. On the other hand, learned trial Court on appraisal of evidence led by the parties came to the conclusion that the execution of the said agreement had not been proved and that the said document was a fabrication.
9. Faced with this situation it was argued by the learned counsel for the Appellant that the execution of the agreement stood proved by the evidence produced by the appellant inter alia, on the report and statement of the Handwriting Expert.
10. Having perused the entire evidence with the assistance of the learned counsel for the parties we find ourselves in agreement with the trial Court that the execution of so-called document by the respondent has not been established or proved. At the very outset a peculiar feature of the agreement relied upon by the appellant may be noticed which is that though, in the body of the agreement it is recited that the agreement was being executed and the consideration was being paid in the presence of marginal witnesses; the document has not been attested by any one. There is no explanation on, the part of the appellant as to why the agreement has not been witnessed by anyone. It is highly unusual that the parties would not insist upon attestation by the witnesses of an important document like agreement for sale particularly when it recites payment of Rs.2,50,000.
This omission is not only significant but is also destructive of the case of the appellant particularly with regard to payment of Rs.2,00,000 as consideration which according to the agreement was made in the presence of marginal witnesses though the agreement itself shows that there was no marginal witnesses at all.
11. Coming now to the evidence led by the appellant to prove execution of~ the document, none of the witnesses produced by the appellant have deposed about payment of 'consideration by the appellant to the respondent or as to the execution of agreement. In cross-examination, Abdur Rehman son of Mehraj Din, P.W.1, admits that he was not present at the time of execution of the C agreement or the payment of Rs.2,00,000 to him. Similarly P.W.2, Miran Bakhsh stated that consideration 'was not paid in his presence nor was the document executed before him. In this state of evidence it is difficult to disagree with the trial Court that execution of the agreement has not been proved. It may also be noted that the agreement itself having not been exhibited does not even form part of evidence.
12. The main reliance of the learned counsel for the appellant, however. Was upon the statement of the Handwriting Expert and the report made by her, according to which, the signatures on the disputed document were identical to the signatures of the appellant appearing on the written statement The report and statement of the handwriting expert was discarded by the trial Court for valid reasons, one of which was that on comparison of the disputed signatures with the admitted signatures of the appellant it was quite obvious that the signatures were not similar. We ourselves have also examined the signatures appearing on the disputed agreement and compared the same with the signatures on the written statement and the specimen signatures obtain Court and found that the trial Court was correct in observing that there was dissimilarity between those signatures. Be that as it may, it is by now well-settled that the report of the Handwriting Expert is not binding on the Court nor was it to rely upon the said) D report simpliciter without there being corroborative evidence.
13. In the end Malik Muhammad Nawaz, Advocate submitted that the trial Court has failed to consider the writing appearing on the back of the agreement for sale dated 21-11-1983 which was in the hand of the respondent and was similar to the specimen obtained in Court.
14. We are not impressed with this contention of the learned counsel for the various reasons. As already observed, agreement has not been exhibited and does not form part. Of the evidence. The same is true about the writing appearing on the back of the alleged agreement which again has not been exhibited but has been marked as 'C' Morc importantly when the respondent appeared in the witness-box and denied having examined the agreement he was not confronted with the writing and the signatures on the back of the agreement. Though in the cross-examination it was suggested to the respondent that he had extended time for exeuction of the sale-deed through writing signed by him on the back of the agreement, but on his denial, he was not confronted with the writing. According to Article 140 of the Qanoon-e-Shahadat Order, 1984 which corresponds to Article 145 of the Evidence Act, 1872, such confrontation is mandatory. In Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 730), it was ruled that:- "Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party. Where the statements relied on as admissions are ambiguous or vague, it is obligatory on the party who relies on them to draw in cross-examination the attention of opponent to the said statements before he can be permitted to use them for the purpose of contradicting the evidence on oath of the opponent "
The Supreme Court in the cited case had approved the judgment of this Court in the case of Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others (AIR 1946 Lah. 65) in which it was held that Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in' the witness-box involves the denial of the previous admission or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention*of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party."
15. In view of above we have no hesitation in upholding the findings recorded by the trial Court on issue No.4 that the appellant had failed to prove F execution of an agreement for sale by the respondent in favour of the appellant or payment of consideration. The dismissal of the appellant's suit was as such fully justified.
16. The other appeal arises out of a suit for possession which was defended by the appellant on the plea that he was in possession of the shop under the agreement, for sale. The trial Court had decreed the suit in view of its findings G in the other suit that the agreement for sale was fabricated and had not been executed by the appellant. These findings have been upheld by us. No legitimate exception can, therefore, be taken to the decree for possession passed against the appellant by the trial Court.
As a consequence of the above, both these appeals fail and are dismissed with costs.