This revision petition arises out of judgment, dated 1-7-1996 passed by a learned Additional District Judge, Sahiwal whereby he disposed of two connected appeals filed by the petitioner against the judgment of the learned trial Court, dated 14-4-1993 dismissing the suit filed by the petitioner for declaration and decreeing the suit for specific performance filed by respondent. These two judgments have given rise to these two petitions i,e, Civil Revision No, 865-D of 1996 and Civil Revision No,866-D of 1996 which will be disposed of by this judgment.
2. The suit for specific performance was filed by the respondents on 11-6-1989 for the enforcement of agreement, dated 29-1-1984 (Exh.D.1) claimed to have been executed by Mushtaq Ahmed petitioner regarding a Chobara situated at Shop No,378-B-II, Sahiwal. It was pleaded that out of the total price of Rs,22,000, Rs,15,000 were paid at the time of agreement. This suit was still pending when the petitioner filed a suit for declaration on 2-11-1989 to the effect that agreement, dated 29- 1-1994 was fictitious and forged document and that he had never executed any such agreement.
Civil Revision No,865-D of 1996 arises out of the suit for declaration filed by the petitioner whereas Civil Revision No,866-D of 1996 arises out of the suit filed by the respondents for specific performance against the petitioner.
3. Both the suits were consolidated and issues framed accordingly. The parties had opportunity of leading their evidence in support of their respective pleas. After considering the same the learned trial Court dismissed the suit filed by the petitioner for declaration whereas the suit filed by the respondents for specific performance of agreement, dated 29-1-1984 was decreed by one and the same judgment, dated 14-4-1993. The petitioner filed appeals against both these judgments. The said appeals have been dismissed by the learned Appellate Court vide the judgment, dated 1-7- 1996. Hence these two revision petitions.
4. In support of these the learned counsel for the petitioner contends that the effect of the execution of the agreement Exh.D.1 at Kamalia has not been properly appreciated by the two Courts below, particularly when the execution of the agreement had been denied by the petitioners. It is further contended that D.W 1 Farhat Abbas who had been one of the marginal witnesses of the said agreement, was posted at the relevant time at Rawalpindi, his presence at the time of the execution of the agreement was quite unusual which has not been explained. It is further contended that while the appeal was pending before the learned Additional District Judge an application was made for bringing on record P.T.D., dated 20-7-1969 but the said application was rejected by the learned Appellate Court on erroneous view of the matter whereas the said document being a copy of the public record was entitled to be received in evidence through additional evidence. It is contended that when Mushtaq Ahmed P.W.2 appeared as a witness in the case he was neither confronted with the agreement nor his signatures on the same and that his signatures should have been sent for comparison. It is contended that the findings of the two Courts below suffer from misreading and non-reading of material piece of evidence and are liable to be set aside.
5. As against this the learned counsel for the respondents contends that mere execution of agreement at Kamalya does not lead to any adverse inference when the same has been proved by cogent evidence, as duly executed by the petitioner. Relies upon Haji Mahboob Ali Khan v. Mst.
Illachi and 3 others 1987 M LD 637 in support of his contention. It is further contended that both the Courts have appreciated the evidence brought on record and after due consideration of the same, finding of fact as to the execution of agreement have been recorded which cannot be interfered by this Court. It is contended that when the petitioner had denied the execution of the agreement it was for him to apply to the Court for sending his signature for comparison to the Handwriting Expert. Relies on Ali Muhammad v. Wali Muhammad 1993 M LD 666 and Hassan Din v. Muhammad Sharif and others (1987 CLC 951). It is contended that the mutation of ownership was sanctioned in favour of the petitioner on 26-12-1987 and the cause of action would be considered to have arisen only thereafter, when the execution of sale-deed was denied by the petitioner and not from any previous date. Further contends that for a long time the appeal remained pending with the learned Appellate Court but the application for producing P.T.D. As a piece of additional evidence was made on the last date when the final arguments were heard and it was rightly rejected by the learned Appellate Court,
6. It is an established law that the matters of civil nature are decided by applying the rule of preponderance of evidence brought on record by the parties. For reference see Zakaullah Khan v.
Muhammad Aslam and another 1991 SCM R 2126.
7. In Dil Murad and others v. Akbar Shah 1986 SCM R 306 the test for proving execution of a document was laid down as follows:-- "The mode of proof of execution of the document is laid down in sections 68 to 71 of the Evidence Act. It has been held that the ordinary meaning of executing a document is signing a document as a consenting party thereto. Execution consists in signing a document written out and read over and understood by the person signing it. Execution can be proved by calling the person who signed or wrote the document or a person in whose presence the document was signed or written or by calling a Handwriting Expert who had examined the disputed signature with the admitted signature. Additionally execution can be proved by calling a person acquainted with the handwriting of the person who has signed or written it. Lastly the Court can compare the disputed signature or writing with some admitted signature or writing. Even circumstantial evidence can be adduced in proof of the execution of a document. We agree with the learned Judge in the High Court that the respondent had produced sufficient legal evidence in proof of the execution of the agreement in this case and that a bare denial on the part of the respondent was not sufficient to set at naught the evidence, thus, produced. In the circumstance it was not necessary for the respondent to produce the evidence of an expert to prove that the thumb-mark was actually that of the deceased executor. In this connection the High Court has further pointed out that the thumb-impression was distinct and clear, so that the petitioners who may be in possession of other documents bearing the thumb-impression of the deceased, were in a better position to rebut the evidence by calling expert evidence showing that the thumb-impression was not genuine. On the rule of preponderance evidence the issue seems to have been correctly decided." (Underlined by me for emphasis)
8. Now applying the aforesaid principles to the case in hand it is to be appreciated that the petitioner did not produce any cogent evidence to belie the execution of agreement, dated 29-1- 1984 and made a simple bare assertion denying its execution when he appeared as P.W.2. To the contrary the respondents produced Farakh Abbas D.W.1 who is the marginal witness to the agreement. He stated that the same was signed by the petitioner in his presence and Rs,15,000 were received by him. He further stated that Haji Bashir Ahmed D.W.2 also signed in his presence.
He was cross-examined by the petitioner wherein he stated that he is resident of Sahiwal and is employed at Rawalpindi, but he comes Sahiwal off and on and those days (when the agreement was executed by the petitioner) he was on leave and was at Sahiwal and had accompanied Muhammad Hussain Shah predecessor of the respondents and Mushtaq Ahmad petitioner when they went to Haji Bashir Ahmed D.W.2 and the petition-writer to Kamalya. Haji Bashir Ahmed D.W.2 who is another witness to the agreement stated that the petitioner had signed the agreement in his presence and received a sum of Rs,15,000 from the predecessor of the respondents. It was further stated by him that on that day petitioner himself came to him along with Farakh Abbas D.W.
I and Muhammad Hussain deceased and they went together to the petition-writer in the Katchery where the same was written in their presence. Muhammad Shafi the petition-writer who had written the said agreement had died but his assistant Qutab Ali D.W.3 appeared as a witness when he stated that he used to work with Muhammad Shafi deceased and that the agreement was written in his presence by Muhammad Shafi deceased. He had brought the relevant register and deposed that the two witnesses and Mushtaq Ahmed petitioner had put their signatures on the said register.
9. This is the nature of the evidence which has come on record as to the execution of the agreement, dated 29-1-1984 which was sought to be enforced by the respondents. The statements are consistent, convincing and inspire confidence. Nothing has been brought on record to discredit the testimony of these witnesses except the assertion that the agreement was written at Itamalya whereas the parties resided in Sahiwal. In Haji Mahboob Ali Khan v. Mst. Illachi and 3 others 1987 M LD 637 it was observed that the simple reason that the stamp paper on which the agreement was written was purchased not from the place where the-parties resided but from some other place would not lead to any inference that the agreement was forged. The analysis of the aforesaid depositions of the witnesses would clearly establish that the agreement was indeed executed by the petitioner, the findings recorded by the two Courts on this aspect of the matter are, thus, entitled to due regard.
10. The contention of the learned counsel for the petitioner that in view of the denial of the agreement by the petitioner his signatures should have been sent for comparison by the Court, is not tenable in the facts and circumstances of the case inasmuch as when the signatures were being disputed by the petitioner it was he who should have asked for the comparison of his signatures by the Handwriting Expert. In Ali Muhammad v. Wali Muhammad 1993 M LD 666 it was observed that where a person disputes the signatures or genuineness of a document he should get the opinion of an expert which would have been more decisive and reliable about the veracity of the documents. A failure on his part would lead to a presumption that he would have failed in getting a favourable report form such an expert. Similar view was taken by a Division Bench of this Court in Hassan Din v. Muhammad Sharif and others 1987 CLC 951.
11. On going through the evidence and the judgments of the two Courts below I am convinced that the findings recorded by the two Courts below are based on correct appreciation of the evidence and the conclusion drawn by them are amply supported by the material on record. I do not find any infirmity or illegality with the approach of the two Courts below. There is no justification to interfere with the same.
As a result of the above this petition has no force and is dismissed accordingly. No order as to costs.