MIAN SAQIB NISAR, J. - The present revision petition has arisen primarily from a suit for specific performance filed by Muhammad Hussain, respondent in respect of the disputed house. According to the case as set out in the plaint, it was claimed by the respondent that Mehr Din, the predeciesor-in-interest of the petitioners, by virtue of an agreement dated 7.7.1975 had agreed to sell the disputed property (house) to the respondent for a total consideration of sum of Rs.8,000/-.
It is alleged that as Mehr Din refused to complete the transaction, therefore, the respondent- plaintiff was constrained to file the suit for specific performance.
2. This suit was resisted by the present petitioners, legal heirs of Mehr Din deceased, it may, however, be stated that Mehr Din, before his death, appeared in the Court on 3-4-1979, and. Made a statement that he had never agreed to sell the house in dispute to the respondent nor has executed any agreement to sell or give possession to him. Out of the pleadings of the parties, five issues were framed and the material issue in this regard is issue No. 3 i.e. :- Whether the plaintiff is entitled to specific performance of agreement dated 7.7.1975? OPP it may be pertinent to state here that the respondent has also filed a suit u/S 9 of the Specific Relief Act against Mehr Din and both these suits have been consolidated and the consolidated issues were framed by the Court.
3. Parties led ^their evidence and respondent/plaintiff produced PW-1, Muhammad Bakhsh, PW-2 Irshad Ahmed, PW-3 Jilal Din and also appeared as his on witness. Besides this, an agreement to sell Ex.P-1 and other documents as EX.P- 2 to EX. P-5 were also produced on behalf of the respondent-plaintiff.
4. The petitioners/Defendants produced DW-1, Ibrahim, DW-2 Anayat Ali and Taj Din one of the defendants, appeared as his on witness.
5. Learned Civil Judge, Sheikhupura vide a judgment & decree dated 25-2- 1984, dismissed both the suits filed by the respondent-plaintiff against which appeals were preferred.
6. Learned Additional District Judge by virtue of judgment and decree dated 25-2-1984, accepted the appeal of the respondent/plaintiff in suit for specific performance whereas suit filed by the respondent-plaintiff u/S. 9 of the Specific Relief Act. Was dismissed. Against said judgment & decree dated 19-9-1984, the present revision petition has been filed by the petitioners-defendants.
7. It has been argued on behalf of the counsel for the petitioner that Mehr Din, during his life time, had appeared before the Court and his better statement was recorded on 3-4-1979 in which in unequivocal terms stated that he never entered into any agreement to sell regarding the house in dispute nor has executed any sale deed in favour of the respondent or parted with possession. In the written statement, also the present petitioners who are successors in interest of said Mehr Din had denied the execution of the sale agreement by their father.
8. 1 have examined the record and judgments of both the Courts below. The Trial Court has thoroughly considered the evidence on the record and by cogent reasons and while properly appreciated the evidence was pleased to dismiss the suit as the material document i.e. Ex.P-1, according to the trial Judge was not provided; to be executed by Mehr Din. The learned Additional District Judge misread the evidence, particularly the statements of PW-1 and PW-2. These witnesses are neither scribe of the document nor marginal witnesses thereof. They have only testified to the- writing of the Ex.P-1 and signatures by one of the witnesses! It is not proved through their statements that Mehr Din 'had executed Ex.P-1 by affixing his thumb mark. PW- 3 is a close relative of the respondent, who though stated in his examination in chief that Mehr Din had executed Ex.P-1 in his presence and received the consideration but in cross-examination he admitted that he was not present at the time of attestation. His over all statement is not at all confidence inspiring. PW-4 is the respondent-plaintiff himself and his statement is not sufficient to prove the agreement of sale when it was disputed by the defendants.
9. Agreement of sale was a crucial and vital documents and heavy burden was on the shoulder of the respondent-plaintiff to prove the same. However, from the evidence led by the respondent, it is not at all established that Mehr Din executed the document. No expert evidence was-also led by the respondent to prove the thumb mark of Mehr Din on Ex.P-1. The appellate Court's finding that the document (EX.P- I) bearing the thumb mark of Mehr Din by comparison with his admitted make are also incorrect and assumption as no reasons have been given by the Court, it was incumbent upon the Court to have given reasons and point out identical feature of admitted and disputed thumb mark. The respondents have also failed to produce Finger Print Expert to prove Ex.P-1 allegedly containing thumb mark of Mehr Din.
10. In view of the above, I am of he view that the respondents had failed to prove the execution of the EX.P-1 which was the most crucial and important issue of the case, consequently respondent is not entitled to the decree for specific performance.
11. I, therefore,, set aside the judgment and decree dated 19-9-1984 of the Additional District Judge and upholding the judgment and decree of the Trial Court, dismiss the suit of the respondent- plaintiff. No order as to costs.