MUNIR A. SHEIKH, J.- Leave to appeal is sought against the judgment dated 17.11.1998 of the Lahore High Court by which Civil Revision No. 1465 of 1994 filed by the petitioner against the judgment and decree dated 23.9.1994 of the learned District Judge accepting the appeal of the respondents against the judgment and decree of the Trial Court dated 9.2.1992 decreeing petitioner's suit, has been dismissed.
2. The facts forming the background of this petition briefly stated are that an agreement of sale dated 9.4.1987 was allegedly executed in favour of the petitioner by Mirza Muhammad Yagoob, deceased predecessor-in-interest of the respondents for the sale of land in dispute measuring 26 kanals, 2 marlas situated in village Dhadian Tehsil and District Narowal. According to its terms, the final sale-deed was to be registered on or before 14.9.1987. An amount of Rs. 20,000/- out of the total consideration of Rs. 30,000/- fixed in the said agreement was allegedly paid at the time of execution of this agreement.
3. On 17.9.1987, the petitioner filed suit for specific performance of this agreement of sale against Mirza Muhammad Yaqoob deceased who in his written statement denied the execution of the same and that he never agreed to sell his land to the petitioner. The Trial Court reflected the controversies arising from the pleadings of the parties in as many as five issues.
4. In order to prove the execution of the agreement, the petitioner examined Mehmood-ul-Hassan as PW 1 who is one of the marginal witnesses of the said agreement which was produced as Exh.P 1.
This witness stated that Muhammad Yaqoob, deceased predecessor-in-interest of the respondents executed this agreement in his presence and the other marginal witness namely Lal Din also thumb marked the same at that time. Neither the scribe nor the stamp vendor from whom Muhammad Yaqoob, deceased purchased the stamp papers on which this agreement was written, were examined by the petitioner. They were examined by the defendant as DW 1 and DW 2, respectively. DW 1 according to the document Exh. P1 i.e. The agreement is scribe of the same who denied that the said agreement was written by him or that the same was in his handwriting. The other marginal witness of the document, namely, Lal Din was not examined by the petitioner. The petitioner's case in his own evidence when he appeared as witness was that earnest money of Rs.
20,000/- in cash was not available with him which he managed from his bank and paid the same to the petitioner but no evidence from the hank record was produced in order to establish the payment of the said amount as earnest money, for the factum of payment of amount was material in order to prove the execution of the document which evidence though according to the plea raised by the petitioner should have been available in the record of the bank indicating the withdrawal of the said amount on the date when the agreement was executed but was not produced.
5. The Trial Court on considering the evidence of PW 1, one of the marginal witnesses of the document, came to the conclusion that the execution of the same agreement stood proved, therefore, it proceeded to pass decree in favour of the petitioner through judgment dated 9.2.1992.
It may be mentioned that according to learned counsel for the petitioner, Mirza Muhammad Yaqoob died before the pronouncement of the judgment by the Trial Court. The appeal filed by the respondents i.e. The successor in-interest of deceased Muhammad Yaqoob, the original defendant was accepted by the learned District Judge, Narowal through judgment dated 23.9.1994 who dismissed the suit. After considering the evidence of DW 1, the scribe of the document, DW 2, the stamp vendor from whom stamp papers were purchased by Muhammad Yaqoob, deceased on which the said agreement of sale had been written and the plea of the petitioner that he paid the amount of earnest money of Rs. 20,000/- after withdrawing the same from the bank of which no evidence was given, he came to the conclusion after taking into consideration alongwith the fact that the other marginal witnesses of the document had not been produced though required by Article 79 of the Qanun-e-Shahadat Order, 1984 read with Article 17 thereof that the execution of the disputed agreement of sale had not been proved, therefore, it proceeded to set aside and reverse the findings of the Trial Court. Civil Revision No. 1465 of 1994 filed by the petitioner against the s?Id judgment and decree has been dismissed through the impugned judgment dated 17.11.1998 by the learned Judge in Chamber of the Lahore High Court against which leave to appeal has been sought.
6. Learned counsel for the petitioner argued that the evidence of the petitioner in the suit was recorded in September, 1989 whereas the other marginal witness namely Lal Din had 'died in January, 1989, as is evident from the copy of death entry of Lal Din attached with this petition.
Learned counsel when questioned as to why no application was made before the High Court for permission to produce additional evidence in order to establish that the said second marginal witness had earlier died, had no answer. There is no mention of any request having been even orally made before the High Court in the impugned judgment, therefore, we would be justified to presume that no such request was even orally made.
7. Learned counsel for the petitioner attempted to argue that the death certificate was produced on the record of the civil revision but we find that no argument was raised during the hearing of the revision petition before the High Court that the said witness had died, for there is no mention of the same in the impugned judgment nor any ground has been raised in this petition that the said point was urged by the learned counsel for the petitioner during the hearing of the revision petition but had not been recorded in the judgment though learned counsel appearing before us when question admitted that he was the counsel of the petitioner in the High Court and conducted and prosecuted the said revision petition.
8. In the present petition, however, a copy of the death certificate has been placed on the record.
No prayer or application has been made for grant of permission to lead additional evidence in order to establish that the said death entry relates to the said other witness and even if the same is allowed to he produced, the contents of the same were required to be proved through other evidence for which no prayer has been made either. We have, however, noticed from the death certificate of Lal Din produced on the record that in January, 1989 he was about 95 years old and was suffering from paralysis. The agreement of sale was allegedly executed in 1987, therefore, Lal Din as per entries in the death certificate was 93 years old. We are, therefore, justified to entertain a doubt whether such a man was in his proper senses at that age to be a witness of a financial transaction which is required under the law to be attested by two witnesses who according to Article 79 of the Qanun-e-Shahadat Order were required to be called for proving a document the execution of which had been denied. Be that as it may, no ground has been made out for permitting the petitioner to produce the said document in order to prove a pure question of fact whether the said witness had in fact died on the date when the evidence of the petitioner was recorded by the Trial Court in this case as no request was made before the Trial Court as is manifest from the absence of any mention of the same in the judgment of the said Court that the said other marginal witness had not been produced as he had died, for entries in the death certificate as regards date of death and other are rebuttable. The additional evidence on a pure question of fact which could be rebutted by the other side according to settled principles by the superior Courts is to be allowed sparingly and not at the convenient of the party who was shown to be not serious about the production of the same at any stage of the proceedings as is the present one. Learned counsel for the petitioner submitted that the first Appellate Court and the High Court did not expressly discard the evidence of PW 1 whereas the suit has been dismissed solely on the ground that the other marginal witness as required under Article 79 of the Qanun-e-Shahadat Order had not been examined. He submitted that the other marginal witness was not required to be examined in the Court even if attestation by two witnesses of such a document was required under the law, for one of the marginal witnesses namely Mehmoodul Hassan (PW 1) had stated that the other marginal witness Lal Din had put his thumb impressions as witness on the document, therefore, the document shall be deemed to have been proved and it was also proved that the document had been witnessed by the other marginal witness. Support was sought from the case reported as Abdul Wali Khan through legal heirs and others versus Muhammad Saleh (1998 SCM R 760) in which it was held that one of the marginal witnesses having been produced whose evidence was held to be confidence inspiring, the failure of the party to produce the other marginal witnesses was not fatal to its case as regards proof of execution of document. We have noticed that in this judgment, neither the question of interpretation of Article 17 nor Article 79 ibid was raised from either side. It is not clear from the facts of the said case that the document in that case was executed after coming into force of Qanun-e- Shahadat Order, 1984, for as the documents executed prior thereto were governed by the old law under which it may not be necessary as was made mandatory under Article 79 of the later law that two marginal witnesses must be called for proving the execution of such a document, therefore, it would not be safe to apply the principle laid down in this judgment upon the facts of this case.
9. We have examined the evidence with the assistance of learned counsel for the petitioner and noticed that out of the total amount of consideration of Rs. 30,000/-, the petitioner allegedly made payment of an amount of Rs. 20,000/- as earnest money but there is no recital or covenant in the agreement as to any benefit derived by the petitioner in lieu of such a big amount having been paid, for a person of ordinary prudence would not part with or pay merely in lieu of execution of an agreement of sale greater portion of the amount of consideration. The payment of the amount was such a circumstance if had been established by cogent evidence, the same would have furnished strong evidence in favour of the presumption of execution of the agreement of sale. It was the case of the petitioner himself that the said amount was paid by him after withdrawing the same from bank, therefore, evidence of the record of the bank was available to establish this fact which was not produced. Apart from this, the scribe of the document appeared as DW 1 and denied that the same had been written in his hand. It was rightly observed by the first Appellate Court that in these circumstances, the petitioner was required to prove the handwriting of the scribe if he insisted that the same had been written by him and mere suggestion in the cross-examination that the said document was in his handwriting was not sufficient, does not suffer from any illegality, for the said Court was under the law justified in raising inferences from the circumstances appearing on the record. Even the signatures of Mirza Muhammad Yaqoob, deceased, the defendant have been denied, therefore, in our view, it was also incumbent upon the petitioner to prove his signatures by producing expert witness if the other marginal witness according to him had died and was not available but the petitioner failed to do so.
10. We have also noticed that in the agreement itself, the identity card numbers of both the marginal witnesses have been mentioned above their names but identity card number of alleged executant namely Muhammad Yaqoob was not entered. From this circumstance, we are justified under law to raise presumption that Muhammad Yaqoob did not execute the said document, for had he executed the same, he would have readily produced his identity card as according to normal practice, the same was to be mentioned in the document itself.
11. Learned counsel for the petitioner submitted that the lower Appellate Court and the learned Judge of the High Court have relied upon some alleged interpolation in the agreement of sale as to date of execution and date of registration of the document i.e. Sale-deed which according to document itself are not justifiable. We need not dilate upon this contention, for according to our own findings as recorded above, there are other strong circumstance and evidence on the record which is sufficient to hold that the execution of the disputed agreement of sale had not been proved in accordance with law.
12. For the foregoing reasons, this petition is found to be devoid of any merits, therefore, the same is dismissed and leave to .