CH. IJAZ AHMAD, J.--- Brief facts out of which the present second appeal arises are that the land in question bearing khasra No. 6603/28024/3 measuring 14 marlas and 185 Sq.Ft. Situated in Mauza Chah Miran, Tehsil Lahore originally belonged to Mst. Nayyar Afza d/o Ahmad Yar Khan. The original owner of the land in question executed power-of-attorney in favour of Muhammad Ilyas who sold the land in question to the appellant vide registered sale-deed. The sale-deed was executed- on 6.5.1971. The appellants filed a suit for its possession against the respondents on 3.7.1971. Contents of the plaint reveal that respondents have alleged that in the year 1965. One Muhammad Suleman son of Muhammad Ismail illegally occupied a portion of the land and raised construction over it which was demolished by Lahore Municipal Corporation. Subsequently, in the same year other respondents also illegally took possession of certain other portions of land giving out these portions on the part of the street land. Manzoor respondent No. 1 also occupied two plots in the year 1970 and construct a. Shop and temporary shelter on them. They refused to vacate the land in question and the respondents were restrained by the aforesaid circumstances filed suit for possession. Respondents being aggrieved by the aforesaid circumstances filed a suit for possession against the. Respondents on 3.7.1971. The respondents filed three written statements controverted the allegations levelled in the plaint.
2. Out of the pleadings of the parties, the Trial Court framed the following issues:-
(i) Whether the plaintiffs are estopped by their conduct from filing the suit? OPD.
(ii) Whether the suit is barred by Section 53-A of the Transfer of Property Act? OPD.
(iii) Whether the plan of the property in dispute annex to the plaint is not correct. If so, what is the correct description of the property in the dispute? OPD.
(iv) Whether the defendat No 1 is in possession of the property in dispute as owner? OPD.
(v) Whether the plaintiffs had notice of the agreement, if any, in favour of the defendant. If so, with what effect.
(vi) Whether the defendant No. 1 has made improvements the property in dispute. If so, to what effect at what cost and what effect.
(vii) Whether the plaintiffs have purchased the suit land from Mst. Nayyar Afza. If so, with what effect? OPP.
(viii) Relief Learned Trial Court decreed the suit vide judgment and decree dated 27.10.1975. Respondents being aggrieved filed appeal before the District Judge, Lahore who entrusted the same to learned Addl. District Judge. The learned Addl. District Judge accepted the same and reversed the finding of the Trial Court and dismissed the suit of the appellant. Hence the present second appeal.
3. Learned counsel for the appellant contended that judgment of both the Courts below are at variance. He further stated that the first Appellate Court reversed the finding of the Trial Court without adverting' to the reasoning of the Trial Court. He further urged that ingredients of Section 53-A of the Transfer of Property Act are not attracted but the first Appellate Court wrongly relied upon Section 53A of the Transfer of Property Act. He further stated that the cases relied upon the first Appellate Court did not support the case of the respondent but the same is supported the case of the appellant. Judgment of the first Appellate Court is result of mis-reading or non-reading of the record. He further urged that no agreement to sell was executed in favour of the respondents. Therefore, judgment of the first Appellate Court is in violation of the law laid down by the following judgments: PLD 1964 S.C. 456.
PLD 1966 S.C. 328. PLD 1984 S.C. 424.
He further contended that respondents have no vested right to keep the possession. He summed up his arguments that agreement to sell does not create any title but the first Appellate Court did not advert to this aspect of the case and he relied upon PLD 1966 Lahore 953.
4. Learned counsel for the respondents stated that the appellant failed to prove through evidence that general power-of attorney was executed in favour of Muhammad Ilyas and copy of the power-of-attorney was not brought on record. He further stated that this fact is also admitted by the appellants in the plaint with regard to the possession of the respondents. He further urged that PW-2 Muhammad Ilyas admitted that original owner executed power-of attorney in favour of Zaheer-ul-Aman who was authorised by the original owner to sell the land in question. He further urged that Zaheer-ul-Aman executed agreement to sell with Muhammad Suleman on 24.2.1962 who took the possession of the land in the year 1962. The respondents purchased the land from Muhammad Suleman. Therefore, all the ingredients of Section 53-A of Transfer of Property Act is attracted. The first Appellate Court rightly decided the appeal in favour of the respondents in accordance with law laid down by the Hon'ble Supreme Court in the following judgments:- , PLD 1966 S.C. 328. PLD 1964 S.C. 456: Respondent No. 3 purchased the land from the said Suleman through an agreement to sell on 24.6.1963 (Ex.D-3). After verifying the agreement to sell executed by Zaheer-ul-Aman in favour of Muhammad Suleman (Ex.D-21. Respondents Nos. 2 and 3 purchased the land through oral agreement. Muhammad Suleman sold the land to Muhammad Yaqub and Muhammad Yaqub thereafter soled the same to his wife Nawab Bibi. Mst. Nawab Bibi sold the same to -respondent No.
1. He further stated that appellants failed to prove on the record that the same property was purchased by the appellant from Muhammad Ilyas which is in the possession of the respondents.
He further stated that respondents failed to bring on record general power-of-attorney executed by the original owner in favour of Muhammad Ilyas to show that he was authorised to sell the land in favour of the appellant. The appellant admitted the knowledge of possession of the respondents in their plaint. Therefore, first Appellate .Court was justified to dismiss the suit of the appellant. The first Appellate Court has given finding of fact against the appellant after proper appreciation of evidence and has given finding of fact against the appellant to the following effect:- "Property in question was not identified through the evidence and the suit was not maintainable by virtue of Section 3 of the Transfer of Property Act."
5. Learned counsel for appellant in rebuttal stated that agreement to sell was originally executed in favour of Muhammad Suleman and sale is not completed by virtue of Section 54 of the Transfer of Property Act. Therefore, Muhammad Suleman is not authorised to transfer the same through agreement to sell to the respondents. The word knowledge is applicable qua the transaction covered u/S. 27(b) of the Specific Relief Act. The appellant proved on, record that sale-deed was executed by Muhammad Ilyas in favour of the appellant. Muhammad Ilyas had categorically stated that this fact coupled with the fact that he was authorised by the original owner to sell the land in question by a registered general power-of-attorney. Respondents failed to cross-examine him on this particular point. Therefore, the same is to be accepted as gospel truth as the principle laid down in the following judgments: PLD 1967 Lahore 1138. 1991 SCMR 2300.
Contention raised by the learned counsel for the respondents has not taken in their written statements before the Trial Court or in the grounds of appeal before the first Appellate Court.
Therefore, respondents are debarred to raise new pleas at the time of hearing the second appeal.
He relied on AIR 1930 P.C. 57(1). He further stated that agreement to sell is executed in favour of 'Muhammad Suleman by Zaheer-ul-Aman. Therefore, respondents took the possession illegally.
There is no concept of nominee in the sale transaction.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that both the Courts below have given concurrent finding of fact to the extent that the execution of the sale-deed dated 17.5.1971 was proved by the evidence of the appellants against which there is no evidence produced by the respondents. The first Appellate Court reversed the finding and held that respondents could claim the benefit of Section 53-A of Transfer of Property Act. Manzoor Hussain respondent No. 1 took a stand in his written statement that Mst. Nayar Afza was the owner of the land in dispute who appointed Zaheer-ul-Aman, Attorney who agreed to sell 6 marlas of land in dispute in consideration for Rs.4,000/- through Muhammad Suleman and agreement to sell was executed between him and Muhammad Suleman, on 31.1.1970. Respondent No. 1 paid Rs.50/- to Muhammad Suleman as earnest money whereas remaining amount of Rs.2500/- had already been received by Muhammad Suleman from Mst. Nawab Bibi wife of Muhammad Yaqoob. Respondent No. 1 also paid Rs.2637/- to the aforesaid Mst. Nawab Bibi in view of the aforesaid agreement. The respondents obtained possession of 6 marlas of land in dispute in part performance of the aforesaid agreement to sell. Respondent No. 1 in furtherance of agreement to sell raised construction on the land in dispute and willing to perform his part of the contract of sale. Zaheer- ul-Aman entered into an agreement to sell the land in dispute and some other land with Muhammad Suleman on 24.2.1962. It is pertinent to mention here that agreement to sell dated 31.1.1970 was witnessed by the following witnesses:-
(1) Muhammad Latif son of Abdullah.
(2) Abdul Majeed son of Ilam Din.
The agreement to sell dated 24.2.1962 in favour of Muhammad Suleman by Zaheer-ul-Aman attorney of original and owner was witnessed by the following witnesses:-
(1) Sh. Abdul Hameed son of Muhammad-ud-Din.
(2) Malik Muhammad Bashir son of Meraj Din.
Ghulam Nabi and Muhammad Riaz respondents Nos. 3 and 4 had taken stand in their written statement that the suit land or portion thereof never vested in Mst. Nayar Afza original owner and in fact part of the road. The purchase of the land by the appellant is not valid. Muhammad Boota respondent has took a stand in his written statement that Mst. Nayar Afza was the owner of land in dispute who appointed Zaheer-ul-Aman her attorney who agreed to sell four marlas of land to the respondent No. 4 at the rate of Rs.700/- per marla through Muhammad Suleman. Respondent No. 4 paid Rs.1300/- as earnest money against receipt dated 24.6.1962 and obtained possession of the land in dispute, measuring 4 marlas. Subsequently the said Zaheer-ul-Aman agreed to sell 5 marlas of land ,to the respondent No. 4 at the rate of Rs.500/- per marla and a sale-deed. Was drawn-up on 4.9.1967 but was not executed nor registered. Respondent No. 4 was delivered possession of one marla of land. Respondent No. 4 is in possession of 5 marlas of land in part performance of the contract of sale. He in furtherance of the contract of sale raised construction on the land in dispute measuring five marlas. The respondent No. 4 is ready and willing to perform his part of the contract of sale. Zaheer-ul-Aman has entered into an agreement to sell the land in dispute and some other land with Muhammad Suleman 24.2.1962. The attesting witnesses of the agreement dated 24.2.1962 are mentioned above. The receipt was witnessed by. Muhammad Ibrahim. It is pertinent to mention here that Muhammad Yaqoob D.W.2 stated in his statement that sale-deed was prepared but the same was burnt by the owners of the land. The original agreement was executed in favour of Muhammad Suleman by Zaheer-ul-Aman which was witnessed by the aforesaid witnesses. It is admitted fact that respondents failed to produce any attesting witness. P.W.1 admitted in cross- examination that attesting witnesses of Ex.D/2 (Agreement dated 24.2.1962) are alive. Similarly, he admitted in cross-examination that he did not know whether the attesting witnesses of Ex.D/3 (Receipt) are alive or not, therefore, respondents failed to prove agreement to sell as the principle laid down by the Division Bench of this Court in Muhammad Yaqoob's case, P.L.D.1995) Lahore 395 and the relevant observation is as follows:- "The document creating financial liability as per Article 17 of the Qanoon-e-Shahadat Order has to be attested by two witnesses."
Similar view has also been taken by the Hon'ble Division Bench of this Court in Abdul Khaliq's case, P.L.D. 1966 Lahore 367 and the relevant observation is as follows:- It is clear from the above that the instrument pertaining financial or future obligations, if reduced to writing, the same shall be attested by two men, or one man and two women. While Article 79 deals with the proof of execution, of document required to be attested.
The same reads as under:-
79. Proof of execution of document required by law to be attested. Not be used as evidence until two attesting witnesses at least have been called for the purposes of providing its execution, if there be two attesting witnesses alive, and subject to process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been, registered in accordance with the Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."
It is clear from the above provision of law that a document required to be attested shall not be used in evidence until two attesting witnesses at least have been called for this purpose. This subject to the following conditions:-
(i) the attesting witnesses are alive,
(ii) they are subject to the process of Court, and
(iii) they are capable of giving evidence.
The contents of the written statement and the contents of the agreement to sell dated 24.2.1962 creating financial liability as per Article 17 of the Qanoon-e-Shahadat Order has to be attested by two witnesses. Similarly, the agreement to sell dated 31.1.1979 is also not proved by the respondents in accordance with the provisions of Qanoon-e-Shahadat Order, 1984 (Article 79 and Article 17). It is also admitted fact that no sale-deed was executed in favour of Muhammad Suleman either by Zaheer-ul-Aman Attorney of the original land owner. It is pertinent to mention here that agreement dated 24.2.1962 does not reveal that Muhammad Suleman has taken possession of the property in question in part performance of contract therefore, subsequent agreement reveals otherwise has no force, whereas the appellants have brought on record sufficient evidence that the respondents have taken illegal possession meaning thereby respondents are trespasser. A trespasser has no vested right as the principle laid down by the Hon'ble Supreme Court in P.L.D. 1982 S.C. 308. It is admitted fact that all the respondents are in the foot print of Muhammad Suleman who had executed agreement with the attorney of the original land-owner. As mentioned above agreement dated 24.2.1962 does not reveal that Muhammad Suleman has taken possession of the property in question. The principle of nominee or assignment does not attract in the present case. I am fortified by the following judgments:-
(1) 1990 MLD 2106 (Muhammad Farooq Dosa's case).
(2) NLR 1991 Civil 128 (Khurshid Ali's case).
7. In view of the aforesaid circumstances the appeal is accepted . The judgment of the first Appellate Court is set aside and the judgment of the Trial Court upheld with no order as to costs.