' QAZI MUHAMMAD FAROOQ, J.---The abovementioned four civil appeals, by leave of the Court, are being disposed of by this common judgment on account of identity of the leave granting orders.
2. Leave was granted in Civil Appeal No,327 of 1995 to consider whether an agreement to sell is required to be attested by witnesses and the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984 were applicable in the case. Simultaneously, leave was granted in the connected Appeal No,328 of 1995 though it had arisen from an order of dismissal of an application under section 12(2), C.P.C. Passed in a writ petition. Leave was granted in Civil Appeal No,1022 of 1995 on the strength of a similar leave granting order passed in the case reported as Muhammad Saeed v.
Mst. Sardar Begum (1990 SCM R 1176) and also to consider the contention that even if the agreement to sell is excluded from consideration, case of the petitioner was sufficiently proved by documents Exh. P-2 to Exh. P4 on Which reliance was not placed by the Courts below. Leave was granted in Civil Appeal No,1348 of 1996 on the basis of the leave granting order passed in Civil Appeal No,327 of 1995.
3. Before adverting to the points for determination it is necessary to give brief facts of each case.
Civil Appeals Nos.327 and 328 of 1995 have arisen in the circumstances that a suit for specific performance of contract embodied in an agreement to sell dated 22-2-1977 in respect of land measuring 11 acres, 4 Kanals situated in Tehsil Shorkot was filed by Muhammad Sharif, predecessor-in-interest of the appellants. It was alleged that one Muhammad Yousaf had agreed to sell the suit land to the plaintiff for a sum of Rs,30,000 out of which Rs,13,400 were paid as earnest money and the rest was promised to be paid at the time of execution of the sale deed. The vendee was put in possession of the subject-matter of the agreement to sell. The vendor instead of executing a registered sale-deed in favour of the vendee transferred the suit land to one Mst.
Jamila Begum through a consent decree dated 16-9-1980 passed by Civil Judge, Shorkot. The suit was resisted by the vendor as well as Mst. Jamila Begum mainly on the grounds that the agreement to sell pressed into service by the plaintiff was not executed at all and neither any earnest money was received by the vendor nor possession of the land in dispute was transferred to Muhammad Sharif. After a hot contest the suit was dismissed by the learned trial Court and the appeal filed by Muhammad Sharif also met the same fate on 29-6-1988. Thereafter, the vendee filed a revision petition which too was dismissed on 17-4-1993 by a learned Judge in Chambers of the Lahore High Court mainly on the ground that the execution of the agreement to sell had not been proved on account of failure of the vendee to examine the marginal witnesses. The vendee had also filed an application under section 12(2), C.P.C. Whereby the transfer of the suit land in favour of Mst. Jamila Begum through a consent decree was challenged on the ground of fraud.
That application was dismissed by the learned rial Court on 28-11-1987, the civil revision preferred by Muhammad Sharif was dismissed by the learned Additional District Judge, Jhang, on 16-1-1990 and the writ petition challenging the validity of both the orders was dismissed by a learned Judge in Chambers of the Lahore High Court on 17-4-1993. The validity of the judgment rendered by the High Court has been challenged in Civil Appeal No,328 of 1995.
4. The suit culminating in Civil Appeal No,1022 of 1995 was based on an agreement to sell dated 10- 6-1974 whereby Amir Khan, father of the respondent herein, had allegedly agreed to sell land measuring 6-1/4 acres to the appellant for a sum of Rs,37,500 and had received earnest money to the tune of Rs,5,000. The remaining sale price was to be paid by 30-7-1974 on which date the sale was to be completed. The sale was not completed by the stipulated date. However, the vendor allegedly received a further sum of Rs,3,000 from the vendee on 2-8-1974 and another amount of Rs,1,700 on 21-9-1974 on which date another agreement extending the date for completion of sale up to 30-10-1974 was executed. In the second agreement the receipt of the aforesaid amounts of Rs,3,000 and Rs,1,700 were duly acknowledged. The vendor executed yet another document on 16- 10-1974 acknowledging receipt of an amount of Rs,1,400 and confirming earlier payments. It was also alleged in the suit that the vendor instead of completing the sale had gifted the land in dispute in favour of his sons,. Vide a registered gift deed dated 20-12-1976, which was followed by a mutation attested on 28-1-1977. The appellant was non-suited by the learned trial Court on the ground that the marginal witnesses of the agreement to sell were not examined by him and both of them had appeared as witnesses of the defendants and denied its execution by stating in clear words that when they had signed the document neither Amir Khan was present nor any amount was paid by the appellant in their presence. The documents Exh. P-2 and Exh.P-4 were also not relied upon owing to discrepancies in the statements of the witnesses. The appeal preferred by the appellant was dismissed by the learned Additional District Judge, Faislabad on 8-4-1991 and the revision petition filed by him was dismissed by a learned Judge in Chambers of the Lahore High Court.
5. In Civil Appeal No,1348 of 1996 the revision pettion filed by- the appellant was dismissed by a learned Judge in Chambers of the Lahore High Court on 14-11-1995. The revision petition was directed against the judgment dated 18-9-1995 of the learned Additional District Judge, Okara whereby the judgment dated 16-10-1994 of the learned Civil Judge, Depalpur dismissing the appellant's suit for specific performance of contract was upheld. The suit was dismissed on the ground that execution of the agreement to sell dated 18-3-1991 had not been proved in accordance with Article 79 of the Qanun-e-Shahadat Order, 1984 as only one attesting witness was examined.
6. When the appals came up for hearing one of the appellants in Civil Appeals Nos.327 and 328 of 1995, namely, Mst. Rasheeda Begum informed us that Mr. Abdul Shakoor, Advocate Supreme Court, learned counsel for the appellants in both the appeals, had died and she was not possessed of means to engage another counsel. According to the grounds of appeal in Civil Appeal No, 327 of 1995 the execution of the agreement to sell dated 22-2-1977 was proved by the appellants by producing the original agreement, examining its scribe and other witnesses, establishing payment of the earnest money and delivery of possession of the suit land but the evidence was either misread or ignored by the High Court. It is also mentioned therein that the attesting witnesses were not examined as both of them were clerks of Mr. Nematullah. Hissari, Advocate, husband of respondent No,2, who had masterminded the whole plan to deprive the appellants of their legal rights. The grounds of appeal in Civil Appeal No,328 of 1995 spell out that there was enough material on record to show that the consent decree dated 16-9-1980 obtained by Mst. Jamila Begum was the outcome of fraud but the same was ignored and the writ petition was dismissed merely on the ground that in the parallel proceedings arising out of a regular suit brought by the appellants against their opponents a civil revision had already been dismissed.
7. Rai Muhammad Nawaz Kharal, Advocate Supreme Court learned counsel representing the appellant in Civil Appeal No,1022 of 1995, contended that an agreement to sell was not required by law to be attested by witnesses, therefore, non-examination of the attesting witnesses was not fatal. He further contended that in any case execution of the agreement to sell in question had been proved by means of secondary evidence consisting of the statement of the petition-writer who had recorded the same in his register and the extract from the relevant register. It was also contended that execution of the remaining documents marked Exh. P-2 to Exh P-4 had also been duly proved. It was lastly contended that the civil appeal in the case of Muhammad Saeed (supra) was allowed on 25-8-1991 and the case was remanded to the High Court for deciding the appeal afresh after determining as to whether the vendor had agreed to sell the house in dispute.
8. Mian Ghulam Hussain, Advocate Supreme Court, learned counsel for the appellant in Civil Appeal No,1348 of 1996, also contended that an agreement to sell was not required by law to be attested by two witnesses, therefore, the execution of the agreement to sell in question (Exh. P-1) stood proved in the light of the statement of one of the attesting witnesses.
9. Mr. Abdul Wahid Chaudhry, Advocate Supreme Court, learned counsel for the respondents in C.A.
No,1348 of 1996, on the other hand, maintained that an agreement to sell was required to be attested by two witnesses and the agreement to sell involved in the appeal was neither proved by examining the marginal witnesses nor through any other mode.
10. It will be pertinent to mention at this stage that in the case of Muhammad Saeed (supra) leave was granted to consider the question as to whether the agreement to sell involved in the case was required by law to be attested by witnesses. The appeal was allowed on 25-8-1991 and the case was remanded to the High Court for re-decision of the appeal to determine as to whether the vendor had agreed to sell the house. The appellants herein cannot draw any premium from the judgment rendered in the case as the question alluded to in the leave granting order was not determined and the case was remanded on finding force in the contention that even if the agreement of sale is excluded for the reason that the attesting witnesses had signed the same before it was signed by the execution, still there was evidence on the record to show that the executant had executed the said agreement.
11. An agreement to sell immovable property is a contract enforceable by law. Section 54 of the Transfer of Property Act expressly provides that a A contract of sale does not, of itself, create any interest in or charge on the immovable property which constitutes its subject-matter. As a matter of fact an agreement to sell only creates a right to obtain another document conferring title in respect of the immovable property mentioned therein and for that very reason it does not require registration. There is also no legal provision to the effect that an agreement to sell should only be in writing. Be that as it may, while determining the question whether an agreement to sell is required by law to be attested by witnesses a line of demarcation must be drawn between the agreements of sell executed before and after promulgation of Qanun-e-Shahadat Order, 1984. Unquestionably, an agreement to sell involves future obligations, therefore, if reduced to writing and executed after coming into force of Qanun-e-Shandat Order, 1984, it is required by sub-Article (2)(a) of Article 17 thereof to be attested by two male or one male and two female witnesses, as the case may be. The said sub-Article is worded thus:-- "(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law--
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly;"
The execution of such an agreement to sell is to be proved in accordance with the provisions of Article 79 of Qanun-e-Shand'at Order, 1984 which read as under:-- ' "If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the 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 executant of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
12. It is true that before promulgation of Qanun-e-Shahadat Order, 1984 an agreement to sell was not required by any law to be attested by witnesses. It is, however, a matter of common knowledge that during that period also the agreements to sell were by and large reduced to writing and attested by witnesses in spite of absence of a legislative provision and the mode attained the status of an established practice by efflux of time. This mode, in all probability, was adopted by way of abundant caution and to procure documentary evidence inasmuch as in a suit for specific performance of contract based on an agreement to sell the onus is on the plaintiff to prove the contract unless its existence is admitted by the defendant. The interest of justice, therefore, demands that the form of proof should be in line with the format of the document executed by the parties to the contract. It would thus follow that where an agreement to sell executed prior to promulgation of Qanun-e-Shahadat Order, 1984 has been reduced into writing and attested by witnesses its execution must be proved in accordance with the provisions of section 68 of the erstwhile Evidence Act notwithstanding the fact that the same apply only to that document which is required by law to be attested.
' Prop of the aforementioned legal vacuum cannot be taken to offset the effect of failure to prove the execution of an agreement to sell in accordance with the said made. However, where an agreement to sell has been reduced to writing but not attested by witnesses its execution and the contract embodied therein can be proved by other strong evidence and attending circumstances which may vary from case to case. Needless to mention that such evidence can also be produced in the first category of cases as supporting evidence.
13. Having determined the main questions involved in these appeals we would now turn to the merits of each appeal. In Civil Appeal No,327 of 1995 the agreement to sell was executed on 22-2- 1977. It was attested by two witnesses Muhammad Tufail and Muhammad Yar and also bears their signatures. None of them was examined by the appellants, therefore, it goes without saying that execution of the agreement to sell, has not been proved within the contemplation of section 68 of the erstwhile Evidence Act. The explanation for their non-examination lacks plausibility. The bald statement of the petition-writer Nazar Mohyuddin (P.W.4) who had allegedly scribed the agreement to sell is not enough to prove execution of the document in question. The appeal is, therefore, without substance.
14. Civil Appeal No,328 of 1995 is also devoid of substance because the appellants have not only failed to prove that the consent decree in favour of Mst. Jamila Begum was the outcome of fraud and misrepresentation but they also have no cause of action to assail the same having been non- suited in the main case.
15. In Civil Appeal No,1022 of 1995 the agreement to sell pressed into service was in the shape of an extract from the register of a Petition Writer. According to the said extract the agreement to sell was executed on 10-6-1974 and was attested by Mahurram and Muhammad Ali. None of them was examined by the appellants. The appellants have also not cared to place on record and prove the documents whereby the receipt of sale consideration paid from time to time was acknowledged and the contract was reiterated. The plea of novation of contract is also more imaginary than real for want of positive and tangible proof. This appeal is also devoid of force.
16. The agreement to sell in Civil Appeal No,1348 of 1996 was executed on 18-3-1991 and attested by Muhammad Rafiq and Muhammad Samar. Having been executed after promulgation of the Qanun-e-Shahadat Order, 1984 its execution ought to have been proved in accordance with Article 79 (ibid) but the evidence on record consists of only one attesting witness. Payment of earnest money has also not been proved on record. The evidence produced by the appellant does not meet the requirements of Article 79 of the Qanun-e-Shahadat Order, 1984. The appeal is, therefore, liable to be dismissed.
' For the reasons aforesaid, we find no substance in these appeals which are accordingly dismissed. No orders as to costs.
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