' The petitioner through this revision petition has assailed the orders of the Appellate Court dated 18-9-1996 by virtue of which the suit for specific performance brought by the petitioner was dismissed.
2. The facts in brief are that the present petitioner/plaintiff filed a suit for specific performance of an agreement to sell alleged to have been executed by the respondent/defendant in his favor on 1-8- 1988 for a consideration of Rs,20,000. It was alleged that an agreed amount of Rs,18,000 was paid as earnest money and in consequence of the above said agreement to sell, possession of the property was delivered to him. The remaining amount of Rs,2,000 was to be paid by 1-10-1988. The petitioner/plaintiff made all efforts to complete the transaction but of no avail. The respondent/defendant contested this suit raising objection that the agreement to sell was never entered into in between him and the petitioner/plaintiff. It was alleged that the plaintiff was father of the defendant and was living with him in the disputed property. The learned trial Court on the pleadings of the parties framed the following issues:-
(1) Whether the defendant executed an agreement to sell dated 1-8-1988 and the plaintiff paid Rs,18,000 to the defendant as advance money? OPP
(2) If issue No,1 is proved in affirmative, whether the plaintiff is entitled for a decree of specific performance of the contract? OPP
(3) Whether the plaintiff has no cause of action? OPD
(4) Whether the impugned agreement is result of fraud, factitious and forged? OPD
(5) Whether the plaintiff has not come to the Court with clean hands? OPD
(6) Whether the plaintiff is estopped to sue due to his word and conduct? OPD
(7) Relief.
' The trial Court after recording of evidence and hearing the parties proceeded to dismiss the suit vide judgment dated 21-7-1992. The petitioner/plaintiff challenging the abovesaid judgment and decree before the First Appellate Court from where it was remanded with the directions to frame an additional issue and then decide the case afresh in accordance with law. The trial Court accordingly framed Issue No,6-A as under:-- (6A) Whether the limitation was an essential part of the contract and since the plaintiff has failed to perform his part of contract, therefore, the defendant is no more bound by the alleged agreement? OPD ' Both the parties opted not to produce any evidence and they relied upon the evidence already recorded before the learned trial Court and the trial Court then after giving an opportunity of hearing to both the parties decreed the suit of the plaintiff vide judgment dated 28-9-1995. The respondent/defendant feeling himself aggrieved by the abovesaid judgment and decree of the trial Court filed an appeal before the First Appellate Court from where it was disposed of on 18-9- 1996 and the appeal of the respondent/defendant was accepted and the impugned judgment and decree of the learned trial Court was set aside and the suit for specific performance of the petitioner/plaintiff was dismissed. The petitioner has challenged the abovesaid judgment and decree of the First Appellate Court through this revision petition.
3. Learned counsel for both the parties have been heard and with their assistance the record has been perused.
' Apart from other considerations, the fact to be appreciated is that both the parties are related to each other as father and son. The petitioner is father and the respondent is son of the petitioner.
The perusal of the agreement dated 1-8-1988 reveals that it was scribed by one Haji Muhammad Sharif and was attested by Muhammad Ali and Barkat Ali as marginal witnesses. The agreement further contains the thumb-impression of Chiragh Din and that of Muhammad Siddique (the petitioner and respondent before this Court). When the scribe of this agreement, Muhammad Sharif, appeared as. P.W.2, he stated in his cross-examination that the agreement in question was already available with him and had been written prior to the parties contacted him. He denied the suggestion that there was domestic dispute in between father and son and the thumb-impression of the respondent was obtained on account of that dispute. The said P.W., however, admitted that this agreement was written by him. P.W.3 Muhammad Ali, who is one of the attesting witnesses, made a statement that he affixed his signatures as an attesting witness of the agreement to sell, Exh.P.1, and the possession of the property is with the petitioner but when confronted in his cross- examination he pleaded ignorance about the possession over the suit property being with the petitioner. He denied the entrance of an agreement to sell in between the parties at a particular place. The other attesting witness had not been produced. The petitioner appeared as P.W.1 and stated that an agreement to sell was executed in between the parties and the possession of the property is with him, the amount of Rs,18,000 has been paid as earnest money and the remaining amount of Rs,2,000 has to be paid for completion of the transaction. The petitioner in his cross- examination stated about fixation of his thumb-impression and that of Muhammad Siddique as well as affixation of thumb-impression of Muhammad Sharif ana Muhammad Ali but he specifically stated that none else either affixed his thumb-impression or put his signatures over the agreement. This statement is to the effect that the agreement to sell was never attested by Barkat Ali as a marginal witness and said Barkat Ali has also been withheld by the petitioner and has not been produced in evidence. The respondent, Muhammad Siddique, appeared as D.W.1 and made a statement that no agreement to sell was ever entered into in between him and the petitioner.
However, he admitted his thumb-impression over a plain paper.
4. The crux of the above evidence is that the respondent has admitted his thumb-impression upon the agreement to sell dated 1-8-1988. Mere admission of the thumb-impression whether entitles the petitioner to the specific performance or in this eventuality whether the petitioner is required to establish by cogent evidence that Muhammad Siddique did not put his thumb-impression on a plain paper but he thumb-marked it after being aware of all the facts and the contents recorded in this agreement. The plaintiff/petitioner has failed to discharge this onus because there is-no evidence with regard to the fact of delivery of possession of the suit property in favor of the petitioner by the respondent in consequence of the referred agreement to sell. There is nothing on record to prove that out of the sale consideration Rs,18,000 were paid by the petitioner to the respondent. Even the marginal witness does not state that the amount in question was paid by the petitioner to the respondent in his presence. The scribe of the said agreement also has not stated anything in the affirmative with regard to the payment of the amount by the petitioner to the respondent. These facts establish the agreement; if to be executed, being without consideration, as such the petitioner/plaintiff by withholding evidence of Barkat Ali, by having failed to prove the awareness of the respondent at the time of it being thumb-marked by him with regard to the contents of the agreement has failed to prove its execution. The petitioner/plaintiff has neither proved the execution of the agreement to sell qua the payment of consideration, as such the learned Additional District Judge has rightly dismissed his suit. The petitioner has failed to establish any misreading or non-reading of evidence on record. There is no illegality or material irregularity established on record, as such the revision petition is dismissed with no order as to costs.