' This single judgment shall decide the present Revision Petition No,1938 of 1990 and connected Revision Petition No,109 of 1991, as the common questions of law and facts are involved in both the petitions, they are between the same parties and have arisen out of one judgment.
2. Through the filing of these revision petitions, the petitioners have called in question judgment and decree dated 24-9-1990, whereby the learned Additional District Judge accepted the appeal, filed by respondents Nos.1 to 4, and set aside the judgment and decree dated 3-3-1990, passed by the learned Civil Judge, through which he dismissed the suit, filed by the said respondents, seeking decree for specific performance of contract of sale dated 3-11-1975.
3. The facts giving rise to the filing of the present revision petition are that the respondents Nos.1 to 4 filed a suit for specific performance of an agreement to sell dated 3-11-1975, renewed on 7-7- 1976, in respect of land measuring 6 acres (elaborately described in the plaint) with a further prayer that the sale-deeds, executed by petitioners Nos.1 to 3, may be declared void and having no legal effect qua the rights of the said respondents. It was alleged in the plaint that one Ghulam Qadir, the predecessor-in-interest of petitioners Nos.1 to 3, entered into an agreement to sell in respect of land measuring 6 acres, for a total consideration of Rs,18,000, executed on 3-11-1975, out of which a sum of Rs,10,000 was paid as earnest money. Subsequently, another sum of Rs,4,000 was paid to Ghulam Qadir, on 7-7-1976, and the said transaction was endorsed on the back of the aforesaid agreement. It has been narrated in the plaint that Ghulam Qadir, deceased, failed to execute the sale-deed, and after his death, his legal heirs also avoided to do the same and instead thereof, they sold the said land in favor of petitioners Nos.4 and 5 and respondent Nos.5 and 6, thus giving cause of action to the said respondents to file the suit seeking the reliefs, herein-before mentioned. The petitioners and respondents Nos.5 and 6 contested the suit by way of filing separate written statements, wherein petitioners Nos.1 to 3, inter alia, pleaded that the suit is bared by time and that no agreement to sell was executed by their father in favor of respondents Nos.1 to
4. Petitioners Nos.4 and 5 and respondents Nos.5 and 6 claimed that the suit is barred by time and also pleaded that they are the bona fide purchasers for value without notice, having no knowledge about the execution of the agreement to sell.
4. Out of the divergent pleadings of the parties, the learned trial Court framed as many as 10 Issues, parties to the suit produced oral as well as documentary evidence, whereafter, the learned Civil Judge decided Issues Nos.1 to 4 and 6 to 9 in favor of respondents Nos.1 to 4, however, on the basis of findings given on Issues Nos.5 and 10, he proceeded to dismiss the suit, filed by respondents Nos.1 to 4, vide judgment and decree dated 3-3-1990. Aggrieved by the said judgment and decree, respondents Nos.1 to 4/plaintiffs filed an appeal, against the petitioners and respondents Nos.5 and 6, before the appellate forum and the learned Additional District Judge, Lahore accepted the appeal, set aside the judgment and decree passed by the learned trial Court and ordered for the decreeing of the suit of respondents Nos.1 to 4 vide judgment and decree dated 24-9-1990. Against the said judgment and decree, the petitioners filed Revision Petition No,1938 of 1990 against respondents Nos.1 to 4, Shah Muhammad and Muhammad Siddique, whereas respondents Nos.5 and 6 filed an independent revision petition (Civil Revision No,109 of 1991), against the petitioners and respondents Nos. 1 to 4 against the same judgment and decree, thus both the revision petitions are being decided together.
5. This was a represented case and as none appeared to represent respondents Nos.1 to 4, thus the said respondents were proceeded ex parte vide order dated 9-10-2001,
6. The learned counsel for the petitioners and respondents Nos.5 to 6 have contended that respondents Nos.1 to 4 failed to prove the execution of the agreement to sell inasmuch as, two marginal witnesses have not been produced. They have contended that even the original agreement to sell was not produced and a photocopy of the said document was exhibited. They have added that the learned Civil Judge, while rightly appreciating the evidence on record and law on the subject, dismissed the suit, while the judgment, rendered by the learned Additional District Judge, was in complete oblivion of the facts of the case and law on the subject, hence not sustainable in Law.
7. There is no cavil to this fact that the learned trial Court decided Issues Nos.1 to 4 and 6 to 9 in favor of respondents Nos.1 to 4 and while rendering its findings on Issues Nos.5 and 10 dismissed the suit of the said respondents. Admittedly, the petitioners and respondents Nos.5 and 6 neither filed the appeal against those issues nor submitted cross-objections. Now the controversy between the parties revolves around Issues Nos.5 and 10, which would be advantageous to be reproduced as under:--
8. "5. Whether the- defendants Nos.4 and 5 are bona fide purchasers for value consideration and have paid the amount? If so, its effect? OPD 4, 5
10. Whether the plaintiffs are entitled to the decree for specific performance of the contracts dated 3-11-1975 and 7-7-1976 as prayed for whether the impugned sale-deeds mentioned in the prayer are illegal, liable to be cancelled and ineffective over the rights of the plaintiffs? OPP."
8. To my mind, out of these issues, Issue No,10 is to be decided first, because if respondents Nos.1 to 4 have been able to prove execution of agreement to sell dated 3-11-1975 and its further endorsement on 7-7-1976, only then the question would arise, as to whether respondents Nos.5 and 6 are bona fide purchasers for consideration and having no notice of the previous transaction, otherwise if the respondents are not able to prove the execution of the agreement to sell, then Issue No,5 becomes redundant. It is clear that petitioners Nos.1 to 3 have specifically pleaded in para. No,3 of their written statement that no agreement to sell was executed by their father in favor of the plaintiffs. In view of this, now the onus was upon respondents Nos.1 to 4 to prove that in fact Ghulam Qadir executed an agreement to sell dated 3-11-1975, further endorsed on 7-7-1976, in favor of the said respondents. I find from the record agreement to sell, dated 3-11-1975, which has been exhibited as Exh.P.W.4/1, on the front portion of this alleged agreement two marginal witnesses, namely Mehr Muhammad Tufail and Muhammad Nazim have signed the said agreement. On the reverse side of this agreement, there is a receipt dated 7-7-1976, showing the payment of Rs,4,000 to Ghulam Qadir in the presence of Muhammad Nazim and Karim Ullah. In order to see as to whether the said respondents have been able to prove execution of this document through the production of evidence, one has to revert to the evidence produced by the said respondents. Muhammad Sharif appeared as P.W.1, who stated that the bargain struck between Ghulam Qadir and the said respondents, but he specifically stated that neither any document was written in his presence nor he is the marginal witness of any such instrument. P.W.2 Bashir Ahmad also states about the said transaction and that a stamp paper was written in his presence. He has deposed in the cross-examination that it is correct that neither the balance amount was paid nor the execution of agreement was done before him. Muhammad Nazim, who is one of the marginal witnesses, on agreement dated 3-11-1975 and receipt dated 7-7-1976, has appeared as P.W.3 and while perusing the photocopy of Exh.P.3, stated that this document was executed by Ghulam Qadir who signed in his presence. From the entire reading of his statement, it is clear that he did not state anything about the execution of agreement i,e, Exh.P.W.4/1 and has confined itself to the receipt (Exh.P.W.3/1), through which Ghulam Qadir, statedly received a sum of Rs,4,000. Karim Ullah appeared as P.W.4, who has stated only about the execution of the receipt and he deposed that he thumb-marked upon Exh.P.W.3. It would be appropriate to mention here that perusal of the reverse side of the agreement shows that on the receipt dated 7-7.1976 two witnesses Nazim and Karim Ullah have been shown to be the witnesses of this document.
Additionally, P.W.4 does not say anything about the execution of Exh.P.W.4/1 and has confined its statement only in respect of Exh.P.W.3/1. Meraj Din one of the plaintiffs appeared as P.W.S. Strangely enough, he is one of the plaintiffs but he has not deposed anything Exh.P.W.4/1.
9. From the above scanning of the evidence of respondents Nos.1 to 4, who were under obligation to prove execution of agreement to sell in dispute, it is evident that the said respondents failed to produce the marginal witnesses of agreement to sell dated 3-11-1975 and receipt dated 7-7-1976: Only one Marginal witness, namely Muhammad Nazim appeared as P.W.3 who, as noted above, did not depose anything about the execution of the agreement to sell dated 3-11-1975 and has confined his statement only in respect of receipt dated 7-7-1976 Exh.P.W.3/1. Now the question arises as to whether in view of his evidence on record, the respondents have bten able to prove the execution of agreement to sell within the parameters set up under the law. According to the provisions of Article 17(2) read with Article 79 of Qanun-e-Shahadat Order, 1984 where an agreement, envisage transaction of financial or future obligation, is not proved to have been attested by the marginal witnesses, such agreement is invalid. Reliance is placed on Taj Din and another v. Mst.Mehr Mai and 7 others (1997 SCM R 134) and Muhammad Nazir and 2 others v. Mst.
Wazir Begum (1999 SCM R 2594). In the light of above, I find that respondents Nos.1 to 4 failed to prove the execution of agreement to sell dated 3-11-1975 and therefore, were not entitled to any relief, thus I am of the view that the learned trial Court rightly dismissed the suit filed by respondents Nos.1 to 4.
10. Additionally, when the execution of agreement to sell was denied, it was incumbent upon the beneficiary of the said agreement to sell to have produced the scribe and the stamp vendor in order to prove the agreement, and admittedly, two very important witnesses, have not been produced, giving the presumption that material piece of evidence has purposely been withheld by the said respondents.
11. The learned counsel for the petitioners have also contended that the original alleged agreement to sell was not produced and instead thereof a photocopy of agreement was produced, without having obtained any permission for leading the secondary evidence, thus they are of the view that the said document cannot be read in evidence. I find from the reading of the judgment passed by the lower Appellate Court that the said respondents, after having proved that the original agreement was mis-placed, applied to the learned trial Court for permission to produce the secondary evidence, which request was acceded by the petitioners vide order dated 1-10-1987 and therefore, the learned trial Judge permitted the said respondents to produce such secondary evidence and in these circumstances photocopy of agreement was produced in secondary evidence. In view of these findings of the learned Additional District Judge, to which the learned counsel for the petitioners have no reply, I am constrained to hold that this assertion of the learned counsel is without any force and is hereby repelled.
12. As I have held that respondents Nos.1 to 4 failed to prove the execution of agreement to sell, therefore, the question of discussing Issue No,5 does not arise and there is no necessity to dilate upon the said issue, as according to my mind in view of the findings on agreement to sell, Issue No,5 has become redundant and no findings are called for on the said issue.
13. Upon the examination of both the judgments, I find that the judgment rendered by lower Appellate Court is in complete oblivion of the evidence on record inasmuch as it appears that the learned lower Appellate Court did not take into consideration the evidence on record and has mechanically held that the agreement to sell has been proved. The learned Appellate Court has wrongly relied upon the statements of P.Ws.1, 2, 3 and 4, thus I am not inclined to maintain the judgment rendered by lower Appellate Court.
14. Upshot of the above discussion is that both the revision petitions stand accepted and judgment and decree dated 24-9-1990 passed by learned lower 'Appellate Court is hereby set aside with no order as to costs. The result would be that the judgment and decree passed by the learned trial Court shall deem to be restored and the suit filed by respondents Nos.1 to 4 stand dismissed.