' This revision petition impugns the concurrent findings rendered by the learned Civil Judge, Depalpur dated 10-3-1991 and by the learned Additional District Judge, Depalpur, dated 17-6-1992.
2. The facts of the case are straightforward. The property in dispute is agricultural land measuring 26 Kanals, 17 Marlas situated in Chak No,55/BP, Tehsil Depalpur, District Okara. The said land was allotted to Wali Muhammad respondent No,5 in a Government Scheme but proprietary rights were only transferred to Wali Muhammad on 24-3-1984. On that date Wali Muhammad executed and registered a sale-deed in favor of the petitioner Muhammad Arif, thereby conveying title to the land in favor of Muhammad Arif.
3. The respondents Nos.1 to 4 filed a suit out of which the present revision petition arises on 9-8- 1984. They claimed that Wali Muhammad had, earlier in time, executed an agreement to sell dated 29-3-1980 in their favor. It was asserted in the plaint that the sale in their favor was for a total consideration of Rs,13,000 out of which Rs,10,000 had been paid to Wali Muhammad upon signing of the agreement while the balance consideration amounting to Rs,3,000 was to be paid at the time of registration of a sale-deed in their favor. The respondents Nos.1 to 4 also averred in their plaint that they had been in possession of the suit-land at the time of the sale-deed executed in favor of Muhammad Arif and, as such, Muhammad Arif was put to notice of their interest in the suit-land.
On this basis, it was contended that Muhammad Arif could not claim to be a bona fide purchaser of this suit-land for valuable consideration without notice of the prior right of the plaintiffs/ respondents.
4. The suit was resisted by Muhammad Arif and also by Wali Muhammad who had been impleaded as defendant No,
1. While both Wali Muhammad and Muhammad Arif filed separate written statements they pleaded a common ground that the agreement dated 29-3-1980, relied on by the plaintiff, was forged and fraudulent. However, four years after the filing of his written statement Wali Muhammad made a statement in Court on 24-1-1988 resiling from the contents of the written statement. Contrary to the averments made in his written statement Wali Muhammad conceded the claim of the plaintiffs. The two Courts below have mainly relied on the aforesaid statement of Wali Muhammad in holding that the agreement Exh.P.1 was duly proved. Secondly, it has been held that as the plaintiffs were in possession of the suit-land, Muhammad Arif was put to notice of their interest therein and as a consequence he could not claim to be a bona tide purchaser. For the reasons appearing below, I have found that both Courts below have, in material particulars, misread the evidence while decreeing the suit of the plaintiffs.
5. I have heard both learned counsel at length and have also gone through the record with their assistance. Learned counsel for Muhammad Arif petitioner has pointed out that it was firstly, for the plaintiffs/respondents to prove the agreement Exh.P.1 because the onus of proof in his respect was placed on them. It is only after discharge of such onus of proof that the petitioner Muhammad Arif could have been required to establish that he was a bona fide purchaser of the suit-land. This contention has force and is also supported by the case titled "Mst. Surraya Begum and others v.
Mst. Suban Begum and others" (1992 SCM R 652). I, therefore, take up for consideration the question as to whether the plaintiffs/respondents had discharged the onus of proof.
6. I have examined the agreement Exh.P.1. It purports to have been witnessed by Pehlwan and Muhammad All whose names appear thereon as marginal witnesses. Only Muhammad Ali has appeared as a witness (P.W.2) in proof of the said agreement. No explanation has been given for not producing the other marginal witness, namely. Pehlwan. On this basis, it was argued by learned counsel for the petitioner that the requirements of Article 79 of the Qanun-e-Shahadat Order had not been complied with and, as such, the agreement Exh.P.1 could not be relied upon as evidence.
This contention is well-founded and is consistent with Article 79 of the Qanun-e-Shahadat Order.
7. Even Muhammad Ali does not qualify as a marginal witness. I have read his evidence wherein he has testified that he thumb-marked Exh.P.1, which was also thumb-marked by the other marginal witness Pehlwan in his presence. He has, however, deposed that no other person thumb-marked Exh.P.1 in his presence. This statement is by itself sufficient to disqualify Muhammad Ali as an attesting witness. Only such person can be treated as an attesting witness who has seen the execution of a document.
8. Quite apart from the above noted material defect in the evidence led by the plaintiffs, the testimony of Muhammad All P.W.2 is even otherwise not credible. He has emphatically, stated both in his examination-in-chief and in his cross-examination that a sum of Rs,13,000 was paid by the plaintiffs/respondents to Wali Muhammad in consideration of the agreement Exh.P.1. This, however, is not the case set up by the plaintiffs. As noted above, they claim to have paid Rs,10,000 at the time of the agreement while the balance was to be paid later on registration of a sale-deed in their favor. At another point Muhammad Ali (P.W.2) has testified that the consideration of the agreement in favor of the plaintiffs/respondents was Rs,1,10,000. These discrepancies in the testimony of Muhammad Ali (P.W.2) detract from the veracity of his evidence.
9. There is yet another aspect of Exh.P.1, which needs to be noted but was not given due consideration by the two Courts below. The date of the agreement Exh.P.1 is 29-3-1980. However, the stamp paper on which it is executed, was purchased on 29-8-1978. I have seen the original document and note that the stamp vendor's endorsement was in respect of some other persons and not the parties to Exh.P.1. The original endorsement has been scored out and instead the names of Wali Muhammad and Mehmood Ali respondent No,1, have been written subsequently: This is a material circumstance which clearly undermines the authenticity of the agreement, Exh.P.1.
The learned trial Court, has, however, brushed aside this important fact by holding that an agreement can be signed even on a plain paper and it is the content of the agreement which has relevance and not the paper on which it is written This finding, which has been upheld by the learned Additional District Judge, loses sight of the fact that in cases such as the present one where the authenticity of a document is in question, such discrepancies in stamp paper, as have been noted above, acquire material importance.
10. The other aspect of this case which has weighed with the two Courts below, has been the conceding statement made by Wali Muhammad in Court on 24-1-1988. As noted above, this statement was contrary to the express averment in the written statement tiled by Wali Muhammad. In the statement, no reason has been given by Wali Muhammad as to why he was resiling from the contents of the written statement. No evidentiary value can attach to such statement. It is well-settled that a material fact, firstly, has to be alleged in the pleadings of a party and only, thereafter, can the same be proved. If any authority for this legal preposition is required, reference can be made to the case titled Budho and others v. Ghulam Shah (PLD 1963 SC 553) and the case titled Sar Anjam v. Abdul Raziq (1999 SCM R 2167). In the present case, Wali Muhammad did not seek amendment of his written statement nor did he, as noted above, given any valid reason for changing his stance. In the circumstances, the two Courts below were not legally justified in placing reliance on the statement of Wali Muhammad which even otherwise was not made during the course of recording of evidence and was, therefore, not subjected to .Cross- examination. I also note that Wali Muhammad did not make any reference in his statement to the agreement Exh.P.1. He merely accepted the contents of the plaint and withdrew from pursuing his case. This alone cannot, by any stretch of reasoning, be construed as proving the agreement Exh. P.
I.
11. Finally, the learned Courts below has misdirected themselves on the effect of possession of the suit property, by the plaintiffs/respondents. The Khasra Gardawai exhibited on record .Shows that the plaintiffs were tenant-at-will under Wali Muhammad. As such, the mere fact that they were in possession of the suit-land, could not be construed as notice to the petitioner Muhammad Arif of any interest vesting in them other than that of a tenant-at-will. Even otherwise, the question of possession of the suit-land and the bona fides of the petitioner could only have relevance after proof of the agreement Exh.P.1. Since the said agreement has not been proved, I find that the petitioner was not required to prove that he was a bona fide purchaser of the suit-land without notice of the aforesaid agreement.
12. For the foregoing reasons, I find that the two Courts below have acted with material irregularity in the exercise of their jurisdiction. As a consequence, the decrees passed by them are set aside and the suit tiled by the plaintiffs/respondents is dismissed.