' On 3-5-1979, the petitioner and the respondent No,3 filed a suit against Feroze Din, predecessor- in-interest of respondents Nos.1-A to 1-H. In the plaint it was stated that the suit land is owned by respondent No,1 and the petitioner is a tenant in the land and is regularly paying share/rent; that the respondent No,1 agreed to sell the said land to the said plaintiff for a consideration of Rs,69,000 received Rs,15,000 and executed an agreement dated 6-2-1979 promising execution of a sale- deed by 15-6-1979 upon the receipt of the balance amount; that thereafter the respondent No,1 proceeded to sell the said land to respondent No,2 for a consideration of Rs,1,00,000 vide a registered sale-deed dated 28-3-1979. This sale of the land was stated to be violative of the said agreement. The respondent No,1 filed a written statement denying all the said allegations including the execution of the agreement, receipt of any amount of consideration and the fact that the petitioner is a tenant. Respondent No,2 in his said written statement pleaded that he is a bona fide purchaser of the suit land.
2. During the pendency of the suit, the respondent No:3, (the plaintiff No,2 in the suit), was transferred as defendant No,3 and an amended plaint was filed on 8-11-1983 by the petitioner stating that his co-plaintiff has joined hands with the said defendant in the case. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit of the petitioner vide a judgment and decree dated 7-6-1989. A first appeal filed by the petitioner was dismissed by a learned Additional Sessions Judge, Gujranwala on 28-9-1992.
3. The learned counsel for the petitioner contends that the evidence on record has been misread by the learned Court below as the learned Courts ought to have granted his prayer for comparison of the signature of Feroze Din on the agreement. The learned counsel for the respondent on the other hand, argues that in view of the evidence on record, there is no need for the said comparison, inasmuch as none of the witnesses supported the execution of the said agreement.
4. I have gone through the record of the learned Court which is available, on record with the assistance of the learned counsel for the parties. The agreement is on record as Exh.P.W.1/1. It bears dated 6-4-1979 (and not 6-2-1979 as mentioned in the plaint). It bears signature of Feroze Din, respondent No,1 and witnesses are Noor Alam, Inayat and Sharif Muhammad. It is scribed by Muhammad Shafi. The said Muhammad Shafi has appeared as P.W.1 and has stated that he had written the document Exh.P.W.1/1 on the instruction of Feroze Din respondent and read it over to him; that the document was written in favor of the petitioner and that they had signed the document. In his cross-examination he admits that he does not know Feroze 'Din personally and volunteers that he knows Saleh petitioner who had got the document scribed;, that,the witnesses have not signed his Register neither has any other person identified the executants; that he had not noted N.I.C.
Numbers; he admits that the document bears dated 6-4-1979 but explains that this is a wrong date. In reply to cross-examination by respondent No,3 he admits that Jan Muhammad's name is not present in his Register neither did he sign or put thumb-mark on the document; that on the asking of Saleh petitioner whereas the agreement narrates that it is in favor of Saleh he had written the name of Jan Muhammad. Now apart from the fact that this witness does not know the said Feroze Din alleged executor he has proceeded to state that the agreement was written only in favor of Saleh petitioner whereas the agreement narrates that it is in favor of Saleh and Jan Muhammad. Nothing, therefore, turns on the statement of this witness. P.W.2 is Sharif Muhammad.
He stated that he is a witness to the agreement and that apart from him, Jan Muhammad and Saleh had affixed their thumb-impression and Feroze Din had signed the document. He is a paternal uncle of the petitioner. According to him when the agreement was scribed, Jan Muhammad, Sharif Muhammad, Muhammad Saleh, Inayat and Feroze Din were present. In his cross-examination he has stated that Inayat had also put his thumb-impression on the document.
P.W.3 is the petitioner himself. He insists that he and Jan Muhammad respondent were joint promisees and that the agreement was executed by Feroze Din. He further states that half of earnest money was paid by him and other half by Jan Muhammad. He states that the agreement was written in the 6th month (June). He admits that he has no enmity with Inayat who is his (URDU TEXT)."
5. In rebuttal Jan Muhammad has appeared as D.W.5. He has denied his-thumb impression on the document and has denied that he was a party to the same or that it was scribed in his presence.
D.W.6 is Inayat who has denied his thumb-impression on the agreement, Exh.P.W.1/1 and that he is not at all aware of any transaction between the petitioner and Feroze Din. D.W.4 is Feroze Din who has denied execution of the said document or receipt of any amount.
6. P.W.5 is the expert Zaka A. Malik, who has concluded in his report Exh.P.1 that is not possible to compare the thumb-impression of Jan'Muhammad on the disputed document.
7. I have gone through the said evidence on record. I find that the petitioner has not been able to prove the execution of the document, Exh.P.W.1/1. So far as the matter of comparison of signatures of Feroze Din is concerned, suffice it to say that other evidence is available. It has also been advised by the superior Courts not to resort to comparison to a Handwriting Expert where other evidence is available. In the present case, the scribe does not know Feroze Din while the statement of Saleh petitioner and Sharif Muhammad P.W.2 have been fully rebutted by Feroze Din D.W.4, Inayat D.W.6 and Jan Muhammad D.W.5. I have already noted above that every one seems to be oblivious of the third witness mentioned in the agreement i,e, Noor Alam. Jan Muhammad disowns the agreement.
This leaves the matter of possession but it is in the plaint that the petitioner is a tenant and is regularly paying share/rent to the respondent No,
1. Nothing, therefore, turns on the said fact.
8. Coming to the matter of bona fide purchase, I find that there is no allegation in the plaint that the said subsequent vendees (respondent No,2) was aware of the agreement. In the Court of evidence they said fact has been sought to be introduced. However, the said statement of the petitioner D.W.3 stands shattered in the cross-examination. He says that he had never met the said respondent after the agreement in his favor. He has also admitted that he himself had never gone to said respondent and that he had not issued any notice. In these circumstances, it is not at all believable that the respondent No,2 on his own acquired the knowledge when it has not even been alleged that the respondent No,1 might have told him. On the other hand, his attorney has entered in the witness-box as D.W.3 and has stated that the said respondent was not aware of any agreement. This being so the burden stood shifted to the petitioners which he has failed to discharge. I, therefore, agree with the learned Additional Sessions Judge that respondent No,2 was a bona fide purchaser within the meaning of section 27(b) of the Specific Relief Act, 1877.
9. For all what has been discussed above, this R.S.A. Is dismissed with no orders as to costs.