PLJ 2005
Present: Muhammad Muzammal Khan, J.
MUHAMMAD RIAZ--Appellant
versus
SANDAL BEGUM and others--Respondents
R.S.A. No. 61 of 2003, decided on 23.4.2004.
Evidence Act, 1872 (I of 1872)—
----S. 68--Qanun-e-Shahadat Order, (10 of 1984), Arts. 17, 79 & 82--Determination--Second appeal also dismissed--Grounds--Agreement cannot be said to have been proved by producing only one marginal witness because the scribe, having not signed the document as a witness, cannot be treated as its marginal witness--Mere summoning through process of Court was not enough to assume that second witness has become hostile unless and until appellant had exerted in manner explained in Art. 82 of Qanun-e-Shahadat Order, 1984--Held: Courts below have rightly and correctly refused specific performance to appellant, their judgments are neither arbitrary nor fanciful--Second appeal accordingly dismissed.
[Pp. 1152 & 1154] B, C, I & J
1992 SCMR 1832; PLD 1996 SC 256 and PLJ 2002 SC 706 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)—
----Arts. 17 & 79--Onus to prove--Essentials--After denial of execution of some document, onus to prove it through positive evidence shifts on shoulder of beneficiary--Under Art. 17 of Qanun-e-Shahadat Order as agreement to sell creates financial and future obligations and when reduced to writing was required to be attested by two men or one man and two woman and in view of provisions of Arts. 79 of Qanun-e-Shahadat Order such document could only be used as evidence if at least two attested witnesses have been called for the purpose of proving its execution if those are alive. [P. 1152] A
Transfer of Property Act, 1882 (IV of 1882)—
----S. 53-A--Agreement to sell--Effect of--Suit for--Dismissal of--Agreement not proved--Second appeal--Dismissal again--Ground--Appellant is son of tenant holding land under original allottee and after her death so recorded under respondents, thus, he would be considered in an active fiduciary relationship qua his land lady and was required to prove not only bargain reflected in agreement but also good conscience, thereof, but file is absolutely thirsty of proof in this respect--Only witness produced by appellant in his support is related to appellant--Held: No law point urged by appellant goes in his favour--Second appeal dismissed. [P. 1154] G & H
Transfer of Property Act, 1882 (IV of 1882)—
----S. 53-A --Agreement to sell--Thumb-impression--Suit refused--Second appeal--Dismissal in view of circumstances of case--Held: Agreement to sell was of those days in which land had not been allotted to lady admittedly illiterate and observed pardah--There is no evidence that lady was accompanied by any adult male member of her family or she had access to any independent legal advice before parting with her immovable property--Moreover thumb-impression of lady or impugned agreement had no visible wriggles that is why no application moved to trial Court for comparison of thumb-impression of original allottee with her admitted thumb-impression available on record--Second appeal dismissed.
[P. 1153] D, E & F
AIR 1925 P.C. 204; PLD 1968
Ch. Muhammad Zafar, Advocate for Appellant.
Rana Rashid Ahmad, Advocate for Respondent No. 1.
Hafiz Khalil Ahmad, Advocate for Respondents Nos. 2 and 3.
Date of hearing: 23.4.2004.
Order
This regular second appeal assails judgments and decrees dated 14.10.1992 and 3.10.2003 passed by learned Civil Judge and learned Additional District Judge, Toba Tek Singh whereby suit of the appellant was dismissed and his appeal there against failed, respectively.
2. Precisely, relevant facts are that on 2.12.1989, the appellant filed a suit for specific performance against Respondents Nos. 1, 2 and Adalat Khan prodecessor-in-interest of Respondents Nos. 3-A to 3-H, with the averments that Mst. Lal Begum, mohter of Sandal Begum, Respondent No. 1 was allotted land measuring 101 kanals 10 marlas detailed in the plaint, as "Mangla Dem" affectee. The land was in cultivating position of father of Talib, a lease holder/tenant, under the respondents. It was averred that Mst. Lal Begum agreed to sell her land to the appellant for a consideration of
Rs. 3,00,000/- vide agreement to sell dated 13.5.1987 and received an amount of Rs. 1,50.000/- as earnest money. It was settled between the parties to the agreement that the sale-deed will be executed after conferment of propriety rights to Mst. Lal Begum and the remaining sale price shall be paid at the time of registration of sale-deed. It was also pleaded that Adalat Khan predecessor-in-interest of Respondents Nos. 3-A to 3-H being aware of the agreement to sell in favour of the appellant purchased the land from Sandal Begum and thus, sale in his favour was illegal and inoperative qua his rights. Mst. Lal Begum could not get propriety rights in her lifetime and after her death, those were conferred in favour of Sandal Begum (Respondent No. 1) as her heir, who sold out the land to Adalat Khan aforementioned through a registered sale-deed dated 29.10.1989. The appellant on gaining knowledge of sale in favour of Adalat Khan filed suit for specific performance of the agreement to sell in his favour, challenging sale by Respondent No. 1.
3. The respondents being defendants in the suit contested it by filing their written statement whereby execution of agreement to sell was denied and was pleaded to be fraudulent and forged. It was denied that Mst. Lal Begum ever entered into agreement to sell with the appellant and that she ever received any earnest money from him. Respondents Nos. 2 and 3 in their joint written statement claimed themselves to be bona fide purchasers for valuable consideration without notice of the asserted agreement. It was also averred that land is dispute is situated within the limits of District Toba Tek Singh whereas the claimed agreement to sell was executed at jhang in connivance with the stamp vendor there, without any reason, which shows forged nature of the document. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter after doing the needful, dismissed the suit of the appellant vide his judgment and decree dated 14.10.1992.
4. The appellant aggrieved of the decision of the trial Court dated 14.10.1992 filed an appeal before the learned Additional District Judge, Toba Tek Singh but remained unsuccessful as his appeal was dismissed vide judgment and decree dated 3.10.2003. The appellant, thereafter, filed instant regular second appeal, which after notice to the respondents has now been laid for final determination. The respondents are represented through their respective counsels.
5. Learned counsel for the appellant submits that inspite of the fact that execution of the agreement to sell was denied by the respondents, it was proved through evidence of its scribe and one of the marginal witness because the second marginal witness had been won over by the respondents and inspite of summoning through the process of the Court did not appear in the witness box. According to him, for proof of the agreement to sell dated 13.5.1987, statements of scribe and one marginal witness were enough, under law. It was further contended that after payment of earnest money to the original allottee Mst. Lal Begum, the appellant got possession of the land subject of agreement to sell which was a notice to public-at-large, protected under law and as such, during the concurrency of this agreement to sell, sale in favour of the predecessor-in-interest of the Respondents Nos. 3-A to 3-H and Respondent No. 2 was illegal and unauthorized but a contrary view taken by the two Courts below was not in accordance with law. He further submitted that Respondent No. 2 and deceased Respondent No. 3 were influential persons within the area where the land in dispute was situated and this fact was duly proved by evidence and thus, it furnished a sufficient cause for execution of agreement to sell at Jhang. It was also argued that both the Courts below returned incorrect findings, which runs counter to the file, thus, cannot be maintained.
6. Both the learned counsel for the respondents refuted the arguments of the appellant, supported the concurrent judgments and decrees of the two Courts below and urged that scribe of the alleged agreement to sell, cannot be treated as a marginal witness and in absence of statement of second marginal witness in support of the asserted agreement, is not proved in accordance with law. According to them, mere summoning of second marginal witness through process of Court was not enough and the appellant was required to move to the trial Court through an application that the witness has been won over, thus, the same may be summoned as a Court witness and on his appearance in the witness box, the witness should have been got declared as hostile and should have been subjected by cross-examination by the appellant but this course having not been adopted, the agreement to sell cannot be said to have been proved. They further contended that the only marginal witness PW. 3 produced by the appellant is a close relation of the appellant, as admitted by the appellant himself while appearing as his own witness, thus, was of not worth reliance and as such, both the Courts below have given correct findings regarding non-execution of the asserted agreement. It was also argued that had the agreement to sell claimed by the appellant been genuine, the appellant should have applied for comparison of thumb impression of Mst. Lal Begum with her admitted thumb impressions but this exercise was not also undertaken. They assertively argued that concurrent findings of facts recorded by the two Courts below, after due appraisal of evidence on the file are immuned from further scrutiny in second appeal especially when there is no misreading and non-reading of the same. Learned counsel for the respondents further elaborated their arguments by saying that Mst. Lal Begum was undeniably an illiterate villager lady and she will be presumed to be pardah observing lady as held by the Hon'ble Supreme Court in the case of Mst. Mehmooda Begum and others Versus Major Malik Muhammad Ishaq and others (1984 SCMR 890) and such women are protected under law as held by the Hon'ble Supreme Court in the cases of Mst. Badshah Begum Versus Ghulam Rasul and 4 others (PLD 1991 SC 1140) and Amirzada Khan and other Versus Itbar Khan and others (2001 SCMR 609).
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. It is settled principle of law that after denial of execution of some document, onus to prove it through positive evidence, shifts on the shoulders of the beneficiary. Under Article 17 of the Qanun-e-Shahadat Order, 1984, as agreement to sell, creates financial and future obligations and when reduced to writing, was required to be attested by two men or one man and two women and in view of provisions of Article 79 of Qanun-e-Shahadat Order, 1984, such document could only be used as evidence if at least two attested witnesses have been called for the purpose of proving its execution if those are alive, are subject to the process of the Court and are capable of giving evidence. The agreement to sell which was to be proved, according to the above noted principle, by the appellant, cannot be said to have been proved, in accordance with law by producing only one marginal witness because the scribe, having not signed the document as a witness, cannot be treated as its marginal witness, if any precedent regarding shifting of onus of proof on the shoulder of the beneficiary of the document, is needed, I can refer to the cases of Hakim Khan Versus Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832), Sana Ullah and another Versus Muhammad Manzoor and another (PLD 1996 SC 256) and Mst. Raseeda Begum and 3 others Versus Muhammad Yousaf and others(PLJ 2002 SC 706).
8. Earlier to
coming into enforce of Qanun-e-Shahadat Order, 1984, an agreement to sell was
not required by any law to be attested by two witnesses and whenever any such
agreement was reduced to writing, its execution could be proved by producing
only one witness under Section 68 of the Evidence Act, 1872 but by promulgation
of Qanun-e-Shahadat Order, 1984, all the agreements, as noted above, require
proof of those, in terms of Article 79 of the Order (ibid). In the instant
case, the crucial point which falls for determination is that where an
agreement to sell is attested by two witnesses and both are alive, are subject
to process of Court and if one of those is won over by the party against whom
such document is sought to be enforced, how the document shall be proved.
Article 82 of the Qanun-e-Shahadat Order, 1984 has taken care of this
eventuality, whereunder if an attesting witness denies or does not recollect
the execution of the document then it can be proved by other evidence. The Hon'ble
Supreme Court in the case of Mst. Rasheeda Begum and 3 others (supra) has very
graciously dealt with a situation in which an agreement to sell was reduced to
writing but was not attested by any witness. It was mandated that such
agreement can be proved by other strong evidence and attending circumstances
which can vary from case to case but those can also furnish a lawful proof, in
first category of proof, as supporting evidence. To my mind, the appellant
could prove execution of the asserted agreement to sell by applying to the
Court with an assertion that the witness has been won over by the respondent,
thus, he may be summoned as a Court witness and the appellant may be allowed to
cross-examine the said witness, by declaring him hostile towards him but
the appellant did not opt this course. No such averment was
made by him in the plaint or the grounds of appeal before the First Appellant
Court and at the same time, no such suggestion was put to the respondents that
they have connived with his witness shown on the agreement to sell. Besides
this mode of proof, the appellant could, as well, move to the trial Court for
comparison of thumb impression of the original allottee/owner appearing on the
impugned agreement with those admitted thumb impressions available on the
record. It appears from the record that no such application was moved to the
trial Court, the First
9. For what has been discussed above, I am constrained to hold that both the Courts below have rightly returned their findings with regard to execution of Ex.P.I and correctly refused its specific performance to the appellant. Both the Courts below have not misread any part of the record. Their judgments are neither arbitrary nor fanciful and no law point urged by the appellant goes in his favour. This second appeal has no merit in it and is accordingly dismissed. Leaving the parties to bear their own costs.
(F.M.) Second appeal dismissed.