2006 Y L R 2779
Lahore
Before Abdul Shakoor Paracha, J
MUHAMMAD IQBAL---Appellant
Versus
KHURSHID AHMAD PERVAIZ---Respondent
Civil Revisions Nos.1960 and 1961 of 1997, heard on 20th January, 2004.
(a) Qanun-e-Shahadat (10 of 1984)--
----Arts. 17, 78 & 79---Civil Procedure Code (V of 1908), O. VIII, Rr. 4 & 5---Limitation Act
(IX of 1908), _4rt.113---Specific Relief Act (1 of 1877), 5.12---Suit for specific performance
of agreement to sell---Document required by law to he attested---Evasive denial---Specific
denial---Part performance---Limitation --- Plaintiff filed suit for specific performance of
agreement to sell on the grounds that the defendant had agreed to sell---Plaintiff paid about
2/3rd of the agreed sale price and entered into possession, constructed a hall and installed
machinery --- Electric and gas connections were in his name and lie also paid the property tax-
--Agreement was extended by another agreement---Defendant in his written statement did not
deny his signatures, but alleged that they were obtained by fraud on blank stamp paper---
Defendant filed suit for possession alleging the plaintiff as encroacher---Suit of the plaintiff
was decreed by Trial Court---Appellate Court dismissed the suit---Appellate Court took the
view that agreement to sell was a document required by law to be attested by two male
witnesses under Art.17 of Qanun-e-Shahadat, 1984 and must have been proved by producing
two marginal witnesses under Art. 79 of Qanun-e-Shahadat 1984, plaintiff leaving produced
only one witness the document was not proved---Validity---Agreement to sell did not require
attestation by witnesses therefore provisions of Articles 17 and 79 of the Qanun-e-Shahadat,
1984 were not applicable---Defendant's denial of the execution of the agreements was evasive-
--Defendant had admitted his signatures---Appellate Court had misinterpreted the law and
wrongly set aside the well-reasoned judgment and decree of the Trial Court---Judgment and
decree of the Appellate Court was set aside in circumstances.
Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1.014 and Inam
Naqshbandi v. Haji Sheikh Ijaz Ahmad PLD 1995 SC 314 quoted.
(b) Qanun-e-Shahadat (10 of 1984)---
--- Art. 78 --- Transfer of Property Act (IV of 1882), Ss.3 & 54---Specific Relief Act (1 of
1877), 5.12---Agreement to sell, attestation of---Agreement to sell is not required by law to be
attested by two marginal witnesses and its execution was to be proved in accordance with
Article 78 or the Qanun-e-Shahadat, 1984.
Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 quoted.
(c) Qanun-e-Shahadat (10 of 1984)---
---- Art. 129(g)---Proof of document---Litigant is required to observe the rule of best evidence
and if best evidence is available and withheld from the Court, then adverse presumption
against the document can legitimately be attracted---Different modes of proving the documents
are provided under Art. 78 of the Qanun-e-Shahadat, 1984---Defendant had admitted his
signatures on the agreement---Defendant's denial was evasive---Scribe and one marginal
witness had attested the same---Agreement to sell was proved.
Rana Muhammad Anwar and Rana Abdul Hamid for Appellant.
Rana Abdul Rahim Khan for Respondent.
Date of hearing: 20th January, 2004.
JUDGMENT
ABDUL SHAKOOR PARACHA, J.---This order shall dispose of Civil Revisions Nos.1960
and 1961 of 1997 as the same have arisen out of the consolidated judgment and decree passed
by the learned Additional District Judge, Faisalabad, dated 25-11-1997, whereby the two Civil
Appeals Nos.44-13 and 43-13 of 1997, filed by Khurshid Ahmad Pervaiz, respondent herein,
against Muhammad Iqbal etc, petitioner, were accepted and judgment and decree dated 3-4-
1997 passed by the Civil Judge, Faisalabad, was set aside, the suit of Muhammad Igbal,
petitioner-plaintiff bearing No. 122-1 of 1993 for specific performance of the sale agreement
was dismissed and the Suit bearing No.258-1 of 1996 filed by Khurshid Ahmad, respondent,
for possession of the suit property was decreed with costs.
2. On 12-7-1993 Muhammad Iqbal, petitioner, filed Civil Suit No. 122-1 of 1993 for
specific performance of the agreement to sell of the plot measuring 5 Marlas and 5 Sarsahi, the
description of which has been given in para 1of the plaint and hereinafter would be referred as
the suit property, against Khurshid Ahmad etc. It was stated in the plaint that the vendor-
respondent being owner of the suit property agreed to sell the same to the plaintiff for
consideration of Rs.80, 000 vide agreement to sell dated 27-6-1987 and received an amount of
Rs.50, 000 as earnest money; the possession of the suit property was handed over to the
plaintiff in part performance of the agreement and the registered sale-deed was to be completed
on 5-8-1987 on payment of the remaining sale price. The registered sale-deed could not be
executed as the suit property was mortgaged with defendant No.2 National Bank of Pakistan,
for Rs.18,200 and therefore time was extended to complete the sale till 15-9-1987; the
defendant No.1-respondent promised to complete the sale after getting the suit property
redeemed from the Bank; the plaintiff-petitioner constructed a hall on the suit property in the
year 1987 and installed two flour-grinding mills, one press machine, one expeller and a
platform of Kanda for which he obtained the industrial and commercial connection in the name
of his brother Muhammad Ramzan; he also obtained licence of expeller from the market
committee in this own name; fie obtained sui gas connection in the suit property and property
tax was being paid by him; the plaintiff ever remained ready to pay the remaining sale price
and get the sale-deed executed; he asked the defendant No.1 (respondent) to complete the sale
after redeeming the suit property from the bank but he refused to do so, on which he filed the
suit.
3. The suit was resisted by the defendant No. l/respondent by filing a written statement,
wherein preliminary objection was raised -and the alleged agreements were not admitted to be
true and correct as the documents were not produced for scrutiny and verification; the plaintiff
did not produce any such agreement except an affidavit the genuineness of which was not
admitted to be true and correct and the signatures on the same were also not admitted; delivery
of possession of the suit property to the plaintiff was denied; availing of the facility of bank
loan by mortgaging the property was also denied and pleaded that the entry to this effect was a
sham entry. It was stated that the construction over the suit property was raised by the plaintiff
without any authorization and during the absence of the defendant.
4. On 24-6-1996, Khurshid Ahmad Pervaiz, respondent herein, also filed a suit for
possession of the suit property against Muhammad Iqbal, petitioner herein, wherein it was
contended that the plaintiff in the suit for specific performance of the agreement to sell had
encroached upon the suit property about eight years before in his absence; he was asked to
hand over the vacant possession but he was delaying the matter on one or the other pretext and
thereafter Muhammad Iqbal filed the suit for specific performance of the agreement.
5. Both the suits were consolidated and the learned trial Court framed the following
consolidated issues:--
(1) Whether both the suits are within time? OP Parties
(2) Whether this suit is not maintainable in its present form? OPD
(3) Whether this suit is not maintainable for misjoinder of necessary parties? OPD
(4) Whether the plaintiff has not come to the Court with clean hands? OPD
(5) Whether the defendant is entitled to special costs under section 35-A, C.P.C.? OPD
(6) Whether the defendant No.1 agreed to sell the suit property to the plaintiff for
consideration of Rs.80, 000 and executed an agreement of sale dated 27-6-1987and
received an amount of Rs.55, 000 as earnest money? OPP
(7) Whether the defendant No.1 received further amount of Rs.8, 000 vide agreement of
sale dated 3-8-1987 and promised to execute sale-deed till 15-9-1987? OPP
(8) If Issues Nos.6 and 7 'are proved in the affirmative, whether the plaintiff is entitled to
the decree for specific performance of agreement of sale as prayed for? OPP
(9) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for?
OPP
(10) Whether the plaintiff is in the suit for possession has no cause of action and locus
standi to file the suit? OPP
(11) Whether the plaintiff in the suit for possession is estopped by his words and conduct
to file the suit? OPP
(12) Whether the other suit for possession is deficiently valued for the purposes of court-
fee, if so, what is its correct valuation? OPP
(13) Whether the defendant in the suit for possession is entitled to special costs under
section 35-A, C.P.C.? OPP
(14) Whether the plaintiffs in the suit for possession are entitled to the decree of
possession as prayed for? OPP
(16) Relief.
6. The learned trial Court in para. No. 16 of his judgment has recorded the findings on the
above stated Issues Nos.6 and 7 in favour of Muhammad Iqbal, petitioner-plaintiff by
observing that:--
---that the defendant is a graduate person and is a Bank Officer and it is not expected from
him to sign on a blank stamp paper unless and until he executed the same. He also did not
give any explanation regarding his. signatures on the foot of Exh.P.4 and under the note
on the margin of the same. He has also not specifically denied the agreement of sale rather
he has evasively denied the same."
The learned Court further observed that, "the defendant agreed to sell the suit property to
the plaintiff for consideration of Rs.80, 000 vide agreement Exh.P.5 and received the earnest
money amounting to Rs.55, 000. He further received an amount of Rs.8, 000 and executed the
agreement Exh.P.4" Regarding Issue No.1 of limitation, the trial Court concluded that:--
"In the instant case also, as per agreement Exh.P.5, the sale was to be completed on 3-8-
1987 which was extended till '15-9-1987 vide agreement Exh.P.4. The time was not made
to be the essence of the contract between the parties. The defendant neither took the plea
nor led any evidence that time was the essence of the contract. As already stated that the
suit property was mortgaged with the National Bank of Pakistan and the sale could not be
completed without redeeming the same, therefore, the case would fall under the second
part of the Article 113 of the Limitation Act. The suit property was redeemed on 17-3-
1993. This suit was filed on 12-7-1993; therefore, the same is within time. "
'7. The learned Additional District Judge while maintaining the finding on Issue No.
1regarding question of limitation, held that by virtue of Article 113 (Second Part) of the
Limitation Act, the suit for specific performance was within time. However, he reversed the
findings of Issues Nos.6 and 7 and observed that:--
"The so-called agreement to sell Exh.P.5 was pertaining to financial and future obligations
and has been reduced into writing the same was required to be attested by two marginal
witnesses. This document would not be used in evidence unless at least two attesting
witnesses were examined for such purpose. Muhammad Saeed one of the marginal
witnesses has not been examined despite the fact that he was alive and subject to the
process of Court. There is nothing on record to show that he was not capable to record his
evidence. His testimony was withheld on the flimsy and absurd ground that his
whereabouts were not known and he was placed under suspension somewhere. No such
report is available on the record. Non-production of this marginal witness is very material
and presumption could be raised under the law that had he been produced he would have
not supported the plaintiff/ respondent."
The learned Additional District Judge did not rely on the statement of other marginal
witness namely, Muhammad Riaz Zia, P. W .5. According to the learned Judge, "The so-called
agreement to sell Exh.P.S was pertaining to financial and future obligations and has been
reduced into writing the same was required to be attested by two marginal witnesses. This
document would not be used in evidence unless at least two attesting witnesses were examined
for such purpose".
8. Both the Ccurts below have recorded divergent findings on the crucial Issues Nos.6 and
7 regarding entering of agreement to sell of the suit property to the plaintiff-petitioner for
consideration of Rs.80, 000 on 27-6-1987 and receiving the amount of Rs.55, 000 as earnest
money and receiving of further amount of Rs.8, 000 vide agreement of sale dated 3-8-1987 and
extension of time till I5-9-1987.
9. Before I proceed to discuss the evidence produced by the parties in this case, so that the
controversy may be resolved I would like to examine the question of law whether the
agreement of sale pertains to financial and future obligations and was reduced into writing and
the same was required to be attested by two marginal witnesses. The learned counsel for the
petitioner, on the strength of the case reported as Manzoor Hussain Khan v. Mst. Asia Begum
and 21 others (1990 CLC 1014), contends that the agreements to sell would not require to be
attested by two marginal witnesses and in this view of the matter there was no requirement of
producing at least two attesting witnesses to be examined for such purpose. Bare reading of
section 2 of the Transfer of Property Act (IV of 1882) would show that the agreement to sell
was not required to be attested by two marginal witnesses. In the case of Manzoor Hussain
Khan (1990 CLC 1014) (supra), while interpreting Article 79 of the Qanun-e-Shahadat (10 of
1984) it has been ruled that. "Agreement to sell does not require to be attested by witnesses
and in this view, provision of Article 79, does not apply." The words 'Instrument' and 'attested'
have been defined in section 3 of the Transfer of Property Act as under:--
"Instrument" means a non-testamentary instrument.
"attested", in relation to an instrument, means and shall be deemed always to have meant
attested by two or more witnesses each of whom has seen executants sign or affix his
mark to the instrument or has seen some other person sign the instrument in the presence
and by the direction of the executants, or has received from the executants a personal
acknowledgement of his signature or mark, or of the signature of such other person, and
each of whom has signed the instrument in the presence of the executants, but it shall not
be necessary that more than one of such witnesses shall have been present at the same
time, and no particular form of attestation shall be necessary.
11. The agreement to sell is a document which does not require attestation by the
witnesses. In this view of the matter, the provision of Articles 17 and 79 of the Qanun-e-
Shahadat Order do not apply. If the mortgage deed is not attested in accordance with section 59
of the Transfer of Property Act, it cannot be treated as mortgage deed. There is no authority for
the proposition that a mortgage deed, properly attested but not proved in accordance with
Article 79 of the Order can be received in evidence to prove the personal obligation created
thereby. See cases reported as Shib Chandra Singha v. Ghour Chandra Paul (1922 Calcutta
160) and Veerappa Lavundan v. Ramasami Kavundan (30 Madras 251). A will governed by the
Succession Act must be attested by two or more witnesses, each of whom has seen the testator
sign or affix his mark to the Will, or has seen some other person sign the Will in the presence
and by the direction of the testator or has received from the testator a personal
acknowledgement of his signature or mark, or of the signature of such other person, and each
of the witnesses must sign the Will in the presence of the testator. There are very few
documents which are required to be attested. Mortgages, where the principal sum secured are
Rs.100 or upward, or gifts of immovable property must be written, registered and attested at
least by two witnesses. A Will of a Christian is a document required by law to be attested. See
cases reported in Talluri Peda Manikyam v. Vantabattina Perigaddu (135 I.C. 532 and 1932 M
148). An account book is not required by law to be attested. From all the above discussion, I
am constrained to hold that the agreement to sell is not required by law to be attested by two
marginal witnesses and the finding of E the learned Additional District Judge that the
agreement to sell was required to be attested by two marginal witnesses is erroneous and is not
sustainable.
12. This brings me to advert to the question of execution of the agreement to sell and its
proof. A document does not prove itself. In case of denial of a document, party relying on it
must prove its execution in accordance with Article 78 of the Qanun-e-Shahadat Order, 1984,
which provides that if a document is alleged to be signed or to have been written by any
person, signature or writing must be proved to be in that person's handwriting. This Article by
itself does not lay down any particular mode for proving the signatures and the writing. It
merely requires the signature or writing to be proved to be in the hand of the person to whom it
purportedly belonged. Any mode of proof recognized by law may suffice. A litigant is required
to observe the rule of best evidence and if the best evidence is available and withheld from the
Court, then, it legitimately may attract adverse comments against the proof offered. Under
Article 78 of the Qanun-e-Shahadat Order, 1984 there are different modes of proving the
documents, and the said modes are as under:--
1. By calling the person who signed or wrote the document.
2. By calling person in whose presence the document was signed or written.
3. By calling a Handwriting Expert.
4. By calling a person acquainted with the handwriting of the person by whom the
document is supposed to be signed or written.
5. By comparing in Court the disputed signatures or writing with some admitted signature
or writing.
6. By proof of an admission by the person who is alleged to have signed or written the
document that he signed or wrote it.
7. By the statement of a deceased professional scribe, made in the ordinary course of
business, that the signature on the document is that of a particular person.
8. A signature is proved to have been made if it is shown to have been made at the request
of a person by some other person, e.g., by the scribe who signed on behalf of the
executants.
9. by other circumstantial evidence.
13. On the touchstone of the above stated law, I have read the evidence of the parties. The
petitioner-plaintiff has asserted that the defendant-respondent agreed to sell the suit property
for Rs.80, 000 on 27-6-1987 and received an amount of Rs.55, 000 as earnest money and
executed affidavit Exh.P.5, which is an agreement to sell for all intents and purposes. The date
for completion of the registered sale-deed was fixed as 3-8-1987. Since the land was
mortgaged with the National Bank of Pakistan, defendant No.1 could not execute the
registered sale-deed on the fixed date and the time was extended through the agreement
Exh.P.4 dated 3-8-1987 and the defendant-respondent further received Rs.8, 000. The evasive
denial of the execution of the agreement dated 27-6-1987 Exh.P.5 and the agreement Exh.P.4
through which the time was extended from 4-8-1987 had been made by the respondent. He has
admitted his signatures on the document Exh.P.5. He has also not denied his signatures on the
agreement Exh.P.4. The rule of law is that, denial should be specific. (See Order VIII, rule 3,
C.P.C.). Rule 5 of Order VIII of the C.P.C. further provides that every allegation of fact in the
plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the
pleading of the defendant, should be taken to be admitted. In case reported as Inam
Naqshbandi v. Haji Sheikh Ijaz Ahmad (PLD 1995 SC 314) it has been ruled that, "Allegation
of fact in the plaint, if not denied specifically or by necessary implication or stated to be not
admitted in the pleading of the defendant, shall be taken to be admitted except as against a
person under disability." Muhammad Iqbal, P.W.4 has stated that he knows the parties;
respondent No.1 was employed in the National Bank of Pakistan Chak No.41/JB Branch,
Faisalabad and he was employed in Ayub Research Institute Branch; Khurshid defendant
signed the said document in his presence. He further stated that Muhammad Riaz and Saeed
witnesses also signed the same; Muhammad Ramzan paid an amount of Rs.55, 000 to
Khurshid defendant No.1 before the execution of the agreement Exh.P.4.; Muhammad Iqbal,
plaintiff is the real brother of Muhammad Ramzan deceased; the stamp paper regarding
payment of Rs.55, 000 was also separately written which was signed by the defendant in his
presence. In cross-examination, he stated that the agreement to sell was entered into in his
house situated in Mohallah Khurshidabad. Muhammad Riaz, P. W.5 stated that he signed the
agreement to sell Exh.P.5, and the other witness Muhammad Saeed also signed the same.
Muhammad Riaz, P.W.S, did not state that the document Exh.P.5 was signed when the same
was blank. The defendant has taken the plea that Muhammad Iqbal, P.W., obtained his
signatures on the blank stamp paper on the pretext of taking loan. This plea has not been taken
in the written statement. The defendant is a graduate person and bank employee. It is strange
that he had signed on a blank stamp paper without execution of the same. No explanation
whatsoever has been given by him regarding his signatures on the foot of Exh.P.4. There is
also reference of the document Exh.P.S in the document Exh.P.4 regarding extension of time.
The plaintiff-petitioner has been in possession of the suit property since 1987. He has raised
substantial construction on the site. He was able to get connection of electricity and suigas but
the respondent-defendant was not conscious about the filing of the suit till 24-6-1996. By
appreciating the evidence adduced by the petitioner-plaintiff and the conduct of respondent
Khurshid Ahmad Pervaiz, it reveals that in fact the agreement to sell dated 27-6-1987 was
entered between the parties for consideration of Rs.80, 000 and the defendant received an
amount of Rs.55, 000 as earnest money. Defendant-respondent further received an amount of
Rs.8, 000 vide agreement to sell dated 3-8-1987 and promised to execute the sale-deed till 15-
9-1987. The fact of the mortgaging the property with the Bank has also been proved as the
same was redeemed on 17-3-1993 vide document Exh.P.7. All these facts were enough to
prove the case of the plaintiff, and in this view of the matter, the learned Civil Judge rightly
recorded a finding on Issues Nos.6 and 7 in favour of the plaintiff-petitioner and decreed the
suit. The learned Additional District Judge by misinterpreting the law that the document
agreement to sell requires attestation by two marginal witnesses and as Muhammad Saeed, one
of the marginal witnesses, was not examined I the said document has not been proved in
accordance with Article 79 of the Qanun-e-Shahadat Order, set aside the well-reasoned
judgment and decree of the trial Court through the impugned judgment. The finding of the first
Appellate Court on Issues Nos.6 and 7 are not sustainable_ He has exercised the jurisdiction
not vested in him under the law. Consequently, the same are set aside.
For all the above discussed reasons, both the civil revisions are accepted; the judgments
and decrees dated 25-11-1997 passed by the learned Additional District Judge are set aside. In
consequence, the Suit No. 122-1 of 1993 of the plaintiff-petitioner Muhammad Iqbal for
specific performance of the agreement is decreed with costs and the Suit No.258-1 of 1996,
filed by respondent Khurshid Ahmad Pervaiz shall be deemed to have been dismissed with
costs.
M.I./M-219/L Revision accepted.
