2016 Y L R 565
(a) Specific Relief Act (I of 1877)---
----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 78---Suit for specific performance of contract---Illiterate executant of document---Document, proof of---Scope---Sale of property in case of contract would take effect in the terms settled therein between the parties---Agreement to sell would not itself create any interest or charge and onus would lie on the beneficiary to prove the same---Stamp vendor was not produced in witness box in the present case---Agreement was not scribed by a license holder deed writer rather same was drafted by an advocate---Advocate could not be treated at par with Petition Writer and his deposition would have no evidentiary value for not having produced his register for examination of court---Advocate was not bound to keep any such record and such a writer could not be treated as a licensed Petition Writer who maintained a register with page marking and entries were carried with serial numbers and dates---Statement of advocate was of no help to the plaintiff---Defendant was an illiterate person---Where document was allegedly executed by an illiterate person the beneficiary of said document was bound to establish by satisfactory and strong evidence that not only the document had been executed by said person but also that such person had fully understood the contents of such document---Impugned agreement to sell had not been read over to the executant after its writing---Witnesses of plaintiff were not consistent with regard to the venue where transaction was settled---Such contradictions could not be considered to be of minor nature but same was on material point---Evidence available on record was not sufficient to prove the valid execution of agreement to sell---Execution of document was to be proved by its beneficiary---Execution of document would not mean mere signing or putting thumb impression but something more than signing or putting thumb impression by the executant---Plaintiff was bound to prove that thumb mark was made in the presence of marginal witnesses of agreement to sell which was read over and also understood by the vendor---Identification of executant of document should also be proved by reliable and authentic evidence that a person who had affixed thumb marks or signature was the same person who owned the land and sold the same to the vendee---Plaintiff had failed to prove the execution of impugned agreement to sell---Impugned judgments and decrees passed by both the courts below were set aside and suit was dismissed---Defendant was directed to surrender Rs. 5 lac in favour of plaintiff which he had admitted to have been borrowed by him as security---Appeal was accepted in circumstances.
Qasim Ali v. Khadim Hussain through Legal Representatives and others PLD 2005 Lah. 654; Altaf Hussain Shah v. Nazar Hussain Shah 2001 YLR 1967; Mst. Safia Begum v. Muhammad Ajmal 2007 YLR 3030; Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808 and Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884 rel.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Revisional jurisdiction of High Court---Scope---Scope of interference with concurrent findings of fact was limited but if such findings appeared to have either mis-read the evidence on record or while assessing the same omitted from consideration some important piece of evidence which had direct bearing on the issue involved then revisional jurisdiction could be exercised.
Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 rel.
Ali Raza Khan for Appellant.
Ahmad Raza Malik for Respondent.
Date of hearing: 15th October, 2014.
MUHAMMAD BASHIR VS GOHAR NASEEM
2016 Y L R 565
[Lahore]
Before Ch. Muhammad Masood Jahangir, J
MUHAMMAD BASHIR---Appellant
Versus
GOHAR NASEEM---Respondent
R.S.A. No.155 of 2010, heard on 15/10/2014.
JUDGMENT
CH. MUHAMMAD MASOOD JAHANGIR, J.---This appeal is directed against the judgment and decree dated 21.12.2009 passed by the learned Civil Judge, Sialkot, whereby, the suit for specific performance of agreement to sell dated 25.6.2005 (Exh.P1) filed by the respondent/plaintiff was decreed and the judgment and decree dated 29.4.2010 delivered by the learned Addl. District Judge, Sialkot, through which, the appeal filed by the appellant/defendant was dismissed.
2.Brief facts of the case are that respondent/plaintiff brought a suit for specific performance of an agreement to sell dated 25.6.2005(Exh.P1) before the learned trial court against the appellant/ defendant with the assertions that the disputed house No.XVI-13S-41/8/3 measuring 05 Marlas fully mentioned in the body of the plaint, owned by the appellant/ defendant was agreed to sell through above referred agreement to the respondent/ plaintiff against a consideration of Rs.16 lac and received Rs.13 lac as earnest money whereas the agreement was to be fulfilled till 26.9.2005.However, the appellant/ defendant failed to execute the sale deed in favour of respondent/plaintiff and he was constrained to file the said suit before the learned trial court. The said suit was resisted by the appellant/defendant with the assertions that a loan was taken by him and he surrendered the registered sale deed in favour of respondent/plaintiff as security for repayment of loan, but the respondent/ plaintiff fraudulently converted the thumb impression affixed on the plain stamp paper into the disputed agreement to sell regarding the sale of suit house. The learned trial court, out of the divergent pleadings of the parties, framed the following issues:--
(1)Whether the defendant entered into an agreement to sell dated 25.6.2005, with the plaintiff regarding his property fully described in para No.1, of the plaint in lieu of Rs.16,00,000/- and had received Rs.13,00,000/- as earnest money and promised to get sale deed registered till 26.9.2005, after receiving of balance amount of Rs.300,000/-OPP
(2)If issue No.1, is proved in affirmative, whether the plaintiff is entitled to get decree as prayed for? OPP
(3)Whether the plaintiff has not come to the court with clean hands and is not entitled to discretionary relief? OPD
(4)Whether the suit is false and frivolous and in case of dismissal of suit, defendant is entitled to get the special cost? OPD
(5)Relief.
3.After recoding evidence of both the parties the learned trial court decreed the suit of the respondent/plaintiff vide judgment and decree and the appellant/ defendant filed an appeal before the learned lower appellate court which has also been dismissed through judgments and decrees as narrated in Para-1 ante.
4.Learned counsel for the appellant/ defendant has argued that both the courts below while misreading and non-reading the evidence available on record rendered the impugned judgments on erroneous premises of law; that the respondent/ plaintiff himself deposed that the sale consideration was paid by him to the appellant/defendant in the presence of Muhammad Ameen who was not produced by the respondent/plaintiff and withheld the said best evidence due to which inference was to be drawn against him under Article 129(g) of Qanun-e-Shahadat Order, 1984; that the said Muhammad Ameen was produced by the appellant/defendant before the learned trial court as DW.2 who negated the stance of the respondent/ plaintiff; that both the courts below while misinterpreting the said deposition committed material irregularity as well as illegality and that the evidence available on record failed to prove the valid execution of agreement (Exh.P1). He has lastly prayed for the acceptance of the instant appeal, setting aside of the impugned judgments and decrees passed by both the courts below and prayed that the suit of the respondent/plaintiff be dismissed.
5.Conversely, the learned counsel for the respondent/plaintiff has supported the impugned judgments and decrees passed by both the courts below and also argued that the respondent/plaintiff produced scribe namely Mr. Tahir Naeem, Advocate, as PW. 4, Babar Rafique and Muhammad Ali as PW.2 and PW.3, the marginal witnesses of the disputed agreement to sell (Exh.P1), who fully proved the valid execution of the disputed agreement to sell (Exh.P1) and this Court has no jurisdiction to interfere in the concurrent findings recorded by both the courts below. He has lastly prayed for dismissal of the instant appeal.
6.Arguments heard and record perused.
7.The disputed agreement (Exh.P1) is available at page-31 of the instant file. It is a settled principle of law that sale of property in case of contract would take effect in terms settled therein between the parties but such contract would not by itself create any interest or charge thereon and heavy onus lies on the beneficiary to prove that any transaction was settled between the parties on the terms and conditions embodied in the said agreement. It is straightway noticed that stamp vendor of Exh.P1 was not produced by the respondent/plaintiff. The writing of the stamp vendor over the second page of first leaf of Exh.P1 does not disclose that in whose favour the disputed stamp paper was purchased by the appellant/defendant rather it only reveals that it was purchased for the purpose of "Iqrarnama" by the appellant/ defendant. Even the said agreement was not scribed by a licence holder deed writer rather it was drafted by Mr. Tahir Naeem, Advocate (PW.4). An Advocate could not be treated at par with petition writer whose deposition would have no evidentiary value for not having produced his Register for examination of Court as an Advocate is not obliged to keep any such record and such an author cannot be treated as a licensed petition writer, who maintains a Register with page marking and entries are carried with serial numbers and dates. As such statement of PW.4 is of no help to the respondent. Reliance in this respect is placed on the judgments reported as "Qasim Ali v. Khadim Hussain through Legal Representatives and others" (PLD 2005 Lahore 654), "Altaf Hussain Shah v. Nazar Hussain Shah" (2001 YLR 1967) and "Mst. Safia Begum v. Muhammad Ajmal" (2007 YLR 3030).
8.It is also admitted fact that the appellant/defendant was an illiterate person and this fact also stood proved from the perusal of Exh.P1 wherein the appellant was shown to have put his thumb impression only. It is now well settled principle that where the document is allegedly executed by the illiterate person, the beneficiary of the document is bound to establish by highly satisfactory and strong evidence that not only the document has been executed by such illiterate person but also that such person had fully understood the contents of the document. The perusal of Exh.P1 further reveals that nowhere it is mentioned therein that document after its writing had been read over to the executant and he after considering the same to be true had put his thumb impression over there. Even respondent/plaintiff as PW.1 never deposed in his examination-in-chief that the contents of agreement (Exh.P1) were read over to the appellant/defendant. He also did not depose in his examination-in-chief the date, time, venue and the names of the witnesses before whom the bargain was settled between the parties. However, in his cross-examination he deposed as under:--
Similarly, Babar Rafique (PW.2) also did not depose the date, venue and the names of the witnesses before whom the disputed bargain was settled, rather he deposed in his examination-in-chief that the bargain was settled through him and the amount was paid in advance to the appellant/defendant. However, during the cross-examination, he deposed as under:--
While the other marginal witness Muhammad Ali was produced as PW.3 who also did not narrate any date, time or venue and also the names of witnesses before whom the said bargain was settled. However, in his cross-examination, he deposed as under:--
While the alleged scribe Mr. Tahir Naeem, Advocate (PW.4) in his cross-examination deposed as under:-
9.The perusal of Exh.P1 reveals that earnest money had been paid at the time of its execution whereas the above referred PWs. deposed that earnest money was paid for execution of Exh.P1 in the house of the appellant. As observed supra, PW.1 stated that transaction was made in the office of Tahir Naeem, Advocate (PW.4). Babar Rafique (PW.2) stated that transaction was settled in Jinnah Stadium Chowk but the other marginal witness Muhammad Ali PW.3 has altogether described a different venue where the transaction was settled and that place was the shop of respondent/ plaintiff. The said contradictions in the statements of PW.2 to PW.4 cannot be considered to be of minor nature rather the same was on material point. Furthermore, the respondent/plaintiff while appearing as PW.1 deposed that the token amount was paid in presence of Muhammad Ameen and said Muhammad Ameen had not been produced by the respondent/plaintiff which could be the star witness to prove the payment of sale consideration, rather said Muhammad Ameen had been produced by the appellant/defendant as DW.2 who had negated the stance of the respondent/ plaintiff and categorically stated in his statement that no consideration was paid in his presence regarding the sale of the disputed house. He further clarified that a loan of an amount of Rs.5 lac was borrowed by the appellant and the appellant surrendered the original sale deed of the suit house to the respondent/plaintiff as a security for repayment of said loan and the respondent/plaintiff fraudulently used the thumbs impression of the appellant on the stamp paper to write the disputed agreement Ex.P1. The evidence available on the record is not found sufficient to prove the valid execution of the agreement (Exh.P1). The argument of learned counsel for the respondent/plaintiff that appellant/defendant had admitted his thumb impression over Exh.P1 and admitted facts need not to be proved, is without any force. According to Article 78 of the Qanun-e-Shahadat Order 1984, the execution of a document is to be proved by its beneficiary and the execution of document would not mean mere signing or putting thumb impression but something more than signing or putting thumb impression by the executant. The respondent/plaintiff was obliged to prove that thumb mark was made in the presence of marginal witnesses of Exh.P1, which was read over and also understood by the vendor, but it would not only be limited to merely signing a name or putting thumb impression upon a blank sheet of paper. However, to prove the document to have been validly executed, the identification should also be proved by reliable and authentic evidence that a person who had affixed thumb marks or signature was the same person who owned the land and sold the same to the vendee. Reliance in this respect is placed on the judgment reported as "Abdul Hameed v. Mst. Aisha Bibi and another" (2007 SCMR 1808), para-5 of which is reproduced hereunder:--
"5. After hearing the learned counsel for the parties and perused the record with their assistance, we find that sole question requiring determination would be whether the admission of vendor of his thumb-impression on the agreement to sell was sufficient to prove its execution and contents, the answer is in the negative as the document purporting to create a right in the property must be proved to have been actually executed by the person who allegedly executed such document. It appears from the record that Din Muhammad was an illiterate person and without being aware of the contents of the document put his thumb-impression on it at the instance of his son in good faith with the "understanding that it was compound deed. This is a matter of common sense that in the normal circumstances, father would certainly trust his son and may act on his advice and thus in these circumstances, the inference drawn by the High Court that the vendor having no knowledge of the contents of the document, affixed his thumb-impression at the instance of his son with the impression that document pertained to the settlement regarding encroachment of the house was quite natural and denial of Din Muhammad to have put his thumb-impression on blank paper, would seriously reflect upon the genuineness of the agreement in question. In view thereof, the admission of Din Muhammad of his thumb-impression on the agreement in question, would not ipso facto prove its contents to raise the presumption of it being a genuine document to have the legal force. This may be seen that High Court having discussed the evidence in detail has held that the agreement to sell was not proved to have been executed by Din Muhammad and we in the given facts have no reason to differ with the conclusion drawn by the High Court. The learned counsel for the appellant has not been able to satisfy us that on the basis of evidence brought on record and in the facts and circumstances of the case, an equitable relief of specific performance could be granted to the appellant or the findings arrived at by the High Court was suffering from any misreading or non-reading of evidence or there was any other legal defect in the impugned judgment calling for interference of this Court."
10.The above fact has been reaffirmed by the august Supreme Court of Pakistan in judgment reported as "Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others" (2007 SCMR 1884), wherein it was observed that execution of a document would mean series of acts, which would complete the execution and mere signing or putting thumb mark would not amount to execution in terms of Article 78 of Qanun-e-Shahadat Order, 1984. It is further held in the said landmark judgment that a document which is not proved is inadmissible in evidence unless strict proof of it is waived. In the instant case, the beneficiary was bound to prove the due execution of the agreement by the vendor in accordance with law, but the respondent/ plaintiff failed to prove the same.
11.The last submission of the learned counsel for the respondent/plaintiff that concurrent findings of courts below cannot be interfered with by this Court while exercising jurisdiction under section 115, C.P.C. is also without any force. Although the scope of interference with concurrent findings of fact is limited, but such findings can be interfered with by this Court under Section 115, C.P.C., if courts below appeared to have either misread evidence on record or while assessing evidence omitted from consideration some important piece of evidence which had direct bearing on the issue involved. In arriving at such view this Court is fortified by the dictum laid down in the judgment reported as "Abdul Hakeem v. Habibullah and 11 others" (1997 SCMR 1139) and "Muhammad Anwar and others v. Mt. Ilyas Begum and others" (PLD 2013 SC 255).
12.The findings of both the courts below on issues Nos. 1 and 2 which were answered by both the courts below in favour of respondent/plaintiff are hereby reversed and answered against him, while the findings on the rest of the issues are not required to be dilated any further.
13.Sequel of the above discussion is that the instant appeal is accepted, the impugned judgments and decrees passed by the learned courts below are set aside and the suit for specific performance of agreement filed by the respondent/plaintiff is hereby dismissed. However, the appellant/defendant admitted that a loan amounting to Rs.5 lac had been borrowed by him from the respondent/plaintiff and registered sale deed was surrendered in favour of the plaintiff/respondent as security for the repayment of the said amount. It is also proved on record that said amount was still due and he was ready to repay the same. In view of such admission of the appellant/ defendant, the respondent/plaintiff is held entitled to recover an amount of Rs.5 lac and alternatively the decree for the recovery of the said amount is passed in favour of the respondent/ plaintiff.
ZC/M-384/LAppeal allowed.
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