PLJ 2019 Lahore 654
Specific Relief Act, 1877 (I of 1877)--
----S. 12.--Qanun-e-Shahadat Order, 1984, Art. 17(2) & 80--Suit for Specific performance--Decreed--Appeal--Dismissed--Sale agreement--Total amount was paid--General power of Attorney was also registered in favour of vendee--Property was transferred through a sale deed in favour of another person--Requirement of law--Delivery of Justice--Challenge to--Admittedly, there is no legal impediment that an agreement has to be registered, but for its construction, it being a document of financial liability and future obligation under provision of Qanun-e-Shahadat Order, 1984, is required to be attested by two male or one male and two female witnesses, as case may be--Impugned document of contract (Exh.P-1) as per requirement of law was signed by Muhammad Afzal, Sh. Muhammad Rasheed and Malik Muhammad Arif, being its marginal witnesses, which could only be proved until and unless two out of them were examined--Admittedly only Muhammad Afzal (PW2) out of attesting witnesses was produced, whereas latter two were not brought in witness-box by beneficiary/Respondent No.1 and when his learned counsel was faced with situation, he submitted that one of them was not available being settled abroad at time of recording of evidence while other had already been won over by rival party, which was not enough to ignore mandatory provision of law--If one of them was not available, then proper course was to prove his signatures through a person familiar therewith, but admittedly requirements of Article 80 of Order, 1984 were not complied with--Statement of Scribe, report of Expert and Attorney Deed could only be given weight as corroborative evidence, but it cannot be treated as a substitute of required number of attesting witnesses--It would not be out of context to realize well established principle of law that where law provides a procedure for doing a thing in a particular manner then it has to be done in prescribed manner and in no other etiquette or should not be done, as such both Courts handed down their views without considering material in its true perspective and especially relevant law in this behalf, which are vulnerable--Courts are expected to deliver justice which is not only be done but also to be seen, it cannot shut its eyes and turn a deaf ear to perverse conclusion based on patent errors of law--Appeal was allowed.
[Pp. 657, 658, 663, 664] B, C, D & E
PLD 2011 SC 241, 2008 SCMR 1639 & 2015 SCMR 1044, ref.
Transfer of Property Act, 1882 (IV of 1882)--
----S. 54--Enforcement of Act--An agreement to sell of immovable property is a contract enforceable by law, but Section 54 of Transfer of Property Act, 1882 expressly provides that it does not itself create interest, right or title in such property, and as a matter of law to constitute ownership thereof, another instrument in its pursuance is required. [P. 657] A
Mr. Muqtedir Akhtar Shabir, Advocate for Petitioner.
M/s. Tanveer Bashir and Kashif Shahzad, Advocate for Respondent No.1.
Ex parte (vide order dated 17.12.2015) for Respondent No.2.
Date of hearing : 5.3.2019
PLJ 2019 Lahore 654
Present: Ch. Muhammad Masood Jahangir, J.
MUHAMMAD ANDLEEB RAZA--Petitioner
versus
MUHAMMAD NAZAR etc.--Respondents
R.S.A.No.135 of 2009, heard 5.3.2019.
Judgment
Muhammad Nazar, Respondent No.1 on 28.01.1999 instituted a suit for specific performance of Agreement to Sell dated 29.10.1997 (Exh.P1) against appellant as well as Tahir Mehmood Bhatti, Respondent No.2 alleging therein that the subject shop was sold by the latter to him for a consideration of Rs.12,00,000/-, out of which, in advance Rs.1,20,000/- on 16.06.1997 as well as Rs.2,05,000/- on 22.09.1997 had already been paid, whereas balance amount of Rs.8,75,000/-was paid before the witnesses on the day of execution of Exh.P-1 when a General Power of Attorney (Exh.P-3) was also scribed and registered by the vendor in favour of the vendee. It was further pleaded that subsequently the vendor while rescinding Exh.P-3 transferred the disputed shop to the appellant vide Sale Deed (Exh.D1) and the ultimate prayer of Respondent No.1 was for grant of decree for specific performance of Exh. P-1 as well as cancellation of Exh. D1. Although the suit was contested by Respondent No.2, contending therein that neither transaction was settled nor alleged consideration was received; that a false, fabricated, and fraudulent agreement was grafted with the active connivance of Petition Writer and Stamp Vendor, however, the execution of Agency Deed was admitted in the sense that for supervision, it was scribed at the behest of brother-in-law and brother of the plaintiff. It was also averred that possession of the shop was never handed over to the plaintiff against any transaction, rather it was already with him as a tenant under him. Obviously, suit of Respondent No.1 was also contested by appellant stating therein that his vendor was brother-in- law of former’s brother and being connived with each other the suit was instituted after transfer of the suit property to him.
The learned Civil Court, keeping in mind divergent pleadings of the parties narrowed down its disputed areas by settling issues and after receiving and appreciating evidence, suit was decreed
vide judgment of 25th March, 2009, despite its assail before
the learned District Court by appellant, his appeal was declined and
to call in question these concurrent views, this Second Appeal was filed.
2. Mr. Muqtedar Akhtar Shabbir, Advocate learned counsel for appellant inaugurally argued that plaintiff examined only one out of three marginal witnesses, as such he failed to comply with the relevant provision of law; that the Courts below were under legal obligation to draw an inference under Article 129(g) of the Order, 1984 for withholding the available best evidence, but they failed to take its notice. It was also added by him that Scribe was not substitute of a marginal witness, but while treating him at par with him, the dictum already laid down by the apex Court in this respect was violated by the Courts below. Mr. Muqtedar, also emphasized that opinion of Handwriting as well as Finger Print Experts was not conclusive proof regarding execution of the impugned contract, but both the Courts below erred in law to rely upon their report in decreeing the suit. The next main stay of his arguments was that the vendor and vendee inter se were related to each other, who after the attestation of Sale Deed (Exh.D1) for ulterior motive, instituted a collusive suit, whereas the admission of Respondent No.2 with regard to General Power of Attorney after transferring the suit shop could not be made applicable to the appellant/co-defendant.
In contra, Mr. Tanvir Bashir, Advocate, learned counsel for Respondent No.1 submitted that both the Courts below appreciated the evidence available on suit file in its true perspective and their concurrent findings cannot be disturbed while invoking power vested Under Section 100 of the Code, 1908. He further added that not only the agreement was scribed, but at the same time in its acknowledgement registered Agency Deed (Exh.P3) was also executed, which otherwise were proved through leading evidence of unimpeachable character. It was also argued on his behalf that the Trial Court to dispense with justice and to elucidate the truth referred the disputed document alongwith specimen signatures as well as thumb impressions of the executant to the Forensic Science Laboratory, who rendered positive report, which was duly proved by its makers and the Courts below were perfect to form their unanimous views.
3. Arguments heard and record perused.
4. Before adverting to the facts of the case, I will add that an agreement to sell of immovable property is a contract enforceable by law, but Section 54 of the Transfer of Property Act, 1882 expressly provides that it does not itself create interest, right or title in such property, and as a matter of law to constitute ownership thereof, another instrument in its pursuance is required. Admittedly, there is no legal impediment that an agreement has to be registered, but for its construction, it being a document of financial liability and future obligation under the provision of the Qanun-e-Shahadat Order, 1984, is required to be attested by two male or one male and two female witnesses, as the case may be. For better appreciation, Sub- Article (2) of Article 17 of the Order ibid is reproduced here:--
…in matters pertaining to financial or future obligations, if reduced to writing, the instrument, shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly.
If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.
The execution of agreement can be proved, only in accordance with mode provided under Article 79 of the Order ibid, which reads as under:--
Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses [at] least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.”
As such after the promulgation of Order, 1984, a document of alike character has to be executed and proved as per scheme provided herein above.
5. Now reverting back to the facts of the case, the impugned document of contract (Exh.P-1) as per requirement of law was signed by Muhammad Afzal, Sh. Muhammad Rasheed and Malik Muhammad Arif, being its marginal witnesses, which could only be proved until and unless two out of them were examined. Admittedly only Muhammad Afzal (PW2) out of the attesting witnesses was produced, whereas the latter two were not brought in the witness-box by the beneficiary/Respondent No.1 and when his learned counsel was faced with the situation, he submitted that one of them was not available being settled abroad at the time of recording of evidence while the other had already been won over by the rival party, which was not enough to ignore the mandatory provision of law. If one of them was not available, then proper course was to prove his signatures through a person familiar therewith, but admittedly the requirements of Article 80 of the Order, 1984 were not complied with. Moreover, for any apprehension of menace or risk, law does not give the way to withhold a witness, as such, in not summoning the alleged won over available witness for the pitfall that had he been examined, he would not realize his attestation, was not a legal excuse. The apex Court while dealing with almost similar proposition in a case reported Hafiz Tassaduq Hussain Vs. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241) has already held that even if one of the marginal witnesses of a document of similar nature related to rival party and the other for a risk opted not to examine him was a drawback, whereas it was sine qua non for the beneficiary to examine him and the moment he made an adverse statement, a prayer for declaring him hostile might be made and subjected to cross-examination, so that requirement of law could be complied with. For ready reference the relevant conclusion is given below:-
12. For the argument that as the second attesting witness of the agreement was the son of the respondent, therefore, the appellant could not take the risk of examining him, it may be held that as ordained above the mandatory provisions of law had to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of the Order, 1984, relating to hostile witness take its own course. Before parting it may be mentioned that the judgment reported as Abdul Wali v. Muhammad Saleh (1998 SCMR 760) which find mention in the leave granting order is not relevant for the proposition in hand as it relates to a document before the enforcement of the Order, 1984 when Article 17 was not there.
Hence, explanation for non-examination lacks plausibility.
6. The emphasis of learned counsel for Respondent No.1 that Muhammad Aslam (PW-1) Scribe of Exh.P1 was examined, therefore, if any lapse was on the part of his client that stood cured/covered is not tenable. Admittedly, Exh.P-1 was not signed by PW-1 being marginal witness, who in his statement-in-chief did not depose that bargain was struck in his presence, rather during the cross-examination he explicitly admitted that no consideration was made before him. It is settled by now that a Scribe or anybody else, who did not put his signatures as marginal witness on documents required to be attested, cannot be considered as such. See Muhammad Sarwar Vs. Salamat Ali (2012 CLC 2094) and Hafiz Tassaduq’s case (supra), Farzand Ali and another Vs. Khuda Bakhsh and others (PLD 2015 SC 187). The extract from para 9 of Hafiz Tasadduq’s case being relevant is given below.
9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for attesting witnesses; the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative.
This Court is conscious of the fact that in Nazir Ahmad and another Vs. M. Muzaffar Hussain (2008 SCMR 1639), Full Bench consisting of three hon’ble Judges of Supreme Court had already declared that Scribe of a document of financial/future obligation could be treated at par with that of attesting witness whereas contrary view reproduced above was expressed in Hafiz Tassaduq’s case (supra) by two hon’ble Judges of the same Court, and which was to be followed, although not pressed here, yet may be agitated at a latter stage of proceedings before the higher forum is also a question to be dealt with here. I must add that judgment announced by a larger Bench should prevail, if subsequently a Bench comprising less number of honourable Judges while ignoring the earlier view announced by larger Bench formed another view, but where after taking due notice of the judgment of the larger Bench, a different panorama was announced by the other Bench of the said Court even consisting of less hon’ble Judges until holds the field has to be followed. In Hafiz Tassaduq’s case the judgment announced by three honourable Judges was not only specifically referred, but it was discussed therein and after considering it, the honourable two Judges rendered the recent view, which again has been affirmed by the same number of Judges in a case reported as Farid Bakhsh Vs. Jind Wadda and others (2015 SCMR 1044). Moreover, as per Paragraph No.10 of Hafiz Tassaduq’s case, it was affirmed that in Nazir’s case (supra) the scribe being an attesting witness had signed the contract, hence the law laid down in such perspective cannot be followed. In addition to it, the five member Bench of the Hon’ble Supreme Court, though in a pre-emption case reported as Muhammad Abaidullah Vs. Ijaz Ahmed (2015 SCMR 394), but while dealing with Article 79 (ibid) did not endorse the view of Nazir’s case (supra).
7. The submission of learned counsel for Respondent No.1 that the report of Handwriting as well as Finger Print Experts was enough to prove the construction of (Exh.P1) was also not well founded. The report of an Expert is always a weak type of evidence and is not that of conclusive nature. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence. In view of this infirmity, the Expert’s testimony recorded in the case in hand cannot be treated as substitute of available direct evidence. It is settled practice of Courts not to base findings merely on expert’s opinion. In this regard, reference can be made to a case reported as Syed Muhammad Umer Shah Vs. Bashir Ahmed (2004 SCMR 1859) wherein it was held as under:--
“After scanning the entire evidence on record and after going through the concurrent findings, we are of the firm view that the only opinion of a Handwriting Expert, otherwise a weak piece of evidence, should not be allowed to prevail against strong circumstances and strong evidence giving inference, altogether, to the contrary. When once the petitioner had failed to prove his case on the basis of the very evidence produced by him, he cannot be given the benefit of the only favouarble opinion by the Expert, being otherwise a weak piece of evidence.”
This view was again repeated by the same Court in case Mst. Saadat Sultan and others Vs. Muhammad Zahur Khan and others (2006 SCMR 193) in the following words:--
We have carefully examined the contentions as adduced on behalf of petitioners in the light of relevant provisions of law and record of the case. We have scanned the entire evidence and perused the judgments of learned trial and Appellate Courts as well as the judgment impugned. Let we make it clear at the outset that the opinion of Handwriting Expert is a very weak type of evidence and is not that of a conclusive nature. It is well-established by now that expert’s evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available. In this regard we are fortified by the dictum as laid down in Yaqoob Shah v. The State PLD 1976 SC 53. There is no doubt that the opinion of Handwriting Expert is relevant but it does not amount to conclusive proof as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner and can be rebutted by overwhelming independent evidence. In this regard reference can be made to Abdul Majeed v. State PLD 1976 Kar. 762. It is always risky to base the findings of genuineness of writing on Expert’s opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC 51.”
8. The next emphasis of learned counsel for plaintiff that along with contract Exh.P1, another document i.e. registered Power of Attorney was also executed on the same day, which not only attained presumption of correctness rather its happening was explicitly admitted by the vendor, whereas the execution of the contract was mala fidely denied. The perusal of Agency Deed reflected that it was silent to the extent that either any transaction with the plaintiff was settled or that agreement (Exh.P1) was executed, rather vide this Agency Deed besides other facts, the Agent was also authorized to sell out the disputed shop on behalf of the Principal, as such the contents of that Power of Attorney are not in line with the contract. No doubt, in the latter document, the execution of Agency Deed is referred specifically, but it being a disputed document and having not been proved, cannot extend benefit to the plaintiff.
It is again an admitted fact that the vendor after having transferred the disputed property through impugned Sale Deed to the appellant made admission with regard to execution of Power of Attorney and under the law in such a situation, admission made on behalf of defendant cannot be applied to his co-defendant. This view finds support from the dictum laid down in the judgment reported as Qasim Ali Vs. Khadim Hussain through Legal Representatives and others (PLD 2005 Lahore 654). Paragraph No.5 thereof being relevant is reproduced hereunder:--
5. I have heard the learned counsel for the parties. The two Courts below in fact have basically relied upon the admission of the respondent Nazar Muhammad about the execution of the agreement to sell. But according to the settled law, an admission of a co- defendant is not binding upon the other. This rule, in my view, shall more stringently be applicable to the present case, because the petitioner had already purchased the suit property from Nazar Muhammad and a mutation in this behalf had been attested in his favour Though, Nazar Muhammad in his written statement, as a defendant, had denied the sale and asserted to challenge it in appropriate proceedings, but he never did so. Therefore, for all intents and purposes, throughout the petitioner possessed the legal title to the suit property and had every right to defend and protect his rights as lawful owner thereof. Nazar Muhammad when had ostensibly transferred his interest and rights in the suit property in favour of the petitioner, and never challenged the alienation independently before any forum, except setting up the defence in this case, his admission about the execution of Exh.P.1, cannot be received as an admission binding the petitioner, being a co-defendant of the case. Reliance in this behalf can be placed upon Saleem and another v. Malik Jalal-ud-Din and 7 others PLD 1982 SC 457. Therefore, despite the admission of Nazar Muhammad in the circumstances of the case, when the petitioner has denied the execution and attestation of Exh.P.1 and claimed it to be the result of fraud and collusion between Nazar Muhammad and the respondent Khadim Hussain, it was incumbent upon the plaintiff to have proved the valid execution and attestation of Exh.P.1.
9. The epitome of above discussion would be that the contract having been executed after promulgation of Order, 1984, ibid, its execution ought to have been proved in accordance with Article 79 ibid, but the evidence on record is restricted to only one attesting witness, which does not meet the requirement of the referred provision. The apex Court in a recent case reported as Farid Bakhsh Vs. Jind Wadda and others (2015 SCMR 1044) has elaborately defined Article 79 and finally concluded that its requirement was mandatory and without its strict compliance such a document cannot be used as evidence. The ratio of this judgment being all four corner applicable in the case in hand, as such the relevant conclusion for ready reference is given below:--
This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words “shall not be used as evidence” unmistakably show that such document shall be proved in such and no other manner. The words “two attesting witnesses at least” further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such.
So, the statement of Scribe, report of Expert and the Attorney Deed could only be given weight as corroborative evidence, but it cannot be treated as a substitute of the required number of attesting witnesses. It would not be out of context to realize the well established principle of law that where law provides a procedure for doing a thing in a particular manner then it has to be done in prescribed manner and in no other etiquette or should not be done, as such both the Courts handed down their views without considering the material in its true perspective and especially the relevant law in this behalf, which are vulnerable.
10. Now adverting towards the last contention of learned counsel for the Respondent No.1 that this Court cannot set aside the concurrent judgments of the lower Courts in exercise of powers under Section 100 of the Code, 1908. Suffice it to say that manifest injustice could not be permitted to be perpetuated simply for the reason that in second Appeal concurrent finding howsoever erroneous may be, cannot
be disturbed. Enumerating the areas where this Court can interfere the concurrent judgments of the lower Courts, the apex Court, in case reported as Iftikhar Vs. Khadim Hussain (PLD 2002 SC 607) has defined the extent of this power and held:--
Concurrent findings are not sacrosanct and can be reversed when such findings are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law or consideration of inadmissible or something so outrageous or so gross as to shock the very basis of justice.
Since the Courts are expected to deliver justice which is not only be done but also to be seen, it cannot shut its eyes and turn a deaf ear to perverse conclusion based on patent errors of law.
11. The narrative of the above is that this Appeal succeeds, the decrees of learned lower Fora are hereby set aside and suit of the Respondent No. 1 is also dismissed with no order as to costs.
(Y.A.) Appeal Allowed
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