ABDUL KHALIQ Versus MUHAMMAD ASGHAR KHAN

IHSAN‑UL‑HAQ CHAUDHRY, J.‑‑It is proposed to decide R.F.As. Nos. 9/94 and 100/94 directed against judgment and decree of the trial Court dated 8‑1‑1994.

2. The relevant facts are that Muhammad Asghar, respondent No. 1, filed a suit on 3‑12‑1989 for possession of house No.208‑A consisting of two rooms and kitchen situated in Katchi Abadi Achant Garh, Mughalpura, Lahore, and permanent injunction against Abdul Khaliq appellant and Muhammad lqbal‑ respondent No.2. Thereafter L.D.A respondent No.3 was also impleaded as a defendant and plaint accordingly amended. The defendants contested the suit. The trial Court accordingly framed following issues:‑‑

(1) Whether the plaintiff had got no cause of action and locus standi to file the suit and the plaint is liable to be rejected under Order 7, Rule 11 of CPC? OPD's/LDA.

(2) Whether the suit is not maintainable under the law? OPD's/LDA.

(3) Whether the suit has incorrectly been valued for the purposes of court fee and jurisdiction, if so, what is the correct valuation? OP Parties. ‑

(4) Whether the plaintiff was in illegal occupation of the suit property and deposit of the price had inadvertently been asked by the LDA if so, its effect? OPI)'s/LDA.

(5) Whether the suit is mala fide and outcome of enmity and was liable to be dismissed? OPD.

(6) Whether defendant No.2 had validly purchased the suit property through the alleged agreement dated 19‑9‑1989, if so, its effect? OPD..

(7) Whether the plaintiff was the owner of the suit property and was entitled to the decree for possession as prayed for? OPP..

(8) Relief.

The plaintiff examined Muhammad Sharif as P. W. 1, Muhammad Amin Khan as P.W.2 and himself appeared as P.W.3. He also produced documents Exhs.P1 to P.7. The Appellant and respondent No.2 examined Qaiser lqbal as D.W.1, Muhammad Zahoor as D.W.2 and Muhammad Aslain Khan as D.W.3 while Abdul Khaliq‑‑appellant appeared as D.W.4. The defendants produced documents Exits.Di and D2. The trial Court after hearing we arguments decided issues No. 1, 2, 4 and 5 in negative while issue No. 3 was declared as redundant and issue No.6 was decided only panty In favour of the defendants. The result was that it was held that the plaintiff validly executed an agreement to sell

Exh.D.W,l in favour of defendant No.2‑ ‑appellant after receiving a sum of Rs.10,000 as earnest money but the General Attorney had no authority to receive further payments and deliver the possession and the defendants failed to prove the same. In view of these findings issue No.7 w ' as decided in favour of the plaintiff and as a result thereof suit was decreed vide judgment dated 8‑1‑1994. The appellant has challenged findings of the trial Court on all the issues through R.F.A. No.9 of 1994 while respondent No.1, plaintiff, has challenged the finding of the trial Court on issue No.6 as to the execution of the agreement to sell and payment of earnest money of Rs. 10,000. The appeals were admitted to hearing and notices were, issued to the respondents, who are represented and contested the appeals except respondent No.3‑‑I:DA.

3. The learned counsel for the appellant, Dr.. Mohiuddin, argued that his Client is in possession in pursuance of agreement to sell, therefore, his possession is protected under section 53- A of the Transfer of Property Act.It is added that the appellant had proved agreement to sell and payment of the who of the consideration .‑ It is argued that the trial Court wrongly and illegally excluded part of Exh.D.W.1 showing payments and second agreement EXh.D1 through which the possession was delivered to him.

4. On the other hand learned counsel for respondent No. I argued that alleged general power of attorney was not proved. It is explained that the same was marked as Exh.P7 inadvertently. It is added that the agreement Exh.D.W.1 being in the nature of future obligation was to be proved at least by examining two marginal witnesses whereas the appellant examined only one of the marginal witnesses Qaiser Iqbal as D. W.I. The learned counsel in this behalf has referred to Articles 17 and 79 of the Qanun‑e‑Shahadat, 1984. It is argued that the endorsements made on the reverse of agreement Exh. D. W.I as to the payment of balance of sale price were rightly excluded by the learned trial Court from consideration as the same was also not proved. It is added that since the alleged agreement Exh. D. W.I has not been proved in accordance with law, therefore, his name is to be excluded from consideration with the result that there was no evidence so as to substantiate the case of the appellant, therefore, the cross objections (R. F. A. No. 100 of 1994) may be accepted.

5. The learned counsel for the appellant while summing up the arguments argued that the plaintiff in order to succeed in the suit was to prove his title to the property in dispute but he miserably failed to produce any evidence to prove his title, therefore, the suit was liable to be dismissed. ,

6. We have given our anxious consideration to an arguments of the learned counsel for the parties, gone through the record and relevant provisions of Transfer of Property Act as well as Qanun‑e‑Shahadat. The alleged agreement Exh.D.W.1 is dated 19‑9‑1989, according to which respondent No. 1 agreed to sell the house to the appellant for a total consideration of Rs.70,000. Now before proceeding any further it is relevant to refer to Article 17 of Qanun‑e Shahadat. The relevant portion reads as under: ‑

17. Comp etence and number of witnesses.‑‑(I) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.

(2) Unless otherwise provided in any law relating to the Enforcement of Hudood or any other special law‑‑

(a) 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; "

It is clear from the above that the instrument pertaining financial or future al or f obligations, if reduced to writing, the same shall be attested by two men, or one A man and two women. While Article 79 deals with the. proof of execution of document required to be attested. The same reads as under:‑‑

79. Proof of execution of document required by law. to be attested. ‑‑it shall not be used as evidence until two attesting witnesses. at least have been called for the purposes 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 Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.

It is clear from the above provision of law that a document required to be attested shall not be used in evidence until two attesting witnesses at least have been called for this purpose. This is subject to the following conditions:‑‑

(i) the attesting witnesses are alive;

(ii) they are subject to the process of Court, and

(iii) they are capable of giving evidence.

7. Now reverting back to the facts of the appeal in hand. The admitted position is that the agreement Exh.D.W.1 dealt with future obligations. The same was attested by two witnesses namely Qaiser Iqbal and Riaz Khalil. This way requirement of Article 17 was complied. The appellant to prove this C document should have examined at least two of attesting witnesses whereas he only examined one attesting witness namely Qaiser Iqbal D. W.I. The document, therefore, was not proved in accordance with law. The same has to be excluded from the consideration.

8. Now coming to the subsequent payments allegedly received by Qaiser Iqbal on behalf of respondent No. 1. We have gone through the record with the assistance of learned counsel for the parties. It is clear therefrom that the general power of attorney was not proved by the appellant. The same was put to respondent No. I in the cross‑examination. He denied his signatures, therefore, it was not exhibit marked. However, D.W.1 referred to power of attorney as Exh.P7 in his statement without proving it whereas Exh.P7 has already been assigned to 'Abtaalnama' (Cancellation of general power of attorney). It seems that the learned trial Court' inadvertently referred to power of attorney as Exh.P7. The document was neither proved nor in fact included in the evidence of the plaintiff. This is not all. The power of attorney is dated 14‑11‑1989 and was registered on 26‑11‑1989 while a sum of Rs.35,000 was received by Qaiser Iqbal on 2‑11‑1989. Admittedly, the alleged power of attorney had bot been even executed till then. Moreover, this endorsement being a financial obligation D has to be attested by two witnesses, who should have been examined to prove the same. The trial Court, therefore, rightly excluded the same from consideration.

9. The argument that the possession of the appellant is protected in view of the provisions of section 53‑A of the Transfer of, Property Act is devoid of merit for the reasons:‑‑

(a) Payment of sale consideration has not been proved

(b) delivery under agreement to sell has not been proved; and

(c) agreement to sell itself remained legally unproved

Therefore, equitable principle of section 53‑A is not attracted in this case

10. Now coming to the last argument that iCwas for the plaintiff to prove his title before suit could be decreed. The argument is clearly covered by the mischief of approbate and reprobate because the only defence of the appellant is that respondent No. 1 was the owner and he agreed to sell the house to him and has paid the entire sale consideration. The appellant cannot be allowed to deny the title of respondent No. 1. We are fortified in our view by the judgment of

Hon'ble Supreme Court in the case of Muhammad Sharif and 13 others v. Inayat Ullah and 24 others 1996 SCMR 145.

11. This is not all. It seems that the appellant and respondent No. 1 tried to achieve their object by depriving respondent No. 1 of his property by tampering with agreement Exh.D1 and on the reverse of the document following words are mentioned:‑‑

F

But when realised that this is not sufficient then the general power of attorney was brought into existence. We have serious doubts to its genuineness especially in view of the fact that it was not required as respondent No 1 had already allegedly agreed to sell the house to appellant and only now the payment was to be received. There is no justification why the payment has not been received by respondent No.1 when he was available. Moreover, there is no mention of agreement to sell in the general power of attorney. This fact alone is sufficient to make the document doubtful. The evidence of D.W.1 and D.W.2 does not inspire any confidence. It is clear that they are party to the misdeeds of appellant and respondent No.2.

12 The upshot of the above discussion is that this appeal is dismissed with costs.

A.A./A‑941

Appeal dismissed