TALIB HUSSAIN Versus MUHAMMAD NAWAZ
AMIN-UD-DIN KHAN, J.--- Through this single judgment I intends to decide R.S.A. No.128 oF 2005 as well as C.R. No.2026 of 2005, as common question of law and facts are involved in both these cases.
2. Facts of R.S.A. No.128 of 2005, are that through this appeal the appellant has challenged the judgment and decree dated 16.7.2005, passed by the learned District Judge, Bhakkar, whereby learned District Judge accepted the appeal and decreed the suit for specific performance of contract filed by the respondents/plaintiffs, which was dismissed by the learned Civil Judge, Mankera, vide judgment and decree dated 28.11.1998.
3. The facts of C.R. No.2026 of 2005, are that the petitioner has challenged the judgment and decree dated 16.7.2005, passed by the learned District Judge, Bhakkar, whereby the learned District Judge accepted the appeal filed by the respondents and dismissed the suit of the petitioner for declaration which was decreed by the learned Civil Judge, Mankera, vide judgment and decree dated 28.11.1998.
4. Record of the lower Court is not available. Learned counsel for both the parties state that complete record has been annexed with the revision petition as both the suits were consolidated and proceedings were carried out in one suit, therefore, pray that even the record is not available the appeal and the revision petition be heard and decided.
5. Brief facts of the case are that the respondents on 17.9.1997, filed a suit for specific performance on the basis of registered agreement to sell dated 27.11.1986. Written statement was filed and the suit was contested. This suit is subject matter of the instant appeal. Subject matter of C.R. No.2026 of 2005, is a suit for declaration filed by the petitioner on 23.10.1997, challenging therein validity of the agreement and stating that the alleged agreement is forged and fictitious. The learned trial Court vide consolidated judgment and separate decrees dated 28.11.1998, decreed the suit for declaration filed by the petitioner and dismissed that of specific performance. Two appeals, R.F.A. No.514 of 1998, against the decree granted in a suit for declaration and R.F.A. No.515 of 1998 against the decree of dismissal of suit for specific performance, were filed before this Court. Learned counsel states that the appeal against the decree in a suit for declaration could not have been filed before this Court as jurisdictional value of the appeal and the suit was Rs.400/- but subsequently when the pecuniary jurisdiction of the learned District Judge was enhanced record shows that both the appeals were transmitted to the learned District Judge as value of the appeal which was filed in a suit for specific performance was Rs.3,00,000/- and the learned District Judge vide consolidated judgment dated 16.7.2005, accepted both the appeals. The result is that the suit for specific performance was decreed and the suit for declaration was dismissed, hence, this appeal as well as C.R. No.2026 of 2005.
6. Learned counsel for the appellant argues that the first appeal in a suit for declaration which was filed before this Court was in a wrong forum, therefore, could not have been transmitted to the learned District Judge, therefore, states that all the proceedings are nullity in the eye of law; that there are alleged 6 vendees in the agreement to sell but only one of the alleged vendees, namely, Mureed Abbas signed the agreement without any power of attorney from the other alleged vendees whereas when the suit was filed two of the alleged vendees were shown as minors, therefore, states that the agreement is not an agreement in the eye of law, therefore, not executed. Relies upon Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334); that the sale is not divisible, therefore, Mureed Abbas also cannot pray for decree to his extent; that none from the alleged vendees even appeared before the learned trial Court as a witness and further while relying upon the statement of Mureed Abbas, P.W.5, who appeared as his own witness has admitted that Feroz Hussain, Muhammad Bakhsh and Muzaffar Khan were not present at the time of agreement; that the total sale amount has been paid under the agreement and the said amount was not paid before the Registrar; that there is no receipt of payment of said amount and further while referring the statement of one of the plaintiffs who appeared as P.W.5 states that when it was the case of the plaintiff that at the time of payment Muhammad Nawaz, Ahmad Nawaz and Noor Khan were present, none of these witnesses was produced, therefore, states that no payment under the agreement has been proved. States that when even the registered document is denied the party relying upon the same is bound under the law to prove the same by producing two marginal witnesses in accordance with Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984, as the document relates to a future obligation. States that P.Ws. 2 and 3 are Registrar and petition writer. The Registrar stated that no money was paid before him and even the P.W.3 the alleged petition writer also stated that the payment was not made before him. In this view of the matter, learned counsel argues that even the respondents failed to prove valid execution of the agreement. Further while referring Exh. P-2 learned counsel states that the respondents were already share holders in the khata, therefore, they also failed to prove transfer of possession of the suit property under the agreement. Further argues that even in Exh. P-1 it is mentioned that if within seven years the property could not be redeemed from the bank the seller will give alternate land. States that by ignoring all these facts the learned trial Court fell in error while decreeing the suit.
7. On the other hand, learned counsel representing the respondents argues before this Court that the minority of the two vendees has not been mentioned in the agreement. States that it makes no difference when the minors are vendees. States that the findings recorded by the learned Ist appellate Court are exhaustive. Further in the written statement there is no specific denial from the thumb mark of the petitioner/appellant. So far objection of filing of first appeal in the wrong forum is concerned as the same was transmitted to the proper forum, therefore, if there was any defect that has been rectified. Relies upon Muhammad Saleem v. Marryam Bibi and 6 others (2007 CLD 1301 = 2007 CLC 1592) to argue that the signatures of both the parties are not necessary on the agreement.
8. I have heard the learned counsel for the parties and have also gone through the record appended with the revision petition as well as case law referred by the learned counsel for the parties. So far as the objection of the learned counsel for the petitioner/appellant with regard to the filing of appeal in the wrong forum in a suit for declaration is concerned I have noted that the appeal remained pending before this Court and the same was transmitted to the learned 1st appellate Court, i.e. District Judge concerned, on 20.12.2004, after about 7 years, the objection of the learned counsel for the petitioner/ appellant is not sustainable at this stage.
9. So far as the matter of specific performance of contract is concerned as grant of a decree for specific performance of contract is discretionary relief, Courts are very conscious and carefully scrutinize the facts and the documents while granting a decree in a suit for specific performance. The plaintiff is only entitled to get a decree when there is a valid agreement to sell in his or in their favour. In this case, I have noted that there are six alleged vendees and the appellant is the alleged vendor. The execution of the agreement and its registration is denied in this case by the defendant/appellant. When the execution was denied it was the responsibility of the plaintiffs/respondents to prove the valid execution and registration of agreement to sell only then they were entitled for the use of discretion by the Court in their favour. In this case when there are 6 alleged vendees and only one of them, namely, Mureed Abbas signed the agreement to sell and he appeared in the witness box as P.W.5. None of the alleged other vendees bothered to appear before the Court. It is not the case of the plaintiffs/respondents that the signatory of the document was their attorney. Further two of the alleged vendees were minor at the time of agreement to sell, therefore, the agreement is invalid as it is not signed by all the parties. Support can be take from Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334). Even in my mind there is simple test for an agreement when it is not signed by all the parties whether it is valid agreement or not. As in an agreement to sell every party to the agreement can file suit for specific performance asking the Court to direct the other party to perform his part of the agreement and it is very simple if only one party is signatory to a contract and other party want that the first party be asked to perform his part, as the other party is not the signatory the first party cannot go to the Court for seeking relief of specific performance unilaterally or signed by some of the parties, first party cannot pray for performance of the contract against the other party. In this case two of the alleged vendees were minors. The consideration has not been proved and the agreement by producing two truthful witnesses has also not been proved as required under Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. In some cases when the petition writer also gives evidence that all the facts mentioned in the document he testifies the same only then he can be given weight of attesting witness otherwise petition writer cannot be termed as attesting witness. In this case he does not testify the facts in the agreement, therefore, he cannot be termed as an attesting witness and only one witness of alleged agreement has been produced. The agreement has not been proved in accordance with the requirements of Qanun-e-Shahadat Order, 1984, by producing the requisite evidence. Further when five of the alleged vendees have not signed this document and the alleged transaction is not divisible, therefore, to the extent of the person who signed the agreement the suit cannot be decreed.
10. In this view of the matter when the agreement has not been proved in accordance with law, therefore, findings recorded by the learned Ist appellate Court while decreeing the suit for specific performance are not sustainable, therefore, the same are set aside and as the valid execution of agreement by the petitioner has not been proved, therefore, the decree passed by the learned trial Court in a suit for declaration in favour of the petitioner was valid one and the reversal of the decree by the learned Ist appellate Court is against law.
In view of what has been discussed above, the instant appeal (R.S.A. No.128 of 2005) as well as C.R. No.2026 of 2005, are accepted, leaving the parties to bear their own costs.
JJK/T-17/L Appeal accepted.