SANA ULLAH and anothers vs MUHAMMAD MANZOOR and another

1. ' SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is filed against the judgment of a learned Judge in Chambers of Lahore High Court dated 17-5-1993.Whereby Civil Revision Application No,203 of 1991 filed by the appellants to call in question the two concurrent judgments of the Court below, was dismissed and the judgments and decrees of the Courts below were maintained.

2. ' The relevant facts of the case are that respondents who are real maternal nephews of appellant No,1, instituted a suit for specific performance of an agreement of sale and for cancellation of the alleged collusive decree passed in a civil suit on 18-4-1985 against the appellants. It was alleged that appellant No,1 executed an agreement of sale in respect of 46 Kanals, 4 Marlas of land situated in Mehardpur, Tehsil Wazirabad, District Gujranwala (hereinafter to be called 'suit land') on 13-12-1982. According to respondents the suit land was agreed to be sold for a consideration of Rs,23,500 which was fully paid by them to appellant No,1 and in acknowledgement thereof he executed a receipt. It was further alleged that appellant No,1 in spite of execution of the agreement of sale and receipt of full consideration refused to convey the suit land in favour of respondents and further in order to defeat their rights managed to get a collusive decree passed in favour of appellant No,2 in Civil Suit No,709/84 on the allegations that the suit land was gifted by appellant No,1 in favour of appellant No,2. The suit was contested by the appellants and on the pleadings of the Parties, following issues were framed by the trial Court:--

(1) Whether the plaintiffs have no locus standi to bring this suit? OPD

(2) Whether the agreement and the receipt dated 13-12-1982 were validly executed? OPP

(3) Whether the suit is not maintainable in its present form? OPD

(4) Whether the suit is liable to be dismissed in view of preliminary objection No,4? OPD

(5) Whether the plaintiff is entitled to decree for specific performance, if so, on what terms and conditions? OPP

(6) Whether' the decree dated 18-4-1985 by defendant No,1 in favour of defendant No,2 is collusive, void, ineffective upon the rights of the plaintiffs? OPP

(7) Relief."

3. The trial Court, after recording evidence of the parties decreed the suit on 29-3-1990. The decree passed by the trial Court was upheld by the first appellate Court through judgment and decree dated 26-11-1990 and the C.R.A. Filed by the appellants before the High Court ' also failed. Leave was granted in the above case by this Court to consider the following legal contentions:-- "(i) That the original agreement to sell was not produced before the Court and in the absence thereof it was well-nigh impossible for the Court to come to a positive finding whether petitioner No,1 had executed the alleged agreement to sell or not;

(ii) that it is not acceptable to common sense that, on the one hand, the plaintiffs/respondents in spite of close relationship insisted on the scribing of agreement to sell in their favour and, on the other, followed the original agreement in the possession of the executant and rest contended by retaining the photo stat copies thereof, whereas, in fact, the original should have been in the possession of the defendants in whose favour it was executed of a photo stat copy retained by petitioner No,1, the alleged executant thereof;

(iii) that the agreement to sell and the receipt dated 13-12-1982 bear the signatures of Ch. Muhammad Hussain and Ch. Bottay Khan as attesting witnesses that both of them have not been examined as witnesses in the case with the result that both these important documents stood unproved according to the law of evidence, and that the presumption drawn by the learned Courts below that these witnesses had been won over by the petitioners was mere conjecture. Since they were important witnesses according to the learned counsel the plaintiffs/respondents were legally required to produce them as witnesses and if they had denied their signatures on the documents referred to above, they could request the Court to declare them hostile and seek permission to cross-examine them or request the Court to examine them as C.Ws.

(iv) that the documents produced by the plaintiffs-respondents in the case were sent to the Handwriting Expert for comparison of the signature of petitioner No,1 and the opinion received was in the negative. The opinion of the Expert was illegally ignored by the Courts below, and

(v) that there were material contradictions in the statements of the witnesses produced in the case by the plaintiffs/respondents and from their statements neither the agreement to sell nor passing of consideration had been established."

4. ' The learned counsel for the appellants contended that the evidence on record failed to establish the execution of alleged agreement of sale, original whereof was never produced in the Court and secondary evidence was admitted in violation of the provisions of Evidence Act. It is contended by the learned counsel that the inference drawn by the learned Judge in Chambers from the evidence of D.W.1 is a 'mere conjecture as it does not find support from the evidence on record. Similarly, the observations of the learned Judge in Chambers, that the two attesting witnesses of the agreement of sale were not produced in evidence to prove its execution as these witnesses were won over by appellant No,1, it is contended by the appellants, were based on surmises. The learned counsel for the respondents on the other hand supported the impugned judgment. We have heard the learned counsel for the parties at length and have gone through the evidence in the case with the assistance of the learned counsel for the parties.

5. ' It is an admitted position in the case that the original of agreement of sale (Exh.P.1) alleged to have been executed by appellant No,1 in favour of respondents was not produced in Court. The secondary evidence of Exh.P.1 was produced in Court on the plea that the original of Exh.P.1 was kept in possession by the appellant No,1 in whom respondents reposed full confidence. The respondents, however, produced original receipt for Rs,23,500 (Exh.P.3) which they claim, was executed by appellant No,1, on receiving the sale consideration of the suit land from respondents.

6. The appellant No,1 besides denying execution of these documents also denied that he was in possession of the original of agreement of sale (Exh.P.1). In view of the denial by appellant No,1 that he executed Exhs.P.1 and P.3 the proof of execution of these two documents rested entirely on the respondents.

7. ' In order to prove execution of agreement of sale (Exh.P 1 and the receipt, Exh.P.3), the respondents besides examining themselves produced the stamp vendor Muhammad Iqbal son of Ghaus Muhammad P.W.1, Muhammad Ashraf son of Ghulam Rasool a farmer of the area P.W.2., Muhammad Sharif son of Muhammad Ismail P.W.3, Ghulam Nabi son of Ch. Faiz Ahmed P.W.4. The respondents also examined Abdul Ghani son of Nizam Din, Muhammad Nazir son of Ali Muhammad, Faiz. Rasool son of Ilam Din and respondent No,1 in rebuttal, after close of the evidence of the appellants in the cases.

8. ' P.W.1 stamp vendor Muhammad Iqbal in his evidence stated that he sold a stamp paper to Sana Ullah which was entered at Serial No,410 dated 16-11-1982 in his register. In cross-examination he admitted that he was not known to Sana Ullah appellant No,1 or to respondent No,1. He also admitted that he never sold any stamp paper to any person who was resident of Wazirabad. He admitted that he was unable to identify any of the parties to the suit who were present in Court.

9. P.W.2 Muhammad Ashraf in his statement before the Court stated that 5-1/2 years before the date of his examination in Court he had gone to appellant No,1 for taking some medicine, while he was there respondents came, and there was a conversation between appellant No,1 and the respondents for payment of money. Appellant No,1, according to this witness, asked the respondent to make the payment and that he would write the stamp paper which was with him at Wazirabad.

10. This witness claimed that a sum of Rs,23,500 was paid by the respondents to appellant No,1 in connection with the suit land. In cross-examination he stated that he was not aware that how much land appellant No,1 owned or agreed to sell to respondents. P.W.3, Muhammad Sharif in his statement before the Court stated that 5 or 5-1/2 years before, he stayed at the house of appellant No,1 in the night. In the morning the respondents came to the house of appellant No,1 and made some payment. On his enquiry the parties told him that the money was paid in connection with the suit land. Thereafter, he left the house and went to his son's house in the same village. P.W.4 Ghulam Nabi is scribe of the document (Exh.P.1) who stated that in 1982 he had written the agreement at the instance of appellant No, l. He claimed that appellant No,1 signed in his presence on the agreement of sale (P.1) and the receipt (P.3). In cross-examination he admitted that Muhammad Boota and Muhammad Hussain had signed the document as attesting witnesses of the document. He also admitted that he had not satisfied himself with regard to the identification of the parties at the time they signed the document. Respondent No,2 Muhammad Maqbool P.W.5, in his statement claimed that he entered into an agreement of sale with appellant No,1, for a sum of Rs,23,500 and the payment was made at the house of appellant No,1. He also claimed that he, appellant No,1, Muhammad Ashraf and Muhammad Sharif (P.Ws.2 and 3 respectively) were present when they made the payment. He also stated that the original of the documents Exh.P.1 and P.3 were written by appellant No,1 and he gave only photo stat copy to them. He further stated that in order to defeat the claim of respondents, appellant No,1 obtained a collusive decree from Civil Court whereby he transferred the land in favour of appellant No,2. In cross-examination he admitted that he had purchased stamp paper in the name of appellant No,1 on different occasions. He also stated that the stamp paper was purchased by him in connection with the compromise between respondents and appellant No,1 which could not be entered into and therefore, the stamp paper which he had purchased was still in his possession. He admitted in cross-examination that Exhs.P.1 and P.3 were signed by Boota Khan and Muhammad Hussain as attesting witnesses. He denied the suggestion that he had forged the signatures of Boota Khan and Muhammad Hussain on the document. He stated that no payment was made in presence of attesting witnesses Boota Khan and Muhammad Hussain to appellant No,1, but admitted that there is an endorsement on the margin of the document wherein it is stated that the appellant No,1 had accepted the payment in presence of 2 attesting witnesses. The above resume of respondent's evidence 'would show that the evidence of Muhammad Iqbal (P.W.1) stamp vendor, Muhammad Ashraf (P.W.2) and Muhammad Sharif (P.W.3) is not at all relevant for proving execution of P.1 and P.3 by appellant No,1 as these witnesses did not claim that these documents were signed or executed by appellant No,1 in their presence. Ghulam Nabi (P.W.4) the scribe of the document, however, in his evidence claimed that appellant No,1 had signed Exh.P.1 and P.3 in his presence, but he also admitted that he did not personally know appellant No,1 and that he had not satisfied himself about the identity of appellant No,1 before he executed the documents. Respondent Maqbool (P.W.5) in his evidence also nowhere stated that appellant No,1 had signed the documents Exhs.P.1 and P.3 in presence of Ghulam Nabi (P.W.4). The appellant No,1 was also not suggested in cross-examination that he had signed Exhs.P.1 and P.3 in presence of P.W.4 although it was suggested that he got Exh.P.1 written by P.W.4 which was denied by him. Similarly, Faiz Rasool (P.W.9) also claimed that .Exhs.P.1 and P.3 were executed by appellant No,1 in his presence, but his presence at the time of execution of these documents was not confirmed either by the P.W.4 (the scribe of document P.1) or by the two respondents (P.W.5 Maqbool and Muhammad Manzoor P.W.8). It was also not suggested to appellant No,1 in cross-examination that he executed' documents Exhs.P.1 and P.3 in presence of P.W.9. Therefore, the above evidence of scribe (P.W.4) and Faiz Rasool (P.W.9) did not prove execution of Exhs.P.1 and P.3 by the appellant No, l. The respondents claimed that they paid the entire sale consideration at the time of execution of P.1 and P.3. They, however, admitted in their evidence that they were not given possession of the suit land. It is highly improbable that the respondents having paid the full consideration would not have insisted for delivery of the possession of the suit land. The respondents also failed to give any reason for non-delivery of the possession of the suit land when they had paid the full sale consideration. This circumstance strongly reacted against their claim that the appellant No,1 agreed to sell the suit property under Exhs.P.1 and P.3 and received full consideration. Unless there were some very special circumstances, the respondents having paid the full consideration would have been put in possession of the suit land by appellant No, l.

11. ' Appellant No,1 in his evidence before the Court denied the execution of the document (Exhs.P.1 and P.3). Muhammad Ashraf Malik, Superintendent Police Technical Services, Punjab (D.W.6) was produced in the case as handwriting expert. This witness was sent photocopy of agreement of sale (Exh.P.1) and the original receipt for consideration (Exh.P.3) for examination and his opinion, whether these documents bear the signatures of appellant No,1? This witness positively stated that document Exh.P.3 (receipt for consideration) did not bear the signatures of appellant No,1. He, however, did not express any opinion with regard to agreement of sale (Exh.P.1) which was a photo stat copy of the original. No cogent reasons were given for not accepting the evidence of this witness.

12. The ordinary rule for proving the execution or signature of a person on a document, is to call that person in evidence. In case the person who is alleged to have executed the document denies his signatures, his signatures can be proved by calling the person in whose presence the document was executed. In view of the preceding discussion and the circumstances of the case, the signatures of appellant No,1 on Exhs.P.1 and P.3 could be proved only by calling the two attesting witnesses in whose presence, according to respondents, appellant No,1 signed these documents.

13. Both the attesting witnesses of these documents were alive and were available but they were not produced by the respondents in evidence. In these circumstances, the Courts below could not hold on the basis of the evidence on record that the execution of documents Exh.P.1 and P.3 by appellant No,1 was proved.

14. The learned Judge in Chambers while considering the non-examination of two attesting witnesses of the documents Exhs.P.l and P.3 by the respondents, in the case observed that the two attesting witnesses of these documents were won over by respondent No,1, and therefore, they could not be examined by plaintiffs/respondents. This conclusion of the learned Judge is a pure. Conjecture and a surmise as the evidence on record did not support it. Neither the respondents/plaintiffs made any such claim in their evidence, although they first led the evidence in the case and then produced evidence in rebuttal after close of the evidence by appellants/defendants in the case.

15. Similarly, the appellant No,1 was also not given any suggestion in cross-examination that he had won over these witnesses. The record shows that one of the attesting witnesses attended the Court on several dates but he was not examined. No doubt he subsequently absented but to produce him in evidence Was the responsibility of respondents' who failed in this regard. Since the execution of documents Exhs.P1 and P3 which were the basis of the suit could not be proved in the case, the suit filed by the respondents against the appellants could not be decreed. We, accordingly, allow the appeal and set aside the judgments and decrees of the Courts below with costs.