ZAFAR ULLAH KHAN vs Mst. HAKIM BIBI and anothers

' MALIK MUHAMMAD QAYYUM, J.---This appeal under section 96 of the Code of Civil Procedure arises out of a suit for possession through specific performance of an agreement to sell brought by the appellant against the respondents which has been dismissed by the trial Court on 26-2-1992.

2. According to the plaintiff/appellant, respondent No,1 had executed an agreement on 26-6-1986 for sale of the land in dispute to the appellant for a sum of Rs,2,77,500 out of which Rs,1,50,000 were received by her at the time of execution of the agreement. Another sum of Rs,60,000 were paid to respondent No,1 on 22-6-1987. It is alleged in the plaint that a sum of Rs,2,10,000 stood paid to respondent No,1 by the appellant. It is claimed that respondent No,1 had failed to execute the sale- deed pursuant to the agreement for sale.

3. In the written statement filed by respondent No,1, she denied having entered into any agreement with the plaintiff/appellant who incidentally is her nephew and her son-in-law. It was pleaded that no document had been executed by her and the so-called agreement for sale was fraudulent, fictitious and baseless. It was further stated in the written statement that keeping in view the relationship between the parties, if the appellant had managed to obtain her thumb-impression through misrepresentation and undue influence and has prepared a document, the same was not binding on her as consciously she had never entered into any agreement to sell nor has she received any amount of consideration.

4. On the pleadings of the parties, the learned trial Court framed the following issues:--

(1) Whether the agreement of sale dated 26-6-1986 in regard to the land in dispute in consideration of Rs,2,77,500 was validly executed between the parties? OPP

(2) If Issue No,1 is answered in affirmative whether the plaintiff is entitled to the specific performance of sale in question? If so, on what terms? OPP

(3) Whether the plaintiff has got no cause of action to file this suit? OPD

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

(5) Whether the suit is liable to be dismissed in view of preliminary objection No,3 of the written statement? OPD

(6) Whether the suit is time-barred? OPD

(7) Relief.

5. On the basis of the evidence led before it, the learned trial Court came to the conclusion that the appellant/plaintiff has not been able to prove that the agreement for sale was executed by respondent No, 1 . On these findings, the suit was dismissed.

6. We have heard the learned counsel for the parties. As is evident from the above, the dispute between the parties essentially relates to the question as to whether the appellant had entered into any agreement for sale with respondent No, 1 . The appellant has led evidence to show that agreement for sale Exh.P-1 was executed by respondent No,1 . While appearing as her own witness as D.W.1, Mst. Hakim Bibi, defendant, categorically denied her thumb-impressions on the agreement Exh. P-1 and the receipt Exh.P-1/1.

7. The appellant thereupon filed an application on 3-4-1991 praying for permission to have the thumb-impressions of Mst. Hakim Bibi compared with the thumb-impressions appearing on document Exh.P-1 and Exh.P-1/1. Unfortunately, this application was not decided immediately by the trial Court but was kept pending and was dismissed by virtue of the judgment under appeal. We are, however, of the view that in the circumstances of the case, the trial Court would have been well advised to allow the said application and obtain the opinion of the Finger Print Expert, Government of the Punjab which would have been helpful in determining as to whether documents Exh.P-1 and Exh.P-1/1 bear thumb-impressions of Mst. Hakim Bibi or not.

8. It is pertinent to state that unlike the handwriting, so far as the compression of thumb- impression is concerned, science is more exact and reliable. The refusal of the trial Court to have the comparison carried out is not sustainable. The trial Court had failed to appreciate that in the aforesaid application, the appellant had rightly stated that in the written statement filed by respondent No,1, she had taken up the position that she had never executed agreement for sale and her thumb-impressions might have been procured by the appellant through fraud or misrepresentation and undue influence. However, it was only during the course of her statement which was recorded as D.W.1 that she categorically denied her thumb-impressions on the two documents. In view of this stance of the respondents, the trial Court should have allowed comparison of the thumb-impressions and obtained report from the Expert witness which would certainly have been helpful in appreciating the evidence led by the parties and the decision of the dispute raised by them. The case, therefore, deserves to be remanded to the trial Court with a direction to have the thumb-impressions on the documents Exh. P-1 and Exh. P-1/1 compared with the admitted thumb-/impressions of Mst. Hakim Bibi and executed the Expert as a witness. The parties may, if they so choose, also produce their own experts.

9. Before parting with the case it is necessary to take notice of the contention raised by the learned counsel for the respondents that in view of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984, it was necessary for the appellant to have produced two marginal witnesses of the agreement for sale and as only one of them has been produced the document was not admissible in evidence.

10. This contention of the learned counsel has not impressed us. In addition to P.W.2, Muhammad Amin, who was one of the marginal witnesses, the scribe of the document, Malik Shaukat Ali, Advocate appeared as P.W.1 and deposed that the agreement was scribed by him and thumb impressions were put by respondent No,1 on Exh.P-1 and Exh.P-1/1 in his presence. In this view of the matter, the statement of the scribe can be considered to be a statement of a marginal witness. In this behalf, we may refer to the judgment of this Court in Nazir Muhammad v. Muhammad Rafiq 1993 CLC 257. We have not been persuaded to take a different view.

' As a result of what has been drawn above, this appeal is allowed, the impugned judgment and decree is set aside and the case is remanded to the trial Court for decision afresh keeping in view the directions given in this judgment. There shall be no order as to costs.