2012 C L C 1699
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
BIBI AMINA and others ----Appellants
Versus
MUHAMMAD IQBAL and others ----Respondents
R.F.A. No.108 of 2010, decided on 30th May, 2012 .
Qanun -e-Shahadat (10 of 1984) ---
----Arts. 59 & 72 ---Stamp Act (II of 1899), Ss.33 & 35 ---Registration Act (XVI of 1908),
S.17---Specific Relief Act (I of 1877), Ss.12 & 42 ---Suit for specific performance of
agreement and declaration ---Document, proo f of ---Opinion of Handwriting Expert ---
Unregistered document ---Impounding of document ---Plaintiffs claimed that their grandfather
took possession of shop in question and sale agreement in his favour was executed on 9 -11-
1999 ---Agreement to sell was an unre gistered document, therefore, Trial Court sent the same
to Handwriting Expert for opinion ---Handwriting Expert reported that signatures on the
agreement were forged ---Suit filed by plaintiffs was dismissed by Trial Court ---Validity ---
Act of Trial Court, se nding the agreement for expert opinion and declaring such act of Trial
Court was rational, logical, legal and amounted to having a positive approach for resolving
legal intricacies ---Claim of plaintiffs valuing Rs.25 lacs was based on a document which was
not registered, therefore, the same was incapable to create any right in property and no decree
could be passed on such illegal and unwarranted document ---Agreement to sell was
inadmissible in evidence in view of section 35 of Stamp Act, 1899 and the same was liable
to be impounded as per provisions of section 33 of Stamp Act, 1899 ---Claim of plaintiffs
was concocted, fictitious, baseless and without substance ---Plaintiffs failed to prove their
case and Trial Court had rightly dismissed the suit ---High Court in exercise of appellate
jurisdiction maintained the judgment and decree passed by Trial Court ---Appeal was
dismissed in circumstances.
Maqsood Ahmed and another vs. Muhammad Razzaque and 9 others PLD 2009 SC (AJ&K)
13; Mst. Saeeda Anwar and 3 others v. Malik Bashir Ahmad and others 2009 MLD 1314 and
Sanaullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 ref.
Abdullah Baloch for Appellants.
Hadi Shakeel Ahmed for Respondents.
Date of hearing: 28th March, 2012.
JUDGMENT
MUHAMMAD NOOR MESKENZAI, J. --- Instant appeal is directed against the
judgment/decree dated 31st March, 2010 passed by Civil Judge, Quetta, whereby the suit
filed by the plaintiffs/appellants was dismissed.
2. Precise facts relevant for the disposal o f instant appeal are that the plaintiffs filed a
suit for declaration, specific performance of agreement dated 9 -11-1999, possession and
perpetual injunction against the defendants/respondents. It was averred in the suit that
plaintiffs' grandfather namely Nasrullah Khan got possession of a shop measuring 350 sq.ft.
Khasra No.6 Khewat No.142 Khatooni No.177, Ward No.38 Mohal Mouza City, Tehsil and
District Quetta situated at Mission Road, Quetta. It was further stated in the plaint that
underneath the shop, there was a basement of about 837 sq.ft., which was in possession of
one Muhammad Ali Hazara. The plaintiffs' grandfather remained as a tenant in the shop,
however, on 24th June, 1993 a formal agreement regarding rent was executed between him
and the defe ndant. As per para No.2 of the plaint an other sale agreement was executed
between the parties on 9th November, 1999 and both the parties agreed as under: ---
(i) The consideration price of the shop along with its basement was settled to be Rs.25
lac.
(ii) Acknowledgment of Zafarullah being tenant in the shop through his father since 1990.
(iii) Re-certifying the amount of 6 Lacs that was paid to the defendant at the time of the
execution of the tenancy agreement dated 24 -6-1993 as deposit.
(iv) Ackn owledgement of restoration of possession by Zafarullah after the payment of
Rs.4,50,000 to the tenant in the basement namely Muhammad Ali Hazara, which was to be
deducted from the total consideration/ price.
As per the agreement, Rs.4,50,000/ - cash stand s paid to the defendant at the time of execution
of agreement, Rs.15,00,000/ - inclusive of the deposit amount of Rs.600,000/ - also stand paid
to the defendant, however, regarding remaining Rs.10,00,000/ - it was settled that plaintiffs'
grandfather would de posit the same in the Bank within the period stipulated in the sale
agreement. According to plaint the predecessor -in-interest of plaintiffs deposited
Rs.7,60,000/ - in the Bank on different dates. The plaintiffs also assumed possession of shop
and basement as owners/purchasers. So far remaining amount, the same was to be paid at the
time of final mutation. The defendant was approached on several occasion with the request to
mutate the shop in question in the names of plaintiffs. So much so on 20th July, 200 6 he was
also served with the notice but all in vain.
3. The suit was contested by defendant No.1 by way of filing written statement whereby
the claim of the plaintiffs was repudiated on factual as well as legal grounds. Respondent
No.2 did not appear, a s such he was proceeded against ex parte. The learned trial Court out of
the pleadings of parties framed the following issues for determination: --
(1) Whether the suit is not maintainable in the light of legal objection "C&D" mentioned
in the written sta tement?
(2) Whether the plaintiffs were only tenant and no sale agreement was made regarding
the property in questions?
(3) Whether the plaintiff is entitled for relief claimed for?
(4) Relief?
4. Thereafter, the parties were directed to adduce evi dence in support of their
respective claim, whereupon, the plaintiffs produced ten witnesses and also got recorded
their statement through attorney. In rebuttal, the defendant produced four witnesses, appeared
in the witness -box and got recorded th eir statements in support of written statement.
5. The learned trial Court after hearing the parties and evaluating the evidence dismissed
the suit filed by plaintiffs/appellants vide judgment, dated 31st March, 2010. Hence this
appeal.
6. We have hear d Mr. Abdullah Baloch, Advocate for the appellants whereas Mr. H.
Shakeel Ahmed, Advocate represented the respondent.
The learned counsel for the appellants argued with great vehemence that the learned trial
Court fell in error while recording findings o n issue No.2. The learned trial Court passed the
impugned judgment contrary to the documentary as well as oral evidence. The plaintiffs
succeeded to prove the sale of disputed property and the payment of sale price by their
predecessor in interest but the learned trial Court while delivering the judgment failed to take
into consideration all these aspects of the case and drawn a conclusions, which are not
sustainable under the law. The defendant failed to rebut the claim of plaintiffs either by way
of produ cing oral or documentary evidence but even then the learned trial Court instead of
decreeing the suit, dismissed the same. The trial Court while deciding issue No.2 has only
concentrated that the rent agreement executed on 24th June, 1993 has not been sign ed by
predecessor in interest of plaintiffs. Learned counsel stressed that the document could not
lawfully be rejected on the basis of such ground. The plaintiffs produced ample evidence to
prove genuineness of the document i.e. sale agreement and represen tative of the Bank along
with deposits slips which not only prove the sale transaction but also payment of sale price by
plaintiffs in favour of respondent No.1 stands established. The trial Court believed the expert,
who was not notified, therefore, no re liance could be placed upon such evidence.
On the other hand, the learned counsel for respondent No.1 strenuously opposed the appeal
and submitted that the plaintiffs failed to prove their claim before the trial Court, as such, the
learned trial Court ri ghtly dismissed the suit. Neither there is any illegality in the judgment
nor irregularity in the proceedings conducted by the trial Court. The learned trial Court after
proper appraisal of documentary as well as the oral evidence rightly came to the concl usion
that the plaintiffs miserably failed to prove the sale agreement or payment on the basis
thereof. Learned counsel emphasized that the so -called agreement which is the base of claim
and the plaintiffs mainly rely upon the same has not been signed by p redecessor -in-interest of
plaintiffs. Similarly, the signatures of defendant/respondent on so -called sale -deed are forged.
The respondent No.1 through reliable, trustworthy and confidence -inspiring evidence refuted
and rebutted the claim of plaintiffs. The judgment impugned herein is the result of proper
appraisal of evidence. It was well -reasoned and has been passed after attending all the aspects
of the case, the same is not open to any exception.
7. We have considered the contentions, so put forth by t he learned counsel for parties
and gone through the available record minutely. Perusal of the record reflects that the
plaintiffs/appellants to prove their version produced as many as ten witnesses. A meaningful
glance of the evidence, produced by the plai ntiffs/appellants, reveals that plaintiffs have
failed to prove their case. As far as issue No.1 'Whether the suit is not maintainable in the
light of legal objection "C D" mentioned in the written statement? is concerned, it is to
observe, that Issue No.1 . was decided in affirmative but respondents did not file cross -
objection, therefore, the findings qua issue No.1 are retained. As far as Issue No.2, "Whether
the plaintiffs were only tenant and no sale agreement was made regarding the property in
question s?" is concerned, though the frame thereof is somewhat laconic but since both the
parties remained satisfied with the nature of the issue, therefore, let this issue be examined in
the light of evidence produced by plaintiffs/appellants. There are two agree ments Mark -1 and
Exh:P/1 -A. As far as Mark -1 is concerned, neither the agreement in original was produced
nor any marginal witness entered into witness box, therefore, in our considered opinion, there
was/is no need to dilate upon such an inadmissible piec e of evidence. As far as the agreement
Exh:P/1 -A, is concerned, the plaintiffs/appellants have miserably failed to prove the
agreement. P.W.1 Muhammad Ishaque though narrates the story yet does not states that the
agreement was signed in his presence by th e parties and particularly the
defendant/respondent, rather admits that the document has not been drawn in his presence. In
reply to cross vide question No.23 he states that: ---
Besides, he is a close relative of plaintiffs.
P.W.2 Abdul Rehman is also silent with regard to the factum of signatures on the so -called
deed by defendant/respondent. Besides, the availability of the name of P.W. as a witness of
the alleged deed, the same was not tendered in evidence by P.W.2. In reply to cross he states
that:--
Similarly, P.W.3 Muhammad Ibrahim, who claims to be a witness to sale -deed, does not
state that the agreement was got signed by defendant Muhammad Iqbal in his
presence. P.W.8 Abdul Rehman, who claims to be author of the document, als o does not
state that agreement was signed by the defendant in his presence. For the sake of
convenience, the operative portion of the statement is reproduced: ---
P.W.9 Syed Ahmed Khan is the Notary Public, who has verified the sale deed i.e. Exh.P/1 -A.
For ready reference the statement of this witness is also reproduced: --
8. The perusal of the statements referred to hereinabove leave no room for doubt that the
Exh.P/1 -A was not at all signed by the defendant/respondent in the presence of any of the
P.Ws. P.W.9, who is a Notary Public does not state that the contents of the document were
either read over or were owned and accepted by the defendant. In written statement, the
defendant/respondent has categorically denied the execution of the document and also has
stated that his signatures are forge and fake. The overall perusal of entire evidence produced
by the plaintiffs/appellants established the fact that there is not an iota of evidence to prove
that the document Exh.P/1 -A was signed by the parties i n their presence such omission in the
statements of P.Ws, itself is sufficient to hold that the plaintiffs/appellants have failed to
prove the execution of the document i.e. sale deed. By holding the view, we are fortified by
the dictum laid down in judgme nt titled as Maqsood Ahmed and another vs. Muhammad
Razzaque and 9 others reported in PLD 2009 SC (AJ&K) 13 (relevant at page -20), wherein it
was observed as under: ---
(A) "It is well -settled principle of law that for proving the execution of any documen t it is
essential that two attesting witnesses should appear before the Court and state that the
document was executed by the executant in their presence. The executant signed the
document in their presence and they identify his signatures. This view finds support from a
case reported as Muhammad Shafi v. Liaqat Hussain and 6 others 1999 CLC 1130 wherein it
has been observed as under: --
"To prove the execution of the document it was necessary to lead the evidence to testify the
fact that the executant (Ms t. Saleema Bibi) put her thumb -impression out of her free will and
consent in presence of witnesses."
The aforesaid view further finds support from a case reported as Mst. Kulsoom Bibi and
another v. Muhammad Arif and others 2005 SCMR 135 wherein it has been observed as
under: -
"It may be clarified at this juncture that marginal witnesses of a document are produced not
merely to identify the signatures of an executant but are examined to prove, in addition to the
above fact, that the executant had put t he signatures within their view. Both witnesses never
uttered a single word to the effect that Muhammad Fazil had signed the document within
their view."
It further finds support from another case titled Mst. Ummatul Waheed and others v. Mst.
Nasira Kaus ar and others 1985 SCMR 214 wherein it has been observed as under: ---
"It has to be noted that the trial Court had implicitly relied on the statement of Shaukat Ali
the attesting witness. His statement, however, is of little value because he admitted tha t he
has not seen Asif Hussain signing the disputed document. If he had actually not seen him
signing document, he could not prove the execution of the document by Asif Hussain. "
(B) In case title Mst. Saeeda Anwar and 3 others v. Malik Bashir Ahmad and others
reported in 2009 MLD 1314 (relevant at page 1325), it has been observed: ---
"All these agreements except Exh.D.W.1/3 are purported to have been executed on 16 -11-
1988 in favour of appellants Nos.1, 2 and 4 respectively and are attested by D.W.17 Abdul
Sami Mirza and Tariq Mehmood Butt. However, agreement to sell Exh.D.W.1/3 in favour of
respondent No.3 is shown to have been executed on 11 -11-1998 and is attested by D.W.11
Iftikhar Ahmed and D.W.12 Muhammad Raza. However, execution of these docume nts is not
proved in accordance with law. Under Article 17 read with Article 79 of the Qanun -e-
Shahadat Order, 1984, execution of a document is not proved unless two attesting witnesses
are examined to prove its execution."
(C) Furthermore, the view find s support by another judgment title `Sanaullah and another v.
Muhammad Manzoor and another' reported in PLD 1996 SC Page -256, wherein it has been
held that: ---
"The ordinary rule for proving the execution or signature of a person on a document, is to ca ll
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 c ircumstances 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. Both the attesting witnesses of t hese 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 Exhs.P.1 and P.3 by appel lant No.1 was proved."
9. Besides, there is an inherent defect in the case of plaintiffs that the plaintiffs claim the
possession of basement through Haji Muhammad Ali Hazara against a sum of Rs.45000/ - but
have failed to produce Haji Muhammad Ali Hazara , an adverse inference within the meaning
of section 129(g) of Qanun -e-Shahadat Order can validly be drawn against the plaintiffs.
10. It is pertinent to mention here that during the course of proceedings before the trial
Court defendant/respondent came forward with the plea that his signatures are forged,
therefore, to ascertain the genuineness of signatures, the documents be sent to Handwriting
Expert. It is interesting to note that such request of the defendant was vehemently opposed by
the plaintiffs. It appears that the parties proposed the place of their choice, where the
document should be sent to Handwriting Expert, but the trial Court instead of sending the
document to the offices proposed by the parties, on its own, opted the third option and sen t
the same to the office of the Director Technical, Federal Investigation Agency HQRS G -9/4,
Islamabad, wherefrom it was confirmed that signatures on the deed/document are forged.
This act on the part of trial Court, is highly rational, absolutely logical and legal, which
amounts to having a positive approach for resolving the legal intricacies and thus deserves
appreciation. After receiving the report, the defendant/ respondent requested for examination
of Examiner but this request too was vehemently oppos ed by plaintiffs/appellants.
11. There is another important aspect of the case i.e. the document in question is not
registered. Legally, an interest in an immovable property worth more than rupees one
hundred is created, same requires compulsory registra tion, otherwise such transaction would
not create or extinguish any right whatsoever. Since, the claim of plaintiffs/appellants valuing
Rs.25 lacs is based on a document, which is not registered, hence incapable to create any
right in the property, therefo re, no decree could be passed on such illegal and unwarranted
document. Furthermore, the document in question is inadmissible in evidence in view of
section 35 of Stamp Act, 1899 and the same is liable to be impounded as per the provisions of
section 33 of the said Act.
In the light of above discussion, we are fully satisfied that the claim of plaintiffs/appellants is
concocted, fictitious, baseless and without substance. The plaintiffs miserably failed to prove
their case and the trial Court has rightly dismissed the suit, hence we feel no hesitation to
dismiss the appeal with cost throughout. Decree sheet be drawn accordingly.
MH/47/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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