2017 C L C 70

2017 C L C 70

[Lahore]

Before Shahid Waheed, J

MANZOOR HUSSAIN

—-Appellant

Versus

Haji KHUSHI MUHAMMAD

—-Respondent

R.S.A. No.108 of 2006, heard on 21st May, 2015.

(a) Qanun-e-Shahadat (10 of 1984)—

—-Art. 129(g)—Withholding of best evidence—If best piece of evidence was withheld by party, it was to be presumed that said party had some sinister motive behind it—Presumption under Art.129(g) of Qanun-e-Shahadat, 1984 had to be drawn that said evidence if produced would have not been favourable to the party concerned.

Muhammad Rafique and others v. State and others 2010 SCMR 385 rel.

(b) Contract Act (IX of 1972)—

—-S. 10—Contract—Scope—Where a contract was reduced in writing, not only it should be founded upon imperative elements of offer and acceptance but its proof was also dependent upon execution of contract by both contracting parties i.e. by signing or affixing their thumb impression so that it should reflect and establish their “consensus ad idem” which was the inherent and basic element of meeting of minds which connoted mutuality of assent and proved intention of parties.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

(c) Contract Act (IX of 1872)—

—-S. 13—Agreement—Execution of—Requirements—Parties and witnesses though should execute document at the end, but parties must also sign each page if document was written out on more than one page.

N.S. Bindras’ Conveyancing Draftsman and Interpretation of Deeds, 7th Edition, Delhi Law House, Delhi, 2008 322 rel.

(d) Contract Act (IX of 1872)—

—-S. 13—Specific Relief Act (I of 1877), S.12—Specific performance of agreement—Party to agreement was required to bring on record evidence to connect two pages of document exhibited with each other—Failure of party to connect the pages—Effect—Such deficiency did not establish “consensus ad idem” and on basis of such type of document which was non-compliant of said principle of law, a decree for specific performance could not be issued.

Zafar Iqbal and others v. Mst. Nasim Akhtar and others PLD 2012 Lah. 386 rel.

(e) Qanun-e-Shahadat (10 of 1984)—

—-Art. 17(2)(a)—Agreement to sell, attestation of—According to Art.17(2)(a) of Qanun-e-Shahadat, 1984, agreement to sell was required to be attested by two male or one male and two female witnesses.

(f) Qanun-e-Shahadat (10 of 1984)—

—-Art. 79—Execution of agreement to sell—Proof—According to Art.79 of Qanun-e-Shahadat, 1984 agreement to sell could not be used as evidence until at least two attesting witnesses had been called for purposes of proving its execution, if there be two attesting witnesses alive and subject to process of court and capable of giving evidence.

Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 rel.

(g) Qanun-e-Shahadat (10 of 1984)—

—-Art. 79—“Attesting witness”— Meaning—Attesting witness was person who in presence of executant of a document puts his signature or mark on it after he had seen executant or someone by executant’s direction sign or affix his mark to it or after he had received from executant a personal acknowledgement of his signature or mark or his signature or mark of such other person.

Muhammad Tahir Chaudhry for Appellant.

Ch. Baleegh-uz-Zaman for Respondent.

Date of hearing: 21st May, 2015.

JUDGMENT

SHAHID WAHEED, J.- Unsuccessful plaintiff has brought this second appeal under Section 100 C.P.C. to challenge the judgment and decree dated 28.03.2006 of the learned District Judge, Gujranwala affirming the judgment and decree dated 31.01.2002 of the learned Trial Court whereby his suit was dismissed.

  1. The appellant, Manzoor Hussain, on 24.11.1998 had brought a suit against respondent, Haji Khushi Muhammad, for possession of the suit property on the basis of agreement to sell dated 5.5.1998 (Ex.P1). It was maintained in the plaint that the respondent being an owner of a shop No.BX11-5S-43 vide agreement dated 5.5.1998 (Ex.P-1) sold the same to the appellant for a consideration of Rs.1,800,000/-; out of which an amount of Rs.1,200,000/- was paid; and, that remaining amount was agreed to be paid upto 5.11.1998. In response to summon the respondent entered appearance before the learned Trial Court and contested the suit by filing a written statement. The respondent in his written statement denied the execution of agreement to sell dated 5.5.1998 (Ex.P-1). On pleadings issues were framed and evidence was led. After recording evidence the learned Trial Court dismissed the suit vide judgment and decree dated 31.01.2002. The appellant assailed the said judgment and decree through an appeal under Section 96, C.P.C. before the learned District Judge, Gujranwala. The first appeal could not evoke a favourable response and the same was dismissed vide judgment and decree dated 28.03.2006. Hence, this second appeal.
  2. Learned counsel for the appellant has contended that two marginal witnesses of the agreement to sell dated 5.5.1998 (Ex.P-1) were produced before the learned Trial Court and from their statements the execution of agreement to sell stood proved; and, that the judgments and decrees of the learned courts below suffer from misreading and non-reading of evidence and, therefore, same are not sustainable in the eye of law. In support of above contention reference is made to the case of Ghanshamsing Tirathsing and another v. Muhammad Yacoob (AIR 1933 Sind 257), Muhammad Anwar v. Haji Muhammad Ismail and others (1992 MLD 860), Nazir Ahmad v. Muhammad Rafique (1993 CLC 257), Dil Murad and others v. Akbar Shah (1986 SCMR 306), Mst. Daulan v. Muhammad Hayat (2002 YLR 3247).
  3. On the other hand, learned counsel for the respondent has vehemently opposed this appeal and submitted that the appellant had failed to prove the execution of the agreement and, therefore, judgments and decrees of the learned courts below warrant no interference by this Court.
  4. The pivotal question in this case is as to whether the appellant was entitled to the decree for specific performance of the agreement dated 5.5.1998 (Ex.P-1) and as a result thereof to take possession of the suit property. In order to find out the answer to the said question, it is essential to first examine the features of the alleged agreement to sell dated 5.5.1998 (Ex.P-1). This document consists of two pages. The first page of the document (Ex.P-1) reads as under:-

The second page of the document (Ex.P.1) reads as follows:—

Perusal of the document (Ex.P-1) unfolds: (a) that its stamp papers were purchased from M. Sharif Chaudhary, Stamp Vendor; (ii) that according to statement of the said Stamp Vendor, written on the reverse of first page of the document, the stamp papers were sold to Khushi Muhammad; (iii) that its stamp papers do not bear the signatures or thumb impression of Khushi Muhammad on their reverse to show that the same were purchased by Khushi Muhammad; (iv) that it was drafted by Ch. Tayyab Tair Ahmad, Advocate; (v) its first page contains all the terms and conditions of sale but it does not bear the signatures or thumb impression of the vendor, vendee and the witnesses; (vi) its first page only bears the signatures of deed writer, Ch. Tayyab Tair Ahmad, Advocate; and, (vii) its second page does not contain any term and condition of sale but it bears the signature of vendor, vendee, witnesses and deed-writer. The execution of the document (Ex.P-1) was denied by Khushi Muhammad in his written statement. In these attending circumstances, the appellant being vendee was required to prove that: (a) the stamp-papers of the document (Ex.P-1) were purchased by Haji Khushi Muhammad; (b) the document (Ex.P-1) consisted of two pages; (c) that on the first page of the document terms and conditions of sale were written; (d) that first page of the document was not signed by the vendor, vendee and witnesses; (e) that the second page of the document was signed by the vendor, vendee, witnesses and deed writer; and, (f) that the first page of the document was signed by deed writer. The primary witness to prove the above facts were the stamp vendor (M. Sharif Chaudhary); and, the deed writer (Ch. Tayyab Tair Ahmad, Advocate). Through the statement of the stamp-vendor and entries of his register the facts which could be proved were: the serial numbers of the stamp-papers; date of issuance/sale of stamp papers; purpose of sale of stamp papers; and, the name of the person to whom the stamp-papers of the document (Ex.P-1) were sold. On the other hand, the appellant by producing the deed-writer could prove that the document (Ex.P-1) consisted of two pages; that terms and conditions of the agreement to sell the suit property were drafted on the instructions of the parties; that he signed both pages of the document (Ex.P-1); and, that the parties to the agreement and witnesses signed the second page of the document (Ex.P-1). The said two persons were not produced. It means that best evidence to prove the valid execution of document was withheld. No explanation of the non-production of said two persons was furnished. This omission was fatal to the case of the appellant as it is a settled principle of law that if a best piece of evidence is withheld by a party, then it is to be presumed that said party had some sinister motive behind it and a presumption under illustration (g) of Art.129 of the Qanun-e-Shahadat, 1984 has to be drawn that the said evidence if produced, it would have not been favourable to the party concerned [See Muhammad Rafique, etc. v. State and others (2010 SCMR 385). The appellant produced two witnesses, that is, Mehmood-ul-Hassan (PW-1); and, Muhammad Ijaz Butt (PW-2). The appellant as his own witness appeared before the learned Trial Court as PW-3. None of the appellant’s witnesses in their respective, statements had stated a single word about the above said facts. In these attending circumstances, the appellant was not entitled to the discretionary relief; and, his suit for specific performance of the agreement (Ex.P-1) could not be decreed.

  1. Notwithstanding above, it is settled principle of law that where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. So that it should reflect and establish their “consensus ad idem”, which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto [See Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187)]. In the present case, the first page of the document (Ex.P-1) is signed by the deed-writer only whereas its second page which bears the signatures of the vendor, vendee and deed writer does not contain the terms and conditions of sale. Although the parties and the witnesses should execute the document at the end, but parties must also sign each page if the document is written out on more than., one page. [See N.S. Bindras’ Conveyancing Draftsman and Interpretation of Deeds, 7th Edition, Delhi Law House, Delhi, 2008 at page 322]. This was not done and, therefore, appellant was required to bring on record the evidence to connect the two pages of the document (Ex.P-1) with each other. The appellant had not produced any evidence to connect the two pages of the document (Ex.P-1) with each other and this deficiency does not establish “consensus ad idem”. Thus, on the basis of such type of document, which is non-compliant to the said principle of law, a decree for specific performance could not be issued. This view finds support from the case of Zafar Iqbal and others v. Mst. Nasim Akhtar and others (PLD 2012 Lah. 386) which has been approved by the Hon’ble Supreme Court of Pakistan in Civil Petition No. 391-L of 2012 vide order dated 22.3.2013.
  2. There is another aspect of the matter which has engaged my attention; and, that is, the requirements of Articles 17 and 79 of the Qanun-e-Shahadat, 1984. Agreement to sell as per Article 17(2)(a) of the Qanun-e-Shahadat, 1984 is required to be attested by two male or one male and two female witnesses, as the case may be; and, the same according to Article 79 ibid cannot be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence [See Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089)]. In the case on hands, the document (Ex.P-1) bears the signatures of two witnesses, that is, Mehmood-ul-Hassan (PW-1) and Muhammad Ijaz Butt (PW-2). An ancillary question arises as to whether the said two witnesses may be called “attesting witnesses” of the document (Ex.P-1). An attesting witness is a person who in the presence of the executant of a document puts his signature or mark on it after he has seen the executant or someone by his (executant’s) direction sign or affix his mark to it, or after he has received from the executant a personal acknowledgement of his signature or mark or of his signature or mark of such other person. In this regard it would be apposite to cite the following extract from the judgment of this court handed down in the case of Sarfraz Ahmad v. Iftikhar Ahmad (2012 YLR 1729):-

“The attesting witness in terms of Article 79 of Qanun-e-Shahadat Order, 1984 read with section 3 of the Transfer of Property Act,1882 is a person who had witnessed the execution of an instrument by the executant and also signed the instrument for the purpose of attesting signature of the executant. It has been held in the case of Riaz-ur-Rehman and others v. Muhammad Urus (2005 MLD 1954 ) that attesting witness is one who not only writes or sees a document being executed and appends his name at the end of document, but is a person who also signs it as a witness. It is well settled principle that attestation in relation to instrument means attested by two or more witnesses each of whom has seen the executant, sign, or affix his mark to the instrument, or has seen other person sign the instrument in the presence and by the direction of the executant or has received from the executant a personal acknowledgement of his signature or mark or of the signatures of such other persons and each of whom has signed the instrument in presence of the executant. The word “attested” means that person has signed the document by way of testimony to the fact that he saw it executed. The necessary conditions for a witness attesting the deed are: firstly, that he has seen the executant; and, secondly, he has signed the instrument in the presence of the executant. If these two conditions are fulfilled by the witness, there can be no doubt about his being attesting witness. In this regard reliance is placed on Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639), Rai Ganga Pershad Singh and others v. Ishri Pershad Singh and others (AIR 1918 Privy Council 3), Banarsi Das and others v. Collector of Saharanpur and others (AIR 1936 Allahabad 712) and Zaharul Hussain v Mahadeo Ramji Deshmukh and others (AIR (36) 1949 Nagpur 149).

Now, I examine the statements of said two witnesses. Before proceeding further it is germane to state here that document (Ex.P-1) was firstly drafted by Ch. Tayyab Tair Ahmad, Advocate and thereafter it was got typed. Mehmood-ul-Hassan (PW-1) in his examination-in-chief stated as follows:-

The other witness i.e. Muhammad Ijaz Butt (PW-2) in his examination-in-chief stated that:

During cross-examination he made the following statement:-

The cumulative reading of the statements of above stated two witnesses reveals that Mehmood-ul-Hassan (PW-1) had not signed the document (Ex.P-1) in presence of the alleged executant after seeing the execution of the document (Ex.P-1). In view of above, this witness does not fall within the ambit of “attesting witness” and, therefore, his statement is inconsequential to prove the execution of the document (Ex.P-1). Since the appellant had failed to produce two attesting witnesses, the execution of the document (Ex.P-1) was not proved. Thus, the arguments canvassed by the appellant’s counsel sans merit and the precedent cited by him are inapt; and, resultantly a decree for specific performance of unproved document (Ex.P-1) could not be issued.

  1. Last but not least the factor for consideration is the title of Haji Khushi Muhammad qua the suit property which is a shop bearing No.BX11-5S-43. According to the disputed document (Ex.P-1) Haji Khushi Muhammad, respondent was the exclusive owner of the suit property. This was incorrect recital. Haji Khushi Muhammad, the respondent, appeared before the learned Trial Court as DW-1 and during the course of cross-examination stated that he was not the exclusive owner of the suit property. The respondent in his documentary evidence tendered his title document i.e. sale deed dated 25.2.1997 (Ex.D-1). This document shows that Haji Khushi Muhammad is owner to the extent of half portion of the suit property. It means that the respondent, Haji Khushi Muhammad, could not sell the whole suit property to the appellant. The alleged agreement (Ex.P-1) to sell whole of the suit property in favour of the appellant was not valid and, therefore, on its basis a decree for specific performance could not be issued.
  2. In the sequel, this second appeal being devoid of any merit is dismissed with no order as to costs.

RR/M-200/L Appeal dismissed.

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