THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Revision No.S-74 of 2011
Applicant: Mushtaque Ahmed through Mr. Naushad Ali
Tagar, Advocate
Respondents 1&2: Haji Sathi & Haji Lal, through Mr. Irshad Ali R. Chandio, Advocate.
Respondents 3&4: Dadan Khan & Qurban Ali, through Makhdoom Syed Tahir Abbas Shah, Advocate.
Respondents 5 to 8: Nemo
Date of hearing: 13-02-2023
Date of Order: 24-02-2023
O R D E R
Adnan Iqbal Chaudhry, J.- This revision application is against concurrent decrees passed against the Applicant (Defendant No.4) for cancelling his registered sale deed in consequence of a decree for specific performance passed in favor of the Respondents 1 and 2 (Plaintiffs) against the Respondents 3 to 5 (Defendants 1 to 3).
2. By F.C.Suit No.46/2004 before the Senior Civil Judge, K.N. Shah, the Respondents 1 and 2 (Plaintiffs) prayed for specific performance against the Respondents 3 to 5 (Defendants 1 to 3) of an agreement to sell, dated 01.09.1999, 15 ½ ghunta in Survey No.49, Deh Ahori, Rayati, Taluka K.N. Shah (suit land) in consideration of Rs. 40,000/-. Admittedly, the suit land had since been conveyed by the Defendants 1 and 2to the Applicant (Defendant No.4) by a registered sale deed dated 07.03.2000; and thus the Plaintiffs also prayed for cancellation thereof.
3. The Plaintiffs averred that they had paid the entire sale consideration of Rs.40,000/- at the time of the sale agreement, and thus were put in possession of the suit land; that while the Defendants 1 to 3 had taken time to transfer the khata to the Plaintiffs as soon as it was first transferred to their own names, the Defendants 1 and 2 went ahead and sold/conveyed the suit land to the Defendant No.4 for Rs.75,000/- by the impugned sale deed dated 7.3.2000 which recorded the sale consideration only as Rs.10,000/- to evade stamp duty and registration fee. For cancellation of that sale deed it was averred that the sale agreement dated 01.09.1999 was prior in time and the Defendant No.4 had knowledge thereof.
4. Per the written statement of the Defendant No.4 (Applicant), the Defendants 1 to 3 had never agreed to sell the suit land to the Plaintiffs, nor had they executed the alleged sale agreement; that possession of the suit land was with the Defendant No.4 since the sale deed dated 7.3.2000 and he had been paying land revenue thereon.
On 23.5.2005, counsel for the Defendants 1 and 2 filed a statement in the suit stating that they adopt the written statement of the Defendant No.4. The Defendant No.3, one of the vendors of the sale agreement, passed away pending suit. In October 2006, one of his legal heirs (Respondent No.5-D) filed a written statement to support the Plaintiffs’ case. Though he claimed that such written statement was also on behalf of the other legal heirs, no such authorization was filed.
5. Both the Courts below were of the view that the statement filed by counsel for the Defendants 1 and 2 adopting the written statement of the Defendant No.4 was not a specific denial of the execution of the sale agreement, and therefore same was proved along with the part payment of Rs.20,000/; hence the suit for specific performance was decreed by cancelling the sale deed dated 7.3.2000 standing in favor of the Defendant No.4 (Applicant) and by directing the Plaintiffs to deposit the balance sale consideration of Rs.20,000/- in court within three months.
6. Heard the learned counsel and perused the record.
7. Though the sale agreement in question had recited that the entire sale consideration of Rs.40,000/- had been paid in cash, on cross-examination the Plaintiff No.1 admitted that only Rs.20,000/- had been paid at the time of the sale agreement and the remainder was payable on the execution of the sale deed. The Plaintiffs had led no evidence to demonstrate that they were ready, willing and able to pay the balance sale consideration from the date of the sale agreement in 1999 till filing suit in 2004 and even thereafter. While vendees in the sale agreement were three (3) in number, only two of them had filed suit.Assuming that the sale agreement was executed, no evidence was led to show that the Defendant No.4 (Applicant) had knowledge of the same when he purchased the suit land from the Defendants 1 and 2 under the impugned sale deed. None of these aspects were adverted to by the Courts below in decreeing specific performance. On the other hand, section 22 of the Specific Relief Act, 1877 categorically provides that: “The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.”
8. The Plaintiffs had examined Ghulam Shabbir as one of the attesting witnesses to the sale agreement. However, his deposition was not consistent with that of the Plaintiff No.1. On cross-examination, the Plaintiff No.1 had stated that the sale agreement was ascribed by one Hazoor Bux at the otaq of Abdul Qayoom Shaikh, the relative of the Plaintiff No.1, and that the payment of Rs.20,000/- was given to the Defendant No.1 who distributed it amongst the sellers (Defendants 1 to 3). On the other hand, Ghulam Shabbir stated that the sale agreement was ascribed by one Mansoor Shaikh, the stamp vendor, at his otaq, and that the payment of Rs.20,000/- was given to the Defendant No.3. Further, Ghulam Shabbir stated that at the execution of the sale agreement the persons present were the Plaintiff No.1, Defendants 1 to 3 (sellers), Mansoor Shaikh (stamp vender and scribe) and Ghulam Shabbir himself. In other words, the Plaintiff No.2 and Haji Ahmed who were the two other purchasers as per the sale agreement, and Abdul Sattar, the second attesting witness, were not present at the execution of the sale agreement.
9. While it is correct that the statement filed by counsel for the Defendants 1 and 2 adopting the written statement of the Defendant No.4 was not to be taken as written statement of the Defendants 1 and 2 (sellers); the Courts below failed to appreciate that the Defendant No.4 had stepped into the shoes of the Defendants 1 and 2 as owner of the suit land under a registered sale deed. Therefore, once the Defendant No.4 had disputed the sale agreement, it was incumbent upon the Plaintiffs to prove its execution. A specific issue had been framed in that regard. The fact that the Defendants did not lead evidence did not shift that burden from the Plaintiffs. In Farz and Ali v. Khuda Bakhsh (PLD 2015 SC 187) it was held that even where the vendor/defendant had acknowledged the sale agreement, that admission was not binding on the co-defendant.
10. The sale agreement in question was purportedly witnessed by Ghulam Shabbir and Abdul Sattar, but only Ghulam Shabbir was examined as witness by the Plaintiffs. There was no explanation why the second attesting witnesses, Abdul Sattar, was not examined nor called as witnesses to prove execution of the sale agreement as mandated by Article 79 of the Qanoon-e-Shahadat Order, 1984. The uncompromising requirement of Article 79 and the effect of its non-compliance was discussed by the Supreme Court in Tassaduq Hussain v. Muhammad Din (PLD 2011 SC 241) as follows:
“8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. MainathKuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.”
11. Therefore, when the requirement of Article 79 of the Qanoon-e-Shahadat Order, 1984 had not been met by the Plaintiffs, the sale agreement could not have been used in evidence; its execution was never proved; and with that,the alleged part payment of Rs. 20,000/-, for which there was no other evidence, was also not proved. Under the circumstances, there was no question of cancelling the sale deed dated 07.03.2000 standing in favor of the Defendant No.4 (Applicant).
12. For the foregoing reasons, the judgment/decree dated 11.11.2009 passed by the Senior Civil Judge, K.N. Shah in F.C. Suit No.46/2004; and the judgment/decree dated06.09.2011 passed by the I-Additional District Judge, Dadu in Civil Appeal No. 31/2009 are perverse and suffer from misreading and non-reading of evidence. Both are set-aside and F.C. Suit No.46/2004 is dismissed. Revision application is allowed.
J U D G E
S.Ashfaq