1999 PLP 3384 (MLD)

Mirza Manzoor Ahmad for Respondents Date of hearing: 2nd February, 1998 The brief facts out of which the present second appeal arises are that Muhammad Mukhtar, predecessor-in-interest of appellants Nos.2-A to 2-D was the allottee of the estate land measuring 99 Kanals and 11 Marla situate in Chak No.76/W.B Tehsil and District Vehari under the Scheme of Gujranawala Oustee Scheme. Muhammad Mukhtar executed agreement to sell (Exh. P.1) in favour of Mukhtar Ahmed/respondent No. 1 for consideration of Rs.92,860 on 19-8-1978. Mukhtar Ahmed received the said consideration and handed over the possession of the land in question to vendee as revealed in the plaint. On 28-5-1989 sale -deed was executed by Government in favour of allottee-Mukhtar Ahmed, who sold the land through registered sale-deed to the present appellant No.

1. Mushtaq Hussain for consideration of Rs.3 lacs on 29-5-1989. Respondent No. 1 filed a suit for specific performance against Muhammad Mukhtar and Mushtaq Hussain-appellant on 10-6-1989. The appellants/defendants filed separate written statement, controverted the allegations levelled in the plaint. The Trial Court framed the following issues:-- ISSUES: (1) Whether the plaintiffs have no cause of action? O P D (2) Whether the suit is vexatious and the defendants are entitled to special costs? O P D (3) Whether the unregistered agreement to sell does not confer any rights on the plaintiffs ? O P D (4) Whether Muhammad Mukhtar defendant No. 1 executed the agreement to sell, dated 9-3-1978 in favour of the plaintiff and handed over the possession of the disputed property to the plaintiffs after receiving Rs.92,860/? OPP (5) Whether the plaintiffs are entitled to relief prayed for? O P P On 19-11-1992 the following issue was framed as an additional issue. (5-A) Whether the defendant No.2 is bona fide purchaser for value without notice of the suit property? On 18-4-1993, the learned Court framed an additional issue in the following words:-- (5-B)Whether the original agreement to sell, dated 9-3-1978 was actually lost? (6) Relief. The Trial Court decreed the suit vide its judgment and decree, dated 29-6-1994. The present appellants being aggrieved by the judgment and decree of the Trial Court, filed a consolidated appeal before the learned District Judge, Vehari, who vide his judgment and decree, dated 25-7-1995 dismissed the same, hence the present second appeal.

2. The learned counsel for the appellants contended that Agreement to Sell allegedly executed on 9-3-1978 is in violation of section 19 of the Colonization of Government Lands Act, 1912. He further stated that contract is not enforceable as the respondents were privy to the violation of section 19 of the Colonization of Government Lands Act, 1912. He relied upon 1981 SCMR

993. He further urged that sale-deed executed in favour of Mushtaq Hussain appellant was not challenged by respondent No. 1. and also declaration was not sought and both the Courts below did not cancel the sale-deed executed in favour of Mushtaq Hussain, therefore, decree of specific performance is not maintainable and is not sustainable in the eyes of law as is held by the Hon'ble Karachi High Court in "Syed Mithan Shah v. Khawaja Rafi Ullah and others" PLD 1975 Kar.

930. He further stated that original Agreement to Sell as well as original Power of Attorney have not been produced in the Court but their photo copies were produced by the respondent with objection of the appellants that documents not admissible. Both the Courts below did not consider this aspect of the case. He further urged that the suit was hit by the principle of res judicata as the respondents/plaintiffs filed previous suit on 15-2-1983 and this suit was subsequently withdrawn on 23-9-1987 and the Court did not give permission to file fresh. He further stated both the Courts below wrongly decided Issue No.2 against the appellant as Muhammad Mukhtar did not accept the execution of the Agreement to Sell and also the receipt but both the Courts below did not consider this aspect of the case at all. He further argued that unregistered Agreement after obtaining proprietary rights the appellant No. 1 sold the land in question for consideration through registered sale-deed to appellant No.2 therefore, the appellant-Mushtaq Hussain is a bona fide purchaser and is entitled to protection available to him under section 41 of the Transfer of Property Act 'but both the Courts below did not consider this aspect of the case.

3. The learned counsel for the respondents conceded that Agreement to Sell between the appellant No.2 and respondents regarding property in question did not advert to the terms of the tenancy, therefore, permission to be sought from the Collector is not necessary. It is the private settlement between the parties and he relied upon 1994 SCMR

470. He further contended that contents of the plaint revealed that plaintiffs have sought cancellation of sale-deed. He further stated that proprietary rights were conferred on 27-5-1989 in favour of appellant No.2 and sale-deed was executed on 29-5-1989. He relied upon Muhammad Sharif v. Sughran Bano 1984 SCMR 1139. He further contended that the judgment of Karachi High Court PLD 1975 Kar. 930 was distinguished by the Hon'ble Supreme Court in aforesaid case. He further contended that both the Courts below gave concurrent findings of fact; that appellants were in their knowledge regarding Agreement to sell, therefore, protection under section 41 of Transfer of Property Act is not available to the appellant No.2. He further contended that previous suit was withdrawn on the statement of the learned counsel for the respondents who categorically stated that the permission may be granted to withdraw this suit to file fresh one and in the light of the statement of the learned counsel the order of withdrawal may be read. He further contended that appellants did not produce the statement of Advocate and also judgments and decree before both the Court below; even the appellants did not file these documents in this Court through any application. He further contended that the respondents filed application before the Trial Court to produce secondary evidence regarding original Agreement to sell and Power of Attorney which was rejected. Subsequently the respondents being aggrieved filed revision petition before the learned District Judge, which was accepted with the direction to decide the application of respondents after recording evidence. The Trial Court after recording evidence allowed to produce secondary evidence. Both the Courts below concurrently allowed the respondents to produce secondary, evidence. He further contended that appellants failed to point out any illegality or misreading by both the Courts below, therefore, the second appeal is not maintainable. The learned counsel for respondents further contended that these documents are not maintainable at this stage as these documents were not placed on record through any evidence before the Trial Court as well as before the 1st Appellate Court. He further contended that question of filing suit of specific performance did not arise on 16-2-1983 at the proprietary rights were granted to appellant No. 1 on 27-5-1989. He further contended that plea of constructive res judicata was not taken in the written statement as well as before the 1st Appellate Court.

4. The learned counsel for the appellants in rebuttal stated that Issues Nos. l and 2 in the previous suit were exactly similar as Issue No.4 in the present suit which are reproduced hereunder:-- (1) Whether the defendant No. 1 rightly executed the Agreement to sell, dated 9-3-1978 in favour of the plaintiffs? (2) Whether defendant No received Rs. 92,860 from the plaintiffs? Issue No. 4 Whether Muhammad Mukhtar-defendant No. 1 executed the agreement to sell, dated 9-3-1978 in favour of the plaintiff and handed over the possession of the disputed property to the plaintiffs after receiving Rs. 92,860? The learned counsel for the appellants by comparison contended that principle of constructive res judicata is attracted. He further contended that both the Courts below misread the evidence of Ch. Mushtaq Ahmed P.W.10, who admitted in his statement that the previous two suits were filed by him on behalf of respondents/plaintiffs which were subsequently withdrawn. He further contended that by virtue of Article 2A of the Constitution technicalities cannot be hindrance in the way of justice.

5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. The contention of the learned counsel for the appellants of declaring a decree as invalid for want of sanction under section 19 of Colonization of Government Lands Act, 1912 is unfounded as the Hon'ble Supreme Court has set at right in Sher Muhammad Khan's case (1994 SCMR. 470): Muhammad Iqbal's case (PLD 1986 SC 70; PLD 1997 Lah. 709 and 1993 SCMR

145. This view was followed by the Various judgments of the Hon'ble Supreme Court as well as Hon'ble High Court, Similarly the contention of the learned counsel for the appellants that subsequent sale-deed executed between Mushtaq Hussain and appellants Nos. 1 and 2 inter se has not been cancelled and the decree for specific performance cannot be passed. This controversy has also been settled by the Hon'ble Supreme Court in Muhammad Shafi's case 1984 SCMR 1139. The contention of the learned counsel for the appellant that the previous suit filed by the respondent was withdrawn simpliciter, therefore, principle of constructive res judicata is attracted has also no force as the appellants have not raised this plea in their written statement as well as in the memorandum of appeal before the 1st appellate Court. Although the appellants have raised this ground in the memorandum of appeal before this Court. The appellants have filed these documents without permission of this Court and without application for additional evidence. Therefore, the objection of the learned counsel for the respondents has force that these documents are not admissible and the Court cannot take notice of these documents. It is basic and fundamental principle of that a thing is to be done in a particular manner it must be done in that way c not otherwise. Reliance can be placed upon PLD 1971 SC

61. It is settled principle of law that technicalities cannot hinder in the way of justice. In the interest of justice and fair play. I have examined the documents file by the appellants alongwith this second appeal. It is admitted fact that learned counsel the respondents in his statement stated that he wants to withdraw the suit the permission to file fresh but the learned Court simply dismissed the suit as withdrawn The order is to be read keeping in view the statement of the counsel of the respondents, therefore, principle of res judicata is not attracted as the learned counsel for the respondent No. 1 at the time of withdrawing the suit categorically stated as follows:-- Therefore, the principle of res judicata is not attracted. Both the Courts below concurrently after appreciation of evidence gave findings of fact against the present appellants and the learned counsel for the appellants failed to point out' any piece of evidence which was misread or non-read by both the Courts below and the Hon'ble Supreme Court of Pakistan has laid down a principle to interfere in the concurrent findings of fact in the second appeal in "Mussarai Sultana v. Muhammad Saeed (1997 PSC cases 546) in the following terms:-- "It is well-settled that interference in concurrent findings of facts can be made by the High Court only when evidence is misread or based on inadmissible evidence or there existed an error or defect in the procedure which may possibly have introduced an error or defect in the F decision on merits."

6. In mew of what has been discussed above, there is no merit in this appeal, therefore, the same is dismissed with no order as to costs. C.M.A./M-691/L Appeal dismissed.