P L D 2011 Supreme Court 119 (PLP)

MIAN SAQIB NISAR, J.

In the instant matter. which arises out of a suit for specific performance, filed by the respondents (except respondent No.3, who was a vendor/defendant of the. case) leave to appeal was granted on 22-1-2007 to the appellants primarily to consider the question: "whether the impugned judgment of the High Court and the courts below suffered from misreading and non-reading of the evidence on record".

2. The factual backdrop of the case is that the land measuring 9 kanals and 4 marlas, situated at village Packa Arah, Tehsil and District Sialkot, was a part of joint khata, owned by Mst. Nasim Fouzia, respondent No.3, who vide registered sale-deed dated 3-4-1976 sold it to the appellants for an amount of Rs.55,

000. Respondents Nos. 1 and 2 claiming that, prior to the above, the lady vide sale agreement dated 19-10-1971 had agreed to sell the land measuring 8 kanals, 11 marlas to them for an amount of Rs.24,000 having received Rs.5,000 as earnest money at the time of the execution of the instrument, they thus filed a suit for the specific performance against respondent No.3, as the vendor and the appellants being the subsequent vendees. Respondent No.3, in her written statement, joined issue denying the execution of the agreement to sell, rather claimed that the plaintiffs in the garb of a receipt for the payment of Hisa Batai, which they were obliged to pay to her -as the tenants procured her signatures on a paper which was fabricated/manoeuvered as the alleged agreement. She in this behalf set out the defence of being an illiterate pardanasheen lady and consequently denied the valid execution of the instrument. On the other hand, the appellants defended the suit primarily by setting out the plea of being the bona fide purchasers of the suit-land through a registered sale-deed duly executed in their favour by respondent No.3 and .urged the protection under section 27(b) of the Specific Relief Act. It may, however, be pertinent to mention here that about the valid execution of the agreement to sell the payment of earnest money to respondent No.3, the appellants responded to the corresponding paragraphs of the plaint by stating: ﻻﻋﻠﻤﻰﻫﮯﻟﻬﺬﺍﺍﻧﻜﺎﺭ ﻫﮯ Out of the pleadings of the parties, five issues were framed, those relevant to the matter are: (i) Whether the alleged agreement to sell was executed by the defendant No.1 in favour of the plaintiff? OPP. (iii) Whether the defendants Nos.2 to 6 were protected by section 27 of the Specific Relief Act, respecting the sale of disputed land in their favour? OPD 2 to

6. Parties led their evidence. The respondents after having examined the scribe of the agreement to sell (Exh.P/ 1) as P.W.1 and one of the marginal witnesses as P.W.2 closed their evidence in the affirmative on issue No. 1 and others, while reserved their right to produce evidence in rebuttal qua the issues the onus whereof was placed on the defendants, especially Issue No. iii. Mst. Nasim Fouzia, the vendor appeared as DW-II; she though admitted her signatures .on Exh.P/1, however reiterated her stance which was propounded in the written statement; she also stated to have accompanied the appellants to the land in question, apprised the respondents about the sale in their favour and sought attornment for them, which according to her they acknowledged and never avowed about the agreement to sell. More or less to the same effect is the evidence led by the appellants on Issue No. iii, but they have not adduced any evidence in rebuttal of Issue No.

1. It may however be mentioned that one of the appellants while appearing as DW-3 has deposed that at the time of their visit to the suit land one Muhammad Shafi was present in whose presence the respondents acknowledged themselves to be the tenants and never asserted about their sale agreement. But Shafi was not examined by them in support of their plea, whereas the gentleman has appeared in rebuttal from respondents' side as P.W.4 to depose that the petitioners were apprised about the agreement to sell between the respondents and Mst. Nasim Fouzia. Be that as it may, the learned trial Court while returning the findings in favour of the plaintiffs on Issue No.i (and other issues which are not of much relevance) but finding that issue No. iii has been proved by the appellants, dismissed the suit for the specific performance, however the Court decreed the suit of the respondents against respondent No.3 directing her to return the earnest money amounting to Rs.5,000 to them.

3. This judgment and decree was challenged in appeal by the respondents. But no cross-appeal or cross-objections against the aforesaid partial decree or regarding any of the issues going against the defendants including Issue No.i was filed by them. Anyhow, the learned appellate Court by accepting the appeal of the respondents while maintaining the findings of the trial Court on Issue No.i and all other issues, but by reversing the finding on Issue No. iii concluded that the appellants are not the bona fide purchasers, thus, they cannot seek the protection of section 27(b) of Specific Relief Act, therefore the suit for. the Specific Performance was decreed. Being aggrieved of the noted judgment and decree the appellants, and not Mst. Nasim Fouzia, filed an R.S.A., which has been disallowed by the learned High Court vide impugned judgment/decree. Hence, this appeal by leave of the Court.

4. It has been primarily argued by the learned counsel for the appellants that the respondents were obliged under the law to prove the valid execution of the agreement to sell, which they have miserably failed, because respondent No.3 was a pardanasheen illiterate lady, she had no independent advise of any adult male member of her family, therefore, only for the reason that her signatures are admittedly affixed on Exh.P/1, would not prove the contents of the instrument, particularly in the situation when the same was not even read out to her.

5. We do not find any substance in this plea, for the reason that all the three Courts below have given the findings about the due execution of the agreement to sell by Mst. Nasim Fouzia in favour of the respondents, which is founded on the basis of proper appreciation of the evidence available on the record and we are not persuaded if any misreading or non-reading has been committed by the courts in this regard. It is settled law that appreciation of the facts/evidence on the record is the privilege and domain of the courts of facts and the view set out by such courts cannot be interfered by the apex Court, while examining the decisions in its instant jurisdiction only for an abstract reason that a different conclusion could possibly be drawn on account of the same set of facts/evidence. In other words, to interfere in the factual findings of the Courts at this stage is permissible under the law only if such findings suffer for any vice of misreading or non-reading, which is neither pointed out by the learned counsel nor is visible in the present case. Not only the first two courts, rather the High Court has also analyzed the evidence regarding the execution of the Exh.P/1 and affirmed the findings of the said Courts. It may be advantageous to add that from the signatures of Mst. Nasim Fouzia on Exh.P/1 she does not appear to be an illiterate woman; the document by its scribe (P. W.1) is stated to have been read over to her and there is no effective cross-examination to this deposition; besides, when the initial onus of proving Exh.P/1 was discharged by the plaintiff through the testimonies of the scribe (P.W.1) of the document and P.W.2 the marginal witness thereof, in the peculiar situation that Mst. Nasim Fouzia has admitted her signatures on Exh.P/1, she was obliged to lead credible evidence that fraud and deception was orchestrated in obtaining her signatures, but this has not been so done through adequate and convincing evidence. The facts stated by her that how and why she went to the ketchery and the circumstances in which she affixed the signatures on Exh.P/1 does not appeal to the reason.

6. As mentioned earlier it is only Mst. Nasim Fouzia who had joined issue of the execution of the agreement to sell with the plaintiffs, which was found in favour of the plaintiffs and the decree for the return of Rs.5000 against her was structured thereupon, but it is not spelt out from the record if she ever challenged that decree of the trial Court through cross appeal or cross objection. She though could have verbally challenged the findings on any issue going against her at the time of c hearing of the respondents appeal while supporting the decree, but it was not legally permissible to assail the decree without cross appeal etc. therefore, such a decree for all intents and purposes which was founded on the findings of the trial Court on Issue No. i had not only attained finality against her, but also the appellants who were/are the successors in interest of the lady. Furthermore, she never challenged the judgment and decree of the first appellate Court, in second appeal, with the legal consequences that she accepted the decisions of the Courts regarding the execution of the Exh.P/1 which in law are also binding upon the appellants as well, for the reason that the appellants as mentioned earlier had never joined issue with the plaintiffs about the execution of the agreement to sell, rather made an evasive denial in their written statement expressing their lack of knowledge in this regard, which is no denial as per the provisions of Order VIII Rules 3, 4 and C.P.C., rather such a denial may be constructed as an admission on their part. Be that as it may, in the judgments of all the courts, especially of the High Court the plea now raised has been exhaustively dealt with and we are satisfied that the findings and the reasoning in this respect are in consonance with the settled principles of law and also the evidence on the record.

7. As far as the plea of the appellants regarding bona fide purchasers of the suit-land and, thus, having the protection of section 27(b) of the Specific Relief Act is concerned, suffice it to say that again there are concurrent findings of three Courts, which are not shown to be the result of any misreading or non-reading of the evidence. The respondents-plaintiffs were admittedly in possession of the suit-land and, this was a sufficient notice to the appellants to have thoroughly inquired about their possession, which was not so probed by them as they have failed to produce any independent witness for this. Though they claim to have visited the suit-land along with Mst. Nasim Fouzia, but even, according to their own admission; Muhammad Shafi was present there; it is alleged that he has also apprised the appellants that the plaintiffs were the tenants of Mst. Nasim Fouzia; but Muhammad Shafi was not produced by the appellants and no reasonable and plausible explanation for this omission is forthcoming on the record, this brings the case within the realm of withholding the best evidence, whereas on the contrary Muhammad Shafi has entered appearance in rebuttal as P.W.4 and he has controverted the stance of the appellants by testifying that the appellants were told about the sale agreement; such evidence of Muhammad Shafi has not been shattered in cross-examination by the appellants, he seems to be an independent witness whose testimony has been appreciated and believed by the Courts below in giving findings against the. appellants on Issue No. iii. It may be reiterated that no error of reading of the evidence on this issue too has been established.

8. As regards, the last submission that the respondents had paid a meager amount of Rs.5,000 as against the appellants, who bought the land for an amount of Rs.55,000, and that the respondents are also in possession of the land since long enjoying the yield thereof thus, in such a situation, they are not entitled to the grant of discretionary decree in their favour. It may be held that the rule of discretion in the specific enforcement cases should not be arbitrarily applied rather it should be invoked to promote fairness and equity. The respondents-plaintiffs have established on record to have entered into an agreement for the purchase of the suit land and the payment of Rs.5,000 as earnest money to the vendor. It is not established, if they were delinquent or failed to perform any of their obligation under the sale agreement and, thus, are disentitled to the equitable relief; only for the reason that the appellants had made full payment to the vendor, but when they have not established to be the bona fide purchasers, the discretionary relief should not be withheld from the plaintiffs, otherwise it would tantamount to giving undue premium to the subsequent vendee, who though has purchased the property with the notice of the prior agreement to sell, and is found disentitled by the Courts to the protection under section 27(b) of the Specific Relief Act, which is the only provision in law to safeguard his rights, yet he be given guerdon and rewarded and the plaintiffs who otherwise have proved their case and are not at fault in any manner whatsoever must be non suited. This shall be sheer arbitrariness, which is sworn foe of discretion.

9. In the light of what has been stated above, this appeal has no merit and is hereby dismissed. C.M.A. is accordingly dismissed. No order as to costs. M.H./G-13/S Appeal dismissed.