2017 PLP 70 (CLCN)

MUHAMMAD HUMAYON KHAN, J.

This civil revision under section 115, C.P.C. is filed against the Judgment and Decree dated 03.09.2009 passed by the learned IIIrd Additional District Judge, M. Mathelo, in Civil Appeal No.30 of 2008, whereby, the learned Additional District Judge dismissed the appeal of the applicant and upheld the Judgment dated 20.05.2008 and Decree dated 27.05.2008 passed by the learned Senior Civil Judge, Ubauro, in F.C. Suit No. 07 of 2007.

2. The relevant and material facts of the case for the disposal of this revision application are that the respondent No.1 filed suit for specific performance of contract and permanent injunction against the respondent No. 2 on 06.02.2007. The case pleaded in the plaint is that the respondent No.1 is owner in possession of land bearing Survey No.70(2-32) acres to the extent of (1-36) acres, situated in Deh Sonan, Taluka Ubauro, District Ghotki and the respondent No.2 was owner of remaining area admeasuring (0-36) acres from the said survey (hereinafter referred to as "the suit land"). It is further pleaded that previously the respondent No.2 had agreed to sell (0-20) acre out of the said suit land to the respondent No.1 but subsequently the respondent No.2 turned greedy to extort more money and therefore the respondent No.1 filed F.C. Suit No. 28 of 2005 for specific performance of contract. It is further pleaded that subsequently the respondents Nos. 1 and 2 arrived at compromise out of Court and entered into fresh sale agreement dated 08.09.2006 regarding sale of the suit land. It is further pleaded that according to fresh agreement, the respondent No.2 agreed to sell the suit land to the respondent No.1 for the total sale consideration of Rs.10,00,000/-. It is further pleaded that the said sale agreement dated 08.09.2006 was executed in presence of witnesses after receiving advance sale consideration of Rs. 2,00,000/- and possession of the suit land was handed over by the respondent No.2 to the respondent No.1. It is further pleaded that according to the terms and conditions of the said sale agreement, Rs. 4,00,000/- was to be paid on 11.09.2006 and remaining Rs. 4,00,000/- was to be paid on 15.12.2006 and thereafter the suit land was to be transferred in favour of the respondent No.1. It is further pleaded that the respondent No.1 paid Rs.4,90,000/- on 12.09.2006, making in all the total sum of Rs.6,90,000/-. It is further pleaded that on 15.12.2006, the respondent No.1 along with witnesses approached the respondent No.2 for transfer of Khata of suit land in his favour after receiving balance sale consideration of Rs.3,10,000/- but the respondent No.2 avoided on one or the other pretext and finally refused to perform the said sale agreement and therefore the respondent No.1 filed the instant suit against the respondent No.2, wherein, the respondent No.1 claimed the following reliefs:- i) To direct the Defendant/respondent No.2 to transfer "Khata" of the suit land bearing Survey No. 70 (2-32) acres to the extent of (0-36) acres, situated in Deh Sonan, Taluka Ubauro, District Ghotki, while executing sale deed duly registered after receiving remaining sale consideration Rs.3,10,000/- and in case of his failure to do so the needful may be got done through Nazir of this Hon'ble Court. ii) To grant perpetual injunction in favour of the plaintiff/ respondent No.1 thereby restraining the Defendant/ respondent No.2 from interfering with the peaceful possession pertaining to suit land or dispossessing the plaintiff/respondent No.1 from the same or any part thereof in any manner whatsoever, moreover restraining the defendant/respondent No.2 from selling, transferring, gifting, exchanging or alienating the suit land in favour of anybody else except the plaintiff/respondent No.1 or mortgaging, leasing or encumbering the same in any manner whatsoever. iii) To award costs of the Suit. iv) To grant any other equitable relief which deems fit and proper in the circumstances of the case.

3. The respondent No.2 filed his written statement, wherein, the respondent No.2 raised legal objections regarding jurisdiction of Court and maintainability of suit. The respondent No.2 denied the entire case of the respondent No.1 and pleaded that no compromise was arrived between the respondents Nos. 1 and 2 and in fact the previous F.C. Suit No. 28 of 2005 was dismissed for non-prosecution and no permission to file fresh suit was granted. It is further pleaded that the respondent No.2 has not sold out the suit land to the respondent No.1 nor accepted any earnest money, hence question of remaining part of payment does not arise. It is further pleaded that the said sale agreement is fraudulently made by the respondent No.1 and the respondent No. 2 is in peaceful possession of the suit land. In the end, the respondent No.2 prayed for the dismissal of the instant suit.

4. Originally, the applicant was not party to the instant suit but he was joined as defendant No.2 upon his application under Order I, Rule 10, C.P.C. The applicant filed his written statement, wherein, he raised legal objections regarding maintainability of suit and limitation. The applicant denied the entire case of the respondent No.1 and pleaded that the respondent No.2 sold out the suit land to the applicant through sale agreement but later on refused to perform the said agreement and therefore the applicant filed civil suit against the respondent No.2. It is further pleaded that the respondent No.1 filed the instant suit with ulterior motive to usurp the valuable land of the applicant as he is first purchaser and both the respondents Nos. 1 and 2 are in collusion to give loss to the applicant in as much as both of them have committed fraud with the applicant, who is real owner of the suit land. It is further pleaded that it was in the knowledge of the respondent No.1 that the suit land has already been sold out to the applicant by the respondent No.2. In the end, the applicant prayed for the dismissal of the instant suit.

5. The learned Senior Civil Judge framed the following issues:- i) Whether suit of plaintiff is maintainable and plaintiff have cause of action to file the present suit? ii) Whether suit of plaintiff not properly valued? iii) Whether this Court has jurisdiction to entertain the suit? iv) Whether suit of plaintiff is barred by law? v) Whether after compromise of private parties of F.C.S. No.28/2005 Re: (Muhammad Bachal v. P.O. Sindh and others) fresh agreement was executed by plaintiff and defendant No.1 on 08.09.2006 regarding suit land in consideration of Rs.10,00,000/- (ten lac) in presence of witnesses and received advance sale consideration of Rs.2,00,000/- and handed over possession of suit land by defendant Naseer Khan to plaintiff, and thereafter, plaintiff paid Rs.4,90,000/- on 12.09.2006 on receipt and acknowledging the receipt to Rs.6,90,000/-? vi) Whether defendant No.1 sold out suit land to defendant No.2 Deen Muhammad through sale agreement dated 15.01.2005 and suit of Deen Muhammad for specific performance of contract is pending in this Court against defendant No.1 as well as plaintiff? vii) Whether plaintiff is entitled to the relief claimed? viii) What should the decree be?

6. The respondent No.1 examined himself and four witnesses namely (i) PW-1-Mohammad Asif, (ii) PW-2-Ghulam Nabi, (iii) PW-3-Shabbir Ahmed and (iv) PW-4-Wazir Ahmed and produced documents. On the other hand, the respondent No.2 examined himself only and produced documents. The applicant examined himself and four witnesses namely (i) DW-1-Abdul Hakeem, (ii) DW-2-Muhammad Ibrahim, (iii) DW-3-Jamaluddin and (iv) DW-4-Altaf Hussain Shah but the applicant did not produce any document in evidence.

7. The learned Senior Civil Judge by his Judgment dated 20.05.2008 decreed the instant suit for specific performance of contract against the respondent No.2 and directed the respondent No.2 and applicant to handover possession to the respondent No.1 within one month.

8. Against the aforesaid Judgment, the respondent No.2 did not file any appeal. However, the applicant filed Civil Appeal No. 30 of 2008, which was dismissed by the learned Additional District Judge vide Judgment dated 03.09.2009.

9. Against the concurrent findings of both the Courts below, the applicant has filed this revision application under section 115, C.P.C. However, the respondent No.2 has not filed any second appeal or revision application against the Judgment dated 03.09.2009.

10. I have heard the learned counsel for the parties and perused the material available on the record.

11. The learned counsel for the applicant raised the following contentions:- i) Since the respondent No.1 has not proved the said sale agreement, he was not entitled for specific performance and accordingly the discretion under section 22 of the Specific Relief Act was exercised arbitrary by both the Courts below. In support of this contention, he relied upon the cases of (i) Ashiq Hussain and others v. Nisar Ali and others (1969 SCMR 341) and (ii) Mst. Kulsoom Bibi and another v. Muhammad Arif and others (2005 SCMR 135); ii) The respondent No.1 has not claimed relief for possession and therefore both the Courts below had exceeded their jurisdiction to grant relief of possession. However, he has not cited any case-law in support of his contention; iii) Revision application is maintainable against the concurrent findings of both the Courts below and the High Court has power to re-appraise the evidence and can set-aside the concurrent findings of both the Courts below. However, he has not cited any case-law in support of his contention.

12. On the other hand, the learned counsel for the respondent No.1 raised the following contentions:- i) The applicant has no locus standi to file appeal or revision against the decree for specific performance of contract when the decree has been passed against the respondent No.2 and therefore this revision application is not maintainable in law. In support of this contention, he relied upon the cases of (i) Mst. Rasheeda Begum through her L.Rs. v. Mst. Saeeda and others (1993 CLC (Karachi) 1263) and (ii) Fazal Dad through L.Rs. v. Adnan Ali and 8 others (2013 CLC (Supreme Court (AJ&K) 754); ii) Since the respondent No.1 has proved the said sale agreement through attesting witnesses, the discretion under section 22 of the Specific Relief Act was rightly exercised by both the Courts below. In support of this contention, he relied upon the case of (i) Mst. Nagina Begum v. Mst. Tahzim Akhtar and others (2009 SCMR 623); iii) Since the applicant has not produced the alleged sale agreement in his favour or copy of his suit for specific performance of contract, judicial notice cannot be taken of a document which is not a part of the record. In support of this contention, he relied upon the case of (i) Muhammad Younis and others v. Essa Jan and others (2009 SCMR 1169); iv) Relief of possession is incidental to the main relief of specific performance and therefore the same should be granted even not prayed for in the plaint. In support of this contention, he relied upon the cases of (i) Khadim Hussain and 2 others v. Waris Ali and another (2005 CLC (Lahore) 1144) and (ii) Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984); v) Revision application against the concurrent findings of both the Courts below is not competent and the High Court has no power to re-appraise the evidence and cannot set-aside the concurrent findings of both the Courts below. In support of this contention, he relied upon the cases of (i) Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304), (ii) Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984), (iii) Muhammad Waqas Rafi Bhatti v. Mst. Naseem Rahat and another (2011 YLR (Lahore) 1982), (iv) Mirza Shakeel Baig v. Jaffar Baig (2012 YLR (Sindh) 385), (v) Farmanullah and 6 others v. Ghulam Habib (2015 YLR (Peshawar) 2072) and (vi) Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.-W.F.P. Peshawar and others (2015 SCMR 799).

13. However, the learned counsel for the respondent No.2 argued that both the applicant as well as respondent No.1 have committed fraud with the respondent No.2 and both the sale agreements are bogus in as much as the respondent No.2 never sold the suit land to any party including the applicant and respondent No.1. Upon my query that why the respondent No.2 did not file any appeal or revision against the decree for specific performance of contract, his reply was that he was not the advocate for the respondent No.2 at the relevant time and the advocate, who appeared for him in the instant suit did not advise the respondent No.2 for filing appeal. I am not satisfied with this reply for the simple reason that it was the respondent No.2, who should have filed appeal or atleast cross objections in Civil Appeal No. 30 of 2008 filed by the applicant against both the respondents. Accordingly, non-filing of appeal by the respondent No.2, being the real owner of the suit land, amounts to accepting the Judgment and Decree passed in the instant suit and therefore he is estopped in law to challenge the same in any subsequent stage in any proceedings.

14. The first important point for determination in this revision application is that whether the applicant has locus standi to file appeal or revision against the decree for specific performance of contract when the decree has been passed against the respondent No.2. To resolve this vital point, it is necessary to discuss relevant admitted or proved facts, which are as follows:- a) Admittedly, the respondent No.1 filed instant suit for specific performance of contract against the respondent No.2 on the footing of agreement of sale dated 08-09-2006 executed between the respondents Nos.1 and 2; b) Originally, applicant was not party to the instant suit but he was joined as defendant No.2 upon his application under Order I, Rule 10, C.P.C.; c) In written statement, the applicant pleaded that he is the first purchaser of the suit land by sale agreement executed between him and the respondent No.2, who failed to perform the said agreement and therefore the applicant filed suit for specific performance of contract against the respondent No.2. It is pertinent to mention here that the applicant neither produced the said sale agreement nor copy of the plaint along with his written statement; d) The applicant examined himself as Exhibit 60 but neither produced the said sale agreement nor copy of the plaint in his evidence; e) The instant suit was decreed against the respondent No.2 by the learned Senior Civil Judge vide Judgment dated 20-05-2008 and Decree dated 27-05-2008; f) The respondent No.2 did not file any appeal against the said Judgment and Decree passed in the instant suit; g) However, the applicant filed Civil Appeal No. 30 of 2008. Even in this appeal, the respondent No.2 did not file any cross-objections. This appeal was dismissed by Judgment and Decree dated 03-09-2009; h) Against the aforesaid Judgment and Decree, the applicant filed this revision application. It is pertinent to mention here that the respondent No.2 neither filed any revision application nor cross-objections in this revision application; i) The applicant filed F.C. Suit No.03 of 2007 against the respondent No.2 and others for specific performance of contract, which was withdrawn on 02-04-2008; j) Against the aforesaid Order dated 02-04-2008, the applicant filed an application for restoration of the said suit which was dismissed by Order dated 18-03-2009; k) The respondent No.1 filed Execution Application No. 07 of 2010 against the respondent No.2 and applicant, which was allowed by Order dated 26-05-2010; l) Against the aforesaid Order dated 26-05-2010, the applicant filed Civil Revision No. 27 of 2010, which was dismissed by the learned IV Additional District Judge, Mirpur Mathelo, vide Order dated 29-09-2010; m) It is pertinent to mention here that the respondent No.2 neither filed objections in the said execution application nor filed any appeal or revision against the said Order dated 26-05-2010 passed in the said execution application. In view of the above admitted position, I came to the conclusion that the applicant has no locus standi to file appeal or revision against the decree for specific performance of contract when the decree has been passed against the respondent No.2. Accordingly, the appeal of the applicant before the learned Additional District Judge was not competent and this revision application is also not competent. It is a settled law that the question of legality or validity of a sale agreement can be raised only by the executant or a person having a right in the property and a third person has no right to challenge the same on the ground that he is in possession of the property and hence the third person cannot maintain an appeal only on the ground that he is in the possession of the property. Reliance can be placed upon the cases of (i) Mst. Rasheeda Begum through her L.Rs. v. Mst. Saeeda and others (1993 CLC (Karachi) 1263) and (ii) Fazal Dad through L.Rs. v. Adnan Ali and 8 others (2013 CLC (Supreme Court (AJ&K)) 754).

15. It is well settled law that relief by way of delivery of possession in a suit for specific performance of contract would spring out of contract for sale and would be incidental to main relief of specific performance granted in the suit and it is not at all necessary to make a specific prayer for possession. Reliance can be placed upon the cases of (i) Birgis Jahan Bajiga Malik v. Muhammad Hasan and others (PLD 1964 Dacca 202), (ii) Momtazul Karim and others v. Abu Hussain and another (1970 SCMR 816), (iii) Khadim Hussain and 2 others v. Waris Ali and another (2005 CLC (Lahore) 1144) and (iv) Mst. Yasmeen Riaz through Special Attorney v. Riaz Ahmed and 7 others (2016 YLR (Lahore) 321).

16. Apart from this, to attract the provisions of section 115, C.P.C., the applicant has to satisfy this Court that the subordinate Courts have: a) exercised a jurisdiction not vested in them by law, or b) failed to exercise a jurisdiction so vested, or c) acted in the exercise of the jurisdiction illegally or with material irregularity. The learned counsel for the applicant has not been able to point out any illegality or irregularity committed by both the Courts below. However, I have carefully gone through the pleadings and evidence of the parties and both the Judgments of the Courts below and I came to the conclusion that both the Courts below have exercised discretion under section 22 of the Specific Relief Act on sound reasons, which is neither perverse nor arbitrary nor inequitable. It is well settled that specific performance, by no means, absolute right but one which rest entirely in judicial discretion and always with reference to the facts of a particular case and where Trial Court has exercised its discretion in one way and that discretion has been judicially exercised on sound principles and the decree is affirmed by the Appellate Court, the High Court in second appeal or revision will not interfere with that discretion, unless same is contrary to law or usage having the force of law. Reliance can be placed upon the cases of (i) Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 Supreme Court 344) and (ii) Naseer Ahmed Siddique through Legal Heirs v. Aftab Alam and another (PLD 2011 Supreme Court 323).

17. In these circumstances, both the Courts below have exercised their jurisdiction in accordance with law and have not committed any illegality and irregularity in deciding the instant suit and accordingly my considered view is that this revision application under section 115, C.P.C. is not competent against the concurrent findings. My this considered view finds support from the cases of (i) Muhammad Bux v. Muhammad Ali (1984 SCMR 504), (ii) Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 Supreme Court 88), (iii) Muhammad Nawaz and others v. Muhammad Sadiq and another (1995 SCMR 105), (iv) Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139), (v) Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304) and (vi) Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984).

18. In view of the above discussion, this revision application along with listed applications was dismissed with costs by short Order dated 03.10.2016 and the above are the reasons for the said short order. ZC/M-173/Sindh Petition dismissed.