2002 PLP 3153 (YLR)

Date of hearing: 18th October, 2001. This judgment shall decide Regular Second Appeal No.77 of 1995 and Writ Petition No. 16027 of 1995 together, as both the cases relate to the same property and are between the same parties.

2. Through this R.S.A. appellant has challenged judgment and decree dated 28‑1‑1992 passed by learned Civil Judge, Ferozewala decreeing respondent's suit for specific performance and judgment and decree dated 4‑10‑1995 of the learned Additional District Judge upholding the judgment and decree of the learned Civil Judge in dismissal of appeal filed by the present appellant. 2.A. Learned counsel for the appellant contended that the learned Courts below have committed a material irregularity as well as misread the evidence qua the proof of Exh.P.1 and Exh.P.2, i.e. the alleged agreement to sell and Iqrar Nama. He further submitted that the appellant was not in the country when Exh.P.1 was stated to have been male by appellant's wife Mst. Bashiran Bibi with the respondent. And that the subsequent ratification through Exh.P.2, i.e. Iqrar Nama executed by appellant does not amount to ratification of the basic and essential defect in Exh.P.1. and that appellant's wife Bashiran Bibi, being incompetent as non‑owner and non‑agent of the appellant, could not have entered into Exh.P.1 to confer any right and to hand over the possession to respondent No.1. And said Mst. Bashiran Bibi was never impleaded as a party in the suit. And further that Exh.P.1 and Exh. P.2 have not met the mandates of proof as prescribed in Article 17 of Qanun‑e -Shahadat Order, 1984. It is further contended that the writ petition was filed on dismissal of appellant's (petitioner's) ejectment petition and appeal on the basis of non‑existence of relationship of landlord and tenant. Contrarily, learned counsel for respondents supported the impugned judgments and decrees.

3. I have attended to the arguments of the learned counsel for the parties and also examined the record. Both the learned Courts below concurrently found all the questions of facts against the appellant/petitioner. The learned Courts below after thorough and minute analysis and appraisal of evidence categorically held that Exh.P.1 and Exh.P.2 were duly and properly made between the parties. And that the appellant through Exh.P.2 entered into an Iqrar Nama adopting the contents and conditions of Exh.P.1 and payments made thereunder. Wherefor, Bashiran Bibi was not a necessary and proper party. In any‑case, she appeared as D.W.2. It was held that respondent No.1 has proved beyond doubt payment of Rs.80,000 to Bashiran Bibi out of total consideration of Rs.1,00,000 and Rs.18,000 to the appellant at the time of execution of Exh.P.2. Exh.P.1 and Exh.P.2 were attested by Bashir Ahmed, Muratab Ali Shah and Saleem Masih while scribe Haji Fazal‑ur‑Rehman also appeared as a witness (P.W.4). The said witness i.e. P.W.4 credibly, consistently and coherently stated that he, on asking of the parties, wrote Exh.P.1 and Exh.P.2 and payments were made to the appellant party in his presence and the documents were duly thumb‑marked and signed by the witnesses as well as by the parties before him. Contrarily, the evidence presented by the appellant, was held to be shaky, non‑plausible and non‑committal. Learned counsel for the appellant endeavoured to argue that a different version could also be inferred from the statement of the witnesses in review and re survey of the said evidence.

4. I am afraid, this Court cannot interfere to undertake an exercise of forming a version different from that concurrently formulated by the learned Court below. The evidence examined does not show that the learned Courts below have either ignored any evidence or misread the evidence. In view or concurrent findings of the Courts below appellant is not entitled to maintain his second appeal when no legal infirmity, in terms on the applicable provisions of law, has been shown in the impugned judgments and decrees.

5. Since the main stay of the case of the appellant/petitioner in the writ petition was non‑execution of Exh.P.1 and Exh.P.2, therefore, on findings that the said documents were legally and validly made between the parties, issues involved in the writ petition also stand decided.

6. In view of the above, this second appeal as well as Writ Petition No. 16027 of 1995 are dismissed with no order as to costs. H.B.T./R‑145/L Appeal dismissed.