P L D 2002 Supreme Court 293 (PLP)

2. Precisely stating facts of the case are that appellant filed Civil Suit No.414-1 of 1989 for specific performance of agreement dated 14-11-1968 on the averments that respondent (defendant) is his real brother. Both appellant and defendant came to Pakistan at the time of partition alongwith their families. As parties were landless, therefore, appellant got allotted 6-1/2 acres of land situated in Square No.68, Killa No.528 and Square No.29 Killas Nos. 16, 17/2, 25 in Chak No.285/GB, owned by Government under Guzara Scheme. As at the relevant time respondent was minor, therefore, appellant made the land cultivable. In the year 1956-57, Government allotted half land in Square No.68 to some other person and also auctioned the land of Square No.29, so the respondent's allotment remained only up to the land in Square No.68, Killas Nos.51/2 to 8/2. However, subsequently with the efforts of appellant 52 Kanals, 13 Marlas of land was allotted to respondent from Square No.66, Killas Nos. 15, 16, 17, 18/2, 23/2, 24 and 12 as alternate. Appellant used to cultivate total land. It was agreed by the respondent vide agreement dated 14-11-1968 that if the appellant bore half expenditure of the disputed land the former would pay half share of the price to him in instalments and would make the land cultivable and he would transfer half share of disputed land entering into Square No.66, Killas Nos.23/2, 24, 25 and Square No.68, Killas -Nos.5/2 and 8/2. Later on due to weak financial position of the respondent, the appellant gave possession of land Square No.66, Killa No.25, with the understanding and at the instance of Brothery that when ownership rights will be confirmed in favour of respondent, he would deliver back possession of this land to appellant. After execution of agreement the appellant used to pay his half share of rent regularly. In 1974 when Government granted permission for deposit price in instalment, the appellant started depositing the same. At last, in November 1989 the appellant deposited total amount of Rs.16,220 to the Government. On 22-11-1989, sale-deed was confirmed in favour of respondent. After confirmation of sale-deed the appellant through Punchiat requested the respondent to transfer his share of land in his favour as per agreement but he refused to do so.

3. The suit was contested by respondent vehemently denying claim of the appellant. It was agreed by him that no cause of action has accrued to appellant to institute the suit; the agreement was ab initio void under section 19 of Colonization of Government Lands (Punjab) Act, 1912. Besides the suit has not been properly valued for the purpose of court-fee and jurisdiction and the suit has been filed to harass the respondent. He also averred that it was agreed between the parties that they would execute lease agreement but the appellant collusively got executed agreement dated 14-11-1968 instead of agreement for lease.

4. On 27-1-1990 respondent also instituted a suit for declaration and cancellation of alleged agreement to sell dated 14-11-1968 being illegal based on fraud consequently ab initio void and ineffective qua his rights. It was also stated that the respondent has paid the total price of the land and got registered sale-deed No. 1121 in his favour on 22-11-1989. In November, 1989 appellant got some share of disputed land from respondent. It was agreed between the parties that a lease deed will be executed but the appellant collusively, fraudulently and in connivance with writer and marginal witnesses got executed disputed agreement to sell. The respondent came to know regarding execution disputed agreement on receipt of notice of the suit filed by appellant for specific performance of contract instituted by him. The appellant contested the suit and denied the claim of the respondent.

5. By means of order dated 20-7-1992 the suits were consolidated by the trial Court as question of law and facts involved in both the suits were similar-On the pleadings of the parties, after striking issues, the trial Court recorded evidence and consequently by means of judgment and decree dated 26-4-1994, the suit filed by the appellant was decreed and the suit filed by respondent was dismissed. The respondent being aggrieved from the judgment and decree of the trial Court filed Civil Appeals Nos.50-13 and 51-13 of 1997 in the Court of District Judge, Toba Tek Singh who dismissed the same vide judgment and decree dated 16-12-1997. The respondent instituted Civil Revisions Nos.2098 and 2099 of 1997 before the Lahore High Court, Lahore, which have been allowed as per impugned judgment, dated 19-4-2000. Thus, instant proceedings.

6. It may be noted that while granting leave to appeal the operation of the impugned order was suspended and status quo relating to possession of appellant over the land in dispute was ordered to be maintained. Subsequent thereto appellant moved Criminal Original No.15-L of 2000 with the prayer Jo initiate proceedings of contempt of Court against respondent No. l and seven others for forcibly taking over possession of property from him. The respondent and others have repudiated the allegations of contempt of Court by filing concise statement. This matter, however, will be dealt with later on after decision of instant appeals.

7. Learned counsel for appellant contended that interference by the High Court in concurrent findings recorded by the trial and Appellate Courts being unwarranted are liable to be set aside. He argued that perusal of impugned order would indicate that learned Judge seized with the matter had not asserted any where in the judgment that learned trial and Appellate Courts disposed of both the suits and appeals respectively without jurisdiction inasmuch as not a single instance was quoted to show misreading or non-reading of the evidence produced by both the parties. Similarly it is not mentioned that the trial and Appellate Courts have recorded findings contrary to any mandatory provision of law or proceedings so drawn by these Courts suffered from illegalities or irregularities. So much so neither any perversity nor evasiveness nor erroneous finding if recorded have been pointed out; According to him due to non-existence of essential ingredients for exercise of revisional jurisdiction by High Court under section 115, C.P.C. impugned order deserves to be set aside.

8. Learned counsel for respondent supported the impugned judgment by referring to its different paras. He argued that learned Judge has advanced cogent reasons for interfering in the judgments/decrees of Courts below. For not accepting the agreement dated 14-11-1968 to be a valid document, the learned Judge has observed that it has not been attested by a marginal witness of the same village and the fact P.W. Raja Muhammad Ashraf Lamberdar who allegedly got compromised the matter was not present at the time when agreement Exh.P/1 was executed.

9. Learned counsel, however, could not point out any jurisdictional defect in the orders/decrees dated 26-.4-1994 and dated 16-12-1997 passed by IE Civil Judge and Additional District Judge nor in both the orders any instance of non-reading and misreading of the evidence was pointed out by him.

10. It is to be observed that appellant Muhammad Rashid had filed a suit for specific performance of the agreement dated 14-11-1968 (Exh.P/1) in respect of the property entering into Khewat No.160-Min, Khatuni Nos.349-350, Square No. 66, Killas Nos. 15, 16; 17, 18/2, 23/2, 24, 25 and Square No.68, Killas Nos.5/2, 6/1, 7/1, 8/1, total area 69 Kanals, 15 Marlas as per Jamabandi of 1984-85 with the prayer that respondent be directed to perform his part of agreement and by issuing perpetual injunction he be restrained not to transfer the disputed land to the extent of half share of the appellant and he should also refrain from interfering with his possession and cultivation. The respondent did not deny execution of agreement but his plea was that agreement was executed in respect of leasehold rights in favour of appellant of the land owned by trim but the appellant in clandestine manner converted the agreement into the one to sell half of the property in his name. The possession of the appellant over the land in dispute as per assertion made by appellant in plaint was also not disputed. It is equally important to note that in the plaint, dated 27th January, 1990 filed by respondent the cancellation of agreement dated, 11th April, 1968 was sought being illegal and based on fraud, consequently ab initio void qua his rights. No relief was claimed against appellant to obtain a decree for possession of the land, which was with appellant unauthorizedly as per the version of the respondent. Learned trial Court decreed the suit of the appellant vide order/decree dated 26th April, 1994 holding that "plaintiff has proved by examining one marginal witness and scribe of document that the disputed document was executed as agreement to sell by the defendant in favour of the plaintiff; whereas defendant could not rebut the plaintiff's version". These findings were maintained by learned Additional District Judge vide judgment, dated 16-12-1997 in appeal proceedings instituted by respondent Muhammad IC Siddique. A perusal of the impugned order would show that learned Judge in I Chambers of High Court had interfered with concurrent findings recorded by the trial and Appellate Courts without indicating misreading or non-reading D of evidence or same being in any way in violation of law. It is well-settled that High Court can interfere in exercise of its revisional jurisdiction in concurrent finding of facts recorded by the trial and Appellate Courts if the petitioner before it has succeeded in proving that either the appellate forum had no jurisdiction to decide the matter or that it has declined to exercise jurisdiction vested in it or it has acted illegally or with material irregularity (2000 SCMR 346). Prior to this judgment in another case reported in 1997 SCMR 1139 this Court observed that "the Courts below, therefore, while the decreeing the suit of appellant on the basis of evidence on record, neither committed any misreading of evidence nor they omitted from consideration any material piece of evidence on record nor the appreciation of evidence by them could be considered as perverse so as to warrant interference by the High Court under section 115, C.P.C. Similarly in the case of Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din (1996 SCMR 813) it was held that "upsetting the conclusions of the Courts below virtually on the question of fact by way of re-examination of the evidence at revisional stage it has overstepped the limits of its jurisdiction". It may also be noted that in the case of Muhammad Bakhsh v. Muhammad Ali (1984 SCMR 504) this Curt has held that section 115 (c) of the Code of Civil Procedure is applicable only to the commission of an illegality relatable to the exercise of jurisdiction by a subordinate Court. There is plethora of judgments in line to the observations reproduced hereinabove from various judgments defining jurisdiction of the High Court under section 115, C. P. C. Some of them are reported in PLD 1970 SC 288, PLD 1983 SC 53, PLD 1988 Lahore 632, 1988 CLC 1152.etc.

11. Now it would be examined, whether learned high Court had interfered with concurrent finding of facts keeping in view principles noted in the above judgments. Before answering this proposition we deem it appropriate to reproduce hereinbelow the reasons, which prevailed upon the revisional Court to set aside the judgments/decrees of trial and Appellate Courts respectively:-- "(i) Bashir Ahmad petition writer stated on 7-1-1993 as P.W.1 that both the brothers i.e. parties to the suit were known to him for the last 20/25 years. Computing back from 7-1-1993 and the date of the alleged agreement i.e. 14-11-1968 it cannot be held by the stretch of any imagination that his statement in this regard can be termed to be correct especially when there is nothing on record that both the brothers who were residents of Chak No.285/GB visited him at the place of his business at Toba Tek Singh in connection with other matters of litigation etc. " "An important fact to be mentioned at this stage is that Lal (P.W.2), the marginal witness on agreement Exh.Pl, is resident of Chak No.2631GB while both the contesting brothers are the residents of Chak No.285/GB where the disputed property is situated. Even though Raja Muhammad Ashraf Lumberdar claimed to have got incepted compromise between both the brothers on the basis of which alleged agreement was executed, he was not present at the time of the execution of Exh.PL" "No independent person from village Chak No.285/GB has appeared in favour of Muhammad Rashid Ahmad and adverse presumption in the matter is drawn against him. " "(ii) Muhammad Rashid Ahmad stated that the land in dispute was got allotted by him in the name of his younger brother Muhammad Siddique for the reason that the land could be allotted in the name of one of the members of the family. There is no explanation as to why he (Muhammad Rashid Ahmad) did not get allotted that land in his own -name, even though he was elder to his brother Muhammad Siddique who according to him was minor at the alleged time of the allotment of the land. The absence of the motive in this respect has gone to the root of the stand of Muhammad Rashid Ahmad in the matter and the same has fallen on the ground like a house of cards." "(iii) Muhammad Rashid Ahmad appeared as P.W.4 on 15-12-1993 and stated that he had to deposit an amount of Rs.8,000 as the total price of the land was Rs.16,200 and that he deposited the aforesaid amount. However, he has not produced any evidence oral or documentary except his solitary statement about the payment of Rs.8,000 towards the instalments of the suit property. He has also not produced evidence to make out that he made culturable the suit property by spending the amount or through the dint of his hard labour. The documentary evidence produced by him and his contesting brother has not supported him as he has not been mentioned therein as having any connection with the suit-property on the basis of agreement Exh.Pl. A pertinent feature of the matter is that on the basis of alleged agreement Exh.Pl both the brothers did not go to the Halqa Patwari to get entered the aforesaid fact in his daily diary, which could be a valuable piece of evidence in favour of Muhammad Rashid Ahmed. This aspect of the matter has also falsified his stand." "(iv) The fact of the matter is that two acres of land is under the possession of Muhammad Rashid Ahmed, which according to his brother Muhammad Siddique. is under his unauthorized possession. As expressed above about the delivery of the possession of any portion of the landed property by Muhammad Siddique in favour of Muhammad Rashid Ahmad on the basis of Exh.Pl, no intimation was given to Halqa Patwari and got entered in the daily diary and it can safely be expressed and held that Muhammad Rashid Ahmad did not obtain the possession of the suit-property in his alleged independent right and the contention of Muhammad Siddique is correct that the possession of his brother Muhammad Rashid Ahmed is unauthorized and illegal to the extent of two acres of land. (v) The contention of Muhammad Rashid Ahmad is that he is entitled to half of the property allotted in the name of his brother Muhammad Siddique on the basis of an agreement Exh.Pl brought into black and white on 14-11-1968, but I hold the view that about the performance of the conditions mentioned in Exh.P1 he has not produced any evidence and has failed to establish the compliance of the same. This being the position even if Exh.P1 is held to be an agreement to transfer the land the conditions mentioned therein have not been proved to have been fulfilled and discretionary relief of performance of agreement of sale cannot be granted to him.

12. The examination of above reasons one by one with reference to their substance suggests that none of them individually or collectively constitute reasons for exercising revisional jurisdiction under section 115, C.P.C. relating to passing orders/decrees by the Appellate/Trial Court to be termed F as without jurisdiction or in excess of jurisdiction or misreading or non reading of evidence etc. Surprisingly learned Judge has even travelled outside the pale of provisions of Article 75 or 76 of Qanun-e-Shahadat, 1984 which I spell out procedure for proving a document through primary or secondary evidence. To our consideration there is no mandate of law to hold that testimony of a witness can be disbelieved merely for the reason that witness has failed to explain that in which connection hi visited the petition writer for executing the agreement and due to this reason, version of the petition G writer marking presence of parties before him for execution of agreement was held to be inadmissible. Factually such observations were made to show that agreement Exh.P/I was doubtful considerably that its contents were duly proved according to law. As such, we are of the opinion that learned High Court had illegally interfered with the findings of two Courts below which were in favour of appellant in purported exercise of its revisional jurisdiction on artificial and whimsical grounds. It is interesting to note that relief has been granted to, respondent on the ground which he himself had never pleaded either by submitting his written statement or during the proceedings knowing that on such flimsy grounds appellant cannot be non-suited on legal plane. We regret to observe that learned Judge in the Chambers of High Court (as he then was) omitted to consider the plea of respondent raised by him in written statement and supplemented during trial.

13. A perusal of the judgment of District Judge, Toba Tek Singh dated 16-12-1997 would indicate that in the course of arguments before him learned counsel appearing for appellant submitted that during pendency of appeal (appellant Muhammad Siddique) in collusion with Riazul Hasan Alvi has got prepared a rule of Court in favour of Anwar Sultana wife of Riaz Hassan Alvi on 27-5-1995 without disclosing pendency of appeals against which the respondent (Muhammad Rasheed) has filed an application under section 12(2), C.P.C. which w pending in Lower Court. The appellant (Muhammad Siddique) has tried to frustrate the impugned judgment and decree". As it has been noted hereinabove that while granting leave to appeal the impugned order dated 19-4-2000 was suspended and with regard to possession of appellant over the land in dispute order of maintaining status quo was passed on 24-7-2000. Subsequent thereto appellant filed Criminal Original No. 15-L of 2000 alleging violation of the order of status quo against respondents Nos.l and 7 others with the averments that one Mr. Riazul Hasan Alvi son of Muhammad Hussain, Caste Alvi, resident of Chak No.235-GB, who was then Distkict and Sessions Judge and posted as Judge Anti-Terrorism Court at Multan was feeding respondent Muhammad Siddique and all was being done with his help and the respondents in contempt application namely Nawaz, Ashiq and Fateh Patwari who were his personal workers and were providing aid to said Muhammad Siddique at the instance of Mr.Alvi. Mr.Alvi was in the habit of getting properties and transferring same in the name of his wife Munawar Sultana. It was further stated that land in dispute was earlier transferred by respondent Siddique in the name of Munawar Sultana (Mr. Alvi's wife) which was later on cancelled". Keeping in view these facts the record of application under section 12(2), C.P.C. was summoned from the Court of Mr. Aftab Ahmad Rai Civil Judge, Toba Tek Singh. A perusal whereof prima facie supports contentions of appellant and meddling of Mr. Riaz Hasan Alvi, District d Sessions Judge in judicial matters cannot be overlooked. As such possibility of his making efforts for getting the case decided in favour of respondent because allegedly the property was purchased from Muhammad Siddique respondent in the name of his wife (Anwar Sultana) cannot be overruled. Criminal Original No 15-L of 2000

We are prima facie satisfied that respondent Muhammad Siddique with the collusion of M/s. Nawaz, Ashiq and Fateh has violated the order of status quo allegedly with the assistance and connivance of Mr. Riazul Hasan Alvi whose interest in this property can be seen while going through the application for contempt of Court as well as File No.56-6 of 1995 pending in the Court of Mr. Aftab Ahmad Rai, Civil Judge, Toba Tek Singh. Therefore, office is directed to issue show-cause notice to Muhammad Siddique and others to appear in person and explain as to why proceedings for contempt of Court under Article 204 of the Constitution of Islamic Republic of Pakistan read with sections 3/4 of Contempt of Court Act, 1976 be not initiated against them. A separate notice be also issued to Mr. Riazul Hasan Alvi alongwith copy of this judgment through Registrar of Lahore High Court to explain his position in respect of allegations which have been imputed against him in contempt application either appearing in person or through duly authorized representative. For the foregoing reasons appeals are allowed with cost. The impugned judgment dated 19-4-2000 is set aside as a result whereon judgments/decree dated 16-12-1997 passed by District Judge, Toba Tek Singh is restored. Record of the case be returned after retaining photocopies of File No.56-6 of 1995 under section 12(2), C,P.C. Criminal Original Petition No. 15-L of 2000 is adjourned to a date in office. S.A.K./M-316/S Appeals allowed