2003 PLP 1292 (MLD)

3. The suit was contested by respondents Nos. 1 and 2, as well as by the other respondents, who had purchased portion of the disputed property from respondent No. 1.

4. Stance of respondents Nos. 1 and 2 was that respondent No. 1, had never appointed respondent No.2, as his attorney for disposing of property nor he had otherwise authorized him for making any agreement to sell the property and that respondent No.2, had neither entered into any oral agreement of sale with the appellant nor he had received earnest money from him.

5. Rest of the respondents who are purchasers of a portion of the said property alleged that they were bona fide purchasers for value without notice.

6. After framing the- necessary issues and recording evidence the learned Civil Judge, Multan vide judgment dated 20-1-1991 dismissed the suit. First Appeal filed against that decree by the appellant was also dismissed by the learned Additional District Judge, Multan on 10-1-1996.

7. Aggrieved thereby the appellant had filed this R.S.A. It was admitted for hearing on 13-4-1998. Notices were ordered to be issued. Records were also summoned.

8. Appeal was opposed by the respondents who cared to appear after notice. Arguments heard. Record perused.

9. It was argued by the learned counsel for the appellant that when it was held by both the Courts below that suit was properly valued and was also in proper form, it could not have been legally dismissed.

10. The argument is misconceived inasmuch as on the basis of legal objection, raised by the respondents in their written statements, that the suit was not correctly valued and could not proceed in its present form relevant issues with respect to the aforesaid objections were frames whereon finding was given by the trial Court that suit was correctly valued and its form was also proper hence it could proceed. The suit was not dismissed on the aforesaid legal objections. If the valuation and form of the suit is found to be correct it does not mean that it cannot be dismissed for any other reason. If the plaintiff fails to prove his case it is liable to, be dismissed in spite of the fact that it is correctly valued and is in proper form. Above contention of the appellant's counsel is, therefore, repelled.

11. It was next argued by the appellant's counsel that evidence was not properly appraised inasmuch as the weight was not given to the appellant's evidence which was comparatively more credible.

12. In case of concurrent findings of two Courts below, reappraisal of evidence in second appeal cannot be made on the ground that another view of the same evidence is possible. Concurrent findings of fact recorded by Courts below can only be interfered with in second appeal on the ground that material piece of evidence was misread or overlooked. Learned counsel for the appellant could not point out any material piece of evidence which was overlooked or was misread by any of the two Courts below.

13. A perusal of the impugned judgments shows that they are based on judicial consideration of evidence. Neither there appears to be any misreading of evidence nor any material piece of evidence appears to have been overlooked and conclusions drawn are not only correct but are also based on sound and plausible reasoning.

14. The appellant had filed suit for specific performance of an oral agreement to sell allegedly made by respondent No.2, as attorney of respondent No.

1. The oral agreement was allegedly made and earnest money was allegedly paid by the appellant in presence of Sultan Ahmad who was not produced in the witness-box. Nothing was produced on record to show that respondent No.2, was general or special attorney of respondent No. 1, or that he had been authorized by the said respondent to dispose of his property.

15. It was further submitted by the appellant's counsel that respondent No.

1. Ch. Nazir Ahmad did not appear in the witness-box to rebut the claim of the appellant and to prove contents of his written statement hence on account of the said omission version of the appellant should have been believed and his suit for specific performance should have been decreed. It was urged that both the Courts below had failed to consider the aforesaid legal aspect.

16. Arguments is devoid of any force inasmuch as it was for the plaintiff to prove his case and he could not take advantage of any short coming in the defendant's evidence. Said argument is also misconceived because agreement to sell was allegedly made by respondent No.2 and earnest money was received by him as attorney of respondent No.1. The said respondent had specifically denied the aforesaid allegation not only in his written statement but also during his statement before the trial Court which was recorded as C. W.1.

17. Nutshell of the above discussion is that conclusions drawn by both the Courts below are correct. No aspect of the case was overlooked and no jurisdictional error was committed by any of the two Courts below. This second appeal is, therefore, devoid of any merit; it is accordingly dismissed with costs. A-766/L Appeal dismissed.