2004 PLP 581 (MLD)

S.115

Concurrent findings of fact by Courts below

Validity

No interference in such findings was permissible in revisional jurisdiction of High Court in absence of misreading or non-reading of evidence

Re appraisal of evidence and substitution of view concurrently taken by Courts below would not be within purview of S.115, C.P.C. Khalid Ikram Khatana for Petitioners. Muhammad Munir Khan for Respondents. Date of hearing: 3rd December, 2003. This civil revision calls in question judgments and decree dated 30-11-1995 and 3-3-1998 passed by the Civil Judge and the Additional District Judge, Jhang, respectively, deciding lis against the petitioners.

2. Precisely, facts relevant for the disposal of this petition are that Muhammad Amir respondent No.1 filed a suit for specific performance of an agreement to sell dated 20-3-1989 whereby, Mahboob Alam Qadari (respondent No.2) an allottee of land measuring 100 Kanals of Chak Nos.ll/3 Thal, Tehsil and District Jhang agreed to sell his this land in his favour, for an amount of Rs.30,000 who after receiving an amount of Rs.25,000 as earnest money executed the agreement to sell dated 20-3-1989. Sale-deed in favour of respondent No.1 was to be executed after conferment of proprietary rights to respondent No.2 (Mahboob Alam Qadari). Who after acquiring proprietary right sold this land to the petitioners vide Mutation No.2275 dated 6-4-1989 which necessitated filing of suit.

3. Petitioners being defendants in the suit contested it by controverting the allegations in the plaint and denied execution of the agreement to sell dated 20-3-1989. Petitioners claimed themselves to be bona fide purchasers, for valuable consideration, without notice of the agreement, which was claimed by them to be forged. Original owner/allottee who was defendant No.1 before the trial Court did not appear in the suit and was proceeded against ex parte. Controversial pleadings of the parties necessitated framing of issues and recording of evidence respective of the parties. The trial Court after doing the needful on 20-11-1995 decreed the suit of the respondent No. l and annulled the Mutation No.2275 dated 6-4-1989 attested in favour of the petitioners.

4. Petitioners aggrieved of the decision dated 20-11-1995 of the trial Court, filed an appeal before the Additional District Judge Jhang, but remained unsuccessful; as their appeal was dismissed on 3-3-1998. They have now come up in .the revisional jurisdiction of this Court for setting aside the concurrent judgments of both the Courts below.

5. Learned counsel for the petitioners submits that respondent No. l could not prove due execution of agreement to sell dated 20-3-1989 and thus his suit could not have been decreed. He further contends that there are material contradictions in the statements of P.Ws. which show the agreement to sell (Exh.P.1) is a forged document. He in this behalf relied on the case of Ghulam Ali Shah and another v. Abbas Ali and 5 others (1995 'CLC 1977) and Muhammad Yaqoob and others v. Naseer Hussain and others (PLD 1995 Lahore 395). Learned counsel for the petitioners further submits that the petitioners are bona fide purchasers for valuable consideration, without notice of any agreement in favour of respondent No. l and thus their purchase is protected under law. In support of his submissions, he referred to judgments of the Honourable Supreme Court in the case of Muhammad Ashraf v. Ali Zaman and others reported as (1992 SCMR 1442) and (1992 CLC 1678).

6. Learned counsel for the respondent No.1 has not only controverted the submissions of the petitioners but besides supporting the judgments of the two Courts below, urged that execution of agreement dated 20-3-1998 by respondent No.2 is proved beyond any shadow of doubt. He further contends that respondents No. l was in possession of the land in question but petitioners did not inquire before purchase of land in dispute from him and thus they cannot be graded as bona fide purchasers, without notice. Learned counsel for respondent No. l elaborating his arguments submitted that petitioners could not deny execution of Exh.P.1, as they are not party to it. He further adds to his argument by saying that the-petitioners should have produced Mahboob Alarn Qadari (respondent No.2) in the witness-box to rebut impact of evidence of the respondent No.

1. He also claimed that concurrent findings of fact recorded by the, two Courts below, are immune from interference in the revisional jurisdiction.

7. I have anxiously examined the respective contentions of the learned counsel for the parties and have perused the record appended herewith. Undeniably respondent No.2 did not appear before the trial Court and was proceeded against ex parte. He being executant' of Exh.P.l (agreement to sell) did not deny its execution and instead execution of this document was denied by the petitioners, which is not much material. Respondent No. l in order to prove execution of Exh. P.1 and receipt whereunder the earnest money was paid by him (Exh.P.2) produced three witnesses. P.V4.1 is Allah Dad, who is a marginal witness of both the agreement and receipt (Exh.P.1 and Exh.P.2) who besides proving these documents deposed that respondent No. 2 agreed to sell his allotted land to respondent No.1. A similar is the statement of P.W.2 Fazal who is also a marginal witness of both these documents and besides proving these documents deposed regarding receipt of earnest money by respondent No.2. P.W.3 is Atique, scribe of these documents. who supported the version of respondent No.1; as stated by P.Ws.1 and 2 and made a categorical statement that respondent No.2 signed these documents, in his presence. Execution of Exhs. P.1 and P.2 by respondent No.2 is thus proved to the hilt which were executes on 20-3-1989 and statements P.Ws. were recorded on 10-10-1995. Now it there be any minor discrepancy, not with regard to execution of these documents but only regarding situation and the manner in which those witnesses arrived at the spot, are neither fatal to the suit nor are of such a nature, to make these documents forged. Such minor discrepancies are bound to happen by lapse of time especially when the witnesses are illiterate. 7-A. Petitioners in order to' rebut the evidence of the respondent No. l produced no material evidence except statement of one of them as D.W.1, there is no corroboration of this statement .of D.W.1, who simply stated that agreement to sell .is fictitious, in absence of any evidence in support of fictitiousness of agreement, especially when the petitioners were in a position to produce the owner/executant of it (Mahboob Alam Qadari) in the witness-box, deliberately withheld him and obviously presumption would be that he had appeared in the witness-box, must have supported the case of respondent No.1, agreement to sell cannot be graded as asserted by the petitioners.

8. Petitioners claimed themselves to be bona fide purchasers for valuable consideration, without notice of agreement to sell in favour of the respondent No.1. The only evidence available on the file is statement of D.W.1 which also does not show that petitioners undertook any inquiry, before purchase of land from respondent No.2. Copy of Jamabandi for the year 1977-78 (Exh.P.3) and copy of Khasra Girdawar (Exh.D.1) show that land in question was in possession of respondent No.1 though as an illegal occupant yet D. W .1 did not depose that they went to inquire from respondent No.1, before its purchase. There is no, cavil with the proposition that a bona fide purchaser without notice is protected under law but as observed above, there is no evidence on the file in support of this claim of the petitioners who had themselves graded the agreement as a forged document which in itself shows that petitioners did not opt to inquire about existence or otherwise, of the agreement between the respondents.

9. Under section 53-A of Transfer of Property Act, rights of a bona fide purchaser without notice of any earlier agreement to sell by the owner, are protected but under law, mere denial of existence of an agreement to sell, by the subsequent purchaser, is not enough to bring I him within the purview of a bona fide purchaser, for value, without " notice of it, duly proved to have been executed by his vendor/owner and would not protect his purchase and his rights, thereunder, unless and until he proves that he underwent due inquiry about it; from all the possible sources. In a similar case of Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 Supreme Court 25, the Honorable Supreme Court, very candidly mandated that such an inquiry is necessary and proof thereof has to be brought on file. Alike view was taken in the case of Mst. Surraya Begum and others v. Mst. Suban Begurn and others (1992 SCMR 652), the High Court also gave judgment on the same lines in the case of Muhammad Shafi v. Muhammad Sarwar and others (1997 CLC 1231). In the instant case, petitioners neither conducted any such inquiry nor produced an iota of evidence, in this behalf, rather, as noted above, D.W.1 deposed nothing on this point. I, consequently, respectfully following the above-noted judgments, hold that petitioners are bona fide purchasers, without notice of the agreement to sell in favour or respondent No.1 and thus their purchase, during it, is not protected, under law.

10. From what has been discussed above, I am of the considered view that both the Courts below have rightly granted the respondent No. 1, the decree prayed for which is in consonance with the evidence on the file. No misreading or non-reading of evidence has been proved, in absence of which no interference in concurrent findings of facts is permissible in revisional jurisdiction of this Court. Reappraisal of evidence and substitution of view; concurrently taken by the two Courts below is not within the purview of section 115, C.P.C. Both the Courts below have committed no illegality or irregularity. This revision petition having no merit in it is accordingly dismissed leaving the parties to bear their own costs. S.A.K./R-296/L Revision dismissed.