2008 PLP 147 (YLR)

SYED ZAHID HUSSAIN, J.--On the basis of alleged agreement to sell dated 29-4-1994 by Asiq Ali, respondent No.2 herein, in favour of respondent No.1, suit for specific performance thereof was instituted by respondent No.1. The same was- contested denying execution thereof through the written statement jointly filed by respondent No.2 and the petitioners. After framing of issues and recording of evidence, the suit was dismissed by the trial court with the direction that Ashiq Ali will refund the amount received from the plaintiff. This was vide judgment, dated 26-3-1998. The respondent/plaintiff and Ashiq Ali filed appeals thereagainst. The said appeals were heard by the learned appellate court who accepted the appeal filed by respondent No.1 granting decree for specific performance and dismissed the appeal of Ashiq Ali. This revision petition has now been filed by the petitioners who claim to be subsequent vendees from Ashiq Ali. Similar position obtains in Civil Revision No.2543/2001 and Civil Revision No.2544/2001 which have been heard together and will stand disposed of by.this judgment.

2. The learned counsel have been heard and material on the record has been perused and considered. The learned counsel for the petitioners has primarily laid stress that the alleged agreement dated 29-4-1994 Exh.P.1 was a forged and fabricated document which according to him is evident from the bare perusal thereof. It is contended that the number of Identity Card of Ashiq Ali as mentioned in the agreement did not tally with his Identity Card whose address was also different than his real address. Another aspect which is canvassed is that the scribe of the document Khadim Hussain was neither summoned nor produced. It is, thus, contended that since the very execution and signature thereon/thumb-impression was denied by Ashiq Ali, it was the duty of the respondent/plaintiff to have got compared the same as envisaged by Articles 78 and 84 of the Qanun-e-Shahadat Order, 1984. Relies upon Shams-ud-Din through L.Rs v. Abid Hussain through L.Rs. (2006 CLC 571) and Muhammad Ramzan v. Saif Nadeem Electro (Pvt.) Ltd. through Chairman and 5 others (PLD 2006 Lahore 571). It is also contended that since the alleged agreement had been drawn of a simple paper (not the stamp paper) it was the duty of the plaintiff/respondent to have proved execution thereof beyond any shadow of doubt. The learned counsel for respondent No.1 contends that in the joint written statement submitted by the petitioners and Ashiq Ali, respondent No.2, no plea was taken as to their bona fide purchaser for valuable consideration without notice. It is contended that so far as the execution of agreement in favour of respondent No.1 by Ashiq Ali respondent No.2 is' concerned, there are concurrent findings by the courts below and no interference is warranted by this court in revisional jurisdiction.

3. The case set up by respondent No.1/plaintiff was that Ashiq Ali had executed the agreement, dated 29-4-1994 in favour of respondent No.1 (in each of the petition) and despite the same, the said Ashiq Ali sold the land through Mutation No.817, dated 25-9-1995 in favour of the present petitioners. In their written statement jointly filed by. Ashiq Ali, respondent No.2, and the petitioners, it was the foremost plea that no such. agreement had been executed by Ashiq Ali in favour of the plaintiffs and the one claimed by them was forged, fabricated and based on fraud. The under-mentioned issues were framed by the trial court: "ISSUES: (1) Whether the plaintiff is entitled to get a decree suit for Specific Performance of contract on the basis of an agreement to sell dated 29-4-1994, as prayed for? OPP (2) Whether the plaintiff has paid the amount Rs.14350 to the defendant as an earnest money and rest amount was to be paid at the time of execution of registration sale-deed or attestation of mutation? OPP (3) Whether the suit is not maintainable in its present form? OPD (4) Whether the possession of the suit property was delivered by the defendants in favour of the plaintiff? If so its effect? OPP (5) Whether the suit valuation for the purpose of court-fee and jurisdiction is incorrect? If so its effect? OPD (6) Whether the description of the suit property is incorrect? If so, its effect? OPD (7) Whether the plaintiff is not entitled to get the discretionary relief under section 42 of Specific Relief Act? If so, its effect? OPD (8) Whether the defendants are entitled to get the special costs from the plaintiff under section 35-A C.P.C? If so to what extent? OPD (9) Relief." The plaintiffs in their respective suits appeared as P.W.1 and produced Muhammad Iqbal P. W.2 and Muhammad Yousaf P.W.3 the attesting witnesses. The scribe of the document Khadim Hussain, however, was not produced for any undisclosed reasons. Ashiq Ali D. W.1 had categorically deposed that he had not entered into any agreement with the plaintiffs nor received any earnest money from them and their assertion as to agreement was false and frivolous suits had been filed. In, such circumstances, when there was clear and, absolute denial of execution of agreements by Ashiq Ali, it was incumbent upon the plaintiff's to have proved to the execution of agreements by following the methodology provided in Articles 78 and 84 of Qanun-e-Shahadat Order, 1984. Reference in this context may be made to Hamid Qayyum and 2 others v. Muhammad Azeem through legal heirs and another (PLD 1995 SC 381), Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361) and Siraj Din v. Mst. Jamilan and another (PLD 1997 Lahore 633). Keeping in view the peculiar facts and circumstances, the pleadings and deposition on oath of Ashiq Ali, it was eminently necessary for the respondent/plaintiff to have proved the execution of agreement Exh.P.1. signature/thumb-impression thereon of Ashiq Ali in accordance with sanctioned in favour of defendant on 26-9-1996 and on the same day, the exchanged land was purchased by the son of the petitioner, which is sufficient to show that the transaction was a sale and not exchange. Conversely, the learned counsel for the respondents submits that the concurrent findings of facts are not to be interfered by this Court in exercise of its revisional jurisdiction.

4. I have heard the learned counsel and examined the available record. Solitary contention raised by the learned counsel has duly been dealt with and decided by the first appellate Court in Para 11 of the impugned judgment, which findings are apt to the facts and circumstances of the case. I am not persuaded to take a contrary view specially when it has been proved from the evidence on record, as discussed by both the Courts below, that the transaction was in fact exchange and not sale. It may be noted that even the witnesses produced by the plaintiff do not support his plea that the transaction was a sale and not exchange. I find from the perusal of the judgments that both the courts, after adverting to the evidence on record, both oral as well as documentary, concurrently held that the questioned transaction was an exchange and not sale. Although this Court, in exercise of its revisional jurisdiction. When the findings of both the Courts are concurrent, is not called upon to reappraise the evidence on record, yet in the interest of justice, I have examined the impugned judgment in juxta position with the evidence on record and find that the conclusions and findings arrived at by both the Courts below are not only in accordance with the record of the case but they are also in consonance with the law on the subject. The learned counsel has not pointed out any mis-reading and non-reading of the evidence on record.

5. It is settled law the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique v. Aamer Shahzad and others (1999 YLR 610).

6. The concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trial Court. No case of mis-reading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the, learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed.

7. It is settled law that concurrent findings of facts, based on evidence, are not liable to be interfered in the exercise of jurisdiction under section 115, C.P.C. Reliance is placed on Abdul Rahim and another v. Mst. Janatay Bibi and others (2000 SCMR 346), Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCMR 431), Aziz Ullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647), Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another (2000 SCMR 314), Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad v. Muhammad Siddique (PLD 2002 SC 293).

8. Upshot of the above discussion is that the present revision petition is devoid of merits, thus, the same stands dismissed in limine. F.B./M-475/L Petition dismissed.