2017 PLP 30 (CLCN)

SADIQ HUSSAIN BHATTI, J.

Through instant revision application the applicant has assailed the judgment dated 28.05.2015 passed by learned Additional District Judge, Matiari in Civil Appeal No.07 of 2012, whereby the appeal was dismissed and the judgment dated 28.01.2011, passed by learned II-Senior Civil Judge, Hyderabad in FC Suit No.39 of 2009, whereby the suit of the private respondent No.1 was decreed in his favour, was maintained.

2. The dispute in the instant case relates to House No. B/165, admeasuring 1120 sq. ft. situated in Market Ghitti, Ward No.2, New Saeedabad Town, Hala ("the suit property") which was owned by applicant Mehmood Ali alias Biloo. Respondent No.1/plaintiff, Abdul Waheed, filed Suit No. 39 of 2009 in the Court of II Senior Civil Judge, Hyderabad for specific performance of a contract in respect of sale of the suit property by the applicant to him. This suit was decreed in favour of plaintiff/respondent No.1 vide judgment dated 28.1.2011. The applicant assailed the same before Additional District Judge, Matiari by filing Civil Appeal No.07 of 2012, which, as stated above, was dismissed vide judgment dated 28.05.2015. Hence, this revision application.

3. Learned counsel for the applicant submitted that the impugned judgment suffers from misreading and non-reading of evidence as it is against the law and the same is not sustainable. Learned counsel vehemently argued that since the issues settled by the Courts below were not discussed properly, therefore, the impugned judgments are liable to be set aside. It was further argued that the Courts below have not given any reason as to why the evidence of the plaintiff/respondent No.1 was believed and that of the applicant/defendant was rejected. Learned counsel also argued that since the applicant was not the sole owner of the suit property and was, in fact, a co-owner thereof, therefore, he was not in a position to legally enter into any contract of sale in respect of the suit property with anybody. In this regard he relied on the case of Muhammad Ashraf and another v. Mst. Kokab Benazir Fatima and others (2008 CLC 1398).

4. Learned counsel for the respondent No.1 submitted that there are concurrent findings against the applicant as both the Courts below have given findings against him. It was also submitted that the impugned Judgments do not suffer from any misreading or non-reading of evidence as the Courts below have given cogent reasons for arriving at a just conclusion.

5. I have heard the learned counsel for the parties, perused the record and the case law cited before me.

6. The case of the respondent No.1 was that applicant was the owner of the suit property through inheritance and by way of a family settlement who entered into sale agreement in respect of the suit property with him on 08.04.1999 for a total sale consideration of Rs.460,000/-. Subsequently, on 24.04.1999 another agreement to sell was executed between the parties in respect of the suit property and out of the total sale consideration of Rs.460,000/-, a sum of Rs.60,000/- was paid to the applicant as part payment. The remaining amount was required to be paid on 05.04.2000 at the time of registration of sale deed. Thereafter, on 24.8.1999 another sale agreement was executed between the parties whereby a further sum of Rs.200,000/- was paid by respondent No.1 to the applicant and the respondent No.1 was put in possession of the suit property on 29.8.1999. However, when the applicant did not come forward to receive the balance amount of Rs.200,000/-, the respondent No.1 filed a suit for specific performance. The learned trial Court framed as many as eight issues and, after discussing each and every issue in detail (issues 1 and 2 and issues 7 and 8 were discussed together as they were interconnected), decreed the suit in favour of the respondent No.1/plaintiff.

7. I have perused the Judgments of the two Courts below and find that each and every issue has been discussed in detail and for arriving at the conclusion the Courts below have given cogent reasons. Even otherwise, as held in 2006 SCMR 185, when a judgment deals with all the points raised it fulfills the requirement of law though it may not have discussed each issue separately and such judgment cannot be termed as illegal or void ab initio. Issues Nos.1 and 2 related to the execution of sale agreements between the parties and part payments of Rs.60,000 and Rs.200,000/-, made by the respondent No.1 to the applicant. The learned trial Court discussed these issues together at page 61 of the file. It was observed by the learned trial Court that the burden to prove these issues lies on the plaintiff/respondent No. 1, who has produced the agreements executed between the parties, as well as the witnesses to the said agreements and the person who reduced the said agreements into writing.

8. In respect of documents which are required by law to be attested, the mode for proving such document is provided under Article 79 of the Qanun-e-Shahadat Order, 1984. The said Article reads as under: "

79. Proof of execution of document required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of given Evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

9. A perusal of the provisions of Article 79, quoted above, shows that if a document is required by law to be attested, it cannot be used as evidence until at least two attesting witnesses have been called for the purpose of proving its execution.

10. In the case in hand, the plaintiff/respondent No.1, in support of his case, not only produced two attesting witnesses of the sale agreements in Court for evidence but also produced the petition writer who reduced such agreements in writing. Mukhtiar Ali, attesting witness of the agreements in question in his cross-examination stated that he knows the plaintiff and the defendant No.1 since last 20 years and he states that Rs.60,000/- were paid by the plaintiff to the defendant No.1 (the applicant herein) in his presence. He has further deposed that "I am relative of both the parties". Similarly, witness Muhammad Luqman in his deposition has stated that the sale agreements were executed in his presence and Rs.60,000 and Rs.200,000/- were also paid by the plaintiff to the defendant in his presence. Both these witnesses have stated that the sale agreements were executed in the office of the stamp vendor and the said petition writer was also produced for evidence by the plaintiff. As stated above, witnes Mukhtiar Ahmed stated in his cross-examination that he is relative of both the parties and knows them for the last 20 years. No question was asked from him as to why he was deposing in favour of the plaintiff. Since he is related to both the parties, therefore, there is no occasion for him to falsely depose in favour of the plaintiff or against the defendant No.1. Even the applicant has not shown any reservation against him. Therefore, his evidence is trustworthy and can be relied without any hesitation.

11. The case of the applicant/defendant, as set out in the written statement, was that the respondent No.1/plaintiff was his tenant and possession of the suit property was delivered to him as a tenant. However, in his deposition he stated that "Imamuddin is my maternal cousin and he requested me to hand over the physical possession of the suit property to the plaintiff. The plaintiff disclosed [to] me that he had purchased the suit property from Imamuddin." The first assertion of the applicant/defendant that he handed over the physical possession of the suit property to the respondent No.1/plaintiff at the request of his maternal cousin Imamuddin is contradictory to his own statement in his written statement that possession of the suit property was delivered to the respondent No.1/plaintiff as tenant and the second assertion is belied by the fact that the respondent No.1/plaintiff has categorically stated that he has purchased the suit property from the applicant/defendant and in this regard he has not only produced the agreements executed between him and the applicant but has also produced the witnesses to such agreements as well as the writer of the said agreements. However, in support of any of his above pleas the respondent No.1 failed to produce any cogent evidence. Neither he has produced any rent agreement or rent receipt in respect of the suit property nor he has produced said Imamuddin as a witness to support his assertion that the suit property was handed over to respondent No. 1/plaintiff at the request of Imamuddin.

12. It was also argued on behalf of the applicant that since the applicant was not the sole and absolute owner of the suit property, therefore, he was not competent to sell the property. However, a perusal of the written statement shows that the applicant has admitted the contents of paras 1, 2, 3 and 4 of the plaint and in paras 2 and 4 of the plaint, the plaintiff has claimed that the defendant/applicant is the owner of the suit property by heritance through a family Settlement. Even otherwise, no one from the alleged co-owners was produced as a witness to prove that the applicant was not the sole owner of the suit property. Therefore, the case of Muhammad Ashraf and another (supra) is of no help to the applicant.

13. It is settled law that the scope of revision application under section 115, C.P.C. is limited to some illegality, material irregularity or jurisdictional defect. Learned counsel for the applicant has not been able to show that the judgments/decrees of the Courts below suffer from any such defect/lacuna. The trial Court has discussed each issue separately and in detail and has come to the conclusion that the Plaintiff was able to prove his case while the defendant was not able to produce any evidence in support of his claim.

14. The learned Appellate Court has concurred with the findings of the learned trial Court but in doing so it has given its own reasons. Learned counsel for the applicant had argued before the appellate Court that signatures of the applicant on the alleged agreements were not compared with the admitted signatures of the applicant. Although this objection was held to be misconceived due to the fact that no such application was moved by the applicant but even then the appellate Court, after comparing the admitted signatures of the applicant on the Vakalatnama with his alleged signatures on the sale agreements, it was held that both the signatures are similar. The trial Court also discussed the question of limitation and decided it in favour of the respondent No.1 for cogent reasons. Therefore, no case for interference in the impugned judgments in exercise of powers under section 115, C.P.C. has been made out.

15. In view of the above, I find no merit in this revision application which is accordingly dismissed. WA/M-144/Sindh Revision dismissed.