2002 PLP 707 (MLD)

ISSUES: (1) Whether the defendant No. 1 agreed to sell the land in suit to the plaintiff vide agreement deeds 31‑1‑1976, 1‑1‑1974 and 18‑4‑1977? (2) Whether Rs.70,000 were paid to the defendant No.1 by the plaintiff as consideration of the land in suit? (3) Whether the agreement is not fictitious, fabricated and without consideration? (4) Whether the agreements in question are result of collusion between the plaintiff and defendant No.2? (5) Whether defendant No.1 duly constituted defendant No.2 as her attorney? (5‑a) Whether plaintiff is entitled to the specific performance of the impugned agreement? If so, on what terms? (5‑b) Whether defendant No. 1 Mst. Zainab Bibi gifted the property in dispute in favour of defendants Nos.3 and 4? (5‑c) If the issue is proved in favour of defendants Nos.3 and 4 whether the gift is ineffective and inoperative against the rights of plaintiff? (6) Relief.

4. The appellant produced oral as well as documentary evidence before the trial Court. The trial Court examined and appraised the entire evidence produced before it. The conclusion drawn by the trial Court after the appreciation of oral and documentary evidence is that neither the power of attorney nor the agreements to sell were proved to have been executed at the behest of respondent No.

1. Both the scribe P. W.1 Ghulam Rasool and marginal witness Muhammad Ramzan of the General Power of Attorney admitted that they did not know Mst. Zainab Bibi personally as she was wearing a "Burqah" and that they had not known her previously. Even Haftz Rafique Ahmed who appeared as P.W.6 and who is stated‑to have identified by Mst. Zainab Bibi before the Registrar conceded that the lady was wearinBurqah and that he had identified her at the instance of respondent No.2 and one Lateef. The statements of Muhammad Ibrahim P.W.2, Munshi P.W.3, Muhammad Shafi P.W.4, Muhammad Aslam Ramay Advocate P.W.5 were also the trial Court to hold that either the power of attorney or the agreement to sell was executed by respondent No. 1 The trial Court also evaluated evidence produced by respondent No. I and found the evidence of D.W.1, D.W.2, D. W.3 and D. W.4 as worthy of trust. The statement of Ghulam Nabi D.W.4, the husband of respondent No. 1 was specifically referred to according to which it was found that respondent No. 1 was abducted by the appellant is connivance with respondent No.

2. The suit for Restitution of Conjugal Rights was filed. An F.I.R. was also lodged against the appellant and respondent No. 2 whereupon respondent No. 2 was arrested and Mst. Zainab was recovered from Haroonabad. Besides this evidence, the thumb‑impression of respondent No. 1 was sent for comparison and according to the report of the Finger Print Expert the thumb‑impression of the lady on Exh.P.I was super imposed and no opinion could be given regarding the same. On the basis of oral as well as documentary evidence the learned trial Court decided Issues Nos. 1 to 5 and came to the conclusion that the power of attorney, agreement to sell or the payment of sale consideration was not proved. Holding issues No. 5‑A, 5‑B, 5‑C against the plaintiff, suit for specific performance was dismissed. The appellant filed an appeal in which it was contended that the findings of the trial Court were incorrect and that according to the evidence on the record he has been able to prove the execution of agreements to sell and the power of attorney by respondent No. I in favour of respondent No.2. He also contended that as the learned trial Court has decided Issues Nos. 1 to 5 jointly, the trial Court has committed a serious irregularity and the decree of the trial Court was liable to be set aside. The First Appellate Court considered ail the pleas raised by the appellant and reappraised the evidence in the light of the contention raised by respondents Nos.3 and 4 in their written statement. The reappraisal of evidence done by the First Appellate Court was a thorough exercise whereafter the learned First Appellate Court found itself incomplete concurrence with the findings of the trial Court. The First Appellate Court was of the view that respondent No.1 was an illiterate and Pardah Nasheen lady and in the circumstances proved on the record she did not have any independent advice and was infact under the undue influence of the appellant and respondent No.2. The appeal was resultantly dismissed on 12‑12‑1987.

5. In this regular second appeal Mr. Muhammad Jaffar Hashmi, Advocate has mainly contended that the judgment and decree of the trial Court and also of the First Appellate Court suffer from serious illegality as the learned trial Court had jumped together as many as five issues and decided them jointly. According to the learned counsel, the learned trial Court acted in violation of the provisions of Order XX, rule 5, C.P.C. and by this procedure the case of the appellant was irreparably prejudiced He next contended that while dealing with Issues Nos.1 to 5 both the lower Courts fell in error of misreading and non‑reading of evidence on the record. His contention was that according to the material on the record particularly Exh.P.6, it was proved that the power of attorney was executed by respondent No.1 with her free consent. He lastly submitted that there were ample evidence on the record that the sale price as contended in the plaint was actually paid by the appellant to the respondents.

6. On the other hand, Ch. Imtiaz Ahmed Gujjar, Advocate appearing for the respondent contended that the evidence has been properly appraised by both the learned lower Courts who have come to a correct finding of fact that neither the power of attorney nor the agreements to sell nor indeed the payment has been proved. He also submitted that in case of illiterate and Pardah Nasheen ladies, great care and caution should be exercised in respect of their rights in immovable property. He lastly contended that concurrent findings of fact are not liable to be interfered with in regular second appeal.

7. Arguments heard. Record perused.

8. The contention of the learned counsel for the appellant that the learned trial Court exercised its jurisdiction illegally or with material irregularity inasmuch as it decided Issues Nos. 1 to 5 jointly, is misconceived. The provision of Order XX, Rule 5, C.P.C. require the Court to state its decision on each issue. The findings of the trial Court has been examined. Although the trial Court has decided Issues Nos. 1 to 5 together, however, no illegality is found in the said procedure. A perusal of Issues Nos. 1 to 5 would show that they are inter‑linked with the controversy between the parties i.e. whether the power of attorney was executed by respondent No. 1 in favour of respondent No. 2, whether respondent No.2 lawfully entered into any agreement to sell on behalf of the respondent No. 1, whether any sale consideration was received or whether the power of attorney or the agreement to sell were forged and fictitious documents. In order to avoid repetition of facts and evidence it was considered appropriate by the trial Court to decide all the connected issues together. The objection raised by the learned counsel for the appellant is too hypertechnical to bear any scrutiny. From the perusal of the record it shows that the trial Court as well as the First Appellate Court applied its conscious mind to the relevant evidence and recorded sound reasons in support of the conclusion drawn. No prejudice has been caused to the appellant by said regulatory procedure which in fact advanced the cause of justice. Reference is made to Umer Din v. Ghazanfar Ali 1991 SCMR 1816 and Hafiz Ali Ahmed v. Muhammad Abad (PLD 1999 Karachi 354).

9. It is also pointed out that this Court in Regular Second Appeal can interfere onlywhen (a) decision is contrary to law or usage having the force of law (b) the decision having failed to determine some material issue of law (c) in case of substantial error or defect in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon merits. It is not the intention of law to strike down every insignificant departure in the procedure interference can only be made where injustice would result on account of the irregular exercise of jurisdiction which might have affected the ultimate decision of the case. No such situation arises in the present circumstances, and no interference is thus called for. The learned counsel for the appellant has not been able to point out by any non‑reading or misreading of evidence on the record. The concurrent findings of both the lower Courts is, a result of a meticulous appraisal of evidence on the record and cannot be disturbed.

10. In the light of the above discussion, there is no merit in this regular second appeal which is hereby dismissed leaving the parties to bear their own costs. H.B.T./M‑1008/L Appeal dismissed,