1994 PLP 984 (SCMR)

SHAFIUR RAHMAN, ACTG. CJ. ‑‑‑The petitioner seeks cleave to appeal against the judgment of the High Court whereby a suit for specific performance filed by him was dismissed and the dismissal upheld in Regular Second Appeal.

2. The petitioner as plaintiff claimed that his brother Muhammad Sharif (predecessor‑in‑interest of the respondents) a joint owner of the house in dispute had agreed on 3‑8‑1973 to convey and transfer his 2/9th share in the house for a consideration of Rs.10,726 to him. A sum of Rs.2,000 was paid as earnest money and the rest was to be payable at the completion of the sale. On failure of Muhammad Sharif to honour the agreement, a suit was instituted by the petitioner on 15‑3‑1974 claiming the specific performance of the agreement. It was contested by Muhammad Sharif. He denied the execution of the agreement to sell and the receipt of the earnest money. Issues were framed. Evidence was recorded and the Civil Judge by his judgment and decree dated 29‑1‑1985 decreed the suit of the petitioner. An appeal was filed which was accepted by the Additional District Judge on the ground that the execution of the sale‑deed was not duly proved. In second appeal that appellate order was allowed to hold good whereupon an appeal in this Court was filed which succeeded to the extent that the case was remanded to the High Court for a fresh decision on the point whether Muhammad Sharif had independently of the written agreement to sell agreed to sell the house.

3. The matter was taken by the High Court and the entire evidence brought on record was examined. It came to the following conclusion:‑‑

"No substantial evidence of the said transaction of bargain is available on record. In fact the version of Nasim Kashmiri is different from that of Farrukh Butt

There is no explanation, as noted above, as to why one document was got signed by Muhammad Sharif and a receipt representing the amount of the decree was got signed from his son. Although both Nasim Kashmiri and Farrukh Butt are related to Muhammad Sharif respondent but they are equally related to the appellant‑plaintiff as well though nothing is on record to show as to why they have sided with one party as against the other. The fact remains that the version put up by the plaintiff is not probable. Had Muhammad Sharif agreed to sell the house the document would not have been prepared, drafted and got signed as is stated. It may further be noted that the learned First Appellate Court has surveyed the evidence and drawn conclusion which is finding of fact and such finding of fact cannot be substituted in second appeal. Neither any non‑reading of evidence nor misreading has been pointed out. The net result of the above discussion is that there is no merit in this appeal and the same is dismissed with cost."

4. In seeking leave to appeal the learned counsel for the petitioner has taken us through the evidence in order to establish that the agreement to sell stood proved so far as the receipt of earnest money is concerned and that there was refusal on the part of the predecessor‑in‑interest of the respondents to honour that agreement.

5. We have examined the material on which reliance has been placed. The agreement to sell related to a joint property in which both the brothers had share. The documentary and the oral evidence of persons who are closely related to the parties and the evidence with regard to the document being equivocal, the conclusion drawn by the two Appellate Courts cannot be said to be against the weight of evidence or contrary to law.

6. In the circumstances, no case is made out for further examination in this Court and leave to appeal is refused. AA./M‑1872/S Leave refused.