2005 PLP 223 (YLR)

(c) Civil Procedure Code (V of 1908)

O. XLI, R. 33

Power of Court of appeal

Scope

Appellate Court could re appraise evidence on record while deciding appeal. N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1959 PC 26 and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood 1985 CLC 657; C.P. No.1146/86 vide judgment, dated 31-3-1985 and Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir PLD 1988 SC 625 rel. Ch. Mumtaz-ul-Hassan for Petitioner. The brief, facts of which the present petition arises are that respondent No.1 secured a decree of maintenance in her favour against respondent No.5. She had, thereafter, filed execution petition before the Executing Court/Civil Judge, Okara . The Executing Court/trial Court attached the property in question. The petitioner filed objection petition that the property in question/attached property is belonging to the petitioner on the basis of agreement to sell executed by respondent No.5 in favour of petitioner on 13-5-2002. The trial Court passed the order/accepted objection petition in favour of the petitioner on 10-10-2003. Respondent No.1 being aggrieved filed appeal in the Court of learned District Judge, Okara who accepted the same vide impugned judgment and decree, dated 7-4-2004. The petitioner being aggrieved filed this revision petition.

2. Learned counsel of the petitioner submits that the petitioner is a bona fide purchaser of the property in-question. This fact was not considered by the First Appellate Court in its true perspective. The petitioner has also paid all consideration to respondent No.5, therefore, impugned judgment and decree is not sustainable in the eye of law and is violation of the law laid down by the Superior Courts. In support of his contention, he relies upon Saadia Begum v. Jangreez and 3 others (PLD 2004 Peshawar 213).

3. I have given my anxious consideration to the contentions of the learned counsel of the petitioner and perused the record.

4. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties. The respondent No.1 filed a suit against the respondent No.5 on 11-2-2002. The alleged agreement to sell qua the property in-question was prepared by the petitioner and respondent No.5 on 13-5-2002. Value of property according to the agreement to sell is Rs.1,50,

000. The agreement to sell is unregistered document. It is pertinent to mention here that all the parties belong to one and the same village. It is not believable as observed by the First Appellate Court that the petitioner could not know that the litigation is pending between the petitioner and respondent No.5. It is pertinent to mention here that agreement to sell was procured/executed by the petitioner and respondent No.5 during the pendency of the suit filed by respondent No.1 against respondent No.5, therefore, I do not find any infirmity or illegality in the impugned judgment of the First Appellate Court. It is settled principle of law that the agreement to sell does not in any manner convey any title in the immovable property of the kind involved in the present controversy. Meaning thereby mere agreement to sell even bona fide executed will not pass any valid title to the intending purchaser as the law laid down by the Superior Courts in the following judgments:-- M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others (PLD 1966 (W.P.) Lah. 953); Muhammad Ishaq v. Muhammad Siddique (PLD 1975 Lah. 909) and Union Bank of the Middle East Ltd. v. Saad Carpets Ltd. 1986 MLD

482. It is also settled principle of law that no interest which is created during the pendency of the suit can affect any decree passed in the suit. In arriving to this conclusion, I am fortified by Pir Abdullah Shah and 8 others v. Humayon and 5 others (PLD 1957 (W.P.) Lah. 1054) and Hakim Ghulam Rasool v. Sh. Imdad Hussain and another (PLD 1968) Lah. 501). The First Appellate Court has all the powers to reappraisal the evidence on record at the D time of deciding the appeal and in accordance with the parameters prescribed by the Privy Council in N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (PLD 1959 PC 26). The relevant observation is as follow:-- "This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law." The judgment of the Privy Council was followed by this Court in Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood 1985 CLC 657, which was upheld by the Honourable Supreme Court of Pakistan in C.P. No.1146/84 vide judgment, dated 31-3-1985 which was subsequently re affirmed by the Honourable Supreme Court in Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir (PLD 1988 SC 625). The learned counsel of the petitioner failed to bring the case within the parameters prescribed by the Privy Council in the aforesaid judgment. It is pertinent to mention here that the precedent cited by the learned counsel of the petitioner having distinguished facts and law as is observed in Saadia Begum's case (supra) on the basis of Khula and the principles of section 41 was not discussed and noted, therefore, the facts of this case as mentioned above are entirely different. Therefore, the judgment cited by learned counsel of the petitioner is of no relevance with this case. In view of what has been discussed above, the revision petition is dismissed. S.A.K./M-713/L Revision dismissed.