2010 PLP 1976 (SCMR)

CH. IJAZ AHMED, J.

Appellant/petitioner has filed petition against the judgment of the Lahore High. Court dated 23-11-1998 whereby the revision petition filed by the appellant was dismissed.

2. Detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the present appeal arises are that land measuring 123 kanals was owned by Muhammad Yousaf who had executed agreement to sell with Ibrahim on 7-6-1984 for a consideration of Rs.80,000 out of which he had received Rs.64,

000. Muhammad Yousaf agreed to execute the sale deed in favour of Ibrahim after obtaining necessary permission from GHQ as he had taken the land from Boarder Area Committee. Muhammad Yousaf died leaving behind Roheel Jan widow, Abdul Rahim, Zulfiqar, Abdul Qayyum, Ghazanfar Ali sons and Arshad Bibi, Farhat Bibi and Riffat Bibi daughters. After the death of original owner Muhammad Yousaf, legal heirs had executed agreement to sell in favour of Ibrahim respondent on 24-12-1985 except Ghazanfar Ali, Arshad Bibi and Farhat Bibi. Thereafter an agreement to sell was also executed in favour of Ibrahim by Ghazanfar on 28-12-1985 regarding four kanals, 8 marlas and received the money from Ibrahim through his brothers, mother and sisters. General power of attorney regarding the whole land was executed in favour of Ibrahim. Appellant also purchased the land measuring 2 acres vide registered sale deed dated 2-12-1987 from Ghazanfar Ali. Respondent No.1 filed suit for specific performance in the Court of Civil Judge, Kasur against predecessor-in- interest of appellants and respondent No.2. The predecessor-in-interest of appellants and respondent No.2 filed written statement, controverting the allegations levelled in the plaint. The learned trial Court, after completing the legal formalities such as framing of issues and recording of evidence, decreed the suit according to alternative relief of recovery of Rs.11,885 whereas the main relief regarding the specific performance was refused. Both the parties being aggrieved filed two appeals before the Additional District Judge, Kasur against the judgment of the trial Court. The learned Additional District Judge accepted the appeal of respondent No.1 and decreed the suit qua the main relief regarding the specific performance vide judgment/decree dated 8-9-1992. Ghazanfar respondent No.2 and predecessor-in-interest of appellants being aggrieved filed two revision petitions before the Lahore High Court which were dismissed. The revision petition of appellant was dismissed on merits vide impugned judgment. Ghazanfar Ali filed application before the Lahore High Court to withdraw the revision petition which as allowed and his revision petition was dismissed as withdrawn.

3. Appellants/petitioners filed Civil Petition No.252-L of 1999 which was fixed before this Court and leave was granted vide order dated 9-5-2002 in the following terms. -- "It is, inter alia, contended that respondent-Ibrahim utterly failed to prove the agreement dated 7-6-1984 as well as the subsequent agreements, inasmuch as, he did not place the agreements on record and the agreement dated 24-12-1985 (Exh.D.I) was produce in evidence by the present petitioner. It is further submitted that respondent-Ghazanfar Ali never agreed to sell his land measuring 15 kanals 3 marlas to the respondent and the suit was illegally decreed in favour of the respondent. It is the case of the petitioner that he is bona fide purchaser for consideration through registered sale deed and the land purchased by him could not, in law, be decreed in favour of respondent-Ibrahim, who miserably failed to prove any transaction relating to this piece of land.

4. Learned counsel for the appellants submits that learned High Court as well as the courts below had erred in law to accept the suit of the respondent No.1. The respondent No.1 had filed suit for specific performance for three agreements, therefore, suit of the respondent was not maintainable and this aspect was not considered by the courts below. He further submits that respondent had not brought on record two agreements dated 7-6-1984 and 24-12-1985 on record and this fact was not also considered by the courts below. The 3rd agreement dated 28-12-1985 was not proved in accordance with law by the respondent as the respondent had failed to produce the attesting witnesses, therefore, courts below erred in law to rely upon the agreement as the respondents were duty bond to produce attesting witnesses in terms of Articles 17 and 79 of Qanun-e-Shahadat Order, 1984. In support of his contentions, he relied upon Sana Ullah's case (PLD 1996 SC 256). He further urges that agreement dated 28-12-1985 is very vague, therefore, all the courts below were not justified to decree the suit and relied upon such type of agreement. In support of his contention, he relied upon Mian Muhammad Saleem's case (1987 SCMR 624) and Mst. Saeeda Akhtar's case (PLD 1981 Lah. 623).

5. Learned counsel for the respondents submits that agreement to sell was admitted by the appellant as is evident from his cross-examination which is to the following effect:--

6. He further urges that by accepting the agreement, there is no requirement for the respondent to produce attesting witnesses. He further urges that agreement to sell in favour of the respondent dated 28-12-1995 clearly envisages that appellant had accepted the previous agreement as evident from the contents of agreement to sell dated 28-12-1985. He further maintains that appellant had not raised plea of Articles 17 and 79 of the above-referred Order, 1984 in the written statement as well as in his statement before the trial Court, therefore, appellant could not be allowed to raise new plea. In support of his contention, he has relied upon Khan's case (2005 SCMR 1135). He further urges that all the courts below had concurrently decided the case against the appellants and this court generally does not interfere in the concurrent conclusions arrived at by the courts below. In support of his contention, he relied upon Abdul Aziz's Case (2007 SCMR 336).

7. Learned counsel for the appellants, in rebuttal, submits that relief with regard to specific performance is discretionary in character. He further urges that all the courts below had erred in law to decide the case against the appellants/petitioners and did not advert to section 27 of the Specific Relief Act and section 41 of the Transfer of Property Act.

8. We have given our anxious considerations to the contentions of learned counsel for the parties and have perused the record. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties: (i) Original owner had executed agreement to sell in favour of respondent No.1 on 7-6-1984 for consideration of Rs.80,000 after receiving Rs.64,000. (ii) The only condition was to execute the sale agreement in favour of the respondent No.1 after securing permission from the GHQ. (iii) Subsequently another agreement to sell was executed on 24-12-1985 by all the LRs of original owner except Ghazanfar Ali, Arshad Bibi and Farhat Bibi. (iv) Ghazanfar Ali executed agreement to sell dated 28-12-1985. The contents of the agreement reveal that he received consideration amount through his brothers and sisters.

9. All the contentions raised by the learned counsel by the appellants were noted and considered by the High Court in the impugned judgment as is evident from paras 8 to

13. So far as the question of bona fide purchaser is concerned, the learned counsel for the appellants had not uttered even a single word before us. All the courts below had given concurrent findings against the appellants. It is a settled law that constitutional jurisdiction is discretionary in character. Keeping in view all the circumstances, as mentioned in paras 8 to 13 of the impugned judgment we are not inclined to exercise our discretion in favour of the appellants as law laid down by this Court in Nawabzada Raunaq Ali's case (PLD 1973 SC 236). Even otherwise, this Court, normally, does not interfere in the concurrent conclusions arrived at by the courts below t while exercising power under Article 185(3) of the Constitution. The concurrent conclusions arrived at by the courts below are in consonance with the evidence on record. It is settled law that each and every case is to be decided on its own peculiar facts and circumstances of the case. The judgments cited by the learned counsel for the parties have no relevancy to resolve the issue in question. This is a case of facts and the facts have already been scrutinized on the basis of the evidence by the courts below. However, in the interest of justice and fair play, we have also re-examined and re-evaluated the evidence on record but we could not find any infirmity or illegality in the impugned judgment. It is settled law that fact, admitted between the parties need not to be proved. Agreement dated 28-12-1985 is very clearly indicating intention of the parties which is termed as complete sale in all respect between the parties, therefore, respondent had no authority to execute sale-deed in favour of predecessor-in-interest of appellants coupled with the fact that he had withdrawn his revision petition. This fact of agreement to sell in favour of respondent No.1 by respondent No.2 was in the knowledge of the predecessor-in-interest of appellants as is evident from his own evidence reproduced herein above. The learned first Appellate Court had exercised discretion in favour of respondent No.1 with cogent reasons after properly re-examining the evidence on record as evident from paragraphs 6 to 9 which are affirmed by the learned High Court in the impugned judgment vide paragraphs 8 to 13.

10. In view of what has been discussed above, the appeal has no merit and the same is dismissed with no order as to costs. M.H./C-17/SC Appeal dismissed.