2007 SCMR 1083 (PLP)

CH. IJAZ AHMED, J.

The brief facts out of which the present petition arises are that petitioner filed suit for specific performance against the respondents in the Court of Civil Judge, Khanewal on 27-10-1991. According to the contents of the plaint the controversy between the parties is in respect of 21 Kanals land. Mehmood Khan predecessor-in-interest of the present respondents was allotted land in question under Tarbela Dam Affectees Scheme. After his death Mst. Anwar Sultan inherited the property and she vide agreement dated 19-1-1991 sold the property in question to the petitioner for a consideration of Rs.15,000 and the sale consideration was also paid there and then. Respondents refused to execute sale-deed in favour of the petitioner and as such the said suit was filed. Respondents filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties trial Court framed 6 issues. The learned trial Court dismissed the suit vide its judgment and decree dated 18-12-2000. Petitioners being aggrieved filed appeal in the Court of Additional District Judge Khanewal on 30-3-2001 who dismissed the same vide judgment and decree dated 16-6-2005. Thereafter, the petitioner filed Civil Revision No.849-D of 2005 in the Lahore High Court, Multan Bench, which was dismissed vide impugned judgment, dated 14-3-2006. Hence the present petition.

2. The learned counsel for the petitioner submits that all the Courts below had decided the case against the petitioner by misreading and non-reading of the record. He further maintains that trial Court dismissed the suit without judicial application of mind as is evident from operative part of the finding of the trial Court on issue No.3 which is to the following effect:-- "According to the evidence brought on record I am fully confident that the father of the defendant No.1 did not enter into an agreement to sell with the plaintiff on 19-1-1991, hence this issue is hereby decided in the negative." Learned counsel for the petitioner submits that agreement to sell was executed by respondent No.1 in favour of the petitioner as is evident from the contents of the agreement. The agreement is at pages 98-99 of the paper book.

3. We have given our anxious consideration to the contention of the learned counsel of the petitioner and perused the record ourselves. The petitioner had not taken specific ground before the First Appellate Court regarding the aforesaid operative part of the judgment of the trial Court with regard to Issue No.3 and petitioner had also failed to take such plea before the High Court as is evident from the memorandum of revision petition as well as during the argument before the high Court as is evident from para.3 of the impugned judgment. The learned trial Court had discussed evidence on record on Issue No.3 as is evident from paragraphs Nos.7 and 8 of the judgment of the ,trial Court. The trial Court has observed in para.7 which is to the following term:-- "To prove some document it is essential for the transferee to produce at least two witnesses but plaintiff could not produce two witnesses in support of his contention." The First Appellate Court also observed regarding attesting witnesses in para.9 in the following term:-- "Perusing record it has been observed that out of two marginal witnesses only one marginal witness could be produced." It is an admitted fact that agreement to sell was witnessed by Sadiq Hussain P.W.3 and Muhammad Ashraf who was not produced. Mere mentioning by the trial Court that agreement to sell was not executed by father of the respondent No.1/defendant No.1 does not support the cause of the petitioner in view of the discussion by the trial Court in paras. Nos.7 and 8 of the judgment coupled with the fact that trial Court had mentioned in narration of facts that agreement was executed between the petitioner and respondent No.1. It is admitted fact that petitioner had also filed another suit against the respondents qua other agreement, which was decided by the trial Court on the same date by a separate judgment. Therefore, it was merely typographical mistake. The learned counsel for the petitioner had failed to produce second attesting witness of the agreement to sell before the trial Court. The learned High Court had taken a lot of pain to reappraise evidence on record as is evident from paras. Nos.7 to 10 of the impugned judgment, therefore, learned High Court did not interfere with concurrent conclusions arrived at by the Courts below while exercising power under section 115, C.P.C. The judgment of the learned High Court is in consonance with the law laid down by this Court in various pronouncements. See Anwar Zaman's case 2000'SCMR

431. It is admitted fact that as mentioned above petitioner had failed to produce two attesting witnesses to prove the contents of the agreement to sell, therefore, Courts below were justified to non-suit the petitioner in view of Article 17 read with Article 79 of Qanun-e-Shahadat Order, 1984 as law laid down, in various pronouncements. See Qazi Muhammad Saqib Khan's case 2003 MLD 131, Suleman Ali's case 2000 YLR 1938 and Maqsood Akhtar's case PLD 2003 SC

131. It is also settled principle of law that this Court does not normally interfere in the concurrent findings recorded by the Courts below while exercising power under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973. See Wali's case 1995 SCMR

284. It is also a settled law that specific performance is an equitable relief and we find that the Courts below have rightly declined to exercise the discretion in favour of the petitioners with cogent reasons. The judgments of all the Courts below are in consonance with the law laid down by this Court in Irshad Hussain's case PLD 1994 S 326 and learned counsel has not been able to point out any misreading or non-reading of evidence or any infirmity or illegality in the impugned judgment. This petition has no merit and the same is accordingly dismissed. Leave refused. M.H./R-7/SC Petition dismissed.