' Appellant/plaintiff, through the filing of the present second appeal, has assailed the judgment and decree dated 3-1-1993, whereby the learned Additional District Judge dismissed appellant's appeal and maintained the judgment and decree dated 14-5-1992, passed by the learned Civil Judge, through which he dismissed the suit for possession through specific performance of an agreement, filed by the appellant.
2. The appellant filed a suit for possession, through specific performance of an agreement dated 22-9-1971 (Exh.P.1), against Sh. Muhammad Anwar, predecessor-in-interest of respondents Nos.1-A to 1-E, and respondents Nos.2 and 3, pleading therein that the said respondents executed a sale agreement in favour of the appellant, regarding the mills premises, for a consideration of Rs.75,000, out of which Rs.5,000 was paid in advance and that the said respondents agreed to execute the sale-deed, on 20-10-1971, after receipt of the remaining sale price. According to the appellant as the said respondents failed to fulfil their part of the agreement, thus, necessitated the filing of the suit. Subsequently Municipal Committee, Gojra and the Province of Punjab were impleaded as party. Respondents Nos.6 to 10 we also impleaded in the suit as they were legal heirs of Sh.
Muhammad Amin, deceased, the original owner of the factory. The said suit was contested by the respondents. So far as respondents Nos.1 to 3 are concerned, they admitted the execution of the agreement to sell, dated 22-9-1971, however, pleaded that the appellant committed breach of the sale agreement, therefore, the same has ceased to have effect. It was further asserted by them that the land underneath the factory was a State land and did not belong to respondents Nos.1 to 3.
The defence of the Municipal Committee and the Provincial Government was that they are not party to the sale agreement and that the land underneath the factory belongs to -the Municipal Committee. Which was transferred to it through Mutation No.706, dated 13-7-1985., The plea of respondents Nos.6 to 10 was that although they are the legal heirs of Sh. Muhammad Amin, deceased, yet as they were not party to the sale agreement, thus} the same is not enforceable against them.
3. The learned trial Court framed the necessary issues, recorded the evidence of the parties and in the first round of litigation the aforenoted suit was decree by the learned trial Court vide judgment and decree dated 18-10-1984. On an appeal filed, the learned First Appellate Court remanded the case to the trial Court with the direction to implead the Municipal Committee, Gojra and the Province of the Punjab. In the post remand proceedings respondents Nos.6 to 10 filed an application for their impleadment in the suit, which was allowed. Thereafter the learned tri Court after complying with the directions of the First Appellate Court dismissed the suit vide judgment and decree dated 14-5-1992, however, respondents Nos.1 to 3 were directed to return a sum of Rs.5,000, which was received by them as earnest money. Feeling aggrieved the appellant filed an appeal, but without any success as his appeal was dismissed by the learned Additional Disuict Judge vide judgment and decree dated 3-1-1993, hence, the present second appeal.
4. Learned counsel for the appellant, while referring to the written statement, filed by respondents Nos.1 to 3, has submitted that although the said respondents have admitted the execution of agreement to sell, yet the appellant has proved the execution of the agreement to sell by producing its marginal witness and the scribe. He has further contended that the learned lower Appellate Court has not considered the documents, which were admitted in evidence as Exhs.P.6 to P.8. He has further asserted that according to section 18 of the Specific Relief Act the respondents were entitled to have the proprietary rights therefore, the suit of the appellant could not have been dismissed. Conversely, learned counsel for respondents Nos.1-A to 1-E, 2, 3, 6 to 10 has submitted that the agreement to sell was only in relation to the superstructure and the machinery of the factory and it does not include the land underneath the factory. He has further submitted that as the land underneath the factory, admittedly, was the ownership of the Municipal Committee, Gojra, therefore, it could not have been made subject matter of the agreement to sell. He has further contended that in the present set of circumstances the agreement to sell could not be enforced.
5. I have examined the agreement to sell dated 22-9-1971 (Exh.P.1) and find that the same was executed by Sh. Muhammad Anwar, predecessor-in-interest of respondents Nos.1-A to 1-E, Khalid Mehmood and Qaiser Saleem. Admittedly, the rest of the respondents are neither party nor signatories to the said agreement. Even according to the stance of the appellant only the aforenoted respondents executed the sale agreement and most probably that was the reason why initially he filed a suit for specific performance only against Sh.
Muhammad Anwar and respondents Nos.2 and 3. If respondents Nos.4 to 10 were not party to the agreement, obviously, the agreement cannot be enforced against them and, therefore, it has rightly been held by both the Courts that no effective decree can be passed against respondents Nos.4 to 10 on the basis of sale agreement.
6. As regards the first contention, learned counsel for the appellant is right in submitting that Exh.P.1 has been admitted by respondents Nos.1 to 3. If the said document was admitted there was no need to prove the said document. Be that as it may, the agreement to sell was an admitted document and both the Courts proceeded to decide the matter with the assumption that the agreement to sell is an admitted document. Both the Courts did not hold at any stage that respondents Nos.1 to 3 did not execute the agreement to sell, rather the learned Appellate Court has categorically held that "it is an admitted fact on record that predecessor-in-interest of respondents Nos.1-A to 1-E and respondents Nos.2 and 3 have executed a sale agreement Exh.P.1 in favour of the plaintiff/appellant by means of which they agreed to sell the factory in dispute and also to execute a sale-deed in his favour on 20-10-1971."
7. As regards the second contention, upon the examination of the judgment passed by the learned First Appellate Court, I find that the learned Appellate Court has duly discussed all the three documents and on the basis of these documents held that Sheikh Muhammad Amin was owner of the factory in dispute and holder of Teh Bazari Ticket and that a mutation (Exh.P.8) has been sanctioned in favour of the Municipal Committee. In view of this it cannot legitimately be argued that the Appellate Court has not discussed the documents in its judgment.
8. Coming to the next contention, suffice it to say, that the appellant has not raised the said plea either before the learned trial Court or before the First Appellate Court inasmuch as the same has not been agitated even in the grounds of appeal before this Court. I. Have examined the plaint, grounds of appeal before the First Appellate Court, the memorandum of appeal before this Court and find that no such plea was ever taken by the appellant before either of the Courts. It is at the time of arguments that the said stance has been taken by the learned counsel of appellant. It is settled law that a litigant cannot be allowed to raise altogether a new plea before the appellate/revisional Court, which has not been agitated before the lower forums. The case of the appellant is even worst as he did not raise the plea in the grounds of appeal before this Court. The contentions raised by the learned counsel for the appellant are of no substance, thus, repelled.
9. Upon the examination of both the judgments, I find that both the Courts have embarked upon all the issues involved in the case, appreciated documentary as well as oral evidence in its true perspective and reached to the proper conclusions to which no exception can be taken at the stage of second appeal. The findings rendered by both the Courts are not only in consonance with the record of the case, but are also in accordance with law on the subject. Learned counsel could not point out any grave legal infirmity in the impugned judgments justifying to unsettle the concurrent findings of facts arrived at by both the Courts below. I have also perused the evidence on record and find that the inferences drawn by both the Courts are in accordance with the evidence on record. I have no reasons to upset the concurrent findings of fact arrived at by both the Courts below and the findings whereof are hereby confirmed.
10. It is settled law that the second appeal lies on the grounds mentioned in section 100 of C.P.C.
And not on questions of fact. The learned counsel has not been able to show that how this second appeal falls within any of the grounds mentioned in section 100 of C.P.C. No error of law has been committed by both the Courts below, while rendering the concurrent findings of facts.
11. I have examined the impugned judgments rendered by both the Courts below, which are legal, unexceptionable, apt to the facts and circumstances of the case and do not call for any interference by this Court at the stage of second appeal. It is settled law that the concurrent findings of facts are not liable to be interfered by this Court in exercise of its appellate jurisdiction, conferred on it under section 100, C.P.C. Reliance is placed on Muhammad Shafi and another v.
Sher Ali 1970 SCM R 510; Hafiz Muhammad Hussain and another v. Abbas Khan and another 1981 SCM R 1233; Fazal Rehman v. Amir Haider and another 1986 SCM R 1814; Abdul Ghani v. Muhammad Akhtaxl 1988 SCM R 801; Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCM R 137; ' Abdul Rashid v. Bashiran and another 1996 SCM R 808; Haji Sultan Ahmad through legal heirs v.
Naeem Raza and 6 others 1996 SCM R 1729; Mussarat Sultana v. Muhammad Screed 1997 SCM R 1866; Madan Gopoal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267.
' Upshot of the above discussion is that the present appeal is devoid of merits, thus, the same is dismissed with no orders as to costs.