' M. JAVED BUTTAR, J.--- The petitioners/defendants, through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, are seeking leave to appeal against the judgment and decree dated 25-9-2001 passed by a learned Single Judge of the Lahore High Court, whereby Regular Second Appeal No,49 of 1986, instituted by the petitioners, was dismissed and the judgment and decree dated 11-2-1986 of the Additional District Judge, Gujranwala, reversing the judgment and decree, dated 14-3-1982 of the Civil Judge and decreeing the suit filed by respondent for specific performance of contract, was maintained:
2. The case of deceased respondent/plaintiff Syed Ashiq Hussain Shah was based on agreement to sell dated 26-10-1973 (Exh.P.l), alleged to have been executed by petitioner No,1 Mst. Sardar Begum, in regard to her land measuring 18 Kanals, 17 Marlas, detailed in the plaint, for a total consideration of Rs,6,300 out of which she was alleged to have received Rs,1,000 as earnest money and had simultaneously delivered possession of the said land to the plaintiff. The balance was stated to have been paid to the petitioner No,1 through her son Zafar Iqbal on different occasions. It was alleged that despite receiving the entire sale consideration, the petitioner No,1 was delaying execution of the land in dispute, it was in possession of the respondent/plaintiff through Rehmat (P.W.2), who was admittedly a tenant over the land in dispute and that no produce was given to the petitioner No,1 after the exception of the agreement in-question. It was further held that the alleged gift in favor of petitioner No,2 was never completed in any manner and in any case, in the presence of agreement of sell, petitioner No,1 could not have gifted the suit-land.
4. The petitioners being aggrieved thereby instituted second appeal (R.S.A. No,49 of 1986) which, as mentioned above, was dismissed by a learned Single Judge of Lahore High on 25-9-2001.
5. We have heard the learned counsel for the parties and have also seen the relevant record, including the impugned judgment.
6. The learned Judge of the High Court, scrutinized the entire evidence produced by the parties and concluded that the findings recorded by the learned First Appellate Court were duly backed by the evidence produced in the case. The learned counsel for the petitioners has not been able to point out any misreading or non-reading of evidence by the First Appellate Court and any illegality in the impugned judgment passed in the second appeal. Petitioner No,1 appeared as D.W.1. She admitted that her personal affairs were attended to by Zafar Iqbal and that he carries out transactions on her behalf. The trial Court, in reaching the conclusion that Zafar Iqbal had no authority to receive the amount on behalf of petitioner No,1 and that the amount received by Zafar Iqbal was a loan, ignored the statement of petitioner No,1 as D.W.1. The agency may either be expressed or implied. In view of the admissions made by petitioner No,1 as D.W.1, it was correctly found by the First Appellate Court, affirmed by the Second Appellate Court that it was established that Zafar Iqbal had received the sale consideration on behalf of his mother. Furthermore, it was admitted by petitioner No,1 that P.W.2 was the tenant over the land in dispute, which appeared in the witness-box and stated that the produce was being given to the plaintiff. This piece of evidence was correctly taken as corroboration. The said Zafar Iqbal appeared as P.W.4. He admitted that plaintiff was entered in the Revenue Record, as in possession. He, however, went on to state that this entry was based on collusion with the revenue officials. The collusion has not been established through any evidence.
The learned Single Judge of the High Court has also scrutinized the said entry in the Khasra Girdawari (Exh.P.3), in depth, which entry (in favor of the plaintiff) continued till the filing of the suit.
The plaintiff was shown in actual possession of the land in dispute, though as a tenant. It may be mentioned here that it was not the case of petitioner No,1 that the agreement in question (Exh.P.1) did not bear her thumb-mark. Zafar Iqbal admitted the receipt of the said amount but claimed that it was a loan. A perusal of writing on the backside of Exh.P.1 shows that he received the said amount in connection with the land. His signature on the backside of the agreement acknowledging the receipt of amounts, have been admitted by him Keeping in view the entire facts and circumstances of the case, the High Court correctly concluded that it was clearly established that petitioner No,1 did execute Exh.P.1 and Zafar Iqbal had received the balance of sale price, as noted above, on the backside Exh.P.1. High Court, therefore, correctly concluded that the findings recorded by the First Appellate Court were duly backed by evidence produced by the parties.
7. In view of the above-mentioned, we find no merit in this petition which is accordingly dismissed and the leave is refused.