1. ' MUNIB AHMED KHAN, J.---Through this 2nd Appeal the judgment, dated 5-4-2005 passed by IIIrd Additional District Judge Hyderabad as well as judgment and decree, dated 9-1-2001 passed by Senior Civil Judge Tando Muhammad Khan has been challenged. The learned Civil Judge has decreed the suit of the plaintiff while the learned Additional District Judge has maintained the said order and against this concurrent finding, this 2nd appeal has been filed.
2. ' Succinctly the facts as narrated are that the respondent filed suit stating therein that he purchased through an agreement, dated 15-2-1996 50 paisa share in agricultural land in Survey Nos.53, 54, 59, 60 and 64 admeasuring 29-27 acres in Deh Aloo Katiar, Taluka Tando Muhammad Khan District Hyderabad from the appellant against a sum of Rs,6,75,000 and paid a sum of Rs,1,00,000 towards earnest money. The balance amount to be paid at the time of execution of registered sale-deed on 15-5-1996. The remaining 50 paisa share in that land along with Survey No,337 was owned by Ghulam Qadir who had leased out the land to respondent and his brother Muhammad Hanif on 10-7-1994 and by virtue of that agreement the respondent was in possession of entire land and at the time of sale agreement, dated 15-2-1996 with the applicant for his 50 paisa share he was already in possession. Since the appellant failed to execute registered sale- deed in terms of sale agreement, therefore suit was filed.
3. ' On the other hand the appellant contested the case by stating that the sale agreement is forged and fake and he has not received any amount of sale from the plaintiff and the documents are managed and fraudulent as the respondent wanted to usurp the property of the defendant. The appellant also denied the possession of the land by the respondent as the lease has expired earlier to the alleged agreement. On the basis of controversy the learned lower Court presumed 7 issues and the main issue on merit coming out of the case was as follows:--
(3) Whether defendant agreed to sale his 50 paisa share to the plaintiff and executed sale agreement as alleged.
4. ' The parties led evidence and the learned Civil Judge on the basis of evidence has decreed the suit while the learned Additional DistrictJudge maintained his judgment. Now the learned counsel for the appellant has contested that the witnesses Siddiq is related to the respondent and Ghulam Qadir another witness to the sale agreement, is lessor of Hanif, the brother of the respondent, therefore, both the witnesses have deposed falsely. He has further argued that 50 pasia share from 29-27 acres will come to 14-33-1/2 acre, while as per agreement, respondent has purchased 15 acres for consideration of Rs,6,75,000 and that rate per acre amounting to Rs,45,000 has been given and if this is multiplied by 14-33-1/2 then it will come to 6-67,687.50 therefore, the evidence does not match with the alleged sale agreement. He has further argued that there was no valid agreement of sale and the lower Courts have committed illegality in holding contrary. It has also been urged that respondent has failed to prove issue No,3 and that the respondent was not in possession of the subject land nor the revenue receipts produced by the respondent pertains to the suit-land and since there was collusion between co-sharer Ghulam Qadir and the respondent, therefore, he has deposed falsely along with Muhammad Siddiq, relative of the respondent.
5. ' On the other hand Mr. Aijaz Ali Hakro, learned counsel has argued that this is a 2nd appeal therefore, this Court has to see as to 'whether the decision is contrary to law or some usage having the force of law or lower Courts have failed to determine material issue of law or that there-is substantial error or defect. He has further argued that none of the ground is taken by the appellant as he has simple dispute the facts finding and their appreciation by the Senior Civil Judge which ground is not permitted in 2nd Appeal.
6. ' Mr. Hakro has also stated that there was evidence in detail and since Abdul' Qadir was admittedly the co-owner of the appellant and has executed the lease of his part of land in favour of the plaintiff and his brother Muhammad Hanif, therefore, he was the most material witness and likewise Muhammad Siddiq although relative of the respondent, is a witness to the agreement and it is very natural that witnesses are employed from persons either having relationship or friendship and the persons in which the parties to agreement have confidence. He has further argued that respondent and both witnesses have deposed on one line and throughout in the cross- examination they remained stable and each and every fact has been corroborated and that the contention of the learned counsel for the appellant that the amount of Rs,6,75,000 does not tally with the land acquired i.e, 14-33-1/2 acre, he has stated that the estimation of the price of the land has been calculated @ Rs,45,000 while the land in the agreement is described as 15 acres which is approximate to 14-33-1/2 and that 6,75,000 is a result of multiplication of 45,000. Learned counsel has also argued that there is no misreading or non-reading of the evidence nor there is jurisdictional error,therefore, in the light of decision PLD 2002 SC 607, this Court cannot interfere in the finding of both the lower Court and that when the Courts below have not committed any material irregularity then appellate jurisdiction of second appeal cannot be invoked. He has further submitted that the current findings of fact cannot be disturbed in the light of 1999 CLC 1358 as well as 2001 SCM R 1641. He has further pointed out that the appreciation of the evidence was within the power of the lower Court which they have rightly discharged and at the second appellate stage this Court may disagree with the finding but even cannot interfere to support his contention. He has relied upon 1986 SCM R 1814(b)(c). He has further submitted on merit that appellant although is finding flaws in the evidence of the respondent but he has not been in a position to submit any contrary evidence worth-confidence reposing, therefore, this appeal is frivolous and be dismissed.
7. ' After going through the R&PS as well as hearing the arguments of the learned counsel it is apparent that in Lower Court the parties have contested their case in full swing and the respondent had examined himself as well as the witnesses Muhammad Sadiq and Ghulam Qadir. The plaintiff has also submitted original sale agreement in respect to payment of Rs,1,00,000 and have also produced the land revenue receipts Exhs.56 and 57 as well as other documents to show the possession.
8. On the other hand applicant has examined himself, his son Zahid Pervaiz but no other witness. The appellant has failed to establish their possession in respect to the land nor they could rebut the evidence led by the respondent. On the other hand the evidence of the respondent in respect to the sale agreement as well as possession is confidence reposing. Learned counsel for the appellant has not succeeded in putting the case within the purview of section 100 C.P.C. And at this stage he wanted this Court to re-examine entire evidence which is not permitted under the law nor through a cursory look there is any defect in the evidence as well as in the findings of the Courts.
9. On the other hand the respondent has succeeded and established that there was sale agreement, payment of Rs,1,00,000 made in pursuance to that agreement and he was in possession of the land as he and his brother Muhammad Hanif were already in possession at the time of sale agreement.
10. The authority relied upon by the learned counsel for the respondent are to the point.
11. ' In the circumstances, this 2nd appeal is dismissed with cost.