1. M. Javed Buttar, J.--These appeals are directed against judgment and decrees dated 20.11.2002 passed by a learned Judge in Chambers of Lahore High Court, Lahore, whereby RSAs Nos. 2 & 3 of 1997, instituted by the Respondents Nos. 1 to 9, were allowed, the judgments and decrees passed by the trial Court and the First Appellate Court were set aside, the respondents' suit for redemption of mortgage was decreed and a preliminary' decree was passed on payment of Rs. 71,000/- within two months and the appellants' suit for specific performance of agreement to sell was dismissed.
2. The dispute relates to Property No. S. 31-R-20, known as 120-Mcleod Road, Lahore. This property was mortgaged by Kafayat Ullah Faridi, the predecessor of Respondents Nos. 1 to 9 in favour of Qazi Muhammad' Sharif, the predecessor of appellants, vide registered mortgaged deed dated 16.8.1960 (Exh. P4), on payment of Rs. 71,000/- as mortgage money. The mortgage was created for a period of 30 years. It was a mortgage with possession. The mortgagee was allowed to construct and re- model the house. The mortgage period ended on 16.8.1990. The mortgagor died on 16.6.1962 and Muhammad Sharif Qazi died on 15.6.1980. On 7.2.1982, Respondents Nos. 1 to 9 instituted an ejectment petition against the appellants which was contested by the appellants through written statement. The ejectment petition was withdrawn on 6.10.1983. On 8.8.1983 Respondents Nos. 1 to 9 instituted a suit for possession by redemption of the above property on payment of Rs. 71,000/- as mortgage money. It was averred that the appellants were requested to receive Rs. 71,000/- and return the possession of the mortgaged Bungalow to the plaintiffs but they declined to do so. The suit was resisted alleging that the plaintiffs had no locus standi to institute the suit for redemption of the property, the predecessor-in-interest of the plaintiffs vide agreement dated 7.11.1960 (Exh.
2. P2), sold the equity of redemption in favour of predecessor-in-interest of the defendants and vide agreement dated 18.10.1961 (Exh. P3), admitted to have received the full sale consideration and also admitted that Qazi Muhammad Sharif would be deemed to be in possession of the property as full owner, the mortgage was for 30 years and after the execution of the agreement dated 18.10.1961, the formality of registration of sale-deed could be completed any time, after the issuance of the PTD, Mst. Jameela Begum, the mother of the plaintiffs had been postponing the execution of the sale-deed with the promise that the same shall be done on attaining the age of majority by the plaintiffs, her sons. It was further stated that the property in dispute was sold for an amount of Rs.
3. 1,01,000.00 vide agreement to sell dated 7.11.1960 (Exh. P2), payment of Rs. 30,000.00 was acknowledged by Kafaitullah Faridi vide agreement dated 18.10.1961 (Exh. P3) and under the said agreement the vendee could get the sale-deed executed in his favour before 15.8.1990. In the alternative it was pleaded that they were in adverse possession.
3. On 13.9.1984 the appellants also filed a suit for specific performance of agreement to sell dated 18.10.1961. It was averred in the plaint that late Kafaitfullah Faridi was transferred the suit property vide PTO No. DSC-1-501/049038 dated 30.11.1959. He was a man of meager sources and had a small verified claim to the tune of Rs. 5000/- only and was not in a position to make the payment of the full price of the property. He vide registered mortgaged deed dated 16.8.1960, mortgaged the same property for a consideration of Rs. 71,000.00 for a period of thirty years. Thereafter, vide agreement dated 7.11.1960 he agreed to sell the property for a consideration of Rs. 1,01,000.00 in favour of Qazi Muhammad Sharif (predecessor-in-interest of the appellants). It was agreed that after the issuance of PTD in favour of Kifaitullah Faridi, he will send a registered notice for completion of the sale within 15-days for payment of the balance amount of Rs. 30,000.00. Vide another agreement dated 18.10.1961, late Kafaitullah Fridi, acknowledged the payment of entire sale consideration as under:--
(i) Receipt of Mortgage amount Rs. 71,000.00
(ii) Previously received amount Rs. 9,125 00
(iii) Cash by hand on 18.10.1961 Rs. 15,000.00
(iv) Payment vide Cheque dated 18.10.961 Rs. 5,875.00 Total Rs. 1,01,000.00 'After having paid the entire sale consideration to Kafaitullah Faridi, nothing was left to be performed except the formal execution of the sale-deed after issuance of the PTD. It was further alleged that they had been paying all the utility bills and the taxes, Kafaitullah Faridi deceased did not serve any notice en late Muhammad -Sharif Qazi, after the issuance of PTD in his favour, the plaintiffs had spent huge amount on the renovation of the house after becoming its owners under the agreement dated 18.10.1901, the cause of action arose in the year 1982 when the defendants (respondents) filed an ejectment petition against them and also refused to accept the execution of the aforesaid agreement to sell.
4. The trial Court, vide its order dated 13.3.1985 consolidated both the suits and from the pleadings of the parties, framed the following issues:-- "1. Whether the Suit No. 311/1 of 1984 is time barred? OPD 2.Whether the plaintiffs have no locus standi ?
4. 3.Whether the plaintiffs have no cause of action? OPD 4.Whether the agreement of sale-deed dated 18.10.1961 was executed by late Kafaitullah Faridi, the predecessor-in-interest, of the defendants and full consideration was paid to him towards the agreement ? OPP 5.Whether the plaintiffs are entitled to the decree for Specific Performance of that contract? OPP 6.Whether the defendants have no locus standi and no cause of action to institute the Suit No. 91/1 of 1983?
5. 7.Whether the plaintiffs are in possession of the property in dispute as mortgagee? OPD 8.Whether the mortgage deed dated 16.8.1960 still subsists? If not what is its effect? OPD 9.Whether the defendants are entitled to redemption, of the suit property? If so, on what terms and conditions? OPD.
6. 10.Whether the mortgage deed dated 16.8.1960 stands substituted by agreement of sale dated 7.11.1960 and 18.10.1961 and nature of possession stands changed from mortgage to complete bargain of sale? OPP.
7. 11.Whether the Suit No. 911/1 of 1983 is premature? OPP 12.Whether the possession of the plaintiffs over property in dispute is protected under Section 53- A of Transfer of Property Act? OPP.
8. 13.Whether the defendants of Suit No. 91/1 of 1983 are entitled to special costs under Section 35- A? If so, to what extent?
9. 13A. Whether the agreement dated 7.11.1960 and 18.10.1961 are result of fraud and are fake and fabricated documents, hence are not enforceable against the defendants. OPD
14. Relief.
10. 5.The appellants produced nine PWs and documentary evidence Exh. P1 to Exh. P 12. The Respondents Nos. 1 to 9 produced four defence witnesses and documentary evidence Exh. DW1/D1 to exh. DW1/D5. The learned trial Court after hearing the learned counsel for the parties and after perusing record, vide its judgment dated 30.1.1993 dismissed the respondents' suit for redemption of mortgage and decreed the appellants' suit for specific performance of the agreement to sell dated 18.10.1961 (Exh. P3). It was held that appellants had performed their part of agreement and Respondents Nos. 1 to 9 were directed to execute and complete the sale-deed within a period of one month, otherwise the sale-deed was to be executed through process of execution.
11. 6.The Additional District Judge, Lahore vide his judgment and decrees dated 10.11.1996 dismissed the two appeals filed by Respondents Nos. 1 to 9 and as mentioned above, the second appeals preferred by Respondents Nos. 1 to 9 were allowed vide the judgment and decrees impugned before us.
12. 7.We have heard the learned counsel for the parties and have also seen the available record.
8. It is submitted by Mr. Amir Alam Khan, the learned counsel for the appellants that concurrent finding of facts recorded by the Courts below, howsoever erroneous, could not be up set by the High Court in second appeal under Section 100 of Civil Procedure Code (V of 1908), the High Court had no jurisdiction to entertain the second appeals on the ground of erroneous finding of fact, the learned Judge of the High Court reappraised the evidence and substituted the findings which was not permissible in law (relied upon Abdul Majid and others us. Khalil Ahmad (PLD 1955 F.C. 38), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291), that the High Court illegally undertook the exercise of comparing the signatures in the second appeal and illegally expressed a different opinion without pointing out as to where the trial Court or the First Appellate Court were wrong or committed mistakes and even otherwise, the High Court could not have undertaken this exercise for the first time in the second appeal (relies upon Saheb Khan through Legal heirs v.
13. Muhammad Pannah (PLD 1994 SC 162), that the judgment of the High Court is based on surmises and conjectures, that mutuality to an agreement is a notion which is not applicable in Indo- Pakistan, that High Court has drawn presumption against the appellants because property tax receipts were not produced in evidence whereas P.T.I. assessment is in favour of the appellants (referred to Exhs. P. 9 to P. 12) and even otherwise, it is an admitted position that taxes were being paid by the appellants, the reasoning given by the learned Judge in the impugned judgment in upsetting the concurrent findings of fact recorded by the trial Court as well as First Appellate Court are not cogent, the learned Judge has given wrong and illegal conclusions from the facts found, he could not have gone into the reasonableness of the sale price mutually agreed upon between the parties and even otherwise, the sale price settled between the parties represented the market value of the property in dispute in the year 1960/1961 and in any case the learned Judge could not have gone into this question without holding an inquiry; that the signatures which ahve been doubted by the learned Judge are admitted signatures, it was suggested to PW-6 Haji Islam Akhter Warsi that he had put his signatures on Exh. P. 2 in collusion with and on the asking of the appellants and this suggestion was denied and that the impugned judgment is liable to be set side.
14. 'Mr. Gulzarin Kiani, learned ASC representing the respondents has vehemently opposed the appeals and has supported the impugned judgment. It is submitted by him, that the conclusions drawn by the learned Judge of the High Court are based on the evidence produced by the parties, that the appellants cannot take any benefit from the fact that they Wad been paying taxes etc. because as per mortgage deed (Exh. P.4) it was liability of the mortgagee to pay taxes, the entries in the Assessm ent Registers are' neither here nor there, one does not become owner merely because of the entries in the Assessme nt Registers and even otherwise, how could the mortgagee be recorded as owner on the basis of mere agreement to sell, PW-2 Zia-urRehman was the scribe, extract of Register of Deed Writer was not produced, Exh. P. 2 was an unregistered document, signatures of the vendor in English on the same, were held by the High Court to be a forgery, that the appellants in their written reply to the respondents' ejectment petition did not refer to two agreements (Exhs. P.2 and P.3) and referred to only one agreement by . describing it as "an" agreement, payment under the agreement was not mentioned, material evidence available on the record was not duly considered by two Courts below, therefore, the learned Judge of the High Court correctly re-appraised the evidence and that the market price of the property in dispute was much more than the alleged sale price mentioned in the agreement to sell, therefore, the learned Judge correctly took notice of this aspect of the case as well.
15. 'Mr. Hafeez Qureshi, learned ASC representing Respondents Nos. 4 and 5 and Mr. Muhammad Munir Peracha ASC representing Respondent No. 6 adopted the arguments of Mr. Gulzarin Kiani ASC and further submitted that PW-2 Zia-ur-Rehman Stamp Vendor is to be disbelieved viz. Exh. P2, it is not clarified as to who purchased the Stamp paper for this document although it was purchased from him, he has merely stated that one Ghulam Muhammad, who is not marginal witness of Exh. P. 2, who was representative of Faridi Sahib, had brought this Stamp paper to him and this shows that Exh. P. 2 is a forged document and that there was no need for the mortgagee to enter into an agreement to sell as he was not gaining anything under the sale agreements because no payment there-under was being made immediately.
16. 9.It was held in the impugned judgment that a notice through registered post was to be issued after obtaining the PTD for execution of sale-deed, there was nothing on the record to show the date of issuance of PTD, no notice for execution of sale-deed was issued to appellants and in the absence of the same it could not be said that the appellants' suit for specific performance was barred by time and the same was consequently held to be within time. It was further held that the agreements dated 7.11.1960 (Exh. P2) and dated 18.10.1961 (Exh. P3) could not be termed as mortgage by conditional sale and the same appeared to be sale. The learned Judge in Chambers of Lahore High Court, thereafter deliberated upon the evidence produced by the parties and held that the signatures of Islam Akhtar Warsi (PW-6), a marginal witness of agreement dated 7.11.1960 (Exh. P2), were not signatures of this witness but were in the hand writing of the scribe. According to him, it was visible to the naked eyes. He further concluded that since the above said PW-6 was not a witness of the sale transaction, he was silent as to the contents of the document and had not said a word about the sale consideration of Rs. 1,01,000/- and other stipulations, therefore, the sale could not be said to have been provided. It was also held that Exh. P2 demonstrated that the offer was not from deceased Kafayatullah Faridi but by Qazi Muhammad Sharif proposing conditions of sale to himself. It was thus concluded that "This writing (Ex. P2) by Qazi Muhammad Sharif in his own favour coupled with doubtful signatures of Islam Akhter Warsi, PW-6, cannot be considered an agreement to sell".
17. 10.The learned Judge, thereafter, rejected the sale document dated 18.10.1961 (Exh. P3) by holding that the same remained unproved because its marginal witnesses did not inspire confidence. In this regard, he referred to the statement of PW-3 Mehmood Ashraf to point out contradiction in his statement in regard to his age at the time of execution of the said document. He was also influenced by the fact that there were no separate receipts showing the payment of Rs. 9,125/- and Rs. 15,000/-, as alleged. He then went on to discuss the statement of PW-4 Ghulam Sarwar and concluded that he was not a reliable witness because this witness in his cross-examination had admitted that he went to the house of deceased Kafayatullah Faridi 2/3 times whereas subsequently he admitted that he did not know him before the execution of Exh. P3 and that he was an employee of the appellants since 1962.
18. 11.Thereafter, it was further concluded that since he had already held that Exh. P2 was not a valid document and since Exh. P3 had its origin in Exh. P2, any super structure built upon Exh. P2 automatically fell to the ground. It was concluded that both Exh. P2 and Exh. P3 were not proved and seemed to have been fabricated after the death of Kafat Ullah Faridi. He further concluded that in his view, signatures of Kafayatullah Fridi on the said documents were visibly different and did not match each other. He further opined that the Bungalow in question measured about 2 Kanals and 5 Marlas which had about 16/17 rooms and was situated in the heart of the town and, therefore, the sale price of this bungalow i.e. Rs. 1,01,000/- could not by any stretch of imagination be said to be its true market value.
19. 12.We are of the view, that the above conclusions of the learned Judge on the basis of the evidence available on the record are wrong. There is nothing on the record to show that the signatures on Exh. P. 2 are not that of PW-6 but of the scribe. The learned Judge was deciding a second appeal but acted as if he was deciding a First Appeal. His conclusion that Exh. P. 2 was not proved was abrupt and was not based on cogent reasons. He did not discuss the reasoning of the trial Court as well as the First Appellate Court and did not give reasons for differing with the reasons of the Courts below. We have gone through the judgments of the trial Court as well as the First Appellate Court. Cogent reasons have been given in the said judgments for the conclusions drawn in the same. They are based on the evidence available on the record and they did not suffer from any misreading or non-reading of evidence.
20. 13.The concurrent findings of fact could not be reversed on surmises and conjectures or merely because another view was also possible. PW-3 and PW-4 have been disbelieved merely on the basis of minor contradictions without any reference to the reasonings advanced by the trial Court and the appellate Court. It is reiterated that learned Judge did not realize that it was a second appeal before him and he could not interfere in the concurrent finding of facts recorded by two Courts below while exercising jurisdiction under Section 100 C.P.C., how so erroneous those findings were, unless such findings had been arrived at by the Courts below either by misreading of evidence on record or by ignoring a material piece of evidence on record or through perverse appreciation of evidence. The learned Judge did not point out any misreading or non-reading of evidence 01 the other criteria laid down by this Court in the judgments discussed below to enable him to undertake the reappraisal of evidence in the second appeal. The learned Judge was also wrong in holding that the sale price mentioned in the agreement to sell did not represent the true market value of the property in dispute. He did not realize that Exhs. P. 2 and P. 3 were executed in the years 1960 and 1961 and at that time the prices of the properties in the area in question, where the property in dispute is situated, were much less and in any case such conclusion could not have been arrived at without any evidence available on the record. Furthermore, the very fact that the mortgagor mortgaged the property with possession for a period of thirty years in favour of the predecessors of the appellants for Rs. 71,000/- in the year 1960, shows that the market price of the property in dispute could not have been more than Rs. 1,01,000/- for which it was sold by the mortgagee in favour of the mortgagor through agreements (Exhs. P2 and P.3) executed in the year 1960-1961 because no body would part with his property for a long period of 30 years through a mortgage, if the mortgage money did not represent a major part of its market value. Similarly signatures of vendor, on the agreement in question were disbelieved, for the first time in second appeal. without any basis.
21. 14.In Abdul Majid and others v. Khalil Ahmad (supra), it was held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits". It was further held that "assuming that the High Court did not agree with the lower Courts appreciation of the evidence, that could not be a ground for it to reverse the concurrent finding of fact of the lower Courts" and that "the High Court had no jurisdiction to entertain the second appeal on this ground and it exceeded its functions in interfering with those findings".
22. 'Similarly, in Haji Muhammad Din v. Malik Muhammad Abdullah (supra), it was laid down by this Court that concurrent finding of fact of two Courts below could not be disturbed by High Court in second appeal unless Courts below while recording finding of fact had either misread the evidence or had ignored any material piece of evidence on record or the same was perverse.
23. 'The scope of Section 100 of Civil Procedure Code (V of 1908) was again considered by this Court in Haji Sultan Ahmad through L.Rs. v. Naeem Raza and 6 others (1996 SCM R 1729) and it was reaffirmed as under: "5. From the above discussed legal position, it is quite obvious that the concurrent finding recorded by the Courts below cannot be interfered with by the High Court with exercising jurisdiction under Section 100, C.P.C. how so erroneous that finding may be, unless finding has been arrived at by the Courts below either by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence", and ... "In fact, the entire process of reasoning by the learned Judge in Chambers in upsetting the concurrent finding of facts was the result of reappraisal of evidence on record in the case which was not permissible under Section 100, C.P.C".
24. 15.The reversal of concurrent findings of fact recorded by the Courts below, by the learned Judge in Chambers, in the present case, was not on account of any misreading of evidence by the Courts below or any omission on their part in taking into consideration any material piece of evidence on record or for the reason that the conclusions of two Courts below were perverse or arbitrary. In our view, the findings recorded by the trial Court, which were affirmed by the First Appellate Court are neither perverse nor the result of any misreading of evidence on record nor any material piece of evidence was ignored by the said Courts. The oral as well as documentary evidence was fully discussed by the trial Court as well the First Appellate Court in their judgments. Therefore, in view of the law discussed above, the learned Judge in Chambers of Lahore High Court exceeded his jurisdiction in reversing the concurrent findings recorded by the trial Court and the First Appellate Court.
25. 'In view of the above-mentioned, both the appeals are allowed and impugned judgment dated 20.11.2002 of the Lahore High Court, is set aside with no orders as to costs.