CH. IJAZ AHMED, J. --- The brief facts out of which the present appeal arises are that appellant No. 2 and predecessor of the appellant No. 1(i-iv) Bashir Ahmed filed suit for declaration and specific performance in the Court of Civil Judge, Bahawalpur on 12.7.1969 against the respondent seeking specific performance to sell qua the land in question. The contents of the plaint reveal that respondent No. 1 (late Muhammad Ali) agreed to sell the land in question to the appellants for a consideration of Rs. 13,000/-which was paid to him and the possession of the suit land was also delivered to the appellants. The contents of the plaint further reveal that at the time of oral agreement to sell between the parties respondent No. 1 (late Muhammad Ali) had not acquired, the proprietary rights ,of the land in question. Therefore, the execution of sale- deed was deferred till the issuance of the proprietary rights in favour of respondent No. 1 (late Muhammad Ali). The contents of the plaint further reveal that respondent No. 1 (late Muhammad Ali) secured proprietary rights on 5.8.1968 and had baked out from his commitment to execute sale-deed in favour of the appellants. Respondent No. 1 had sold the land in question to respondent No. 2 vide registered sale-deed dated 6.8.1968 which was void. Respondents filed two separate written statements out of the divergent pleadings/pleas of the parties. Trial Court framed 8 issues and subsequently also framed issue No. 1-A and issue No. 2-A. The Trial Court dismissed the suit with regard to specific performance of the oral agreement and decreed the suit of the appellant to the extent of alternate relief wherein respondent No. 1 was directed to return Rs. 1.3,000/- to the appellants vide judgment and decree dated 24.6.1979. Both the parties filed 2 appeals in the Court of District Judge, Bahawalpur who dismissed both the appeals vide judgment and decree dated 23.5.1981. Appellants being aggrieved filed Civil Revision No. 111-D/1981 in the Lahore High Court, Lahore but the respondent did not file appeal against the judgment of the first Appellate Court in the Lahore High Court. The learned High Court dismissed the appeal of the appellants vide impugned judgment dated 20.11.2000. Appellants being aggrieved filed Civil Petition No. 1977/2000 before this. Court which was fixed on 6.3.2002 and leave was granted. Out of which the present appeal arises.
2. Learned counsel for the appellants submits that all the Courts below had erred in law to dismiss the suit of the appellant qua the specific performance of agreement after holding that oral agreement was arrived between the parties respondent No. 1 had also received all the consideration amounting to Rs. 13,000/- at the time of agreement arrived between the parties, by misreading and non-reading of provisions of Specific Relief Act and Transfer of Property Act. He further urges that all the Courts had also erred in law to come to the conclusion that respondent No. 2 was bona fide purchaser of the land in question without notice. This finding of the Courts below was also result of misreading and non-reading of the record. He further maintains that the onus was on respondent No. 2 to first prove that he had no notice of previous agreement of sale between the appellants and respondent No. 1 and his statement as witness that he had not have such notice, would have shifted onus to the appellants but he neither made any such statement nor pleaded in the written statement therefore onus of issue No. 6 could not have been held to have been discharged by him. The finding of the Courts below on issue No. 6 was also not in consonance as law laid down by this Court in Mst. Khair-un-Nisa's case (PLD 1972 SC.25). He further submits that had respondent No. 2 stated in his examination-in-chief that he had no notice of the previous agreement of sale, only then the onus would not have shifted to the appellant to prove that he, in fact, had the notice which otherwise had been established by the mere fact that the appellants as admitted by respondent No. 2 had been in possession of the land all along in terms of the oral agreement and this fact was sufficient to prove that respondent No. 2 was negligent and did not make necessary enquiry about the previous agreement of sale which a person of ordinary prudence should have made in order to plead that he was bona fide purchaser.
He further urges that all the Courts below had considered the respondent No. 2 as bone fide purchaser in violation of the law laid down by various pronouncements of this Court in support of the contention he relied upon the following judgment:---
(1) Industrial Development Bank of Pakistan v. Saadi Asmatullah and others (1999 SCM R 2874).
(2) Shukri and others v. Ch. Muhammad Shafi Zaffar and others (PLD 1975 Lahore 619).
(3) Hikmat Khan v. Shamsher Rehman's (1993 SCM R 428).
(4) Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2198).
He further urges that impugned judgment of the learned High Court is based not only on misreading or non-reading of the evidence but also suffers from illegality as The law has not been correctly applied to the facts established on the record as regards the bona fide purchase of the land by respondent No. 2 who was subsequent vendee. He further maintains that all the Courts below had dis.Nissed the suit of the appellants in violation of the law down in the aforesaid judgments and in violation of the parameters prescribed by the legislature in its wisdom under Sections 41, 53-A of the Transfer of Property Act and Section 12 of the Specific Relief Act.
3. The learned counsel has supported the impugned judgment and stated that respondent No. 1 was lawful owner, therefore, provisions of Section 41 of the Transfer of Property Act is not attracted in the present case. He further urges that appelIants had also claimed alternative relief for return of the consideration from respondent No. 1, which was granted by all the Courts below with cogent reasons. He further maintains that relief under Specific Relief Act is equitable relief, which was denied by all the Courts below with cogent reasons.
4. We have considered the submissions made by counsel for the parties and have also perused the record. It is admitted fact that all the Courts below had given ccncurrent findings of fact to the extent that oral agreement was arrived at between the appellants and respondent No. 1 but refused to grant equitable relief to the appellants in view of the peculiar facts and circumstances of this case by observing that respondent No. 2 had purchased the land in question from respondent No. 1 through registered sale deed, dated 6.8.1968 and found him bona fide purchaser without notice and appellants were in possession of the land in question as tenants. The learned High Court had taken a lot of pain to re-appraise the evidence as evident from paras. 12 to 15 of the impugned judgment. It is better and appropriate to reproduce operative part of the impugned judgment to resolve the controversy between the parties:- "It is worth to mention that even no suggestion was made to this witness/respondent No. 2 to the effect that he was aware of the agreement between the petitioners and respondent No. 1 and he did not pay the sale price i.e. Rs. 25,000. Of course it can be said from the other side that petitioners were in possession of the suit land but no revenue record supports this plea of the petitioners that they were having the possession under an agreement to sell; it is not only mentioned in the written statement of respondent No. 1 but also in his statement as DW-1 that petitioners were having the possession in the capacity of tenants.
It is also admitted by PW-10 Bashir Ahmad one of the petition.Rs that in July, 1968 Muhammad Ali respondent No. 1 had paid the entire instalments meaning thereby receipts were also issued in the name of the respondent No. 1.
No doubt the judgments cited by the learned counsel for the petitioners supports the point that burden lies on the subsequent transferee to prove that he was transferee for value and that he paid money in good faith without notice of original contract and in this case possession of the petitioners was sufficient to indicate that title of the respondent No. 1 was not without clouds but at the same time as indicated above the material available on the file is not sufficient to draw an inference against respondent No. 2. It was not even alleged that he was aware of any contract between respondent No. 1 and the petitioners and mere possession without any entry in the revenue record would not substantially affect the case of the respondent No. 2 particularly when it was not even doubted that he had paid the price.
5. It is settled law that each and 'every case is to be decided on. Its on peculiar circumstances as law laid down by this Court in Muhammad Saleem's case (1994 SCM R 2213). In view of findings of the Courts below, especially, the learned High Court as mentioned hereinabove, the judgments cited by the learned counsel for the appellants are distinguished on facts and law. It is a settled law that grant of specific relief is always discretionary in character and the Court is not always bound to decree the suit of specific performance in cases where the agreement is proved. It is a settled law that Court has to exercise discretion judicially and not arbitrarily. Reference can be made to the following judgments:-
(i) Arif Shah's case (PLD 1991 SC 905).
Mussarat Shaukat Al.s case (PLD 1994 SC 2189).
(i.e) Ameena Bibi's case (PLD 2003 SC 430).
(iv) Jethalal Nanshah Modi v. Bachu and another (AIR 1945 Bombay 481).
The ratio of the aforesaid precedents is as follows:- "Where the circumstances under which a contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiffs part of relief may be denied where the plaintiff has been negligent or as acquiesced in the injury."
6. In the case in hand all the Courts below had refused to exercise discretion in favour of appellants with cogent reasons as evident from the operative part of the impugned judgment reproduced hereinabove. It is a settled law that this Court does not normally go beyond the concurrent findings of fact recorded by the Courts below, unless it can be shown that the findings on the face of it against the evidence or so patently improbable, or perverse that to accept could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of evidence, or, finally if the finding could be demonstrated to be physically impossible. This being the practice and the rule of the Court in civil appeals, burden lies rather heavily on the appellants to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us as law laid down by this Court in various pror ouncements. See Wali's case (NLR 1995 S.C.J. 339), Abdul Latif's case (1990 SCM R 909) and Ahmad Sher's case (1990 SCM R 445).
It is also a settied law that this Court does not meddle with the findings of fact reached by the Courts below while exercising power under Article 185(3) of the Constitution when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible. It is a settled taw that Constitutional jurisdiction is discretionary in character as law. Laid down by this Court in Nawabzada Raunak Al.s case (PLD 1973 SC 236). It is also a settled law that Constitutional jurisdiction cannot be exercised where concurrent findings of fact recorded by the Courts below as law laid down by this Court in Khuda Bukhsh v. Muhammad Shanf and another (1974 SCMR 279). View of peculiar facts and circumstances of this case, we are not inclined to exercise our discretion in favour of the appellants as law laid down by this Court in Rana Muhammad Arshad's case (1998 SCM R 1462) and Haji Saifullah Khan's case (PLD 1989 SC 166).
7. For what has been discussed above, we find no merit in this appeal which is dismissed.