' FAZAL-E-MIRAN CHAUHAN, J.-This Regular Second Appeal arises out of the judgment and decree dated 7-1999, passed by the learned Addl. District Judge, Sialkot who dismissed the appeal filed by the appellant maintaining the judgment and decree dated 17-6-1996, passed by learned trial Court. [5] defeat the rights of the appellant got decreed a collusive suit filed by respondent No.2.
Appellant served notice Exh.P.2 dated 1-12-1981, upon Shabina Shehzadi for performance of contract and reply to that ,was received by him vide Exh.P.3 issued by Safdar Mahmood Advocate- P.W.4. Subsequently, having come to know about the collusive decree, the appellant filed suit for specific performance of agreement to sell dated 17-1-1980, on 1-1982, in the Court of Senior Civil Judge, Sialkot, against Shabina Shahzadi and Lai Din (subsequent purchaser). Amended plaint was filed on 20-11-1989, and respondents Nos.3 to 6 were added as defendants. In this suit, it was also pleaded in para.4 of the plaint that; decree dated 5-1980, was collusive and was obtained with mala fide intention to defeat the rights of the appellant.
3. The defendant No.l Shabina Shahzadi in her written statement, admitted execution of agreement to sell dated 1-1980. It was also pleaded that the contract could not be performed because the same was rescinded/cancelled by the plaintiff/defendants Nos.2 to 6 controverted the suit on merits and also raised legal preliminary objections. It was contended that the suit for specific performance is not maintainable in its present form. The decree dated' l 1-5-1980, cannot be set aside by the Court in the present suit as the same can only be challenged by filing an application under section 12.(2), C.P.C; That respondent No. 2 was bona fide purchaser without notice and is in possession, of the suit property for the last more than 12 years; respondents Nos.3 to 6 further purchased land from respondent No.2. They have no notice of the earlier agreement to sell.
4, From the legal .And factual controversy of the pleadings of the parties, learned trial Court led to frame issues Nos. 1 to 6 on 22-4-1984. On 28-3-1990, additional issues Nos.6-A and 6-B were framed. After induction of respondents Nos.3 to 6 an additional issue No.6-C~was framed on 16-5- 1996. All the issues are as under:- ISSUES.
(1) Whether the suit is not maintainable in view of P/O No.l/? OPD
(2) Whether the suit is not maintainable in the present form in view of P/O No. 2? OPD
(3) . Whether the suit is collusive and hence, mala fide? OPD
(4) . Whether the suit is bad for non joinder of necessary parties in view of P/O No.5? OPD
(5) . Whether the defendant No.2 is entitled to special costs under section 35-A of C.P.C.? OPD
(6) . Whether the plaintiff is entitled to a decree for specific performance, if so, on what terms and conditions? OPP.
(6-A). Whether the sale transaction in favour of defendants Nos.3 to 6 by defendant No.2 is ineffective upon the rights and agreement to sell of the plaintiff?* OPP.
(6-B). Whether the suit is not maintainable is view of P/O raised in the written statement dated 3- 90, and the subsequent vendees have purchased the property in good faith for consideration and without notice of any legal defect in the title after which they have spent Rs.53,000, if so its effect?
OPD.
(6-C) Whether the suit is riot maintainable in view of provision of section 12 (2) of C.P.C?OPD.
(7) . Relief.
5. The appellant/plaintiff produced P.W.-l Notary Public Khurshid Aalam, who attested Exh.P.l, P.W.-2 Inayat Ullah (Petition Writer) author of Exh.P. 1, P.W.-3 Ch. Kabeer, who issued Exh.P.2 legal notice, P.W.4 Muhammad Safdar, who give reply Exh.P.3 and plaintiff himself appeared as P.W.5. He has also produced Exh.P.l agreement to sell dated 17-1-1980; Exh.P.2 Notice dated 1-12-1981, issued in the name of the respondent No.l, Exh.P.3 dated 28-12-1981, reply of the notice by respondent No.l, Exh.P.4 Jamabandi for the year 1977-78.
7. On the other hand, respondents produced as many as 7 witnesses D.W. 1, Chairman Arbitrator Council Muhammad Sharif, who give award Exh, D.l, D.W.2, Haji Muhammad Asad nominated by Shabina Shehzadi as arbitrator, D.W.3, Lai Din (defendant No. 2), D. W. 4 Rana Abdul Majeed, D.W.5, Rehmat Ali, D.W.6, Zahida Parven (respondent Np.6) and D.W.7 Mukhtar Javed. They also produced Exh. D.l, decision of the Arbitration Council, Exh.D.2 Khasra Girdawari, Exh.D.3, plaint of the earlier suit filed by respondents Nos.2 to 6, Exh D.4, written statement filed by respondent No.l, Exh.D.5, copy of compromise submitted in the earlier suit, Exh.D.6 copy of statement of Shabina Shehzadi dated 14- 5-1980, Exh.D.7 statement of counsel for parties, Exh.D.8 copy of decree dated 14-5-1980, in Suit No.646/80 passed by Syed Afzaal Igraal, Civil Judge, Sialkot. Exh.D.9, copy of Mutation No.224 dated 20-1-1986 in favour of Zahida Parveen Exhs.D.10, to 12 copies of the mutation, Exh.D.13, to Exh.D.16 sale-deeds executed in favour of respondents Nos.3 to 6 by respondent No.2. Finally Khalil Ahmad appeared as P.W.6, in rebuttal to the evidence of the respondents.
8. The learned trial Court, after recording oral as well as documentary evidence of the parties proceed to dismiss the suit of the appellant vide its judgment and decree dated 17-6-1996, by deciding issues No.6 to 6-B against the appellant. The appeal filed by the appellant was also dismissed by the learned lower appellate Court vide its judgment and decree dated 26- 7-1999.
9. Before deciding the appeal, the learned lower appellate Court vide order dated 11-11-1997, referred the case back to the learned trial Court with the direction to give its findings on issue No. 6.C. The learned trial Court vide its judgment dated 12-1997, decided issue N0.6.C, i.e. "whether the suit is not maintainable in view of provision of Section 12 (2) C.P.C" and dismissed the suit holding that in para 4 of the plaint, it was pleaded that the decree dated 14-5-1980, is against law, based on fraud and misrepresentation. As the plaintiff was in knowledge of the judgment and decree dated 11-5-1980 on the day when the suit was filed, he should have filed petition under section 12
(2) C.P.C. Challenging the judgment and decree, as after introduction of subsection (2) in section 12 C.P.C, separate suit challenging the judgment and decree was held to be not maintainable thus by deciding, issue against the plaintiff/anpellant, the findings were sent to the learned lower appellate Court. The learned lower appellate Court relying upon the findings of the trial Court, proceeded to dismiss the appeal on merits on all issues and decide' tAe same against the appellant by its judgment dated 7-1999. Hence this R.S.A.
10. Learned counsel for the appellant contends that the judgments and decrees of both the courts below are based on misreading and non-reading of evidence, materially affecting the case of the appellant, Exh.D-1 decision of Arbitration Council was inadmissible in evidence as the .Alleged award was not made rule of the Court. Further argued that the learned lower appellate Court had failed to exercise the jurisdiction so vested with it so convert the suit of the appellant into an application under section 12 (2) C.P.C. And decide the same in accordance with law. Further argued that, in para 4 of the plaint, it is pleaded that the. Judgment and decree dated 5-1980, was obtained by practising fraud and misrepresentation upon the Court. As' the basic requirement of subsection (2) of section 12, C.P.C. Has been fulfilled by pleading fraud and misrepresentation, the learned trial Court should have converted or treated the suit as a petition under subsection (2) of section 12, C.P.C. Applying the principle of conversion of appeal into revision or revision into appeal as provided under the law and should had decided the same on merits. Further argued that respondent No.l in her written statement conceded that agreement to sell dated 17-1-1980, Exh.P.l was executed between her_and appellant in respect of land measuring 4 Kanals, 2 Marlas for a consideration of Rs. 1,00,000, out of which Rs.20,000 were paid and the remaining amount of Rs.80,000 was t< be paid within two years at the time of registration of sale. This admission on her part is sufficient to prove that the agreement to sell Exh.P.l executed with the appellant was prior in time and the subsequent agreement executed by her with Lai Din respondent No.2 dated 19-4- 1980, was executed in order to frustrate the previous agreement to sell. All this was done with mala fide intention. The alleged agreement to sell was executed on 4-1980, with Lai Din and on 11-5-1980, Lai Din filed a suit for specific performance, in which consenting written statement was filed by respondent No.l- Shabina Shehzadi, who also appeared, recorded her statement, admitted the contents of written statement and the suit was decreed on 14-5-1980. All this was conceded and done secretly. This part was not disclosed in her reply Exh.P.3 dated 12-1981, reply to the Notice Exh.P.2. . She in her reply, admitted execution of agreement to sell dated 17-1-1980, but took the stand that the same was rescinded by the appellant, thus she was free to enter into 2nd agreement to sell which was in accordance with law. Further argued that it is proved on the record that respondent No.l and respondents Nos.2 to 6 are related to each other and subsequent agreement to sell was a vague document and was prepared in order to defeat the agreement to sell executed in fovour of the appellant on 17-4-1980. The suit filed on the basis of the agreement to sell by Lai ' Din was also collusive and respondent No.l in order to defeat, and frustrate the rights of the appellant appeared in that suit and made a consenting statement in favour of Lai Din. The appellant by producing P.W.l, to P.W.4, did discharged his burden to prove the issues and the respondents had failed to rebut the evidence. Finally argued that the subsequent purchaser Lai Din respondent No. 2 was in the knowledge of the agreement executed between the appellant and respondent No.l, who is not a bona fide purchaser without notice as defined by Section 41 of the Transfer of Property Act and cannot claim any such arrest, thus findings of both the courts below on the issues are against the evidence and are liable to be set aside.
11. Conversely, learned counsel for respondent No.l argued that the appellant's suit for specific performance of contract was not maintainable as the remedy under 'the law was to seek declaration to the effect that decree was obtained by practising fraud upon the Court and by misrepresentation. It is argued that neither declaration has been , sought seeking cancellation .Of decree dated 14-5-1980, passed in the suit titled as Lai Din v. Shabina Shehzadi nor the decree was challenged in the suit, thus, suit/plaint for specific performance of contract cannot be treated as an application under section 12(2) C.P.C seeking cancellation of the decree dated 14-5-1980, said to have been procured by practising fraud upon the Court. Thus findings on issue No.'6 given by the learned trial Court, as well as, learned lower appellate Court does not suffer from any illegality :or material irregularity effecting the merits <3f the case. Further argued that, the appellant failed to prove execution of agreement to sell Exh.P.l, which has been attested by two witnesses; Muhammad Iqbal and Bashir, but none of the two attesting witnesses were produced to prove the execution of Exh.P.l Since, the execution of Exh.P.l has not been proved as required under section 79 of the Quanun-Shahadat Order, 1984, the trial Court rightly decided issue No.6 against the appellant/plaintiff. Further argued that there is a concurrent findings of fact on all the issues, which are decided against the appellant. As the appellant having failed to show any misreading or non- reading of evidence on the part of the trial Court, as well as, of the learned lower appellate Court, materially affecting the decision on merits, a concurrent findings of fact cannot be interfered with in R.S.A. By this Court.
12. It is argued by learned counsel for respondents Nos.2 to 6 that the learned counsel for the appellant has failed to prove the agreement to sell Exh.P.l, unless and until the execution of agreement to sell is proved specific performance of the same cannot be asked by the appellant.
Further submits that, the consenting written statement filed by Shabina Shehzadi had no binding force and value, as the said Shabina Shehzadi did not appear as a witness to support her written statement. Reliance has been placed to the case of Jehangir Pheroz- show Dubash and another v.
Hoshang Homi Broacha and 2 others (PLD 1972 Kar. 74), "where it is held that, simple filing of consenting written statement is not sufficient unless the defendant himself appeared and recorded his or her statement challenging or conceding the written statement, Exh.P.3 the alleged reply to notice Exh.P.2 is said to have been issued on behalf of Shabina Shehzadi by P.W.4, Safdar Buttar, Advocate, who has failed to produce on the record any power or authority to show that he was authorized or instructed by Shabina Shehzadi respondent No.l to give reply on her behalf to the notice Exh.P.2. P.W.4, Safdar Buttar, Advocate, in cross-examination admits that he sits in the Chamber of P.W.3, Kabir Ahmad, he recognize Shabina Shehzadi, but failed to show that Shabina Shehzadi had given her any instructions or power of attorney to give reply on her behalf admitting the alleged agreement to sell. Further argued that; the decree dated 14-5-1980, in favour of Lai Din has not been challenged in the present suit, thus the same cannot be set aside unless and until the said decree is challenged, the suit of the plaintiff/appellant cannot be decreed or processed with.
In this context reliance has been placed to the case of Haji Abdullah and 10 others v. Yahya Bakhtiar (PLD 2001 SC 158). Finally argued that respondents Nos.2 and 3 to 6 are bona fide purchasers without notice. And, there is a concurrent findings of fact of both the courts below to the effect that respondents Nos.2 to 6 had no notice of the prior agreement to sell dated 17-1-1980, and rights of respondents Nos.2 to 6 are protected by section 41 of Transfer of Property Act. Further argued that unless there is a glaring misreading or non-reading of material evidence effecting the decision, of the Courts below, the concurrent findings of fact cannot be interfered. In this context reliance has been placed to the case of Atiq-ur-Rehman through (real father) and another v. Muhammad Amin (PLD 2006 SC 309).
13. I have heard the arguments of the learned counsel for the parties and perused the record of the learned trial Court as well as lower appellant Court.
14. The main stress of the learned counsel for the appellant is that respondent No.l Shabina Shehzadi admits entering into Agreement to Sell with appellant. She failed to perform her part of contract with mala fide intention. Her stance that; later on the agreement was rescinded by the appellant himself is not a contract and against law. No doubt, in the written statement submitted by respondent No.l, it is admitted that agreement to sell was executed with the appellant on 17-1- 1980, and earnest money of Rs.20,000 was paid, but simple filing of the written statement does not help the appellant. After filing the written statement. Shabina Shehzadi, never appeared in the .Court to support the averments made in her written statement therefore, applying the law laid down in the case of Jehangir Pherozshow Dubash and another v. Hoshang Homi Broacha and 2 others (PLD 1972 Kar. 74), the conceding written statement has no binding force under the law as the defendant appeared in the Court and admitted the contents of the written statement. The appellant also failed to prove execution of agreement to sell by producing the two marginal .
Witnesses namely Muhammad Iqbal and Bashir. Since respondent No.l never appeared to support her version in the written statement, same cannot be treated as an evidence in the case. Reliance has been placed to the case of Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25). Thus in view of the law laid down by the Honourable apex Court, the conceding written statement filed by respondent No.l cannot be treated as an admission on her part. The appellant also failed to produce any receipt to show that Rs.20,000 was paid as an earnest money at the time of agreement to Sell. The appellant also failed to discharge the burden of issues Nos.6 and 6-A. Conversely, respondents Nos.2 and 3 to 6 establish on record that they are bona fide purchasers without notice. There is no evidence on the record to show that on the basis of Exh.P.l any change of possession took place. On the other hand respondent No.2 claims to be the possession and he after obtaining decree for specific performance further transferred the land to respondents Nos.3 to 6. Issues Nos.6 and 6-A were rightly decided against the appellant.
15. The burden to prove issue No. 6.B was on the defendants/respondents to show that the suit was not maintainable and the subsequent vendee purchased the property in good faith, for consideration without notice of any legal defect in the title of vendor and after which, they have spent Rs.53,000. Since the appellant had failed to prove execution of the agreement to sell Exh.P.l and the subsequent purchaser respondents Nos.3 to 6 purchased the property through a registered sale-deeds Exhs.D.13 to 16 from Lai Din respondent No.2 in whose favour, a consent decree was passed on the statement of Shabina Shehzadi respondent No.l and the said decree dated 14-5-1980, attained finality. Lai Din defendant No.2 as D.W.3, deposed that he has been in possession of suit-land for the last 40/50 years and he sold land measuring 16 Marlas to defendants Nos.3 to 6. It is settled principle of law that when a party on whom the burden of proof is placed having entered into the witness box deposed that he had no knowledge of a fact, the burden of proof shifted on the other party to prove otherwise. In this case, after recording the statement of Lai Din respondent. No.2 that he had no knowledge of the previous agreement to sell, the onus shifted to the appellant to show that he had knowledge of the prior agreement executed between the appellant and Shabina Shehzadi. The appellant having failed to discharge the onus by not producing any evidence to show that, Lai Din had knowledge of the prior agreement to sell and is not a bona fide purchaser without notice and is not protected by section 41 of Transfer of Property Act and subsection (b) of section 27 of Specific Relief Act, thus Issues Nos.6, 6.A and 6.C were rightly decided by both the courts below against the appellant.
16. The respondent/defendant produced a document Exh.D.l, an Award given by the Arbitration Council said to have been appointed by the parties. It is an admitted fact that Exh.D.l, the decision of the Arbitration Council was not made rule of the Court. It is also an admitted fact that this award was without intervention of the Court. The decision of the Arbitration Council was also challenged by the appellant. It is settled law that any award made without intervention of the Court has no legal existence nor it is capable of holding any right, title or interest to any party unless made rule of the Court under the Act. Reliance in this context has been placed on the cases of Wali Muhammad and others v. Mt. Pano and others (AIR 1960 Pat. 128), Sia Kishori Kuer and others v.
Bhairvi Nandan Sinha and another (AIR 1953 Pat. 42), Lachhuman Singh v. Makar Singh and others AIR 1954 Pat. 27 and Rameshwar Sahu v. Emperor (AIR 1928 Pat. 253). In such eventuality, any award not made rule of the Court is inadmissible in evidence. An award becomes a decree only when the same is presented before the Court of law and'is made rule of the Court after inviting objections on the same by the Court. Any award not made rule of the Court would not operate to create any right, title or interest for the purpose, thus the law laid down as mentioned above Exh.D.l, the award pronounced by the Arbitration Council without intervention of the Court not made rule of the Court, has no binding force and is of legal effect and cannot be produced in evidence and if produced has no evidentiary value.
17. Be that as it may, even if Exh.D.l, is discarded, there is sufficient evidence on the record to show that subsequent agreement dated 11-5-1980, was specifically enforced by the Court and a decree on the consenting statement of respondent No.2 Shabina Shehzadi in the shape of written statement as well as in her statement recorded in the Court supporting the written statement was passed on 5-1980, and having attained the right, title and interest in the property by virtue of decree dated 14-5-1980, the respondent No.2 Lai Din was competent to further transfer the same' thus had rightly transferred land measuring 16 Marlas to respondents Nos.3 to 6 by virtue of sale- deeds and on the basis of which mutations were attested in their name.
18. For what has been discussed above, it is held that the appellant has failed to prove on record that agreement to sell dated 1-1980, (Exh.P.l) was executed by respondent No.l Shabina Shehzadi in his favour and creates any right, title or interest in him and for the specific performance of which, the suit filed by him could be decreed. He further failed to challenge the decree dated 14-5-1980, passed in favour of Lai Din in a suit for specific performance of contract dated 4-1980. The compromise decree still hold the field and Lai Din by deriving his title from the said judgment and decree, rightly sold the land in favour of respondents Nos.3 to 6. _
19. As regards conversion of suit for specific performance into petition under section 12 (2) C.P.C for setting aside the decree dated 14-5-1980, said to have been obtain by fraud and misrepresentation had no force. Appellant, firstly failed to prove the execution of agreement to sell in favour of respondent No.l, secondly, has not challenged the decree dated 14-5-1980, which has been obtained by practising fraud and misrepresentation upon the Court. No averment to this effect has been made nor any declaration has been sought, thus in absence of specific averment to the effect that decree was obtained by practising fraud and misrepresentation, the same cannot be set aside in suit for specific performance. Even there is no written on the record to show that at any stage during the trial Court before the learned lower appellate Court or before this Court any written request was made to convert the suit in a petition under section 12 (2) C.P.C. In the absence of any such prayer this cannot be done by the Court of its own.
20. The learned counsel for the appellant has failed to point out that the decision by both the Courts below are contrary to the law or to the usage having the force of law or that the Courts below had failed to determine some material issues arising out of the pleading or having placed by law or both the Courts below had committed some substantial error or defect in the procedure provided by the Civil Procedure Code or by any other law for the time-being enforced, which had materially effected the decision passed by both the Courts below R.S.A does not lie on question of fact and this Court is bound by the findings on question of fact arrived at by both the courts below, thus, the findings of fact of both the Court below are supported by the evidence on record, the same cannot be questioned and interfered with while exercising the power under section 100 of Civil Procedure in R.S.A.
21. In this view of the matter, this Regular Second Appeal is dismissed with no order as to costs.