FAQIR MUHAMMAD KHOKHAR, J.--- The petitioners seek leave to appeal against judgment, dated 16-2-2001, passed by the Lahore High Court, Lahore in Ciyil Revision No,1227 of 1989.
2. The respondents instituted on 21-11-1977, a civil suit against the petitioners for specific performance of an agreement to sell, dated 17-1-1977 (Exh.P.11/1). It was averred therein that the petitioner No,8 had executed the agreement to sell her land measuring 24 Kanals and 6 Marlas on 17-1-1977 in favour of the respondents for a consideration of Rs,24,350 out of which she had received a sum of Rs,12,000 on the date of execution of agreement. However, the petitioner No,8, by registered sale deed, dated 9-10-1977 sold the aforesaid land to petitioners Nos.1 to 7. The trial Court dismissed the suit of the respondents, by judgment and decree, dated 28-10-1987. The appeal of the respondent was also dismissed by the Additional District Judge, Jhang, by judgment and decree dated 19-2-1989. Therefore, the respondent filed Civil Revision No,1227 of 1989 which was allowed by a learned Single Judge of the Lahore High Court, by the impugned judgment, dated 16-2-2001 whereby the suit filed by the respondent was decreed with the direction to the respondent to deposit the balance sale consideration of Rs,12,350 with the trial Court. Hence this petition for leave to appeal by the petitioners.
3. The learned counsel for the petitioners argued that the High Court was not justified in law to interfere with the concurrent findings of fact recorded by the Courts below on proper appraisal of evidence on record. Reliance was placed on the cases of Muhammad Saleem v. Muhammad Aslam and others 1983 SCM R 53, Sheikh Muhammad v. Mst. Hashmat Sultana 1989 SCM R 34, Ch. Muhammad Ismail v. Mr. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246 and Abdul Wali Khan through legal heirs and others v. Muhammad Saleh 1998 SCM R 760. It was next contended that the petitioner No,8 Mst. Saleeman was an illiterate Pardanashin lady to whom no independent advice was available. Neither the contents of so-called agreement were read over to her or explained nor the thumb marked by her on the same was with her free consent. Therefore, such an agreement was not enforceable by law. Reliance was placed to the cases of Nawab Sikandar Begum v. Zulfikar Wali Khan (minor) and others AIR 1938 Privy Council 38, Farid-un-Nisa v.
Mukhtar Ahmad and another 52 IA 342=AIR 1925 PC 204 and Kali Bakhsh Singh and others v. Ram Gopal Singh and others (1913) (41 IA 23=21 IC 985). The learned counsel submitted that it was proved by evidence that the Clerk of an Advocate of the husband of petitioner No,8 had fraudulently obtained her thumb marks on plain papers. Therefore, such an agreement had no validity or sanctity in the eye of law being hit by Article 17(2)(a) of Qanun-eShahadat Order, 1984 as laid down in the case of Hussain and others v. Lal Din and others 1998 SCM R 99.
5. We have heard the learned counsel for the petitioners at length and have also gone through the available record. We find that the agreement to sell (Exh.P.II/1) was thumb-marked by the petitioner No,8 and was also signed by her husband Muhammad Ramzan, who appeared as D.W. He did not disown his signatures on the agreement to sell. He also admitted that he had brought his wife (the petitioner No,8) to the Court on the day the sale agreement of the land was executed with the respondents P.W.11 Raja Muhammad Yousaf, Clerk of the Advocate categorically stated that he was marginal witness of agreement to sell (Exh.P.II./1) executed by the petitioner N.8 which was read over to her who accepted its correctness and affixed her thumb impression on it. Needless to observe that the petitioners Nos.1 to 7 had purchased the suit land through husband of petitioner No,8 who had the knowledge of the agreement to sell. The husband of the petitioner No,8 was also her attorney. Therefore, the plea of the petitioners of bona fide purchasers of the suit land without notice to the earlier sale agreement was not tenable in the facts and circumstances of the case.
Since the agreement to sell was executed by the petitioner No,8 in the presence of her husband, therefore, it could not be said that no independent advice was available to her at that time. The judgment by the trial Court as well as the First Appellate Court suffered from misreading and non- reading of material piece of evidence on record. The High Court was justified in passing the impugned judgment and decree in favour of the respondents. No exception can be taken to the findings recorded by the High Court. The case law relied on by the learned counsel for the petitioners is distinguishable from the facts and circumstances of the present case.
6. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.