1. ' MRS. QAISER IQBAL, J.--- The appellant has preferred !Ind civil appeal against the judgment and decree impugned passed by learned IInd Additional District and Sessions Judge, Karachi (East) in Civil Appeal No,147 of 2003, dated 24-12-2004, confirming judgment/decree passed by Court of original jurisdiction.
2. ' The appeal has emanated under following facts and circumstances:-- ' Suit No,451 of 1996 was filed by the respondent No,1 for declaration, permanent injunction and damages on 2;5-1996 through his attorney Syed Muhammad Farooq Rizvi claiming to be the owner of plot of land No,LHC, Row No,9, Street No,23, Block 4-A, Gulshan-e-Iqbal, Karachi, K.D.A. Scheme No,24, Karachi admeasuring 240 square yards (hereinafter referred to disputed plot for the sake of brevity). It was averred that the respondent No,1 being partner of a firm under the name and style of Farooq Builders and Developers were carrying on construction work over the disputed plot, whereas respondents Nos.2, 3 and 4 are partners of the respondent No,1 under a partnership deed executed on 29-8-1993. Respondent No,2 approached the respondent No,1 for purchasing the disputed plot for total sale consideration of Rs,9,00,000 as per mutual agreement interlinking respondent No,2 agreement was executed on 30-9-1993 and in terms thereof a general power of sub-attorney was executed in the name of respondent No,2 on 1-9-1993. The project started booking against the terms of the agreement realized Rs,3,00,000 from public-at-large, the respondent No,2 failed to honour terms and conditions of the agreement as well as failed to pay the sale consideration. Respondent No,5, who is the real brother of the respondent No,1 approached the respondent No,2 not to engage himself in irregularities by procuring money for booking from respective clients; other partners of the agreement also committed breach of trust and contract. It is alleged that the respondent No,3 had entered into a sale agreement with respondent No,4 Muhammad Abdul Qadir on 8-5-1994 secretly, after purchasing the disputed plot, public notice was published in daily Jang dated 9-5-1994. Respondent No,3 had also entered into a sale agreement dated 15-6-1994, in respect of the disputed plot with the appellant for sale consideration of Rs,660,000, entire consideration was paid to Faizullah Khan/respondent No,3, who earlier sold plot adjacent to his brother-in-law Abdul Sami Khan on 23-6-1993 and after the sale agreement with the appellant transferred proceedings were initiated in K.D.A. For mutation in the name of Abdul Sami Khan. Respondents Nos.1 and 5 in January, 1994 reprimanded the respondent No,3 about the violation of the terms and conditions of the agreement and partnership deed thereupon he provided guarantee in the form of general power of attorney and Plot No,FC-4, scheme No,17, Golimar Pilot Project, Karachi admeasuring 790 sq. Yards entrusted to them. On written complaint filed against respondent No,3, respondent No,1 filed suit.
3. ' The appellant filed written statement pleaded that he was a bona fide purchaser for value without prior notice of any dispute over the disputed Plot, the appellant has executed an irrevocable general power of attorney in favour of the respondent No,3, subsequent cancellation of the property is of no material effect as it was already acted upon, appellant had purchased the disputed plot from the respondent No,3, attorney of the respondent No,1 through Estate Agent Aziz- ul-Haq and had paid entire sale consideration after the documents were shown to him, later appellant applied to K.D.A. For transfer of the disputed plot in his name.
4. ' Respondents Nos.2 and 5 in the written statement accepted the case of the respondent No,1, respondents Nos.6 and T filed written statement; did not confirm the averments contained in the plaint. The suit was subsequently transferred to the Court of Senior Civil Judge, Karachi (East) due to change in pecuniary jurisdiction, on the pleadings of the parties following issues were formulated--
(1) Whether the suit is liable to be dismissed for want of notice under Article 131 of K.D.A. Order 1957?
(ii) Whether defendant No,2 has acted in excess of authority conferred on him by the plaintiff? Its effect?
(iii) What is the effect of revocation of sub-power of attorney?
(iv) Whether the defendant No,5 appellant is a bona fide purchaser for value without notice? Its effect.
(v) What should the decree be?
5. ' The learned trial Judge decreed the suit of the respondent No,1 on appeal filed by the appellant was dismissed through impugned judgment, which was finally heard at Katcha Peshi stage with the consent of the counsel appearing for the parties.
6. ' Mr. Syed Ansar Hussain, learned counsel for the appellant has contended that the concurrent findings of Court below are based upon misreading of facts and documents, the respondent No,3 being holder of registered power of attorney had acquired a right to sell the disputed plot whereby entered into an agreement of sale having no nexus with the partnership deed dated 24-7-1993 Exhibit 5/2, which shows that Faizullah, Muhammad Abdul Qadir, Syed Muhammad Razi (respondents Nos.2, 4 and 5) were partners of business under the name and style of Farooq Builders and Developers, the appellant was entitled to the protection provided under section 41 of Transfer of Property Act (IV of 1882) benefit could be availed by the transferee subject to the proof:- -
(i) That he had given valuable consideration.
(ii) That he had acted in good faith.
(iii) That he had taken reasonable care or made reasonable enquiries to ascertain that the transferor had the power to transfer and where such elements are lacking the transferee shall be denied protection.
7. ' In support of the above plea reliance is placed on the following case-law:--
(i) PLD 1975 Lah. 619, (ii) 1976 SCM R 489, (iii) 1992 CLC 1809, (iv) 1996 CLC 1027 and (v) 1984 CLC 2248.
8. ' Initially on the application of the general implication a purchaser who buys a property is required to investigate into a title of the vendor. It is a well known maxim that "a buyer beware". Respondent No,3 has claimed a right title and interest by virtue of agreement of sale Exhibit 5/3 whereupon a legal document rested with the respondent No,3.
9. ' Mr. Abdul Muqtadir Khan, learned counsel for the respondent No,1 contends that for applicability of section 27(b) of Specific Relief Act (I of 1877), basic requirement is that burden heavily lay upon one person whose title arises subsequent to contract of sale must prove that the transferor for value and has paid money in good faith and without notice of original contract. It is urged that no evidence is available on record that the applicant had taken reasonable care to ascertain an existing position about property in dispute and he had acted in good faith because respondent No,3 had entered into two different sale agreements with his brother-in-law and respondent No,4 on two different dates prior to the execution of the alleged sale agreement with the appellant, the respondent No,1 had proceeded to cancel power of attorney, which connotes that transaction based upon alleged sale agreement between the respondents Nos.1 and 3 is of no consequences.
10. The appellant availed the benefit of section 41 of the Transfer of the Property Act as the respondent did not have power on the basis of the sale agreement to further negotiate as under section 54 of the Transfer of the Property Act, an agreement of sale would not confer any title unless the same has been determined in favour of vendee by a Court of competent jurisdiction as held in 1999 M LD 2117 and PLD 1981 SC (AJ&K)
79. It is urged admittedly there existed no valid title in favour of the respondent No,3 for tangible immovable property nor valid title can be passed on to the buyer unless a registered sale-deed is executed. The above proposition finds support from 2001 CLC 252.
11. ' Mr. Arif Khan, learned counsel for respondents Nos.2 and 5 contended that reappraisal of the evidence in IInd appeal is contrary to the well-settled legal proposition, the finding of the Court below on material Issue No,4 cannot be reversed on account of alleged discrepancies pointed out by the learned counsel for the appellant.
12. ' Before considering the contentions of the parties on merits it will be appropriate to examine the scope of interference in a IInd appeal with the concurrent findings of fact under section 100, C.P.C.
(1) In case of Haji Sultan Ahmed through Legal Heirs v. Naeem Raza and 6 others 1996 SCM R 1729 concurrent findings of the facts recorded by the Courts below could not be interfered by the High Court while exercising jurisdiction under section 100, C.P.C., how so erroneous that finding may be, unless as the finding has been arrived either by misreading of evidence on record or by ignoring the material piece of evidence on record or through perverse appreciation of evidence upsetting of concurrent findings of fact as a result of reappraisal of evidence on record was not permissible.
(2) In case of Fazal Rahman v. Amir Haider and others 1986 SCM R 1814, it was held that High Court will not interfere with the erroneous finding however, gross and inexcusable the error may be excepted on strong legal ground which can be held tantamount to interference on a question of law. A concurrent finding of fact reached by lower Courts will not be disturbed by High Court in a second appeal even if it disagrees with that finding on its own view of evidence.
(3) Muhammad Yakoob v. Muhammad Ishaque 1980 CLC (Karachi) page 2057.
13. ' While dilating on the scope of second appellate Court, it is observed that normally Court would not interfere with the concurrent finding of fact or even with the finding of fact recorded by first appellate Court based on proper appraisal and evaluation of evidence and founded of proper inference drawn from it, however, if the concurrent finding is based on misreading of evidence or if material evidence was ignored by the two Courts below or its finding wrong inferences drawn on material legal issues, second Appellate Court is competent to interfere with the concurrent finding of fact. The same will be equally applicable with more force to a finding of fact recorded at variance by the first Appellate Court.
(4) In case of Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676 on the basis of ratio of precedents emerging in the facts and circumstances appears to be that ordinarily concurrent finding recorded by the courts below could not be interfered with by the High Court while exercising jurisdiction in the Ilnd appeal. However, erroneous that finding may be unless such finding has been arrived at by the Courts below either by misreading of evidence on record by ignoring the material piece of evidence on record or through a perverse appreciation of evidence. The case in hand squarely falls within the exception clause inasmuch as High Court interfered with concurrent finding after noticing that the judgments of the Courts below suffered from acute misreading of evidence and exclusion of material available on the record resulting in gross miscarriage of justice.
14. ' From the above discussed legal position, it is obvious that the concurrent finding recorded by the Courts below cannot be interfered with by the High Court while exercising jurisdiction under section 100, C.P.C. How so erroneous that finding may be unless such finding has been held right by the.
15. Courts below either by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence. The point, therefore, arises for consideration in the present appeal is whether the finding of the Courts below on Issue No,4 is in consonance with the material available on record.
16. ' Learned counsel for the appellant contended that the finding recorded by Courts below on Issue No,4 was perverse more particularly when respondent No,2 is not a registered partnership firm in terms of section 68 of the Partnership Act. The first Appellate Court discussed Issue No,4 in the judgment as follows:-- "The appellant/defendant No,5 failed to examine any witness to prove this transaction. The alleged sale agreement (Exhibit 7/1) and receipt (Exhibit 7/1) show that sale consideration of Rs,6,60,000 was paid by the appellant/defendant No,5 to the respondent No,3/defendant No,2 on the date of the execution of the agreement but the appellant/defendant No,5 in his cross-examination has admitted that he had not paid the amount to the defendant No,2/respondent No,3 at the time of the execution of the sale agreement. It is also an admitted position that defendant No,2/respondents Nos.2, 3 had extorted amount of Rs,3,00,000 {three Lacs) from general public and on their complaint he was directed by the K.D.A. To settle the matter but there is nothing on record to show that prior to entering into sale agreement with the appellant/defendant No,5, the respondent No,3/defendant No,2 had settled the matter with the allottees of the flats. The defendant No,5/appellant himself filed letter of defendant No,3/respondent No,4 dated 14-9-1983 (Exhibit 7/12) addressed to K.D.A. In which the defendant No,3/resondent No,4 introduced himself as partner of respondent No,2/defendant No,1 and had also shown the dispute regarding allottees of the flats on the said plot. The appellant/defendant No,5 in his cross-examination deposed that the sale agreement between him and the defendant No,2/respondent No,3 was executed in presence of property dealer Azizul Haq but the such property dealer Azizul Haq has also not been examined at the trial. Original sale agreement was also not produced by the appellant/defendant No,5 on the pretext that it was deposited by him in K.D.A. For transfer of the said plot in his name but he has not examined any official of K.D.A. To prove his version. Suffice it to say that the defendant No,5/appellant has admitted in his cross-examination that neither the agreement of sale nor its receipt bear the signature of any witness, the non-judicial stamp-paper on which the alleged agreement was reduced to writing was not purchased in the name of defendant No,5/appellant, which does not make clear as to in whose name it was purchased, the defendant No,5/appellant in his cross-examination has, however, stated that he had paid amount to Azizul Haq to purchase the stamp-paper but he showed his ignorance in whose name it was purchased. The sale agreement (Exhibit 7/1) also does not bear the father's name of the defendant No,2/resondent No,3, the sale agreement (Exhibit 5/7) between the respondent No,3/defendant No,2 and the appellant/defendant No,5 was executed on 15-6-1994 and on that date neither defendant No,5/appellant had paid any amount to the defendant No,2/respondent No,3 nor title documents were handed over to the appellant/defendant No,5, the appellant/defendant No,5 has stated that he had paid sale consideration on 18-9-1994 to the defendant No,2/respondent No,3 when the defendant No,2/respondent No,3 and the appellant/defendant No,5 recorded their statement before K.D.A. As per Exhibit 5/14 knowingly that the defendant No,3/resondent No,4 had filed objections on 12-9-1994 prior to payment of sale consideration and recording of statement before the K.D.A."
17. ' The above discussion reveals that the evidence in the case was duly taken into consideration by 1st Appellate Court and it was not mere affirmation of the finding recorded by the trial Judge. The contention of the respondent's counsel as to whether a bona fide purchaser of the disputed plot entitled to the protection under section 41 of Transfer of Property Act, 1882 cannot be availed as circumstances clearly show that the appellant had knowledge of the agreement of sale of property between the respondent No,3 and respondents Nos.4 and 5 before the sale agreement was executed, the appellant did not purchase the disputed property without investigating the title of the vendors at his own risk as no registered sale-deed was executed in favour of the respondent No,3 by the respondent No, 1 . Much of the reliability has been placed by the learned counsel for the appellant on power of attorney that it was revoked after an interest was created in favour of the appellant by the respondent No,3 and such admission even made by the respondent No,1 in the plaint, therefore, such assertion made need not to be proved under Article 114 of Qanun-e- Shahadat, 1984.
18. ' It is well-settled that power of attorney should be strictly construed as laid in case of Ilyas Akhtar and 2 others v. Khan Zaman and another 2001 MLD (Lahore) 1617 relying on section 202 of Contract Act (IX of 1872) it has been observed that in absence of any evidence that the attorney had entrusted property forming subject-matter of the agency , any clause in the power of attorney would not be bar to 'the revocation of an agency. The above principle was followed in case of Messrs Farooq and Company v. Federation of Pakistan and 3 others 1996 CLC 2030 (Lahore).
19. ' Adverting to the drafting, conveyancing and pleadings authored by Dr. G.M. Kothari, in Chapter 1 Rules for drafting having been enumerated which provide that before commencing the draft, the draftsman should conceive the whole design of it. Nothing is to be omitted or admitted at random and a document should be self-explanatory, it may be desirable to introduce operative part in recitals but care should be taken to be sure that these are really necessary, the order should be logical, at page 5 of the book author has relied upon Code said that a legislative sentence contains four parts, viz. The case, the condition, the legal subjects, the legal acts. The same alignments are also found in a business document. The draftsman should, therefore, arrange the sentence in the following order:-
(1) the case or circumstance is to take effect;
(2) the condition, what is to be done to make the sentence operative;
(3) the legal subject, the person enabled or commanded to act; and
(4) the legal action, that which the subject is enabled or commanded to do.
20. ' The statement of the case or circumstances can commence with when or where, these words having no reference to time or place but meaning if the following circumstances exist; either of these words makes a convenient distinction between the commencement of the case and the commencement of a condition; for the latter if (or, to introduce a negative or a time limit, unless or until) is suitable. Russel recommends that "where" should be used where frequent recurrences of the event are contemplated; "when" if only a single or a rare occurrence is contemplated.
21. ' Pieese and Gilchrist suggest the following arrangement:-- ' A sentence that states the reason for what it provides is some times Clearer if the reason is put first. Similarly beginning with a condition or exemption can hold clarity.
22. ' Plain reading of the paras. 11, 13, 18, 24, 26, 28, 32 and 38 are in narration of the facts. Nothing has been admitted at random cannot be treated as admission because the intentions of the parties are to be seen from the plaint as held in 1994 MLD 481. The appellant did not raise such plea which he filed affidavit in evidence and is stopped from taking the plea as held in PLD 1959 Kan 360. The question of bona fide purchaser also stands resolved by way of publication by respondent No,5 in daily Tang dated 9-5-1994 which was not filed by the appellant. On account of variance in the stamp-paper purchased in the name of two different persons bearing the name of Niazi Advocate at page 1 and Tajuddin page 2 subsequent events before K.D.A. In view of complaint lodged against Abdul Qadir, after 8 days thereafter respondent No,3 had made alleged payment the appellant made payment of the entire sale consideration on 15-9-1994 whereas the statement before K.D.A.
23. Was recorded on 18-9-1994. K.D.A. Has issued notice to all the three partners which manifestly suggests that the appellant cannot be termed as bona fide purchaser without notice in terms of law.
24. ' Having regards to the above facts and circumstances, I am of the considered view that the impugned judgment passed by .The two Courts below does not call for interference, consequently IInd Appeal No,15 of 2005 is hereby dismissed in the peculiar circumstances. Parties are left to bear their own costs.