' HASNAT AHMAD KHAN, J.--- Briefly put, the facts giving rise to the filing of the instant appeal were/are that Asfa Khannam, the predecessor-in-interest of the plaintiffs/appellants, filed a suit for specific performance on 12-4-1977 against late Sh. Abdul Ghafoor, predecessor-in-interest of respondents Nos.1-a to 1-g, and others claiming therein that Sh. Abdul Ghafoor, defendant, had executed an agreement to sell with regard to House No,246-C, Mumtazabad, Multan in her favour, after receiving Rs,10,000 as an earnest money out of the total agreed sale price of Rs,15,000. She further averred in the said plaint that after receiving the advance money the possession of the said house was delivered to her and since then she had been in continuous possession of the suit property.
2. On the other hand, Fayyaz Hussain, respondent No,2 (herein), who is the son of Asfa Khannam, appellant, filed a suit for specific performance with regard to the same house with the assertion that Sh. Abdul Ghafoor, the owner of the house, had agreed to sell the said house to him vide registered agreement, dated 14-12-1972. According to respondent No,2 (plaintiff in the said suit), Sh.
Abdul Ghafoor had agreed to sell the said house to him (Fayyaz) against the consideration of Rs,13,000 out of which Rs,12,500 were received by him as advance money. He also claimed that the possession of the said property was delivered to him. Sh. Abdul Ghafoor, respondent No,1, contested both the said suits, which were consolidated by the learned trial Court. However, proceedings were conducted in Suit No,600, which was filed by Fayyaz Hussain, respondent No,2 (herein). Out of the divergent pleadings of the parties, the learned trial Court framed the following issues:---
(1) Whether the plaintiff has no cause of action and locus standi to bring this suit? OPD
(2) Whether both the cross-suit are not competent in its present from? OPD-1
(3) Whether this suit is collusive between the plaintiff and the defendant No,1? OPD2 to 3.
(4) Whether defendant No,1 entered into an agreement on 14-12-1972 to sell the disputed property against the consideration of Rs,13,000 and received Rs,12,500 as earnest money from the plaintiff?
OPP
(5) Whether both the cross-suits are bad for misjoinder of parties? If so, to what effect/ OPD-1.
(6) Whether the present plaintiff is entitled to the decree for the specific performance of the disputed agreement to sell? If so on what terms and conditions? OPP
(7) Whether the present plaintiff has been ready and willing to perform his part of contract in question? OPD
(8) Whether the cross-suit is collusive? If so, to what effect? OPD-1
(9) Whether the cross-suit is barred by limitation? OPD-1
(10) Whether the disputed property has not been correctly described in the cross-suit? If so, what is its correct description? OPD2 (11)Whether the defendant No,1 entered into an agreement to sell the disputed property to the defendant No,3 against the consideration of Rs,15,000 and executed the disputed agreement to sell on 22-5-1965 by receiving Rs,10,000 as the earnest money from defendant No,3? OPD-3 (12)Whether the agreement to sell, dated 14-12-1972 is liable to be cancelled on the grounds as contained in the body of the plaint of the cross-suit? OPD (13)Whether the defendant No,3 has been ready and willing to perform her part of contract? OPD-3 (14)Whether the defendant No,3 is entitled to decree for specific performance of agreement to sell in question? If so, on what terms and conditions? OPD-3 (15)Relief.
' After recording the evidence of the parties and hearing their arguments both the said suits were dismissed with costs by the learned trial Court vide judgment and decree, dated 9-4-1988. On Issue No,4 the learned trial Court held that neither the execution of the agreement to sell in favour of Fayyaz/plaintiff was proved nor the receipt of earnest money by respondent No,1 was established on the record. However, while deciding Issue No,11 the learned trial Court held that Asfa Begum, defendant No,3 (appellant herein), had proved the execution of agreement to sell Exh.D.1/3 and receipt Exh.D.2/3. However, she was non-suited on issue No,3 by holding that her suit was proved to be hopelessly barred by time. Sh. Abdul Ghafoor, respondent No,1 (herein), and Fayyaz, respondent No,2, challenged the said judgment and decree, dated 9-4-1988 passed by the learned Civil Judge, Multan, through their .Respective appeals which were decided by Malik Muhammad Safdar, learned Additional District Judge, Multan, vide a consolidated judgment and decree, dated 6-11-1995, whereby both the appeals filed by Asfa Khannam, appellant, and. Fayyaz Hussain, respondent No,2, were dismissed. While dismissing the said appeals, finding on Issue No,11 returned by the learned trial Court was also reversed by holding that Sh. Abdul Ghafoor, respondent No,1/defendant, never entered into agreement to sell the disputed land in favour of Asfa Khannam, appellant, against any consideration and the agreement, dated 22-5-1965 was based on fraud and collusion. Hence this appeal, which was admitted to regular hearing vide order dated 22-1- 1996, whereby the order of status quo was also passed.
2. In support of this appeal learned counsel for the appellants has contended that findings on Issue No,9 recorded by both the Courts below are against the law and facts inasmuch as the agreement to sell in question did not specify any date for its performance, therefore, later part of Article 113 of the Limitation Act, 1908, would apply in such a case and in that eventuality the suit could not be dismissed as barred by limitation on any score. In this regard learned counsel has placed reliance on the case of Thal Development Authority through Administrator Thal Bhakkar v. Khushi Muhammad and another PLD 1994 Lah. 108 and Inam Naqshband v. Haji Sheikh Ijaz Ahmad PLD 1995 SC 314. Learned counsel further contended that question of limitation being not a pure question of fact but a mixed question of law and fact, the High Court is competent enough to reverse concurrent findings of two Courts below on the issue of limitation. In this regard too the learned counsel has relied upon the case of Inam Naqshband (supra) case. Learned counsel further maintains that the execution of the sale-deed was dependent on the allotment of the said house by the District Allotment Committee, Multan in favour of Sh. Abdul Ghafoor, respondent No,1; that both the Courts below failed to appreciate the evidence on record in its true perspective; that in the written statement filed by the respondent No,1, paragraph 7 of the plaint filed by the appellant claiming cause of action was answered in a vague manner, therefore, the appellant could not be non-suited on the point of limitation; that since no provision existed in law to mark the documents, therefore, no reliance could be placed on Mark "A" to Mark "E" by the Courts below. In this regard learned counsel for the appellants has relied upon the cases of Province of Punjab through Secretary, Irrigation and Power Department, P.W.D. Secretariat Old Anarkali, Lahore and 3 others v. Ch. Mehraj Din & Co. Through Proprietor 2003 CLC 504. He goes on to argue that since respondent No,1 had failed to file cross-objections, therefore, the learned Appellate Court had no jurisdiction to reverse the findings on Issue No,11 which had been decided in favour of the appellant; that since no cross-objections had been filed to challenge the finding on the said issue, therefore, the said finding attained finality and was not liable to be reopened at the appellate stage. In this regard reliance has been placed on the cases of Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 83 and Muhammad Hanif through Legal Heirs v. Province of Punjab through District Collector, Vehari and others 2007 CLC 1309. Learned counsel further submits that since the agreement in question was based on happening of a certain future event, therefore, limitation of filing the suit, in this case, was to be computed in accordance with the provisions of Part II of Article 113 of the Limitation Act, 1908. Reliance in this regard has been placed on the case of Mst. Bibi Khatoon and 7 others v. Abdul Jalil PLD 1978 SC 213 and Bomanshaw Burjorji Gazdar and another v.
Mst. Mumtaz Begum and others 1985 SCMR 554. The learned counsel for the appellant laments that while reversing the findings on Issue No,11 the learned Appellate Court was supposed to discuss the findings returned by the learned trial Court on that issue and give detailed reasoning for differing with the said findings but the learned Appellate Court failed to discuss the reasoning returned by the learned trial Court on Issue No,11; that while reversing the findings on Issue No,11 the learned Appellate Court was supposed to refer and discuss each material piece of evidence in an intelligible manner and come to the conclusion after recording reasons thereof. On this point learned counsel placed reliance on the case of Ghulan Khanam and another v. Mst. Noor Jahan 1982 CLC 663.
3. Learned counsel for the appellant further assails the impugned judgment and decree by contending that the finding of the learned Additional District Judge on Issue No,11 is based on surmises and conjectures and is result of misreading and non-reading of the evidence; that the agreement to sell, dated 22-5-1965, executed in favour of the appellant, being prior in time than the one dated 16-12-1972, executed in favour of Fayyaz Hussain, respondent No,2, therefore, it cannot be held that the suit filed by the appellant was collusive; that after fulfilment of the conditions which were requisite for execution of sale-deed, respondent No,1 never gave any notice to the appellant, therefore, the suit could not be dismissed on the point of limitation and; that the reply to paragraphs Nos.6 and 7 of the plaint as contained in written statement filed by respondent No,1 is evasive in nature. The crux and meat of the arguments advanced by the learned counsel for the appellant is that the suit filed by her was illegally dismissed by both the Courts below.
4. Conversely, learned counsel appearing on behalf of respondents Nso.1-a to 1-g has opposed the arguments advanced by the learned counsel for the appellants vigorously and strenuously by contending that the impugned judgment passed by the learned Appellate Court is perfectly in accordance with law; that the finding of the learned trial Court on Issue No,9 is also perfectly in accordance with law; that the suit filed by the appellant was hopelessly barred by time, therefore, it was rightly dismissed by both the Courts below; that in fact the appellant No,1 as well as respondent No,2, who are mother and real son inter se, filed two suits after forging two different agreements to sell in order to defuse and frustrate the order of ejectment passed in favour of respondent No,1 in respect of the house in question; that both the said suits were filed in a collusive manner; that it is not believable that after execution of an agreement to sell in favour of the appellant No,1/mother of respondent No,2, the latter purchased the same property after paying almost the entire consideration amount; that the collusiveness of the appellant and respondent No,2 is obvious from the fact that Sajjad Haider, another son of the appellant and brother of respondent No,2 appeared in the witness-box as special attorney of the appellant; that same Sajjad Haider was holding special power of attorney on behalf of Fayyaz Hussain, respondent No,2, as well; that the said collusiveness is further exposed by the fact that he said Fayyaz Hussain, respondent No,2, executed a special power of attorney in favour of Sajjad Haider, who had filed the instant appeal before this Court; that the forged agreement to sell purportedly executed in favour of Asfa Khannam, appellant, was not signed by her, therefore, the same at the best can be termed as unilateral agreement which does not create any right in favour of any of the parties; that under the said so-called agreement the appellant had to pay the balance amount to respondent No,1/defendant but she did not sign the said agreement in acknowledgment to pay the balance amount, therefore, the said unilateral agreement was not binding on any of the parties under the law; that to create a legal contract offer and acceptance is must, but in this case the so-called agreement to sell allegedly executed in favour of the appellant, did not contain acceptance on the part of Asfa Khannam, appellant, therefore, the said document cannot be termed as a valid agreement; that though the property in question is situated in Multan but the agreement to sell was allegedly executed in Bahawalpur, a fact which on the face of it shows the mala fides of the appellant; that the agreement to sell was never put to Sh. Abdul Ghafoor, respondent No,1, during his cross-examination, therefore, no reliance can be placed on the said document; that though respondent No,1 did not file any cross-objections or cross-appeal but under Order XLI, rule 21, C.P.C., he was within his rights to support the decree, which was passed in his favour, on any of the grounds decided against him by the learned trial Court; that since respondent No,2 had filed a cross-appeal, therefore, the findings returned by the learned trial Court were open to discussion, therefore, the learned Appellate Court did not commit any illegality while reversing the findings on issue No,11; that during the pendency of the appeal filed by the appellant herein before the First Appellate Court, respondent No,1 had not attacked the decree or sought its reversal or modification but only intended to challenge the finding of the Court below on one of the issues, therefore, he could always make oral submissions to assail the findings on issue going against him. In support of his arguments learned counsel for respondent No,1 has placed his reliance on the cases of Muhammad Khan v. Muhammad Yousaf PLD 2003 Lah. 413, Amir Bakhsh and another v.
Muhammad Ramzan and 3 others 1990 MLD 245, Abdul Hague and others v. Shaukat Ali and 2 others 2003 SCMR 74, Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512, Mst. Bhagay v.
Mst. Fatima Bibi PLD 2004 Lah. 12, Syed Mustafa Kamal Shah and others v. Syed Feroze Shah and others 1992 CLC 355 and Mst. Jamila Begum v. Awam-un-Nass and 15 others PLD 1978 Lah.
1376.
5. Learned counsel for respondents- Nos.1-a to 1-g further adds that the Appellate Court could maintain the decree of dismissal of suit even by reversing finding on issues decided in favour of the appellant before the said Court. In this regard learned counsel has relied upon the case of Mst.
Zarina Begum v. Major Aziz-ul-Haq and 3 others 2006 CLC 1525 (Lahore).
6. Learned counsel further maintains that during the pendency of the first appeals respondent No,1 herein, could support the decree on the points decided against him but could not attack the decree and ask for its variation without filing cross-objections. To augment his contentions, learned counsel placed his reliance on the cases, of Khairati and 4 others Aleem-ud-Din and another PLD 1973 SC 295, Hakim-ud-Din through L.Rs, and others 2007 SCMR 870, Muhammad Ashraf and others v. Lahore Metropolitan Corporation through Lord Mayor 2007 CLC 1079 and Pakistan International Airlines Corporation v. Messrs Khalid Brothers PLD 1992 Kar.
78.
7. I have given a patient hearing to the respective learned counsel for the parties and gone through the entire evidence including the pleadings of the parties carefully. After doing the said exercise I find that this case has a chequered history. According to respondent No,1 he had filed an ejectment petition against Sajjad Haider, respondent No,3, who is real son of appellant No,1, with regard to the house in question. During the pendency of the said ejectment petition the appellant filed an application for impleading herself as a party. The said ejectment petition was accepted against Sajjad Haider, the tenant, who filed an appeal which was also dismissed. During the trial of the suit filed by the appellant (herein) the said fact was duly admitted by Sajjad Haider, who appeared as special attorney of her mother Asfa Khannam, the appellant. Needless to repeat here that the ejectment petition which was duly accepted was filed by respondent No,1 against said Sajjad Haider. During his cross-examination Sajjad Haider candidly admitted that the house in question was duly obtained on rent in the year 1965. He further conceded that the ejectment petition filed by respondent No,1 (predecessor-in-interest of respondents Nos.1-a to 1-g), was accepted and the ejectment order was passed against him (Sajjad Haider). It was further admitted by him that the appeal filed by him against the said ejectment order was dismissed. He went on to concede to the suggestion that the suit filed by respondent No,1 for recovery of arrears was also decreed against him (Sajjad Haider). He made clean his 'breast by conceding that after passing of the ejectment order he did not vacate the possession of the said house. In reply to another question he conceded to that the house in question was in possession of his mother i,e, the appellant (herein). During cross-examination he stated that his brother Fayyaz, the plaintiff of the cross-suit and he himself came to know about the agreement to sell about 6/7 years before appearing in the witness-box.
He showed his ignorance about sending of any notice by his mother to respondent No,2. He denied the suggestion that both the agreements to sell purportedly executed by respondent No,1 in favour of the appellant and Fayyaz, respondent No,2 respectively, were forged documents. A perusal of the documents produced during the trial reveals that the appellant relied upon an agreement to sell, dated 22-5-1965 purportedly executed in her favour. According to the said agreement out of the total consideration amount of Rs,15,000 an amount of Rs,10,000 was paid as earnest money and the balance amount of Rs,5,000 was to be paid at the time of execution of the sale-deed. It was further recorded in the said agreement that since the lease had not been executed in favour of Abdul Ghafoor, the vendor, therefore, the sale-deed would be executed after transfer of the proprietary rights of the house in question in favour of the seller. Interestingly enough, though, according to the said document the appellant was bound to pay the balance amount of Rs,5,000, the said document was not signed or thumb-marked by her, therefore, it can validly be said that the said agreement was unilateral in nature, consequently, the question as to whether any valid agreement was executed between the parties is open to serious doubts. Besides, it is not believable that respondent No,1, who had succeeded to get an ejectment order against the appellant's son Sajjad Haider, would execute such an agreement in favour of the appellant.
8. It is also an admitted fact that the property is situated in Multan but the agreement to sell was allegedly executed in Bahawalpur. The said fact also eclipses the genuineness of the said document. It is also strange that though the appellant agreed to purchase the house in question after paying 2/3rd of the consideration amount but another agreement to sell, dated 16-12-1972 was purportedly executed in favour of Fayyaz Hussain, another son of the appellant, who claimed to have purchased the said house against the consideration of Rs,13,000 out of which almost- entire amount had been allegedly paid to the vendor and only a meagre amount of Rs,500 was to be paid at the time of execution of the sale-deed. There is nothing on the record to suggest that Fayyaz Hussain had any dispute with her mother. Similarly, it is not the case of the appellant that Sajjad Hussain, the original tenant of respondent No,1 had any dispute or litigation either with the appellant or with Fayyaz Hussain, respondent No,2. Sajjad Haider, who was originally a tenant of respondent No,1 claimed that he had left the possession of the rented property and thereafter her mother came into possession of the said house. It appears that since day one all the three people namely Sajjad Haider, Fayyaz Hussain and Asfa Khannam, were acting in a collusive manner. After passing of the ejectment order against her son Asfa Khannam, mother of said Sajjad Haider, came into picture and filed a suit on the basis of a forged agreement to sell purportedly executed in her favour. The said document was purportedly executed on 22-5-1965. Thereafter, for reasons best known to them, another agreement to sell purportedly executed by respondent No,1 on 16-12-1972 was prepared in favour of Fayyaz Hussain, another son of Asfa Khannam.
9. If for the sake of the argument the agreement to sell dated 22-5-1965 is treated as a genuine document then obviously the cause of action arose in favour of Asfa Khannam on the day when the second agreement to sell was allegedly executed by respondent No,1 in favour of the real son of the appellant, for, it was tantamount to a clear refusal on the part of respondent No,1 to execute a sale-deed in favour of the appellant. Besides, it is not believeable that Fayyaz Hussain, the real son of the appellant, was not aware of the execution of an agreement to sell in favour of the appellant, her mother. Similarly, it is hard to believe that the appellant was not aware of execution of agreement to sell in favour of her son. Therefore, the suit filed by the appellant on 12-4-1977 having been filed after more than five years of the execution of second agreement to sell, was clearly barred by time. According to Fayyaz Hussain, respondent No,2, he issued a notice (Exh.P.3) to respondent No,1 for execution of sale-deed in his favour but admittedly no such notice was ever issued by the appellant to respondent No,1. Moreover, Exh.D.11/3, Exh.D.13/3, D.14/3 and Exh.D.15/3 and Exh.D.16/3 reveal that Secretary District Allotment Committee, Satellite Town Multan, had issued various notices to the appellant in reply to her application dated 22-3-1971. The said documents reveal that at that time the house in question had duly been allotted to Abdul Ghafoor, respondent No, 1 . Since the said documents were produced by the appellant herself, therefore, she cannot claim that she did not receive the said notices. At least after receipt of the said notices a cause of action had again accrued to her for asking respondent No,1 to execute the sale-deed in her favour but even after the receipt of said notices in the year 1972 the appellant did not file the suit within time rather remained silent. However, she interestingly claimed in her plaint that the cause of action had arisen in her favour fifteen days prior to the filing of the suit. Admittedly, she did not issue any notice to respondent No,1 for execution of sale-deed in her favour. In the suit no specific date for accrual of the cause of action has been quoted. According to the appellant the limitation had to start from the happening of the certain event i,e, transfer of ownership rights in favour of respondent No,1 qua the house in question but in the suit the plaintiff nowhere claimed that the suit was filed within three years of the transfer of ownership rights in favour of the appellant, rather she claimed that it accrued after the denial of respondent No,1 to execute the sale-deed a fortnight before the filing of the suit. So, the case-law cited by the learned counsel for the appellant is clearly distinguishable from the facts and circumstances of this case. In the case of Mst. Bibi Khatoon (supra) cited by the learned counsel for the appellant, it was held that the parties should not be negligent about the enforcement of their rights. Learned counsel for the appellant has failed to point out any illegality or irregularity committed by both the Courts below on the findings returned against Issue No,9. Besides it, there is a concurrent finding of fact by the two Courts below and it is an established law that the concurrent findings of the fact reached by the lower Courts would not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence.
10. Insofar as filing of the suit in collusiveness is concerned, in view of the findings returned above I conclude that since day one the appellant, her son Fayyaz, who had filed a cross-suit, and Sajjad Haider, the original tenant of the disputed property, had been acting in collusiveness with each other. After acceptance of the application for ejectment against Sajjad Haider, two agreements one after the other were prepared in a clandestine manner by the appellant and respondent No,2, respectively. In the cross-suits filed by the appellant and Fayyaz Hussain, respondent No,2, Sajjad Haider appeared as D.W.8, as special attorney of Asfa Khannam. Though after the dismissal of his suit respondent No,2 filed an appeal before the Appellate Court, but after the dismissal of his appeal he did not bother to challenge the judgment and decree passed by the First Appellate Court before this Court. On the contrary, in the appeal filed by Sajjad Haider, the legal heirs of Asfa Khannam, respondent No,2 (Fayyaz Hussain) also signed the special power of attorney as one of the legal heirs of the appellant to challenge the findings returned against her. As observed above, though an agreement to sell had already been executed in favour of her mother, respondent No,2 allegedly purchased the disputed property from respondent No,1 after paying almost the entire consideration for the house in question. It is also relevant to point out that the P.Ws. Produced by Fayyaz Hussain were never cross-examined by Asfa Khannam on the point of possession. It appears that both the said suits were filed to frustrate the execution proceedings based on the ejectment order passed in favour of respondent No,1 regarding the disputed house. It is also astonishing to note that in the agreement to sell, which was allegedly executed on 22-5-1965, the consideration amount of house in question was fixed as Rs,15,000, whereas in the second agreement to sell, which was allegedly executed attcr seven years of the execution of the first one, the sale consideration was written as Rs,13,000. Though considering the devaluation of the currency and steepness of the value of the property the consideration amount in second agreement to sell should have been much more than as mentioned in the first agreement to sell. To put into a nutshell, the findings returned by the Courts below on the issue of limitation are upheld.
11. In order to better appreciate the arguments raised by the learned counsel for the appellant on the point that in absence of cross-objections the findings returned by the learned Civil Judge on issue No,11 could not be reversed by the Appellate Court, a perusal of provisions of Order XLI,. Rule 22, C.P.C. Is necessary, which is reproduced as under:--- "Upon hearing, respondent may object to decree as if he had preferred separate appeal.--- (1) Any respondent, though he may not have appealed from any part of decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross- objection to the decree which he could have taken by was of appeal, provided he has filed such objection in the Appellate Court within one month from the dare of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow."
' A bare perusal of the language of the said rule would reveal that any respondent, though he may not have appealed from any part of the decree, may support the decree on any of the grounds decided against him. So, even in absence of cross-objection filed by him, any respondent in appeal can support the decree passed in his favour. He, of course, cannot attack the decree or seek its reversal or modification without filing the cross-objections but can challenge the finding of the Court below on one of the issues involved in the lis. For this purpose he can always make oral submission to assail the findings on issues given against him. Under Order XLI, rule 22, C.P.C., any respondent who had not filed appeal from any part of the decree, could support the decree in his favour on any of the grounds decided against him in the Court below. The case-law cited by the learned counsel for the respondents is fully applicable to the facts and circumstances of the case.
Admittedly the suit has been decreed in favour of respondent No,1, therefore, in view of the unambiguous rules 22 and 33 of Order XLI, C.P.C., respondent No,1 was within his right to support the said decree "by challenging the findings of the trial Court on the issue decided against him, therefore, the objection raised in this regard by the learned counsel for the appellant is hereby spurned. Besides, the finding on the said issue had been challenged by Fayyaz, respondent No,2, in his cross-appeal against the impugned judgment and decree, therefore, on this ground as well the finding of the Appellate Court on Issue No,11 is quite sustainable.
12. Now coming to the point that the learned Appellate Court failed to rebut the findings returned by the learned trial Court on Issue No,11 effectively, I find that while reversing the findings on the said issue learned Appellate Court gave detailed reasoning after scrutinizing the whole evidence produced by the parties. In fact the learned trial Court had misread the evidence produced by the parties with regard to Issue No,11 and the said issue was decided in a slipshod manner without scrutinizing the whole of the evidence in depth. The appellant was bound to discharge the burden to prove the said issue but the learned trial Court failed to appreciate that the appellant had miserably failed to discharge the burden of proof of the said issue. The findings returned by the learned trial Court on the said issue reveal that the appellant was given benefit of the weaknesses of evidence of respondent No,1 without considering that he was not required to discharge the burden of the said issue and it was the duty of the appellant to discharge the same but having a .Cursory glance of the evidence the learned trial Court decided the said issue in favour of the appellant. The learned trial Court failed to appreciate that Qazi Abdul Hafeez, scribe of Exh.D.1/3, while appearing in the witness-box conceded to the suggestion made during examinationin-chief that Sh. Abdul Ghafoor, respondent No,1, was resident of Khanpur and he was not posted at Bahawalpur. He further stated that the witnesses of the agreement were present per chance. He went on to state that Abdul Ghafoor, respondent No,1, was not personally known to him rather he (respondent No,1) had introduced himself to the said witness. According to his statement even Asfa Khannam, the appellant, was not known to him. Contrarily, the learned Appellate Court while reversing findings on Issue No,11 gave a detailed reasoning. It was observed by the Appellate Court that Sh. Abdul Ghafoor, respondent No,1, had made an application to Deputy Commissioner, Rahim Yar Khan about the forgery on which an enquiry was held and ultimately the same was decided in his favour and Registry Clerk was terminated from service. It was further observed as under:--- "Keeping in view the result of enquiry. And the fact of a forged document Exh.P.1, dated 16-12-1972 and the apprehension of defeat in suit based on forged document Sajjad Haider Khan and Fayyaz Hussain Khan managed Exh.D.1/3 and Exh.1312/3 which is totally result of afterthought to rebut the contention of Sh. Abdul Ghafoor in the ejectment petition and the other civil suit filed by Fayyaz Hussain Khan. It is unthinkable that if Exh.D.1/3 was rightly executed by Sh. Abdul Ghafoor and was a genuine one then Mst. Asifa Begum would have filed the civil suit prior to filing of civil suit by Fayyaz Hussain Khan for the simple reason that allegedly Exh.D.1/3 was executed on 22-5-1965 whereas Exh.P.1 in favour of Fayy az Hussain Khan was executed on 16-12-1972."
' In addition to the findings returned by the learned Appellate Court I find that Qazi Abdul Hafeez, scribe of the agreement, while appearing as P.W.5, stated that his register did not bear page numbers. He further admitted that after the entry dated 23-5-1965 recorded in the relevant register the next entry is dated 9-6-1976. He claimed that during this period he had left the job of deed writing and even in the year 1976 the first entry was recorded in the said register on 16-6-1976. He further stated as under:- {{URDU TEXT}} ' He further conceded to the suggestion that no mark of identification of Sh. Abdul Ghafoor was recorded in the register.
7. A scrutiny of the said evidence coupled with the fact that respondent No,1 while appearing in the witness-box was never confronted with the agreement to sell, dated 22-5-1965, Exh.D.1/3. Without confronting respondent No,1 with his signatures on Exh.D.1/3 and the document itself during his cross-examination, the said document was not helpful to the appellant.
13. Admittedly the finding of fact recorded by the First Appellate Court is at variance with that of the learned trial Court and in view of the consistent law available on this point the finding of fact recorded by the Appellate Court will ordinarily prevail and in view of the case-law Madan Gopal and 4 others v. Maran Beparti and 3 others PLD 1969 SC 617, such a finding by the lower Appellate Court will be immune from interference in second appeal if it is found to be substantiated by the evidence on the record and is supported by logical reasoning. I have appreciated the evidence on record in view of the litmus test laid down by the Honourable Supreme Court in the said case and after due comparison of the comparative merits of the findings returned by the Courts below, in the light of the facts of the case and the reasons on which the two different findings have been respectively proceeded, I conclude that the findings returned by the learned Appellate Court are more weighty and are duly supported by the evidence on the record which does not reveal a logical basis for differing from the findings of the Appellate Court. The findings of the First Appellate Court, of course, are not found to be arbitrary or capricious. The crux of the discussion made above is that the findings returned by the learned Appellate Court on Issue No,11, as well do not call for any interference by this Court.
15. For what has been discussed above, the appeal in hand has been found to be meritless, and therefore, dismissed with costs.