' IRFAN SAADAT KHAN, J.---The appellants herein, who are widows, sons and daughters of late Syed Nawaz Ali Shah, filed suit bearing No,48 of 1999 (renumbered as 39 of 2002) for declaration, cancellation of documents and injunction against the defendants. The learned trial Court, vide its Judgment dated 16-8-2006, dismissed the suit filed by the appellants/plaintiffs. The appellants/plaintiffs impugned the judgment dated 16-8-2006 by way of Appeal bearing No,90 of 2006 before the learned District Judge, Nawabshah which was heard by 1st Additional District Judge, Nawabshali and was dismissed vide judgment dated 28-8-2007. Being aggrieved by the two concurrent judgments, the appellants/plaintiffs filed the present Ilnd Appeal before this Court which was also dismissed vide Judgment dated 5-5-2008. The appellants/plaintiffs challenged the same before the Hon'ble Supreme Court in Civil Appeal No,184-K of 2009 and the Hon'ble apex Court, vide Order dated 10-3-2010, set aside the impugned judgment and remanded the case to this Court for decision afresh. The operative part of the Order dated 10-3-2010 reads as under:-- "No doubt there were concurrent findings of fact by the Trial and Appellate Courts but at the same time it was required by the High Court to have dilated upon the questions raised before it by noting down the points for determination and if the questions were not falling within the parameters of section 100 the same might have been rejected by making appropriate observations therein.
' However, as a question of the property claimed by both the sides is involved in respect whereof litigation with each other is going on from 1999, we are of the opinion that let the High Court decide the matter afresh. As a result, the impugned judgment dated 5-5-2008 is set aside and this appeal is allowed. The case is remanded to the learned High Court for decision afresh expeditiously as far as possible within a period of three months. No order as to costs."
2. This case was fixed before me tor the first time on 25-10-2010 when arguments were partly heard and the matter was adjourned to 1-112010 when for want of time it was adjourned to 8-11-2010 when again it was adjourned for want of time to 29-11-2010 and then to 6-12-2010. Finally the case was heard and reserved for judgment on 13-12-2010.
3. Brief facts of the case are that the appellants/plaintiffs tiled a suit for declaration, cancellation and injunction against the respondents/defendants in respect of the following properties:--
(a) Petrol pump known as Umaz Petroleum Services situated on R.S. No,137/4, admeasuring 8,573 sq. Ft.,{{TABLE}}
(b) Commercial Shops bearing Nos.B-3, B-4, B-5 B-6, B-7, B-8, B-9, B-10, B-11, B-12, B-13, B-14, B-15, B-16, B-17, B-18, B-19, B-20, B-21, B-22, B-23, B-24, B-25, B-26, B-27, B-28, B-29, B-30, B-31, B-32, B-33 and B-34, each shop adtneasuring to 200 sq. Ft. Situated in R.S. No,137/1, Syed Ghulam Hyder Shah Colony, Deli 25 Dad, Taluka and District Nawabshah.
(c) Shopping Centre known as Umaz Shopping Centre in front of Uniaz Petrol Pump on R.S. No,137/4, Kazi Ahmed Road, Syed Ghulam Hyder Shah Colony, Taluka and District Nawabshah.
(d) Sikni residential Plot Nos:
(i) A-3 Area 2800 sq. Ft.
(ii) A-4 Area 2800 sq.Ft.
(iii) C-2 Area 1200 sq. Ft.
' (iv) C-3 Area 1000 sq.Ft..
(v) C-4 Area 1200 sq.Ft.
(vi) C-5 Area 600 sq.Ft.
(vii) C-6 Area 900 sq.Ft.
' Situated on R.S. No,138/1, in Deli 25 Dad Syed Ghulam Hyder Shah Colony, Kazi Ahmed Road Nawabshah.
4. It is the case of the appellants/plaintiffs that the plot on which petrol pump is situated originally belonged to Syed Ghulam Hyder Shah, who died about 30 years back and was survived by his sons Syed Amir Hussain Shah, Syed Ghulam Rasool Shah, respondents/defendants Nos.1 and 2. As well as the father and predecessor of plaintiffs Syed Nawaz Ali Shah and also by the widows of the said deceased, namely, Bibi Begum and Bibi Shahar Bano. It is also stated that out of the said survivors Syed Amir Hussain and Syed Ghulam Rasool have died, whereas plaintiffs father Syed Nawaz Ali Shah is , alive though very seriously sick, (who also died later); while respondents/defendants Nos.1 and 2 are also alive. The wives of Syed Ghulam Hyder Shah namely Bibi Begum and Mst, Shahar Bano have also died on 12-6-1989 and 26-8-1996, respectively. It is asserted that the appellants/plaintiffs' father and predecessor Syed Nawaz Ali Shah had taken General Power of Attorney from the said widows of Syed Ghulam Hyder Shah as well as from respondents/ defendants Nos.1 and 2. It is averred that in the year 1978, the appellants/plaintiffs predecessor Syed Nawaz Ali Shah got the plan of a Colony approved by the City Survey Officer, wherein a portion was reserved for setting up a restaurant, but subsequently the suit petrol pump was constructed in place of the restaurant without approval of the City Survey Officer. However, on 18- 12-1989 the said petrol pump was purported to have been sold by the father and predecessor of the appellants/plaintiff namely Syed Nawaz Ali Shah in favour of respondent/defendant No,1 by registered sale-deed, which was duly entered in the City Survey Record. According to the appellants/plaintiffs -the said sale in favour of respondent/defendant No,1, for the reasons mentioned in the plaint, is void, ab-initio, illegal, ineffective and fraudulent. It is stated that due to illness of Syed Nawaz Ali Shah, father and predecessor of the appellants/plaintiff's, the appellants/plaintiffs are also in actual possession of the suit petrol pump and are running, administering and leasing out the same, and dealership is in their name. It is submitted that during the pendency of present suit; Syed Nawaz Ali Shah, predecessor of the appellants/plaintiffs, died leaving the appellants/plaintiffs as his legal heirs and thus the suit property including his 94 paisas share in Ghulam Hyder Shah Colony, comprising of S.Nos.130/1 to 3; 1131/1, part of S.Nos.137/1, 2, 4, 5, 138/1 to 4; 139/2, 3 and 148 Deh 25 Dad Taluka Nawabshah devolved on the plaintiffs by way of inheritance and the appellants/plaintiffs thus become owners of the same. It is asserted that sale deeds produced, as well as disclosed by respondent/defendant No,1 in evidence were fraudulently prepared and executed and as such are invalid, illegal and of no legal effect, and have been executed during "Marz-ul-Mout". It is also stated that after the fraudulent' sale of suit petrol pump in favour of respondent/defendant No,1 a cloud on the right, title and interest of the appellants/plaintiffs has been caused and so also on that of the co-sharers and-is likely to cause injury to them of a substantial nature, therefore, a suit was filed.
5. It is pertinent to mention here that initially the suit was filed in respect of the petrol pump only but during the pendency of the case amendments were sought by the appellants/plaintiffs and through amended plaints aforementioned properties were also made part of the case.
6. In response to the notices issued to the defendants/respondents Nos.1 and 2, joint written statement was filed by them denying the averments made in the plaint.
7. On the basis of the pleadings of the parties, issues were framed and after hearing the parties, the learned trial Court dismissed the suit vide judgment dated 16-8-2006, which was unsuccessfully challenged before the Appellate Court as well as the High Court. However, the Hon'ble apex Court set aside the judgment of this Court and remanded the case back for decision afresh, as stated above.
8. Mr. Hassan Mahmood Baig, advocate for the appellants submitted that Mst. Bibi Begum and Shaher Bano, who executed power of attorney in favour of Syed Ali Nawaz Shah, had expired much before the execution of the sale-deed by Syed Ali Nawaz Shah in favour of respondent No,1 and, therefore, the sale was illegal and void ab initio as it is a trite law that the power of attorney vanishes the moment the executant or the person in whose favour the power of attorney has been executed, expires.
9. The learned counsel for the appellants further submitted that even if it is admitted for the sake of arguments that late Syed Nawaz Ali Shah has sold the property to the respondent No,1 through a valid sale-deed, the said sale-deed only speaks about the property and not the petrol pump which the respondent No,1 is illegally trying to usurp and this aspect has totally been ignored by the two Courts below. The learned counsel also submitted that late Nawaz Ali Shah was not enjoying good health and had twice gone to England for treatment of his throat cancer, which is evident from the record. He submitted that in view of the said disease Nawaz Ali Shah was not mentally alert and the respondent No,1 took advantage of the situation by compelling him to sell the said property to her at throw-away price. As per the learned counsel, the respondent No,1 had fiduciary relationship with late Syed Nawaz Ali Shah and was in a position to dominate her will due to the mental and physical condition of Nawaz Ali Shah. According to the learned counsel, Syed Nawaz Ali Shah was suffering from Marz-ul-Maut and, as such, no gift or sale could be executed by him in such state of health. According to the learned counsel, the mala tide on the part of the respondent No,1 is so obvious that the property/petrol pump worth millions of Rupees was sold to her at a paltry and meager amount of Rs,511,000 only. The learned counsel also stated that there are number of anomalies in the judgments passed by the two Courts below and same have been passed without appreciating the facts and the record of the case. In support of his above contentions the learned counsel relied on the following cases.
' (1) 2003 SCMR 783, (2) PLD 2005 SC 418, (3) 2010 SCMR 810, (4) PLD 1975 SC 624, (5) PLD 1967 Lah.
391, (6) 1969 SCMR 531, (7) 1983 CLC 261, (8) 1980 SCMR 339, (9) 1980 CLC 1167, (10) 2002 SCMR 85,
(11) 1997 SCMR 1811, (12) 2009 SCMR 114, (13) 2006 SCMR 930, (14) PLD 2008 SC 389, (15).PLD 1971 Kar.
553, (16) PLD 1975 Kar. 819, (17), PLD 1989 SC 568, (18) 2007 CLC 1372, (19) 2000 SCMR 90, and (20) PLD 1974 SC 22.
10. On the other hand, Mr. Ijaz Ali Hakro, learned counsel for the respondents Nos.1 and 2, submitted that firstly the judgments passed by the two Courts below are in his favour and it is a trite proposition of law that if concurrent findings of the two Courts below do not suffer from any legal infirmity the same are not to be disturbed. In support of his contention the learned counsel relied on PLD 1994 SC 291, 2007 CLC 589, PLD 2006 SC 777, 2007 YLR 53 and 2007 YLR 2689.
11. The learned counsel also submitted that as per the findings of the two Courts below, the death certificates of Bibi Begum and Shaher Bano, produced by the appellants, were fake and bogus which have even been admitted by various witnesses in their depositions.
12. Mr. Allah Bachayo Soomro, learned, A.A.-G, for the official respondents, supported the version of Mr. Hakro and submitted that the suit tiled by the appellants was not maintainable as the same was filed by the appellants when Syed Nawaz Ali Shah was alive and hence the very filing of the suit was mala tide. As per the learned A.A.-G, the persons who have signed the sale-deed were examined and have affirmed the contents of the sale-deed. Moreover, it was Nawaz Ali Shah himself who went to the office of the City Survey at the time of execution of the sale-deed in favour of respondent No,1. Hence it is nothing but an afterthought on the part of the appellants that Nawaz Ali Shah was either not mentally alert or fit or was suffering from Maraz-ul-Maut. He also adopted the arguments of Mr. Hakro that issue of Maraz-ul-Maut only arises in the case of a gift and not in the case of a sale hence this submission of the learned counsel for the appellants that no sale could be made by a person suffering from Maraz-ul-Maut is totally misplaced. He further submitted that section 117 of the Qanun-eShahadat, 1984 is quite clear in this regard. The learned A.A.-G relied on PLD 2010 SC 906 and 2010 SCMR 1630. In the end the learned A.A.-G submitted that the judgments passed by the two Courts below do not suffer from any illegality and the suit filed by the appellants, being devoid of merits, was rightly dismissed by the trial Court.
13. Mr. Baig, learned counsel for the appellants, in his rebuttal, submitted that Fahad Shah, who is alleged to be the attorney of respondent No,1, was only 13 years age at the time when power of attorney was given to him by respondent No,1 and at the time of execution of the sale-deed he was about 16-17 years of age. Therefore, the power of attorney given by the respondent No,1 to Fahad Shah, on the very face of it, is illegal. Moreover, the deposition of the official of the Union Council is also not trustworthy in view of the fact that the respondent No,1 was not resident of such UC. He further submitted that the certificates produced through Ghulam Shah were fabricated and it is a settled principle of law that if the concurrent findings of facts of the two Courts below were found to be perverse this Court has the authority to disbelieve the same and pass appropriate orders in accordance with law. The learned counsel further submitted that it is a fit case of remand and reappraisal of evidence and prayed that the impugned judgments of the two Courts below may be set aside and the case be remanded to the trial Court to decide the same afresh in accordance with law.
14. I have heard the learned counsel for the parties at considerable length and have gone through the record as well as the case law cited before me.
15. A perusal of the record shows that as many as 22 issues were framed by the learned trial Court out of which quite a few are irrelevant and have no bearing on the outcome of the suit. However, from the pleadings of the learned counsel, 1 have framed the following points for determination in this case:--
(1) Whether Nawaz Ali Shah was having a valid General Power of Attorney from Mst. Bibi Begum and Mst. Shaher Bano so also from Mst. Bibi Amirunnisa and Bibi Ghulam Zohra?
(2) Whether Nawaz Ali Shah had sold the said petrol pump to Mst.Ain runnisa through valid registered sale-deed dated 18-12-1998 in the eyes of law?
(3) Whether Nawaz Ali Shah was mentally alert to enter into the said transaction with Mst.
Amirunnisa or was suffering from Maraz-ul-- Maut and if so, its effect?
(4) Whether the suit was validly filed by the plaintiffs?
16. Before proceeding any further it may be observed that there is no dispute with regard to the ownership of the disputed properties as it is an admitted position that the properties forming subject-matter of the suit were originally owned by one Syed Ghulam Hyder Shah and after his death the same devolved on his two widows as well as his sons and daughters. One of the legal heirs of the said Syed Ghulam Hyder Shah was the father of the present appellants/plaintiffs. It is also not disputed that power of attorney was executed by the legal heirs of Syed Ghulam Hyder Shah in favour of Syed Nawaz Ali Shah, father of the appellants/ plaintiffs in respect of the suit property and on the strength or the said power of attorney Syed Nawaz Ali Shah sold the suit property to respondent No,1 who was sister of Syed Nawaz Ali Shah.
17. The only bone of contention is that, according to the appellants/plaintiffs, at the time of execution, of the sale-deed by Syed Nawaz All Shah in favour of the respondent No,1, the widows of late Syed Ghulam Hyder Shah, who have executed power of attorney in favour of Syed Nawaz Ali Shah had already expired before the execution of the said sale-deed and, thus, the power of attorney executed by them in favour of Syed Nawaz All Shah vanished and, therefore, the sale in favour of respondent No,1 was illegal and invalid. II. Would be an exercise in futility if at this juncture case law on this point is discussed as there is no cavil that in case an executant or an attorney dies the power of attorney, which is not for consideration, also vanishes and cannot be acted upon.
However, this assertion, that the executants of the power of attorney had expired before the execution of the sale-deed by the attorney Syed Nawaz Ali Shah in favour of respondent No,1 on 19- 12-1998, is strongly refitted by the respondents and they alleged that both the executants were - alive at such time. This answers the issue No.1:
18. According to the evidence produced by the respondents Nos.1 and 2, Bibi Begum, one. Of the widows of Syed Ghulam Hyder Shah, died on 9-6-2000 while Bibi Shaher Bano, the other widow, died on 7-4-2001. In this regard they produced death certificates of the said two deceased as Exhibits 164 and 163 respectively. The defendants also produced Ghulam Hussain, Administrator, Union Council Khair Shah who produced the record in connection with death of the said two widows. In both these cases the information about the death of the said persons were given to the Union Council by the family servants of the deceased. On the other hand, the evidence produced by the appellants/plaintiffs in this regard was not confidence inspiring and a number of anomalies were found therein. The appellants/plaintiffs produced one Abdul Salam from Municipal Committee Nawabshah who produced the entries from the said Municipal Committee in respect of Bibi Begum. According to the record produced by said witness Abdul Salam, Bibi Begum died on 13- 3-1989 while such entry was made in the record on 22-1-1998 i,e, that almost after 10 years of the date of death of Bibi Begum. The name of the informant was shown as Ghulam Nabi Shah but he has not been examined as a witness. The date of death of Mst. Shaher Bano is alleged to be 26-8- 1996 and the name of the informant is shown.As "Abdul Wahid Mallah" who is an unknown person. It was also observed that the entry regarding death of Shaher Bano has been made at two places one on 26-8-1996 and the other on 22-1-1998. It was also found that in the record produced by Abdul Salam, appearing on behalf of the appellants/plaintiffs there was interpolation and over- writing. The plaintiff has miserably failed to produce any cogent evidence to prove that the said widows expired before the execution, of the sale-deed in favour of respondent No,1. If the evidence produced by the plaintiffs/appellants and the respondents/defendants is seen in juxtaposition, it would be observed that the evidence produced by the respondents/defendants is confidence inspiring and seems to be genuine while the evidence produced by the appellants/plaintiffs is otherwise. Accordingly, it was correctly held by the learned trial Court that at the time of execution of the sale-deed, the two executants of the power of attorney in favour of Syed Nawaz All Shah were alive and the said Nawaz Ali Shah validly and legally exercised the powers under the power of attorney executed by them. In view of my finding on the above issue, it is held that Syed Nawaz All Shah sold the suit property to respondent No,1/defendant through valid and registered sale-deed through a validly executed power of attorney which was fully operative on the date of execution of the sale-deed dated 18-12-1989.
19. Some of the cases relied upon by the learned counsel for the appellants are on the point that on the death of either the principal or the attorney the power of-attorney becomes extinct. Since it is not an admitted position, nor it has been proved by the appellants/plaintiffs through cogent evidence, that one or both of the executants of the power of attorney had expired before the execution of the sale-deed in favour of the respondent No,1, rather the respondents/defendants have shown that both of them were very much alive at the time of execution of the said sale-deed, therefore, these cases are of no help.
20. In the case reported as Muhammad Taj v. Arshad Mehmood and others (2009 SCMR 114), wherein it is held that it is settled principle of law that whenever a general attorney transfers the property of his principal in his own name or in the name of his close fiduciary relations, he has to take special permission from the principal. This case is also not applicable as in the present case the property was not transferred by the attorney to himself or his son/daughter. Rather, it was sold to his sister, who was also closely related to the principal being daughter of one of them and step daughter of the other. Even otherwise, the only person who could challenge such transfer would be the principal himself and none else as held in 1991 SCMR 1811. In this judgment it i,s also held that such transaction would be open to objection if the attorney alienates the property to himself or to those who are so closely related to the attorney that the ultimate beneficiary would be the agent himself. It is not so in the present case as when the property was sold to respondent No,1 it would be for the benefit of the respondent No,1 and her legal heirs. This objection would be valid only in case the property was transferred by the attorney to himself or to his children or wife. Same was the position in the case reported as 2006 SCMR 930 wherein the attorney transferred the property of the principal to his wife and since the principal was a pardanashin lady, the Court held that it was the duty of the attorney to have proved that he has apprised the principal that she was giving him the power to sell the property and it was also duty bound to inform the principal that he was transferring the property to his wife.
21. It was also argued by the learned counsel for the appellants/plaintiffs that the property worth millions of rupees was sold to the respondent No,1 for a meagre sum of Rs,511,000. Firstly, it has not been brought on record that the property was worth millions of rupees. Secondly, inadequacy of consideration cannot be made ground for declaring the transaction invalid unless it is shown that fraud was played by the party in whose favour the sale was made. This answers the Issue No,2.
22. I would now dilate upon the issue that whether Nawaz Ali Shah at the time of entering into the sale-deed with respondent No,1 was suffering with Marz-ul-Maut or not. The record reveals that Nawaz Ali Shah was suffering with Sqamous Carcinoma i,e, Throat Cancer. He was under the treatment of Dr. Javed A. Malik of Liaquat National Hospital who vide his letter, dated 25-3-1999 has duly affirmed that he is mentally alert and fully conscious. The report of Royal Mardsen Hospital London also shows that the disease through which he was suffering was a curable disease and as per the Doctor's report Mr. Shah will regain the ability to live a normal life within few weeks/months after his operation. As per the record it appears that Mr. Shah was not having good relations with his sons and that is why he was living with his sister, respondent No,1. As per the various correspondences made by Mr. Shah to certain authorities it is evident that he was fully mentally alert. The S.H.O's. Report also depicts that he was fit and was in good mental health. It also seems from the record that at the time of entering into the sale deed Mr. Shah was fully alert, which is evident from the fact that he himself went to the office of the City Surveyor for signing the relevant documents etc. The record also shows that the allegation raised by the appellants that Mr. Shah was not mentally fit is tainted with malice and nothing else. The record further shows that before the death of Nawaz Ali Shah he was living a normal life. Not a single document has been produced by the appellants either before the lower Court or before me to substantiate that Mr. Shah was suffering from mental ailment in any capacity. Hence, the assertions of the appellants that Mr. Shah was suffering with mental illness is not correct. It will also not be out of place to mention here that the doctrine of Marz-ul-Maut comes into the picture in the case of gift and not in the case of sale. Hence, even if it is assumed for arguments sake that Mr. Shah was suffering with Marz-ul- Maut, the same is not applicable in the present case as in my opinion he was able enough to enter into a valid contract with respondent No.l.
23. In the case of Muhammad Bashir and others v. Mst. Walayat Begum and others (PLD 1967 Lahore 391) it was held that if a person to a contract is not of sound mind then the contract would be void. However, from the record it is established that Nawaz Ali Shah was not of unsound mind. A number of transactions were admittedly carried out by Nawaz Ali Shah during this period which have not been questioned by any one. In this case the defendant No,1, who was fourth wife of father of the plaintiffs, in lieu of her dower amount, got transferred to herself some property of her husband while he was on his death bed. This transfer was challenged inter alia on the ground that the transaction was carried out under undue influence. The Court held that such transfer was invalid as the husband was on death-bed and was totally dependent on his wife. This is not so in the present case. Even the property did not belong to Nawaz Ali Shah as he was only a co-owner.
Then, as discussed above, at the time of transfer of the suit property by Nawaz Ali Shah in the name of defendant No,1 he was of sound mind and was not at all under the influence of defendant No.1. If at all, the appellants themselves distanced their father or why he was living with his sister when he had a number of sons and daughters.
24. Now coming to the fourth and the last issue, learned counsel for the respondents/defendants raised two-fold objections with regard to the maintainability of the suit filed by the appellants/plaintiffs before the trial Court. Firstly, it was contended that the appellants have no locus standi to file the suit as the suit was filed on 26-3-1999 and on that date the plaintiff No,1 was the duly constituted attorney of other plaintiffs. As per the record, the suit was filed on 26-3-1999 by the plaintiffs through their attorney, plaintiff No,1, namely, Syed Ghulam Hyder Shah. The power of attorney executed in favour of said plaintiff No,1 is available as Exh.96. A perusal of such power of attorney reveals that the same was executed on 16-9-1999. Thus on the date when the plaint of the suit was presented in Court, which was signed by plaintiff No,1 on behalf of the other plaintiffs, the plaintiff No,1 was not duly constituted attorney of the other plaintiffs and, thus, was not authorized to act on their behalf. Therefore, the plaint was not competently presented on 26-3-1999.
25. The other contention of the learned counsel for the respondents/ defendants in this regard was that since at the time of filing of the suit the father of the appellants/plaintiffs was very much alive, therefore, they had no legal character or right to file the suit. It is an admitted position that at F the time of filing of the suit on 26-3-1999 the father of the appellants/plaintiffs, Syed Nawaz Ali Shah, was very much alive and the suit property had not, till then, devolved on the appellants/plaintiffs.
Section 42 of the Specific Relief Act reads as under: "42. Discretion of court as to declaration of status or right.--Any person entitled to any legal character or to right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit as for any further relief."
26. Thus, it would be seen that at the time of filing of the suit, Syed Nawaz Ali Shah, as attorney, had already sold .The suit property to respondent No,1 on 19-12-1998 and the suit was filed on 26-3-1999.
Thus, on such date, when father of the appellants/plaintiffs was himself alive, even if it is held that the transaction between the respondent No,1 and Nawaz Ali Shah was invalid, no benefit can be derived by the appellants as even in such eventuality since their father was alive it was only he who could challenge the said transaction. In case the appellants/ plaintiffs were of the view that, the respondent No,1 had illegally deprived their father of his property as he was a person of unsound mind, they, or any one of them, could have tiled a suit for cancellation of the said documents as his next friend on his behalf. But, in no case the appellants/plaintiffs or any one of them, had the legal character or right to approach the Court for enforcing the same. Thus, the suit was not maintainable and do this score alone and it was liable to be dismissed.
27. Before parting with this Judgment it may be observed that this is a second appeal under section 100, C.P.C. Section 100, C.P.C. Reads as under:-- '
100. Second appeal.--Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds, namely:--
(a) the decision being contrary to law or usage having the force of law,
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect, in the decision of the case upon the merits.
28. It may be pertinent to mention that under section 101, C.P.C., an embargo has been placed on filing of a second appeal on any other ground except those mentioned in section 100, C.P.C.
29. In the case of Haji Sultan Ahmed through L.Rs, v. Naeem Raza and others (1996 SCMR 1729) it was held that reappraisal of the evidence on record is not permissible under section 100, C.P.C. It was also held in the cited case that the concurrent findings 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 arrived at by the 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 learned counsel for the appellants/plaintiffs has not been able to show the Courts below have given their findings either by misreading of evidence or by ignoring a material piece of evidence on record or through perverse appreciation of evidence.
30. In view of the above discussion, I find no merit in this second appeal and dismiss the same.