' MUHAMMAD TASNIM, J.-- This Ilnd Appeal has been filed by the appellant under section 100, C.P.C.
Challenging the judgment and decree dated 10-10-2009 and 15-10-2009 passed by learned iInd Additional District Judge Shaheed Benazirabad dismissing C.A. No.3 of 2005 maintaining the judgment and decree dated 22-12-2004 and 31-12-2004 passed by learned 1st Senior Civil Judge Nawabshah decreeing P.C. Suit No.4 of 2001.
2, The facts to the present controversy are summarized as under:--- ' On 6-1-2001 respondents Nos.1 and 2 filed Suit for specific performance, possession and injunction against the appellant and the official respondents. It is claimed that respondents Nos 1 and 2 entered into a sale agreement with the appellant in respect of land bearing Survey Nos.336/1, 2, 3, 4, and 337/3 admeasuring 15-01 acres Deh Chak-4 Obhari Sawari Taluka and District Nawabshah which is claimed to have been owned by the appellant. It was further claimed that agreement to sell between the respondents Nos.1 and 2 and the appellant was entered into on 25-8-1999 whereby appellant agreed to sell the suit-land to respondents Nos.1 and 2 for total sale consideration of Rs,15,00,000/- (Fifteen Lacs only). The respondent Nos. 1 and 2 claimed to have paid Rs,1300,000/- (One Lac only) to the appellant as earnest money. It is further claimed that respondents Nos.1 and 2 further made payment of Rs,1,00,000/- (One Lac only), Rs,2,00,000/- (Two Lacs only) and Rs,25,000/- (Twenty Five Thousand only) through payees A/C cheques which were encashed by the appellant in her bank account. It is further claimed that appellant had to execute registered sale deed on 28-5-2000 after obtaining the fardi and intekhab and the balance amount of Rs,10,75,000/- (Ten Lacs and Seventy Five Thousand only) was to be paid by the respondents No.1 and 2 at the time of execution of sale-deed. It is further claimed by respondent Nos. 1 and 2 that they had been ready and willing to perform their part of contract but the appellant refused to perform her part of obligation. Accordingly respondents Nos.1 and 2 filed above suit. After service of summons upon the appellant she filed her written statement denying the execution of sale agreement, receipt of earnest money and receipt of amount through cheques towards the sale consideration. It was stated by the appellant in the written statement that three cheques were given by respondents Nos.1 and 2 to one Syed Ali Raza who was brother of the husband of the appellant who deposited the same in the account of the appellant but got the amount of cheques back from the appellant. It was alleged in the written statement that respondents Nos.1 and 2 in collusion with said Syed Ali Raza had committed fraud with the appellant who is a pardanasheen lady.
3. From the pleadings of the parties on 12-2-2002 following issues were framed by the learned Trial Court:---
(i) Whether the defendant No.1 has sold out the agricultural land as mentioned in para-2 of the plaint to the plaintiffs through sale agreement dated 25-8-1999, if yes, what is its effect?
(ii) Whether the defendant No.1 had received the part payment on different occasions from the plaintiffs to the tune of Rs,4,25,000/- (rupees four lacs and twenty five thousand) out of sale consideration of Rs,15,o0,000/- (rupees fifteen lacs) if yes, what is its effect?
(iii) Whether the agreement of sale dated 25-8-1999, is forged one and nor signed by the defendant No.1 on the said agreement, if yes, what is its effect?
(iv) Whether the plaintiffs with the collusion of one Syed All Raza and by playing fraud to usurp the suit agricultural land of the defendant No.1, if yes, what is its effect?
(v) Whether the defendant No.1 has not sold out the suit-land to the plaintiffs, if yes, what is its effect?
(vi) Whether any faisla in between the plaintiffs and defendant No.1 through arbitrator on 25-8- 2000, if yes, what is its effect?
(vii) What should the decree be?
4. The respondent No.1 examined himself, attesting witness Lal, attesting witness Nazeer Ahmed, Mehboob Ellahi. Notary Public, Abdul Basit Manager HBL and Jalil Ahmed Manager Bank Al Habib and also brought on record number of documents which were exhibited by the learned trial Court.
5. The appellant examined herself, Wali Muhammad, Muhammad Yasin, Syed Nazir Subtain, Muhammad Ayoub Rind, Syed Javed Ahmed. The appellant also brought on record number of documents which were also exhibited by the learned trial Court.
6. After hearing the parties, the learned trial Court vide its judgment dated 22-12-2004 decreed the suit as prayed. The present appellant felt herself aggrieved and filed C.A. No.3, of 2005 before learned IInd Additional District Judge Shaheed Benazirabad who heard the parties and vide judgment dated 10-10-2009 dismissed the appeal filed by the appellant and maintained the judgment and decree passed by the learned trial Court. In the circumstances present second appeal under section 100, C.P.C. Has been filed.
7. Mr. Jhamat Jethanand learned counsel for the appellant has submitted that the sale agreement Exh.39 allegedly executed by the appellant was not proved in evidence in accordance with law as the appellant is a pardanasheen lady and none of the respondents has ever seen the appellant. He further submitted that signatures of the appellant on the Exh.39 do not tally with the admitted signatures of the appellant appearing on vakalatnamas executed by her in favour of two Advocates, CNIC, written statement in the present proceedings. Learned counsel further submitted that both the courts below have erred in law and have not appreciated the material evidence available on record which has caused serious prejudice to the present appellant. He further submitted that the judgment and decree passed by the Courts below were not based on the material available on record. Learned counsel for the appellant submitted that the courts below have based their findings on extraneous material. He submitted that it is an admitted position on record that none of the witnesses have stated in evidence that they have ever seen the appellant as she observes parda. He further submitted that even respondent No.1 in his evidence has stated that he cannot identify the appellant as he has never seen her face. It was further argued, by learned counsel for the appellant that respondent No.1 and two attesting witnesses have stated that sale agreement Exh.39 was executed on 25-8-1999 by the applicant but the same was attested by the Notary Public on 28-8-1999 and even Notary Public has not seen the face of the appellant. He further submitted that attesting witnesses of Exh.39 were totally stranger to the appellant and were resident of a place about 30 k.m away from the appellant's residence. Learned counsel submitted that Ali Raza being brother of the husband of the appellant in connivance with respondents Nos.1 and 2 has played fraud with the appellant and had accepted two cheques of Rs,1,00,000/- (One Lac only) and Rs,2,00,000/- (Two Lacs only) which were deposited by him in the account of the appellant but appellant had returned such amount to said Ali Raza through cheques being Exhs.77 and 78 for Rs,1,00,000/- (One Lac only) and Rs,2,00,000/- (Two Lacs only) on 15-9-2009. He further submitted that since Ali Raza had played fraud in this case, neither he appeared in the witness-box nor respondent No.2 appeared for evidence. Learned counsel submitted that there is mark distinction in proving the signature of a person on a document and proving the contents of a document. To elaborate his arguments he submitted that if other than the executant appears in the witness box and confirms the signature of the executant on such document, he cannot confirm the contents of the document as contents of a document can be confirmed/accepted by the executant himself. In support of his above submissions learned counsel for the appellant placed reliance on the following case-law:---
(i) Janat Bibi, v. Sikandar Ali and others (PLD 1990 SC 642)
(ii) Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1990 SC 661)
(iii) National Bank of Pakistan v. Mst. Hajra Bai (PLD 1985 Karachi 431)
(iv) (Raj Bibi and others v. Province of Punjab through District Controller, Okara and 5 others) 2001 SCMR 1591
(v) Munir Hussain and 7 others v. Raja Mushtaq Ahmad (PLD 2006 Lahore 48)
(vi) (Mst. Kulsoom Bibi and another v. Muhammad Arif and others. (2005 SCMR 135)
(vii) Baggu v. Mst. Rahiman Bibi (1996 MLD 377
8. On the other hand Mr. Qamar Mehmood Baig Advocate for respondents Nos.1 and 2 supported both the judgments impugned in this appeal and submitted that judgments passed by the courts below are strictly in accordance with law and the material available on record. Learned counsel for the respondents Nos.1 and 2 further submitted that both the courts below have recorded concurrent findings of fact which could not be disturbed by this court in second appeal. He also submitted that the present appeal is not maintainable under the law as no illegality in the impugned judgment and decree has been pointed out by the learned counsel for the appellant.
Learned counsel for the respondent submitted execution of Exh.39 was duly proved in evidence by examining the persons whose signatures appeared on Exh.39 and such persons also admitted the contents thereof. He further submitted that it is an admitted position on record that total sale consideration was agreed to Rs,15,00,000/- (Fifteen Lacs only) and respondents Nos.1 and 2 paid an amount of Rs,4,25,000/- (Four Lacs and Twenty Five Thousand only) to the appellant being part payment and remaining Rs,10,75,000/- (Ten Lacs and Seventy Five Thousand only) was payable by the respondents Nos.1 and 2 at the time of execution of sale-deed, but since appellant did not execute the sale deed in their favour balance amount was not paid by respondents Nos.1 and 2 to the appellant. Learned counsel for respondents Nos.1 and 2 further submitted that respondents have been ready and willing throughout for performing their part of obligation but appellant always avoided and due to the conduct of the appellant they were forced to file suit for specific performance. Learned counsel further submitted that case of the respondent stood duly proved through cogent evidence available on record. He further submitted that both the courts below have scanned the entire record minutely and have passed judgment and decree which are unexceptional. In support of his above contention he relied upon the following case-law.
(i) Azizullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647)
(ii) Mali Nasim Ahmad v. Additional District Judge, Dera Ghazi Khan and 3 others (1991 SCMR 1877)
(iii) Ch. Muhammad Shafi v. Shamim Khanum (2007 SCMR 838)
(iv) Muhammad Amir through L.Rs v. Muhammad Sher and others (2006 SCMR 185)
(v) Haji Sultan Ahmad v. Naeem Raza and 6 others (1996 SCMR 1729)
9. Mr. Allah Bachayo Soomro, learned Addl. A.-G. Challenged the maintainability of the appeal on the ground that second appeal does not lie against the concurrent findings of fact recorded by the two courts below. He submitted that second appeal can be entertained only on the grounds mentioned in section 100, C.P.C. He submitted that reappraisal of the evidence cannot be undertaken in the present proceedings. He also supported the judgments and decree passed by the courts below and has submitted that the same are in line with the evidence on record and the law on the subject. In support of his contention he relied upon the following case-law:---
(i) Haji Sultan Ahmad v. Naeem Raza and 6 others (1996 SCMR 1729)
(ii) Syed Ghulam Hyder Shah alias Umaz Shah and 4 others v. Mst. Bibi Amirunnissa and 4 others (PLD 2011 Karachi 183)
10. I have heard learned counsel for the parties and have perused the record minutely and have also gone through the judgments cited by the learned counsel for the parties.
11. From the arguments raised by the learned counsel for the parties, the first point which requires consideration is as to whether appellant and respondents Nos.1 and 2 had executed agreement to sell Exh.39 or not. The respondent No.1 appeared in court and produced the original agreement to sell in evidence and stated that the agreement was executed/typed at Katcheri Road by petition writer under the instructions of appellant and respondent No.1 had also paid Rs,1,00,0000/- (One Lac only) in cash to the appellant who accepted said amount. It is further stated by him that sale agreement was read over to the concerned parties. It was stated by the respondent No.1 that appellant put her signature on said agreement. Thereafter respondent No.1 also signed the same in presence of two witnesses namely Lal and Nazeer Ahmed. It is also stated by respondent No.1 that after three days of the execution of Exh.39 it was attested by Notary Public on 28-8-1999 and at the time of attestation appellant was present with her son so also Ali Raza who was brother of the husband of the appellant. The attesting witness Lal was also examined in court as Exh.40 who in his evidence stated that Exh.39 bears his signature as a witness. He also stated that the other witness Nazeer Ahmed had also signed Exh.39 at the time of its execution. He also stated that purchaser/respondent No.1 had paid Rs,1,00,000/- (One Lac only) to the appellant at the time of execution of Exh.39. He has further stated in his evidence that Exh.39 was read over to the parties in their presence and parties to Exh.39 had accepted the contents of Exh.39. He has further stated that appellant had signed the agreement in his presence. The other attesting witness Nazeer Ahmed was also examined by the respondent No.1 as Exh.41 who also stated in the evidence that sale agreement between appellant and respondent No.1 was executed in his presence which also bears his signature. He further stated that it was executed at Katcheri Road where respondent No.1 had paid Rs,1,00,00o/- (One Lac only) to the appellant who received the same. He had further stated that petition writer read over the contents of Exh.39 to the parties to the agreement who accepted the same and thereafter signed in his presence and in presence of other witness Lal. Notary Public Mehboob Ellahi Awan was also examined by respondent No.1 as Exh.42. Such witness had seen Exh.39 and had admitted in evidence that same was attested by him. He further stated that respondent No.1 and appellant came to him along with Ali Raza, the brother of husband of appellant and Javed Abbas the son of the appellant. He further stated that all the above named persons were present at the time of attestation. He has stated in evidence that he read over the documents to the parties who admitted the contents thereof. He further stated that as Notary Public he also obtained the signature of respondent No.1 and the appellant on the Exh.39 just above their signatures appearing on such document. He further stated in evidence that appellant and respondent No.1 had put their signatures in his presence. He admitted that he has put his endorsement as Notary Public with green ink upon Exh.39. He further stated that appellant was identified by Ali Raza at the time of attestation and he had also obtained signatures of Ali Raza as also mentioned his NIC number on Exh.39. He further stated that he had entered the details of Exh.39 in his register which he maintained as usual as Notary Public and such entry relating to Exh.39 appears at S.No.16 in the register which was produced in evidence as Exh.43.
12. From the perusal of the above evidence it is manifestly clear that execution of Exh.39 is proved, beyond any doubt in view of above discussed evidence. The execution of Exh.39 was duly proved in .Evidence in accordance with law so also the contents thereof. It is proved that Exh.39 was executed by appellant and respondents Nos.1 and 2 in presence of P.W. Lal, P.W. Nazeer Ahmed. Findings of the learned trial Court on the above point have been examined, they are in consonance with the evidence available on record. All the material evidence has been taken note of. There is no misreading, non-reading or non-appreciation of evidence by the learned trial court. The findings recorded by the learned Appellate court on the above point have also been examined same are in accordance with law and the material available on record. The learned appellate Court has rightly upheld the findings of the learned trial Court with regard to execution of agreement Exh.39 and such findings do not call for any interference by this Court in exercise of powers under' section 100, C.P.C.
13. The other point which requires consideration is as to whether amount of Rs,4,25,000/- (Four Lacs and Twenty-Five Thousand only) was paid by respondent No.1 to the appellant. With regard to payment of Rs,1,00,000/- (One Lac only) all the witnesses examined by the respondent No.1 in support of his case who were present at the time of execution of agreement. Exh.39 have categorically stated that an amount of Ils.1,00,000/- (One Lac only) was paid by respondent No.1 to the appellant in their presence. Thereafter appellant had put her signature on Exh.39. The respondent No.1 has claimed that he had paid Rs,3,25,000/- (Three Lacs and Twenty Five Thousand only) through cheques. A cheque for Rs,1,00,000/- (One Lac only) was given by respondent No.1 on 10-9-1999. The other cheque of Rs,2,00,000/- (Two Lacs only) was given on 25-1-2000 and the third cheque for Rs,25,000/- was given on 21-5-2000. The respondent No.1 has claimed that aforesaid amount was credited in the account of the appellant. To prove the above assertion the respondent No.1 examined P.W. Abdul Basit Manager HBL and P.W. Jalil Ahmed. Aziz Manager Bank Al- Habib.
P.W. Abdul Basit stated that he was Manager Habib Bank Limited Masjid Road Nawabshah. He produced original cheque issued by respondent No.1 in favour of appellant for Rs,1,00,000/- (One Lac only) dated 10-9-1999. He further stated that said cheque was encashed through clearing and the amount was transferred to Bank Al-Habib Nawabshah on 14-9-1999. He stated that it was a payees account cheque. He also produced statement of account duly signed by him which contained Account No.21624-3 and the' said amount was transferred from the account of respondent No. 1 . He further stated that original cheque was deposited in the Bank Al-Habib Nawabshah as payees account cheque and the same was sent for clearance to HBL. He also brought another cheque issued by respondent No.1 in favour of appellant for Rs,2,00,000/- (Two Lacs only) dated 25-1-2000 and stated that it was also a payees account cheque. He stated that said cheque was received through clearing on 26-1-2000 from Bank Al-Habib and the said cheque was cleared on 26-1-2000. He also produced statement of account of respondent No.1 showing clearance of Rs,2,00,000/- (Two Lacs only) from his account. Said witness also produced another cheque issued by respondent No.1 in the name of appellant for amount of Rs,25,000/- (Twenty Five Thousand only) on 31-5-2000. He stated that it was encashed on counter on 31-5-2000. He further stated that said cheque bears the signature on the reverse of the cheque of "Zeeshan Zuhra" in token of receipt of amount. The other P.W. Jalil Ahmed Aziz stated that he works in Bank Al-Habib Limited. On 14-9-1999 Cheque No.833162 was received by Bank Al-Habib for Rs,1,00,000/- (One Lac only) to credit in the account of appellant. He further stated that said cheque was payable by Habib Bank Masjid Road Nawabshah and the same was sent to Habib Bank Masjid Road Nawabshah for clearance. He further stated that his bank received proceeds of the cheque in the said account of appellant from Habib Bank Masjid Road Nawabshah and the said amount was credited in the account of appellant. The above P.W also brought original slip showing that Rs,1,00,000/- (One Lac only) received by Bank Al-Habib Limited from Habib Bank Masjid Road Nawabshah by way of clearing and it contained the stamp of the bank with Cheque No.854162. He further stated that his bank received another Cheque No.854163 dated 26-1-2000 for the sum of Rs,2,00,000/- (Two Lacs only) in the name of appellant. It was a payees account cheque and was drawn on. Habib Bank Masjid Road Nawabshah. Said cheque was sent through clearing on 26-1- 2000 to Habib Bank Limited and Rs,2,00,000/- (Two Lacs only) were paid by Habib Bank which were deposited in the account of appellant.
14. From the perusal of the above, it is obvious that cheques handed over to the appellant being part payment of the total sale consideration were deposited by her in her account and through the banking channel proceeds were deposited in her account. The payment of Rs,3,25,000/- (Three Lacs and Twenty Five Thousand only) through cheques stood proved by examination of above two Bank witnesses and the documents produced by them during the course of their deposition. The findings of the learned courts below on this issue as well have been minutely examined, same are in line with the evidence on record and no illegality whatsoever has been pointed out during the course of arguments. The findings recorded by the courts below on this aspect of the matter do not call for interference by this court in second appeal.
15. With regard to contention of learned counsel for the appellant that the appellant was a pardanasheen lady and heavy burden lay upon the respondent No.1 to prove the execution of sale agreement Ex.39. No doubt it is well-settled that the question whether a lady is pardanasheen lady is a question of fact. It is also well-settled that the burden in respect of a document purported to have been executed by a pardanasheen woman affecting her right or interest in the immovable property is on the person claiming the right or interest under the document. It is for him to establish affirmatively that it was substantially understood by the lady. And it was really her free and intelligent act.
16. In support of his above contention learned counsel for the appellant placed reliance upon the case of Janat Bibi v. Sikandar Ali (PLD 1990 SC 642). There is no cavil with the proposition as laid down in the above judgment by the honourable Supreme Court of Pakistan but the judgment cited by him is distinguishable on facts. In the reported judgment none of the two marginal witnesses stated in evidence that executant of the document put his thumb-impression in their presence but in the present case the appellant is an educated lady. She signs in English language. She is also maintaining her bank account which she operates under her own signatures. Admittedly respondent No.1 had examined himself and two attesting witnesses to prove the execution of Exh.39. It was stated by all the above witnesses that contents of documents were read over to the appellant, thereafter she put her signature on Exh.39. ' From the evidence it further appears that after three days of execution of documents i,e, on 28-8-1999 the appellant appeared before Notary Public along with her son Javed Abbas and one Ali Raza who was brother of husband of appellant.
The Notary Public in his evidence had produced the register containing the entry regarding Ex.39 and has further stated that Ex.39 was attested by him. He further stated in evidence that appellant came to him along with Ali Raza, the brother of husband of appellant and Javed Abbas the son of appellant. He further stated that he read over the contents of Exh.39 to the parties concerned who accepted the same and even have put their signatures on Exh.39 once again in his presence. He further stated that appellant was identified by Ali Raza whose CNIC number was mentioned at the time of attestation of Exh.39. In view of above material available on record the judgment cited by learned counsel for the appellant is of no help to him as being distinguishable on facts.
17. The other judgments cited by learned counsel for the appellant are also not applicable to the facts and circumstances of this case and are distinguishable, they do not improve the case of the appellant in view of material discussed hereinabove.
18. In the case of National Bank of Pakistan supra (PLD 1985 Karachi 431) wherein a learned Division Bench of this Court while dealing with the question of execution of document by a lady who was observing parda has observed as under:- "In fact the protective cloak is available to Pardanashin lady more because of lack of understanding and appreciation on her part than for merely observing parda.. It is quite possible that a woman belonging to a pardanashin class may possess sufficient intelligence to understand the contents of the document to which she is party despite the restraints of parda.
Conversely there can be an illiterate woman totally devoid of understanding but not observing parda therefore the criterion cannot be the social status in the parda class but the ability to comprehend the contents of the document in question. The emphasis is on factual understanding of the document with reference to the individual concerned and not upon presumptive disability incidental to mere status. In the instant case if the ladies-respondents are held not to be pardanashin ladies, still we are convinced from the evidence on record that both the ladies were illiterate at the relevant time. They know only out to sign but that too in Gujrati. This being so, the burden lay heavily on the appellant bank that not only the ladies-respondents executed the document in question but also fully understood their contents."
19. If the ratio of above judgment is applied to the case in hand it will be noticed from the record that appellant is English knowing lady. She maintains her bank account and operates the same under her signature in English language. From the evidence of respondent No.1 and two attesting witnesses on Exh.39 it is proved by respondent No.1 that Exh.39 was executed by the appellant after the contents of Exh.39 were read over to her. It is also an admitted position from the evidence that Ali Raza who was brother of the husband of the appellant was present at the time of execution of Exh.39 by the appellant. Matter does not end here on 28-8-1999 the appellant as per evidence appeared before the Notary Public who read over the contents of Exh.39 to her thereafter she again put her signatures on Exh.39; so also respondent No.
1. At that time as well she was accompanied by Ali Raza and her son Javed Abbas. In their presence the document was attested by the Notary Public. In this, view of the matter the appellant may be a pardanashin lady but she appears to have understood the contents of document which was read over to her and thereafter she put her signature on such document. Such act was performed by her on two occasions as mentioned hereinabove.
20. Now 'taking up the objection of learned counsel for respondents Nos.1 and 2 and learned Additional Advocate-General as to maintainability of second appeal under section 100, C.P.C., it is settled law that 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 findings have 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. It is quite obvious that the decisions of the courts below are neither contrary to law' nor the usage having the force of law. Learned counsel for appellant could not point out that the courts below while passing impugned judgments have omitted to decide some material issue of law or usage having the force of law. The question of materiality that is, whether or not an issue is of a material nature, will depend upon whether the ultimate decision of the court of first appeal would have been different, if the omitted issue had been determined by it. Thus, in order to succeed in second appeal on ground (b) of subsection (1) of section 100, C.P.C., an appellant would have to show that the court of first appeal would have reached a different conclusion, had it not failed to decide the issue of law or usage specified in ground (b) above. With regard to ground (c) of subsection (i) of section 100, C.P.C., this provision requires an appellant to show firstly that there has been a substantial error or defect in procedure and secondly that such substantial error could have resulted in an erroneous or defective decision of the case. Learned counsel for the appellant could not point out any substantial error in the judgments impugned before this court.
21. For the foregoing reasons this second appeal merits no consideration, the judgment and decree passed by both the courts below are unexceptional. Accordingly this appeal is dismissed with no order as to costs.