' FAROOQ ALI CHANNA J..--- Through this IInd appeal, the appellants have called in question concurrent findings of two Courts below, whereby learned IIIrd Senior Civil Judge, Karachi South (hereinafter referred to as trial Court) decreed the Suit No,430 of 2006 filed by respondent No,1 against the appellants and respondents No,2 to 10 vide judgment and decree dated 27-9-2008 and 30-9-2008 respectively, upheld by learned VIth Additional District Judge, Karachi South (hereinafter referred to as Appellate Court) in Civil Appeal No,130 of 2008 filed by appellants against the respondents vide judgment and decree dated 23-9-2010 and 25-9-2010 respectively.
2. Briefly facts giving rise to file this IInd appeal are that the respondent No,1 filed suit for possession, declaration, permanent injunction and for recovery of Rs,16,00,000/- against the appellants and the respondents Nos.2 to 10. As per averment of plaint, the respondent No,1 had entered into an agreement of partnership dated 3-7-2002 with late Muhammad Nadeem Aziz, the deceased husband of appellant No,1 for re-construction of building on Plot No, NP-11/10 (old Survey No,A- 25/55F), Napier Quarters, Jodia Bazar, Muhammad Shah Street, Kharadar, Karachi having 20% undivided share of respondent No,1 and remaining 80% share of deceased Muhammad Nadeem Aziz.
3. As per terms and conditions of agreement attested by two witnesses Azizuddin and Muhammad Usman Qureshi, the respondent No,1 was entitled to have two flats in newly constructed building and Rs,16,00,000/- share in the total profit. Unfortunately in the year 2002 Muhammad Nadeem Aziz died, therefore the respondent No,1 approached the appellant No,1 who kept him on hopes for fulfilment of terms and conditions of partnership agreement but later on did not honour her commitments and gave the contract of construction of building and sale of shops and flats of the newly-constructed building to attesting witness Muhammad Usman Qureshi without the consent of respondent No,1 and after the sale of shops and flats refused to give two flats and Rs,16,00,000/- as per terms and conditions of agreement to the respondent No,2 hence he filed the suit which was decreed by the trial Court and upheld by the Appellate Court as mentioned above.
4. Learned Counsel for the appellant while arguing his case has emphasized two points that both the Courts below have not considered the provision. Of Article 78 of Qanun-e-Shahadat Order while recording their verdicts on the genuineness of the partnership agreement dated 3-7-2002 and the provision of section 69 of Partnership Act which debars the filing of civil suit based upon the Partnership Deed. Learned counsel has further argued that as per case of respondent No,1, two persons attested the partnership agreement, one of them Muhammad Usman Qureshi did not support the execution of partnership agreement in his presence and denied his signature as attesting witness, hence both the impugned judgments are suffering from infirmity, illegality and seems to be perverse liable to be set aside. Learned counsel has relied upon the case reported as Hamid Qayyum and 2 others v. Muhammad Azeem (PLD 1995 SC 381).
5. Conversely the learned counsel for the respondent No,1 has contended that the objections raised before this Court were not taken before the trial Court or before the Appellate Court, hence the same cannot be agitated before this Court as the scope of IInd appeal is limited and on the above sole ground the IInd Appeal is liable to be dismissed. Learned counsel has further contended that the respondent No,1 has filed the suit against the appellants and respondents Nos.2 to 10 in their individual capacity and not for and on behalf of the firm, therefore, the provision of section 69 of Partnership Act is not attracted. He has also relied upon the cases reported as AIR (35) 1948 Madras 441 Sanka Punnaiya v. Battu Bhadraiya, 1957 Patna 4 (AIR V 44 C 2 Jan), (Kuldip Thakur v.
Sheomangal Prasad Thakur and another), 2001 CLC 676 (Karachi) (Javed Masood Khan v. Zahid Hussain and others) 2008 SCM R 190 (Nazeer Ahmed v. Maqsood Ahmed), 2008 SCM R 855 (Muhammad Iqbal v. Mukhtar Ahmed).
6. The perusal of record shows that the partnership agreement was executed to reduce certain terms and conditions of re-construction of building, the same was not the Partnership Deed registered with the Registrar concerned for creation of firm to carry out business. However the plea taken by the counsel for the appellant admittedly was not taken before the trial Court as well as before Appellate Court, even the same plea has not been taken in the Memo of IInd Appeal. So far as the provision-of Article 78 of Qanun.-e-Shahadat is concerned, it provides that "if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the documents' as is alleged to be in that person's handwriting must be proved to be in his handwriting". In the instant case the executant of document has died and one of the attesting witness Muhammad Usman Qureshi in his examination-in-chief has stated that he did not know about the agreement, neither he has admitted nor denied the execution of partnership agreement as such Article 82 of the Qanun-e-Shahadat shall come in operation which provides that the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. The appellant No,1 in her evidence although has denied the execution of partnership agreement between the respondent No,1 and her husband, however she has admitted that the respondent No,1 had two flats in the suit property before it was reconstructed and the said two flats were purchased by her husband, however payment was made by her but she has no proof of purchase of flats by her husband . Nor the proof of payment made by her to respondent No, 1 .
7. Attesting witness Muhammad Usman Qureshi of partnership agreement, admittedly was monetary beneficiary as Contractor of reconstruction of subject building and authorized person of appellant No,1 to sale newly built shops and flats on her behalf, as such, his evidence denying the execution of partnership agreement in his presence and his signature as attesting witness has no credibility and sanctity nor favourable to the appellant No, 1 .
8. Both the Courts below while recording the concurrent findings on the facts, admitting the execution of partnership agreement have considered the entire evidence led by both the parties in support of their claim and it is settled law that the concurrent findings of facts recorded by the Courts below should not be interfered by this Court in its IInd Appellate jurisdiction unless and until it was shown that two Courts below have drawn inference which could not be drawn on proved facts on the record. The appeal is therefore dismissed with no order as to costs.