' IQBAL HAMEED-UR-RAHMAN, C.J.- Through the instant revision petition, the petitioner seeks setting aside of the impugned judgment and decree dated 11-3-2003 passed by the learned Additional District Judge, Islamabad whereby, he while dismissing the appeal filed by the appellants (including the present petitioner), upheld the judgment and decree dated 20-3-2001 passed by the learned Civil Judge 1st Class, Islamabad, as well as the impugned judgment and decree dated 20- 3-2001 passed by the learned Civil Judge 1st Class, Islamabad, whereby, the suit filed by the plaintiffs (including the present petitioner) was dismissed.
2. It is pertinent to mention here, that when the attention of the learned counsel for the petitioner as well as learned counsel for respondent No,l is adverted to the order dated 22-11-2004, passed by this court, whereby, the respondents had been proceeded against ex parte, learned counsel for respondent No,l states that the same had been passed inadvertently, because on the said date respondents Nos,2 to 4 were proceeded against ex parte. Learned counsel for the petitioner concurs to the same. Keeping in view the same, the order dated 22-11-2004 regarding ex parte proceedings against the respondents is modified to the extent that the ex-parte proceedings shall be treated only to the extent of respondents Nos,2 to 4.
3. Precisely, the alleged facts necessary for the adjudication of the instant civil revision petition are that the Petitioner/plaintiff had filed a suit for declaration and permanent injunction, claiming to be the owner in possession of 1st floor and above of building constructed on plot No, 1-A, Blue Area, F- 6/G-6, Islamabad and also entitled to use the said premises in any manner as well as to raise construction over the roof of 1st floor and above of the said property. It was mentioned in the plaint that defendant/respondent No, 1 had entered into an agreement to sell dated 5-5-1987 with the plaintiff/petitioner for the. Sale of 1st floor and above of Plot No, 1-A, Blue Area, F-6/G-6, Islamabad and in furtherance of the said agreement the defendant/respondent No,l had executed a registered sale-deed on 3-1-1991 for transfer of 1st floor as well as Sky Rights of Plot No, 1-A, Blue Area, F-6/G-6, Islamabad. The suit was contested by the defendant/respondent No, l, The learned Civil Judge, 1st Class Islamabad, keeping in view the divergent pleadings of the parties, framed the following issues and directed the parties to produce their respective evidence:-
(1) Whether the plaintiffs have no cause of action? OPD.
(2) Whether the suit has not been filed by an authorised person? OPD.
(3) Whether the suit is not maintainable in its present form? OPD.
(4) Whether the suit is false and frivolous and the defendant is entitled to special costs under section 35-A, C.P.C.? OPD.
(5) Whether the plaintiffs are owners in possession of the first floor and above of the property in dispute and are entitled to a decree for declaration and injunction as prayed for? OPP.
(6) Relief.
' Both the parties led their oral as well as documentary evidence, to prove heir respective contentions. After the recording of evidence and hearing the learned counsel for the parties, the learned Civil Judge 1st Class, Islamabad dismissed the suit vide judgment and decree dated 20-3- 2001, which was assailed by filing an appeal before the learned District Judge, Islamabad, by the appellant, which too, had met the same fate vide judgment and decree dated 11-3-2003, passed by the learned Additional District Judge, Islamabad, hence the instant civil revision..
4. Learned counsel for the petitioner, at the very outset argued that a sale agreement dated 5-5- 1987 was executed between respondent No, 1 and the petitioner; that in clause (I6) of the said agreement, it was categorically mentioned that the party of the first part (respondent No,l) shall have no objection, if the party of the second part (petitioner), raises any construction above 1st floor as the roof rights belong to the party of the second part (petitioner), as such, in the light of agreement dated 5-5-1987, the petitioner could raise construction on the roof of 1st floor of building constructed on Plot No, 1-A, Blue Area, F-6/G-6, Islamabad. Learned counsel for the petitioner' further argued that in furtherance of the agreement dated 5-5-1987, a sale-deed dated 3-1-1991 was also executed between respondent No,1 and the petitioner as well as respondents Nos,2 to 4.
However, clause (I6) of the agreement dated 5-5-.1987 was not incorporated in the registered sale-deed dated 3-1-1991, rather, it was mentioned in the sale-deed that the vendees can use the open roof but have no construction rights; that while contesting the suit filed by the petitioner, respondent No,l had taken the plea that the? Sale agreement had expired, whereas, the sale-deed dated 3-1-1991 was executed in furtherance of the sale agreement dated 5-5-1987 and the learned courts below have erred while holding that the sale agreement dated 5-5-1987 had no nexus with the registered sale-deed dated 3-1-1991; that there is no evidence that the sale agreement was replaced or the same was got cancelled; that there is not an iota of evidence to show that the sale-deed dated 3-1-1991 was executed independently, having no connection with the sale agreement dated 5-5-1987; that the learned courts below have wrongly held that the petitioner can use open sky but no construction cap be raised and the impugned judgments passed by the courts below suffer from misreading and non-reading of evidence; that the vendor's/respondent No,1's rights in respect of property constructed on Plot No, 1-A, Blue Area, F-6/G-6, Islamabad, had transferred in favour of the petitioner, after the execution of the sale-deed dated 3-1-1991 and after the transfer of ownership in favour of the petitioner, as such, the petitioner has the every right to raise construction over 1st floor of property constructed on Plot No,l-A, Blue Area, F-6/G-6, Islamabad and if right of construction over 1st floor is given, to respondent No, 1, the right of use of open roof of 1st floor of the petitioner would he washed away. Learned counsel for the petitioner has relied upon PLD 1956 (W.P.) Lahore 934.*
5. Conversely, learned counsel, for respondent No, 1 argued that sale agreement in respect of property constructed on Plot Nol-A, Blue Area, F-6/G-6, Islamabad was executed between respondent No,l and the petitioner on 5-5-1987, whereas, the sale-deed was executed on 3-1-1991 i,e, after about three years of the execution of sale agreement and the Petitioner/plaintiff had filed, suit for declaration, and permanent injunction on 9-9-1993, as such, there is no link between the sale agreement dated 5-5-1987 and sale-deed dated 3-1-1991; that after the execution of registered sale-deed, sale agreement had lost its value and according to section 62 of Contract Act, 1872, if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed, hence, the petitioner cannot ask any relief on the basis of sale agreement dated 5-5-1987, as subsequently sale-deed dated 3-1-1991 had executed between the parties; that all the conditions mentioned in the sale-deed dated 3-1-1991 were duly accepted by the petitioner and thereafter, he had filed suit for declaration and permanent injunction, wherein, he had prayed that the plaintiff is the owner in possession of 1st floor and above of Plot No, 1-A, Blue Area, F-6/G-6, Islamabad and is entitled to use it in any manner, whereas, he was required to file suit for specific performance of the sale agreement dated 5-5-1987, therefore, suit for declaration was not maintainable. Learned counsel further argued that concurrent findings of courts below cannot be substituted in exercise of revisional jurisdiction, unless same are proved to be patently illegal, perverse or without jurisdiction. Learned counsel for respondent No,l has relied upon PLD 1987 SC (AJ&K) 93, PLD 1982 Baghdad-ul-Jadid 33 and 1994 CLC 2272 [Karachi],
6. I have heard the learned counsel for the petitioner as well as learned counsel for respondent No,l and perused the documents appended with the file.
7; It is evident from the photocopy of the agreement to sell dated 5-5-1987 appended-with the instant civil revision that in clause (I6) of the said agreement, it was mentioned that the party of the first part (respondent No,l) shall have no objection, if the party of the second part (petitioner) raises* any construction above the 1st floor. However, subsequently registered sale-deed dated 3- 1-1991 was executed and it was specifically mentioned in the said registered sale-deed "that the vendees can use the open roof but have no construction rights". The petitioner along with other three plaintiffs had filed suit for declaration and permanent injunction, praying therein that they are entitled to use property constructed on Plot No, 1-A, Blue Area, F-6/G-6, Islamabad in any manner they like and can raise construction over the roof of 1st floor and above, on the plea that sale-deed dated 3-1-1991 was executed in furtherance of the sale agreement dated 5-5-1987, however, the suit of the Petitioner/plaintiff was dismissed vide judgment and decree dated 20-3- 2001, which was upheld by the learned Additional District Judge, Islamabad while dismissing the appeal filed by the present petitioner and others, vide judgment dated 11-3-2003. Petitioner has come forward with the stance that there was nexus between the agreement to sell dated 5-5-1987 and registered sale-deed dated 3-1-1991 and as it was mentioned in the sale agreement that the party of the first part (respondent No, 1) shall have no objection' if the party of the second part (petitioner) raises any construction above 1st floor, as roof rights belong to the party of second part, whereas, respondent No,l has taken the stance that as in the registered sale-deed dated 3-1- 1991, it was specifically mentioned that the vendees can use the open roof but have no construction rights, hence, the petitioner cannot raise any construction over 1st floor of property constructed on Plot No, 1-A, Blue Area, F-6/G-6, Islamabad relief.
8. It is evident from the photocopy of agreement to sell dated 5-5-1987 that the same was executed between Naroze Khan (owner)/respondent No,l and Mohammad Masud Khan (purchaser)/ petitioner, whereas, registered sale-deed dated 3-1-1991 was executed between Muhammad Naroz Khan (vendor)/respondent No,l and Mohammad Masud Khan, Muhammad Mahmud Khan, Muhammad Munib Khan and Muhammad Majid Khan (vendees), as such, the purchasers mentioned in the agreement to sell dated 5-5-1987 and registered sale-deed dated 3- 1-1991 are different persons except the petitioner. Moreover, in the sale-deed dated 3-1-1991, it is nowhere mentioned that same was executed in furtherance or consequence of the agreement dated 5-5-1987, as such, it cannot be held that the registered sale-deed was the outcome of the agreement to sell dated 5-5-1987 and as it was clearly mentioned in the sale-deed dated 3-1-991 "that the vendee can use the open roof but have no (construction rights", hence, the petitioner on the basis of agreement to sell dated 5-5-1987 cannot ask for raising construction on the 1st floor Of building constructed on Plot No,1-A, Blue Area, F-6/C-6, Islamabad. Furthermore, if for the time being, it is presumed that the registered sale-deed dated 3-1-1991 was executed in pursuance of the sale agreement dated 5-5-1987, then too, according to (section 62 of Contract Act, 1872, after the execution of registered sale-deed, the same does not require its performance, as such, the sale agreement dated 5-5-1987 has no binding effect and on the basis of the said sale agreement, the petitioner cannot ask for any In view of the above perspective, inference can safely be drawn that the findings of the two courts below; neither suffer from jurisdictional defect nor the same are result of misreading and non- reading of evidence, hence, call for no interference. Moreover, the Hon'ble Supreme Court of Pakistan in the case reported as "Aurangzeb through legal heirs and others v.
Muhammad Jaffar and another (2007 SCM R 236 fSupreme Court of Pakistani has held that the High Court while sitting in revisional jurisdiction is not supposed to interfere, in concurrent findings of the courts below, unless it is established that those judgments were without jurisdiction or the courts below committed illegality or material irregularity resulting into miscarriage of justice.
9. Learned counsel for the petitioner has not been able to point out any illegality, irregularity or jurisdictional defect in the impugned judgments of the Courts below warranting interference by this Court in exercise of revisional jurisdiction. Resultantly, the instant revision petition having no merits stands dismissed.