SADIQ HUSSAIN BHATTI, J.---The applicant is aggrieved by the Judgment dated 18-2-2010 passed by the learned 1st Additional District Judge, Karachi East in Civil Appeal No, 215 of 2008, whereby the judgment dated 31-10-2008 passed by the III Senior Civil Judge, Karachi East in Civil Suit No,448 of 2004 was maintained, and the civil appeal was dismissed.
2. Brief facts of the case are that on 25-9-2001 the applicant entered into a sale agreement with respondent No,1 in respect of Plot bearing No, L-278, measuring 80 sq. Yards, situated at Block 4-A, KDA Scheme No,36, Gulistan-e-Jauhar, Karachi for a total sale consideration of Rs,225,000 out of which Rs,110,000 was paid by the applicant to the respondent No,1 on the same day and the remaining amount was paid to the respondent, through respondent No,3, on 8-1-2002. Thereafter, the applicant approached the respondents Nos.1 and 2 several times for transfer/mutation of the said plot in his name but the said respondents kept on delaying the matter on one pretext or the other. On 15-4-2004, the applicant came to know that the said respondents are trying to sell the said plot to someone else. Therefore, he filed Suit No,448 of 2004 inter alia for specific performance of the agreement to sell. Respondents Nos.2 and 3 filed their written statements and denied the allegations. On the basis of the pleadings of the parties, the following issues were framed:-
(1) Whether the plaintiff has remained in possession of the suit property upto 15-4-2004?
(2)
Whether the plaintiff had returned back the possession of the suit plot to the defendants Nos.2 and 3 against amount of Rs,150,000 which he received from defendants Nos.2 and 3?
(3) Whether the plaintiff has any cause, of action to file this suit?
(4) Whether the plaintiff is entitled for specific performance of agreement dated 25-9-2001?
(5) What should the decree be?
3. After recording evidence and hearing the learned counsel for the parties, the learned III Senior Civil Judge, Karachi dismissed the suit vide judgment dated 31-10-2008. The applicant assailed the same before the appellate court in Civil Appeal No,215 of 2008 which was also impugned through the impugned Judgment. Hence, this revision application.
4. Learned counsel for the applicant submitted that the Courts below have not read the evidence or misread the evidence on record and has, exercised their jurisdictions in, an illegal manner by not appreciating the material evidence available on record. The learned counsel contended that it was admitted on the part of the respondents/defendants that possession of the suit plot was with the applicant till 15-4-2004, however, the two Courts below recorded findings regarding possession of the suit plot contrary to the admitted fact. He also submitted that the Courts below have not recorded any finding in respect of the balance amount of Rs,150,000, therefore, the finding on the issue No,2 was misconceived and against the law. The learned counsel for the applicant also submitted that since the findings on Issues Nos.1 and 2 were wholly misconceived and illegal, therefore, the findings recorded on Issues Nos.3 and 4, which are based on the findings of issues Nos.1 and 2, are also liable to be set aside. He also argued that under Order XLI, Rule 31, C.P.C., the learned appellate Court was required to frame points for determination which was not done. The learned counsel also argued that even concurrent judgment of the courts below can be set aside if the same are based on no evidence or on misreading and non-reading of the evidence on record.
5. In support of his contentions/ submissions the learned counsel relied on the following reported judgments:--
(1) .Juma Khan v. Mst. Shamim, and others (1992 CLC 1022), Mukhtar Ahmed and another v. Mst.
Wazir and others (2005 MLD
(2) Gul Rehman v. Gul Nawaz (2009 SCMR 589),
(3) Alamdar Hussain v. Nazir Hussain and others (2004 SCMR 595),
(4) Barkat Ali v. Muhammad Nawaz (PLD 2004 SC 489),
(5) Muhammad Aslam and others v. Muhammad Aslam and others (PLD 2004 Pesh. 95).
6. On the other hand, learned counsel for the respondent contended that the impugned Judgments do not suffer from any illegality or infirmity, therefore, no interference is called for from this Court in exercise of jurisdiction under section 115(1), C.P.C. The learned counsel submitted that the applicant entered into an agreement to sell with respondent No,1 and was put in possession of the suit plot but on 30-12-2003, the applicant re-sold the suit plot to the respondent No,2 and such- endorsement was made on the agreement to self dated 25-9-2001 by the applicant himself in his own handwriting. In support of his contentions/arguments, the learned counsel relied on the following reported cases:-
(1) Muhammad Bashir v. Haji Muhammad Siddique (1997 MLD 3263),
(2) Muhammad S.Alehoon v. Mst. Bilqis Begum and others (1983 CLC 1853),.
(3) Shahbaz and another v. Azad Government of Jammu and Kashmir (1992 MLD 2121): 7 I have heard the learned counsel and have perused the record with their assistance and have also gone through the case-law cited before me.
8. There is no dispute between the parties regarding execution of the agreement to sell dated 25- 9-2001 in respect of the suit plot. The dispute arose between the parties on the point whether the suit plot was resold to the respondent No,2 or not. The applicant claims that possession of the suit plot was handed over to him which remained with him till 15-4-2004 but this fact is denied by the respondents and it is alleged that the applicant resold the suit plot to respondent No,2 and handed over its possession to him on 30-12-2003. In support of his contention, learned counsel for the applicant relied on para 3 of the plaint, which alleges that the possession of the suit plot was with the applicant till .15-4-2004 and on para 3 of the written statement of respondents Nos. 2 and 3 which shows that the contents of para 3 of the plaint were admitted. However, close scrutiny of the plaint and the written statement shows that there is some misunderstanding on this point. While para 3 of the plaint in the suit alleges that possession of the suit plot was with- ine applicant till 15- 4-2004 and para 3 of the written statement admits the contents of para 3 of the plaint but perusal of para 4 of the written statement clarifies the matter completely. In this para the respondents have denied the contents of para, which was, according to them, wrongly numbered as Para-3. In this para it is denied in unequivocal terms that possession of the suit plot was with the applicant upto 15-4-2004 and states that possession of the suit plot remained with the applicant upto 29-12- 2003 and on 30-12-2003 the possession of the suit plot was handed over back to the respondent/defendant No,2. Thus, the finding of the two Courts below on this point was neither illegal nor without jurisdiction.
9. So far as reselling of the suit plot by the applicant to respondent No,2 is concerned, it has come in the evidence that the applicant received Rs,75,000 from the respondent No,2. Although he denied that the said amount was in respect of the suit plot but he was unable to show any other document to prove that this payment was made to him by the respondent No,2 in respect of some other transaction. Furthermore, clause 3 of the agreement to sell dated 25-9-2001 clearly shows that survey slip, challan and file of the suit plot were handed over to the applicant but in his cross- examination he states that "I was not given the original' documents of the suit plot" the reason being that the same were returned to the respondent No,2 and were no more available with him.
10. The learned counsel for the applicant raised an objection that no points for determination were set out. In this regard he relied on the case of Juma Khan (supra) wherein it was held as under:-- ' The provisions of Order XLI, Rule 31 of the Code of Civil Procedure are mandatory. The judgment of the first appellate Court has to set out points for determination, record the decision thereon and give its own reasons for the said decision. The legislature has laid down these rules so that either the .Second appellate Court or the revisions Court should be in position to find out the track traversed by the appellate Court. It cannot run away from its onerous duties of recording the finding of fact and/or discussing the evidence., ' However, this plea is misconceived as perusal of the impugned Judgment of the learned appellate Court would reveal that it has elaborately discussed each every issue and has given his own findings after discussing the evidence on record.
11. There is no cavil to the proposition advanced by the learned counsel for the applicant that even concurrent findings which suffer from misreading or non-reading of evidence can be set aside by this Court under its revisional jurisdiction or in a second appeal. Learned counsel relied on a number of cases in this regard but it would be an exercise in futility to discuss the same as the same are not applicable in the facts and circumstances of the present case. In the present case the concurrent findings given by the two Courts below do not suffer either from misreading or non- reading of the evidence nor there is any misconception of evidence available on record.
12. Learned counsel for the respondent contended that respondent No,1 was not the owner/allottee of the plot in dispute and, therefore, he was not competent to sell it to any one. This plea was not raised before any forum below and cannot be allowed to be taken up now in second appeal. It is settled principle of law that party cannot make a departure from its pleading and is bound by it.
Reliance in this regard can be placed on the case of Muhammad Aslam and others (supra).
13. This is a revision under section 115(1) of the Code of Civil Procedure jurisdiction whereunder can only be exercised by this Court when a case is decided by the subordinate Court against which no appeal lies and the subordinate Court appears to have (i) exercised jurisdiction not vested in it, (ii) failed to exercise jurisdiction vested in it or (iii) acted in the exercise of its jurisdiction illegally or with material irregularity. Although the learned counsel for the applicant argued the case as a regular appeal and read all the evidence but was unable to show that the impugned judgments suffer from any of the shortcomings mentioned in section 115(1), C.P.C. Calling for interference by this Court. The evidence recorded by the trial Court was fully and properly appreciated and the findings given are based on cogent reasons. A perusal of the judgments of the two Courts below reveal that both the Courts below have penned down elaborate and proper judgments with sound and cogent reasons for arriving at the findings given by them and which do not call for any interference by this Court.
14. The upshot of the above discussion is that the two Courts below have acted in accordance with law and have exercised their jurisdiction properly and no illegality or material irregularity was committed by them. Therefore, I find no merit in this civil revision which is, accordingly dismissed.