' MUHAMMAD SHAFT SIDDIQUI, J.---Brief facts of the case are that appellant filed a Suit bearing No.397/2009 for specific performance in respect of Survey No.94/4 ((4-00 acres), 94/1 (4-00 acres) and 98/4 (1 'A acres) total area 9-1/2 acres, situated in Deh 83-Nasrat, Taluka and District Shaheed Benazirabad (Nawabshah). The said suit for specific performance was contested by the respondents who filed the written statement and accordingly the following issues were framed:- "(1) Whether suit is not maintainable?
(2) Whether plaintiff has no cause of action?
(3) Whether defendants No.1 to 5, sold the land bearing S. Nos. 94/4 (400 acres) 94/1 (4-00 acres) and from 98/4 (11/2 acres) total area 91/2 acres, situated in Deh 83- Nasrat through sale agreement dated 8-2-2003, in favour of plaintiff at Hyderabad for total sale consideration of Rs.3,30,000?
(4) Whether plaintiff paid Rs.50,000 to the defendants Nos.] to 5, and they have acknowledged the said amount at the time of execution of the sale agreement and subsequently also paid Rs.1,00,000 against receipt executed in presence of the witnesses between the parties and their remains Rs.1,25,000 payable by plaintiff?
(5) Whether possession was delivered to plaintiff on the basis of the sale agreement as stated above?
(6) Whether the sale agreement and the signatures of the defendants therein are forged and fabricated?
(7) Whether the plaintiff is entitled for the specific performance of the contract?
(8) What should the decree be?
2. The material issue i.e. Issue No.3 was decided against the appellant and the findings on the said issue are also discussed by the trial Court in preference to the other issues. Such findings on issue No.3 are very exhaustive and all material witnesses were considered by the trial Court; Aggrieved with these findings, the appellant filed a Civil Appeal No.22 of 2010 which also met the same fate.
3. Learned counsel for the appellant argued two points; firstly that the findings of issue No.3 in the "table" provided at typed page 4 of trial Court judgment were recorded in "affirmative" whereas the discussion of issue No.3 which is available from Page 69 to 77 of this file and typed page 4. To 8, discloses that substantially it was decided against the appellant i.e. "in negative" hence the trial Court has not applied its mind while considering issue No.3 as affirmative; secondly it was argued that as far as issue No.6 is concerned, it was observed that in view of the discussion on issue No.3 and in view of the fact .That parties have not tried to seek assistance by moving application for referring the documents to the concerned Handwriting Expert for comparison, the said issue was decided in affirmative, meaning thereby that signature of defendant is forged and fabricated.
Learned counsel argued that contrary to these observations, the appellant moved an application for sending the disputed agreement to the Handwriting Expert which was considered by the trial Court and it was observed by trial Court that it will be considered after evidence of the defendants, if the Court comes to the conclusion that it is necessary to, send the documents to Handwriting Expert for comparison.
4. On the other hand, learned counsel for respondents argued that as far as first objection of learned counsel for the appellant is concerned that in the discussion of issue No.3 it substantially goes against the appellant as he could not prove that respondents Nos.1 to 5 have sold the land in question to the appellant, the findings in table which are available at typed Page 4 of the judgment, should have been "negative" rather than "affirmative" and it is only a typing error. The reasoning on issue No.3 which consists of three and half pages goes on to prove that the appellant could not prove that the respondents Nos.1 to 5 sold the land in question to the appellant for a total consideration of Rs.3,30,000.
5. Answering the second argument learned counsel submitted that it was wrongly observed in respect of issue No.6 that the appellant did not move any application for referring the documents to the Handwriting Expert for comparison of the signature, learned counsel for respondent submits that it was a conditional order that only in case of necessity such documents were to be sent to Handwriting Expert. No doubt, it was observed that no such. Application was moved but on account of the reasoning and findings on issue No.3, there was no necessity or occasion to send it to Handwriting Expert as the document otherwise was not proved through the evidence produced by the appellant. Learned counsel for respondents in this regard has relied upon the case of Anwar Ahmed v. Mst. Nafis Bano through Legal Heirs, reported in 2005 SCM R 152, in terms whereof it was observed by the Honourable Supreme Court that onus to prove a document was upon the plaintiff and since the appellant has failed to prove the document in question as required under Qanun-e- Shahadat, the document could not otherwise be proved by sending it to handwriting expert. It is considered to be a weak type of evidence. In presence of overwhelming evidence, oral, documentary as well as circumstantial, it would be futile to examine the Expert. Even if examined, it would not outweigh the available evidence. He further relied upon the case of Syed Muhammad Umer Shah v. Bashir Ahmed, reported in 2004 SCM R 1859, wherein it was held as under:-- "Learned counsel for the petitioner argued that the Handwriting Expert was also examined in the case but no benefit of his statement was extended to the petitioner. After scanning the entire evidence on record and after going,through the concurrent findings, we are of the firm view, that the only opinion of a Handwriting Expert, otherwise a weak piece of evidence, should not be allowed to prevail against strong circumstances and strong evidence giving interference, altogether, to the contrary. When once the petitioner had failed to prove his case on the basis of the very evidence produced by him, he cannot be given the benefit of the only favourable opinion by the Expert, being otheiwise a weak piece of evidence. It is remarkable to note that the arbitration agreement and the receipt for payment of money, being basic and important documents, were not placed on record during ex parte proceedings and during lengthy, first round of litigation. We are, therefore, further convinced that both the documents were forged, afterthought and after-prepared. There being no force in the petition, it is hereby ,dismissed and leave to appeal refused."
' Learned counsel also relied upon the case of Mst. Tahira Sultana v. Mir Usman Ali and another, reported in SBLR 2013 Sindh 409.
6. I have /heard the' learned counsel and perused the record.
7. As far as the first point of the appellant is concerned, there is no doubt that in the lengthy discussion of issue No.3, the trial Court discussed all material that was available and considered all documents and depositions of the witnesses and has reached to the conclusion that the appellant has failed to prove this issue by adducing an independent and confidence inspiring evidence, therefore, the findings given in the table at Page No.4 of the judgment does not vitiate the material discussion of issue No.3. It seems to be only a typing error. (A judgment is to be read from the reasoning and not from the table of the findings which is wrongly typed as "in affirmative" instead of "in negative").
8. Next contention of the learned counsel for the appellant that it was wrongly observed by the trial Court that the parties have not moved any application for referring the documents to the Handwriting Expert also loses its value in view of reasoning provided for issue No.3. No doubt it is observed, by the trial 'Court as stated above however such report even if made available to the benefit of the appellant, Will not going to outweigh the other evidence available on record. Had that Expert opinion be made available to the benefit of appellant, it would be considered as a weak type of evidence and exclusively cannot be relied upon in the presence of overwhelming evidence and in presence of concurrent findings of two Courts below specially with reference to issue No.3.
9. Apart from these two above questions which are addressed accordingly, the counsel for the appellant has not raised any other question which could enable me to interfere under the powers available under section 100, C.P.C. The concurrent findings of two Courts below could not be re- determined in IInd appeal by re-appreciating the evidence without any error of law. Specific performance is always a discretionary relief and it cannot be claimed as a matter of right even, in case where contract is proved. Such discretion however is to be exercised judiciously and not arbitrarily. The counsel for the appellant has failed to point out any error in this regard. In this case, the trial Court as well as appellate Court on assessment of the evidence have found the appellant not entitled to the discretionary relief of specific performance which could hardly warrant any interference by this Court. This present appeal in nature of find appeal does not allow this Court to reappraise and reevaluate the merits of the evidence. If any reference is required, the case of Anwar Ahmed v. MSt. Nafis Bano through Legal Heirs, reported in 2005 SCM R 152 can belooked into.
10. In view of the above, appeal has no merit and is accordingly dismissed.