' SH. AZMAT SAEED, J.---This Civil Appeal is directed 'against the judgment of the learned Lahore High Court, Lahore dated 28.3.2002, whereby RFA No, 327 of 2000 filed by Respondents Nos. 1 and 2 was allowed and judgment and decree of the learned Trial Court dated 25.7.2000 impugned thereby was set aside and the suit filed by the present Appellant was dismissed.
2. The brief facts necessary for adjudication of the lis at hand are that the present Appellant filed a suit for possession through Specific Performance on the basis of the Agreements to Sell dated 10.4.1993, 2.10,1993 and 8.11.1993, alleged to have been executed in his favour by one Zahoor Ahmed Khan, the predecessor-in-interest of the present Respondents in respect of the land measuring 7 kanals and 7-1/2 marlas, situated in Mauza Butter, Tehsil and District Sialkot. It was the case of the Appellant that said Zahoor Ahmed Khan initially, entered into an Agreement to Sell dated 10.4.1993 for sale of the said property for a consideration of Rs, 6,63,750/-. Rupees Fifty Thousand was alleged to have been paid, as earnest money to the said Zahoor Ahmed Khan. It was contended that by way of a subsequent Agreement to Sell dated 2.10.1993, the time for consummation of the transaction was extended upon the payment of a further Rs, 1,00,000/- and finally vide Agreement to Sell dated 8.11.1993, the entire balance sale consideration was paid and contemporaneously a General Power of Attorney was executed by Zahoor Ahmed Khan in faovur of the Appellant, which was registered on 10.11.1993, However, the Sale-Deed was not executed in favour of the Appellant.
The said Zahoor Ahmed Khan died in February, 1995, leaving behind the present Respondents, as his only legal heirs. The Appellant issued a legal notice to the present Respondents calling upon them to complete the transaction, entered into by their late father (Zahoor Ahmed Khan) vide his three Agreements to Sell referred to above and upon their failure to do so, on 17.10.1996, the Appellant filed a suit for possession through Specific Performance before the learned Trial Court.
Respondents Nos. 1 and 2 resisted the suit by filing their written statement, wherein execution of the three Agreements to Sell and the receipt of sale consideration, by their late father Zahoor Ahmed Khan, was denied. Respondent No, 3, apparently, did not enter appearance and was proceeded ex pane vide Order dated 19.6.1997. Eventually, he filed an application for setting aside the ex pane proceedings, which was dismissed vide Order dated 11.9.1999. Such Order was challenged in appeal, which failed to find favour and was dismissed by the learned Additional District Judge vide Order dated 4.5.2000.
3. On the divergent pleadings of the parties, issues were framed and evidence was led by the Appellant and Respondents Nos. 1 and 2, whereafter the learned Trial Court seized of the matter, vide its judgment and decree dated 25.7.2000, decreed the suit. Aggrieved, Respondents Nos. 1 and 2 tiled an appeal i.e, RFA No, 327/2000 before the learned Lahore High Court, Lahore, which has been allowed vide impugned Appellate judgment and decree dated 28.3.2002, whereby the judgment and decree of the learned Trial Court was set aside and the suit filed by the present Appellant was dismissed.
4. It is contended by the learned counsel for the Appellant that the three Agreements to Sell as well as the General Power of Attorney executed in favour of the Appellant were produced and proved in evidence and in this behalf, the attesting witnesses as well as the Scribe and the Notary Public also entered the witness-box. It is further contended that the General Power of Attorney is a registered document. In the above circumstances, there was no occasion for not granting the relief, as prayed for, in the plaint by the Appellant. It is added that the witnesses produced by the Appellant remained unshaken in the cross-examination and the learned High Court has erred in not believing such witnesses on the basis of minor discrepancies in their statements, which is not permitted by law. It is further added that the Appellant has been non-suited by way of the impugned judgment, purportedly on the ground of fraud but such plea was neither taken in the written statement with the requisite particularity, as required by Order VI, Rule 4, CPC nor proved through cogent evidence.
The learned counsel further added that no issue with regards to such fraud was framed by the learned Trial Court, hence, findings of the learned High Court, in this behalf, are not sustainable in law. In support of his contentions, the learned counsel has placed reliance upon the judgments of this Court, reported as Saheb Khan through Legal Heirs v. Muhammad Pannah (PLD 1994 SC 162), Mian Muhammad Amin and another v. Mst. Khursheed Begum alias Naseem Begum through Legal Heirs (PLD 2006 Lahore 371), Muhammad Umar v. Muqarab Khan and another (1968 SCMR 983) and Mst. Sahib Noor v. Haji Ahmad (1988 SCMR 1703).
5. The learned counsel for Respondents Nos. 1 and 2 has controverted the contentions raised on behalf of the Appellant. It is contended that there were serious inconsistencies and discrepancies in the statements of the witnesses produced by the Appellant inter se, as well as such statements were contrary to the contents of the documents sued and relied upon by the Appellant. Such contradictions denude the case of the Appellant of all credibility, as has been correctly held by way of the impugned judgment, which does not suffer from any misreading, non-reading of evidence or any other illegality, hence, the appeal merits dismissal.
6. We have heard the learned counsel for the parties and with their able assistance, examined the evidence available on the record as well as the judgments of the learned Trial Court and the learned High Court.
7. The Appellant, in his plaint, had based his claim for possession through Specific Performance on the Agreements to Sell dated 10.4.1993, 2.10.1993 and 8.11.1993, alleged to have been executed in his favour by late Zahoor Ahmed Khan, father of Respondents and the sale consideration, in this behalf, was allegedly received by late Zahoor Ahmed Khan. The Appellant/Plaintiff also relied upon the General Power of Attorney purported to have been executed in his favour. Respondents Nos. 1 and 2 in para No, 2 of their written statement, on merits, categorically denied that late Zahoor Ahmed Khan had executed any Agreement to Sell in favour of the Appellant. It was also specifically denied that any payment was received by said Zahoor Ahmed Khan from the Appellant. The execution of the General Power of Attorney was also denied in no uncertain terms. It is further contended that all the proceedings in respect of the said documents was fraudulent and the result of collusion between the Appellant and Respondent No, 3, (the son of Zahoor Ahmed Khan, brother of the defendants - Respondents Nos. 1 & 2), Respondents Nos. 1 and 2 had set forth their case in their written statement with sufficient particularity in the facts and circumstances of the case, hence, no further details in this behalf were required to be pleaded, The contentions of the learned counsel for the Appellant, claiming the lack of details in defence are misconceived and not tenable in law.
8. On the divergent pleadings of the parties. Issues were framed, including issue No, 1, which reads as under:- "1. Whether the plaintiff is entitled to have decree for Specific Performance of Contracts dated 10.4.1993, 2.10.1993 and 8.11.1993, as prayed for, if so on what terms? OPP"
' The learned Trial Court has framed a composite issue regarding merits of the case, which has been reproduced hereinabove and when the said issue is examined in the context of the pleadings of the parties, more particularly, Para No, 2 of the written statement on merits, there can be no manner of doubt, as to the real matter in controversy, which required adjudication by the Court.
Throughout the trial, the parties were fully cognizant of the real matter in controversy and the facts, which were required to be proved by them in support of their perspective stands and led evidence accordingly. In such an eventuality, the contention of the learned counsel qua the non-framing of issues pales into insignificance. Such is not only settled law but also has been consistently held by this Court, including the judgment, reported as Mehr Din (represented by his Legal Heirs) v. Dr. Bashir Ahmed Khan and two others (1985 SCMR 1).
' It is an equally settled principle of law that it is the duty and obligation of the beneficiary of a transaction or a document to prove the same. Reference in this behalf may be made from the judgments of this Court, reported as Akhtar Ali v. The University of the Punjab (1979 SCMR 549), Haji Muhammad Khan and others v. Islamic Republic of Pakistan and 2 others (1992 SCMR 2439) and Khan Muhammad v. Muhammad Din ,through LRs (2010 SCMR 1351). Thus, the contention of the learned counsel regarding non-framing of a specific issue qua fraud lapses all significance, as no prejudice appears to have been caused to the Appellant. Even otherwise. During the course of proceedings before the learned Trial Court, neither any effort was ever made by the Appellant to claim any further issue nor such contention was raised before the learned High Court. Thus, such contention cannot be entertained at this belated stage before this Court.
9. In para No, 2 of the plaint filed by the Appellant, it is, inter alia, stated that late Zahoor Ahmed Khan executed three Agreements to Sell dated 10.4.1993, 2.10.1993 and 8.11.1993 and received the entire sale consideration. The last Agreement to Sell, alleged to have been executed by late Zahoor Ahmed. Khan, is available on record as Exh.P-3. The main body of the said Agreement to Sell dated 08.11.1993 contains a clear recital to the effect that the entire balance consideration of Rs, 5,13,750/- has been received by Zahoor Ahmed Khan. The date of execution of the said Agreement on the foot of the main body is noted as 08.11.1993.. Overleaf a separate note has been penned down and purportedly signed by Zahoor Ahmed Khan stating that on 10.11.1993, the sale consideration has been paid. The date of said transaction is written both as 08.11.1993 and 10.11.1993. Thus, the date on which the balance sale consideration was allegedly paid by the been filed. There are also contradictions in the statements of the witnesses, as to the venue where the alleged payment was made.
' Appellant to Zahoor Ahmed Khan. Is not very clear from the aforesaid documents and the plaint. In fact, two separate dates are mentioned, which contradict each other. In order to explain the aforesaid contradictions, the Appellant and his witnesses spun a story that on 08.11.1993, "Dollars" were paid as balance sale consideration, which were replaced by "Rupees" on 10.11.1993, This assertion is not only beyond the averments of the plaint but also not evidenced by any document.
The number of dollars paid on 08.11.1993 has also not been specified by the witnesses. It has also been noticed that despite the allegation that the entire sale consideration was paid, the Sale-Deed was not executed by late Zahoor Ahmed Khan in favour of the Appellant. The explanation offered in this behalf is that the funds for stamp duty and registration charges were not available with the Appellant. Such explanation is difficult to accept as on the said date. i.e, 08.11.1993/10.11.1993 and an amount of over Rs, 4 lacs was allegedly paid to late Zahoor Ahmed Khan, yet a fraction of the said amount necessary for execution and registration of the Sale-Deed was not available with the Appellant. It is rather strange that such funds, could not be gathered by the Appellant from the date of execution of the Agreement to Sell dated 08.11.1993 till the death of Zahoor Ahmed Khan in February, 1995: The reason in this behalf disclosed in the General Power of Attorney Exh.P-4 is the old age and illness of Zahoor Ahmed Khan and not the inability of the Appellant bear the expenses of a registered Sale-Deed, as is the case of the Appellant in his plaint and in evidence produced by him. It is also rather strange that despite the receipt of entire sale consideration, the possession of the property in dispute was not handed over to the Appellant, as is obvious from the fact that the suit for possession through Specific Performance has been filed. There are also contradictions in the statements of the witnesses, as to the vanue where the alleged payment was made.
10. The evidence produced by the Appellant did not inspire confidence and was contrary to the natural conduct of the parties in such a situation. Consequently, the learned High Court came to the conclusion that the Plaintiff/Appellant has failed to prove his case. The reasoning advanced by the learned High Court in this behalf has been examined, which appears to be fair and reasonable appreciation of the evidence on record. No misreading or non-reading of evidence has been pointed out at the bar. The reasoning to the contrary advanced by the learned Trial Court is deficient and in fact, is mere narration of the facts of the case. Even otherwise, in case of inconsistency between the learned Trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary, as has been held by this Court in the judgments reported, as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs v. Haji Muhammad Baran' Khan through LRs and others (2013 SCMR 1300).
11. In the above circumstances, we are not persuaded to interfere with the findings returned by the learned High Court by way of the impugned judgment. However, it has been noticed that the property was initially owned by late Zahoor Ahmed Khan and on his death, the same was inherited by Respondents Nos. 1 and 2, his daughters, and Respondent No, 3, his son. The Appellant filed a suit against all the three Respondents, which was decreed by the learned Trial Court vide judgment and decree dated 25.7.2000. Respondents Nos. 1 and 2 challenged the said judgment and decree of the learned Trial Court by filing RFA No, 327/2000, in which the present Respondent No, 3 was impleaded, as a Respondent but did not independently challenge the judgment and decree of the learned Trial Court.
12. The learned High Court by way of the impugned judgment accepted the appeal filed by Respondents Nos. 1 and 2 and set aside the judgment and decree dated 25.7.2000, apparently also against Respondent No,
3. In spite of the fact 'that said Respondent No, 3 had not challenged the said judgment and decree in appeal.
13. No doubt, by virtue of Order XLI, Rule 33, CPC the learned Appellate Court has been conferred the powers to grant relief to an Appellant, who had not filed an appeal or the Respondent, who had failed to file cross-objection. The said provisions of law i.e, Order XLI, Rule 33, CPC, came up for interpretation before this Court in the case, reported as Province of Punjab through Collector Bahawalpur, District Bahawalpur and others v. Col. Abdul Majeed and others (1997 SCMR 1692). This Court, while reiterating amplitude of the powers of the Appellate Court, also laid down the guidelines for the exercise of the jurisdiction conferred by Order XLI, Rule 33, CPC and, in this behalf, it was observed as follows:-- "... However, in granting relief in such cases the Appellate Court will be guided by principles of equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/ decree. Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a non-appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order 41, Rule 33, C.P.C. To grant appropriate relief to a non-appealing respondent or to a respondent who omitted to file cross-objection in the appeal,"
14. Respondent No, 3 was impleaded as a Respondent before the learned High Court in appeal and was duly represented by the counsel, as is evident from the impugned judgment. However, no plea appears to have been raised by the said Respondent i.e, Respondent No, 3 that the judgment and decree of the learned Trial Court be set aside and that equity, justice and good conscience required the intervention of the Court in his favour to set aside the judgment and decree of the learned Trial Court and failure to do so would result in a contradictory, unworkable or impossible order/decree or hardship or injustice would be caused. No such plea has been urged before us also. Furthermore, the learned High Court while passing the impugned judgment has neither consciously dilated upon this aspect of the matter nor has returned a finding that in the facts and circumstances of the case, the powers conferred upon it under Order XLI, Rule 33, CPC, should be exercised. The impugned judgment of the learned Trial Court has merely been set aside. In the peculiar facts and circumstance of this case, it is doubtful that such a plea even if raised by Respondent No, 3 could have been accepted by the learned High Court especially as Respondent No, 3 did not refute the claim of the Appellant before the learned Trial Court, where he was proceeded ex pane or before the learned High Court. So much so, it has not been denied even before us. Consequently, in our considered view, the judgment and decree of the learned Trial Court could only be set aside against Respondents Nos. 1 and 2 and not against Respondent No, 3, therefore, the impugned judgment and decree of the learned Appellate Court needs to be clarified/modified in this behalf.
15. Consequently, this Civil Appeal to the extent of Respondents Nos. 1 and 2 is liable to be dismissed and with regards to Respondent No, 3, the impugned judgment and decree dated 28.3.2002 is clarified/modified to the effect that the judgment and decree of the learned Trial Court dated 25.7.2000 in favour of the Appellant enures to the extent of Respondent No, 3.
16. The aforesaid are the reasons of our Short Order of even date i.e, 18.9.2014, which reads as follows: "For reasons to be recorded later, this appeal having no merit is dismissed to the extent of respondents Nos. 1 and 2."
High Court Judgment Upheld/.