' HASSAN FEROZE, J.--- This judgment will dispose of this IInd Appeal which has been preferred under section 100, C.P.C. On behalf of appellant named-above wherein he sought following reliefs :- --
(a) "To call the R&P of Suit No, 229/08 as decided by learned 1st Senior Civil Judge Karachi East vide Judgment and Decree dated 29-10-2010 and 3-11-2010 respectively, so also Civil Appeal No,432 of 2010 as decided by learned Vth Additional District Judge Karachi East vide Judgment and Decree dated 14-7-2012 and 17-7-2012 and to set aside the impugned judgments and decrees as passed by the two courts below.
(b) To dismiss the Suit No,229 of 2008 as the plaintiff is not entitled for the reliefs as claimed;
(c) The decision being contrary to law,
(d) There is a substantial error or defect in the procedure provided by the code or by any other law for the time being in force to which may possibly have produced error or defect in the decision of the case upon the merits and;
(e) To award cost in favour of the appellant.
1. In nutshell on 5-3-2008 Mst. Saeeda Bano, the respondent No,1 herein being plaintiff before the trial Court had filed Civil Suit No,229 of 2008 claiming the reliefs of declaration, possession, cancellation, mesne profit, permanent injunction and specific performance and the prayer clause of the said suit reads:---
(a) "For a declaration that the plaintiff is the bona fide purchaser of immovable property bearing Plot No,L-395, Sector 48-E, Korangi No,2, Karachi measuring 80 Sq. Yds. With constructions having purchased the same from defendant No,2 on verbal agreement against a total consideration of Rs,210,000/- which was already paid to him. Further for a declaration that the Sale-deed registered No,3496 Book No,! Dated 29-7-2004 MF Roll No,3430 executed by the defendant No,2 in favour of the defendant No,I [the appellant in the above matter) is void illegal fraudulent collusion and mala fide, hence of no legal effect;
(b) For declaring up the said sale deed for cancellation and the same may be cancelled and the defendant No,2 be directed to execute the sale-deed in favour of the plaintiff in case of his failure the Nazir of the Court has been nominated/appointed.
(c) For a declaration that the defendant No,1 is in illegal use and occupation of the suit property and that he is liable to pay mere profit to the plaintiff Q Rs,3000/- per month w. e.f. 19-6-2006 to February, 2008 till he is dispossessed from the suit property and the plaintiff is also justified/entitled to get amount and compensation from the defendant No,2;
(d) For permanent injunction against the defendants Nos.4 and 5 from permitting any further transaction in respect of the said property and from mutating/transferring the same in favour of the defendant No,1 and all any others person except in favour of the plaintiff. Issuing permanent injunction against the defendants Nos.1 and 2 their men against workers executors and assigned from transacting selling, alimenting and/or from creating any third party interest in respect of the said property.
(e) Cost of the suit.
(f) Any other relief which is deemed and proper in the circumstances of the case of the plaintiff".
2. According to plaintiff/respondent No,1 she had purchased Plot bearing .No,L-395, Sector 48-E, measuring 80 Sq. Yds. Situated at Korangi No,2-1/2, Karachi from the respondent/defendant No,2 through his daughter (respondent No, 3) on 17-2-2004 upon verbal agreement in total sale consideration of Rs,2,10,000/-, an amount of Rs,10,000/- was paid in cash to the respondent/defendant No,2 being the advance of part payment and balance sale consideration of Rs,2,00,000/- was paid through Cheque No,GA-00-0723192 dated 17-2-2004 drawn on HBL in the name of the respondent/defendant No,3 on the request of the defendant No,2 as he was not maintaining the bank account, therefore, the plaintiff issued a cheque in the name of respondent/defendant No,3 as such, the said amount had been received by respondent/defendant No,2. The respondent/defendant No,2 being owner of the leasehold rights after two months of receiving the total sale consideration amount from the respondent No,1/plaintiff, had handed over the physical vacant possession of the constructed plot to her along with original documents.
' The appellant/defendant No,1 being her real brother who was residing in a rented house along with his family and he made request to allow him permission to live in the said house for some time, so in good faith and out of love and affection he was allowed to live in the said house on temporary basis. Later on she had gone to Punjab to meet her sons and daughter where she stayed more than one year and when she had returned back to Karachi in May, 2006 she came to know that her said brother had got sale-deed dated 29-7-2004 in his name by cheating, fraud and in a collusive manner without intimation, consent and knowledge. She asked about the transaction of the said plot to the appellant/defendant No,1 promised to vacate but later on he avoided to hand over the physical vacant possession, so also denied to transfer the said plot in her name. She made complaint against the Advocate Syed Mahmood Ali in respect of fraudulent sale-deed in the month of May, 2006 and the President Karachi Bar Association had called said Advocate and inquired about such fraudulently transfer/transaction. Later the Appellant/ defendant No,1 again promised to hand over the vacant possession to her as well as transfer the said plot in her name through sale-deed but later failed and so she served legal notices dated 27-8-2007 to which reply dated 19-9-2007 was received. Later the appellant/defendant also attempted to enter forcibly in her house and so also committed the criminal acts of committing theft and criminal transfers and so also took away one gold locket worth Rs,5,000/-and so also cash amount of Rs,30,000/- and she had filed the written complaint dated 7-9-2007 to the SHO as against appellant/defendant No,1 and his two sons but since no action was taken, therefore, she had filed Criminal Miscellaneous Application No,870 of 2007 before the District and Sessions Judge Karachi East which was allowed and the direction was issued to the concerned SHO and ultimately she had filed the captioned suit.
3. Appellant/defendant No,1 resisted the suit by filing written statement wherein he denied to the case of the respondent No,1/plaintiff and amongst others preliminary legal objections were also raised by him. According to him he purchased the said plot/house from the respondent/defendant No,2 and paid Rs,10,000/- in advance and so also he admitted regarding the cheque issued by the respondent No,1/plaintiff in the name of the respondent/defendant No,3 as defendants Nos.1 and 2 were not maintaining their accounts but according to him the sale consideration was given to the respondent No, 1/plaintiff by the appellant/defendant No,1 through two different monthly deposits (Committee-Bisi). Further according to him the complaint so made by the respondent No,1/plaintiff was only regarding clearance of electricity bill instead of registration of sale-deed and in nutshell he prayed for dismissal of the suit.
4. Respondent/defendant No,4 also filed- written statement wherein amongst others legal pleas were taken and the contents of suit were objected and prayer was made to dismiss the suit.
5. From the pleading the learned trial Court had framed the following issues for determination:-
(i) Whether the suit of the plaintiff is maintainable?
(ii) Whether the suit is undervalued?
(iii) Whether the plaintiff purchased suit plot from defendant No,2 on verbal agreement dated 17- 2-2004 in the sum of Rs,2,10,000/-?
(iv) Whether the plaintiff paid Rs,10,000/- in cash to the defendant No,2 as advance and remaining sale consideration through cheque on the name of the defendant No,3?
(v) Whether the defendant No,2 and the defendant No,1 executed sale-deed by cheating and fraud?
(vi) Whether the defendant No,2 is illegally and unlawfully residing in the suit plot?
(vii) Whether the plaintiff is entitled for the relief claimed?
(viii) What should the decree be?
6. Respondent No,1/plaintiff Mst. Saeeda Bano filed her affidavitin-evidence and the learned counsel for the defendants at length exhausted the remedy of cross-examination.
7. Appellant/defendant No,1 then stepped into the witness-box, however, the learned counsel for the respondent No".1/paintiff failed to cross-examine the appellant/defendant No,1 and so the evidence of the appellant/defendant No,1 had gone unchallenged. Appellant/defendant No,1 had also examined witness Muhammad Faheem and this witness too was not cross-examined on behalf of the respondent No,1/plaintiff.
8. Finally judgment dated 29-10-2010 was passed and the decree dated 3-11-2010 was drawn therein according to which the learned trial Court came to the conclusion that respondent/plaintiff is not entitled for the relief as claimed, however, it has been admitted on behalf of the appellant/defendant No,1 that he had taken/received Rs,200,000/- from the respondent No,1/plaintiff, therefore, he was directed to return the said sum along with profit/mark-up with 20% within 30 days of the said judgment, failing with the sale-deed dated 19th February, 2004 executed in favour of the appellant/defendant No,1 would be considered as null and void and being aggrieved appellant Muhammad Rasheed preferred Civil Appeal dated 3-12-2010 to which was assigned to learned Vth Additional District Judge Karachi East and the said Civil Appeal came up for hearing and decided by the learned Vth Additional District Judge Karachi East vide judgment dated 14-7-2012 according to which the findings as given by the learned trial Court was maintained and the appellant being aggrieved of the said judgment and decree in appeal has challenged the same in this second appeal with aforesaid prayer.
9. Notices pursuant to the filing of instant second appeal were issued and served upon the respondents and on 15-1-2004 the matter came up for hearing and at length I have heard the learned counsel for the respective parties.
10. Here before proceeding further with this judgment, I would like to briefly discuss that instant appeal preferred being the second against the two concurrent judgments as passed by the two courts below, moreso, since the plain reading of section 100, C.P.C. Reads:--- "Sec. 100---Second appeal---Save where otherwise expressly provided in the body of this Code or by any other law. For the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to a High Court on any of the following grounds, namely:
(a) The decision being contrary to law or usage having the force of law;
(b) The decision having failed to determine some material issue of law or usage having the force of law;
(c) A substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibility have produced error or defect in the decision of the case upon the merits.
11. It would be seemed from above that second appeal lies on the ground of law or error in procedure which may have affected decision of case on merits and my this view gets support from the dictum as appeared in 1996 SCM R 808. A finding on a question of fact is open to attack as erroneous in law only if it is not supported by any evidence, or if it is unreasonable and perverse.
Decision as to credibility of witnesses is neither an error of law nor of procedure so as to justify interference in second appeal and in this context I refer to the decision as appeared in 1991 M LD 581 and PLD 1957 SC (Ind)
188. Error, however, gross or inexcusable or even there be a fallacy in appraisal of evidence would not justify interference in second appeal unless there is misreading or non-reading of evidence as has been laid down in the case-law as reported in PLD 1984 SC (AJ&K)
138 and 1977 SCM R 280. Further section 101 of the Code bars second appeal except as provided in section 100, C.P.C. As laid down in 2001 SCM R 1641. However, section 103, C.P.C. Provides that High Court is not precluded to consider issue of fact, the same in second appeal if it has not been determined or wrongly determined by the court below by reason of any illegality, omission, errqr or defect, as rendered to in subsection (1) of section 100 provided there is sufficient evidence on record. I am conscious of the position that in second appeal High 'Court is entitled to examine the soundness of conclusion drawn from evidence adduced and the question whether such Conclusions are correct, is either a question of law or mixed question of law and fact. Further a finding of fact reached by the lower appellate court on appraisal of the evidence by it, is not to be disturbed even though the finding be fallacious unless the fallacy involves an error of law or of procedure. Mere fallacy appraising the evidence as to fact has never been held to be an error of law justifying interference of evidence. Further it is settled law that documentary evidence prevails over the oral evidence and if documentary evidence is recorded by a public officer in discharge of official duty it would be preferable to an oral statement of a witness. Further the initial burden of proving a prima facie case in his favour is cast on the plaintiff, when he gives such evidence as will support a prima facie case, the onus shifts on the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. Further in nutshell the scope of second appeal is limited to the extent as provided and if the case is not covered by clauses (a), (b) or (c) of section 100 of the Code no interference can be made in second appeal and in this case I may refer to the dictum as appeared in 1986 M LD 854 and High Court has no jurisdiction to entertain a second appeal on the ground of the erroneous finding of fact and I refer to PLD 1955 SC 38 and procedure for second appeal would, by and large, have to be discovered from what is prescribed under Order XLI of the Code read with other provisions of the Code particularly those of sections 96 to sections 107 and 108 of the Code and in this context I refer to the dictum as appeared in PLD 1984 SC 289. In AIR 1965 SC 195 it has been laid down that in second appeal the High Court jurisdiction is confined to question of law. If the Appellate Court recorded definite findings on the evidence produced, it is not open to the High Court to attempt to reappreciate that evidence. The limitation for an appeal to High Court as provided by Article 156 of the Limitation Act, 1908 is 90 days except cases falling under Articles 151 and 153 i,e, in case from a decree or order of a High Court in exercise of its original jurisdiction the limitation is 20 days.
12. After having brief glance on the above aspects, now I would revert to the second appeal in hand, inasmuch as I have gone through the memo of appeal so filed and I have no hesitation in observing that the pre-requisite to file the second appeal have not been fulfilled and the only word available in the appeal so filed is that the lower appellate court had ignored the legal aspects of the case and the erroneous of law even without going through the evidence available on record and without considering the arguments filed in the appeal. This to my view is not sufficient to justify the filing of the second appeal and, moreso, when the concurrent judgments of the two courts below is involved wherein apparently there is no error, misreading of evidence and nor it can be said that the decision being contrary to law or usage having the force of law, through the learned counsel for the appellant while making his submissions has contended that the two courts below passed wrong judgments and decrees in favour of plaintiff/respondent No,1, which are illegal, unsustainable and arbitrary in nature and unjustified hence are liable to be set aside and suit of the plaintiff/respondent No,1 is liable to be dismissed. He further contended that the courts below have failed to appreciate the material evidence available on record and he has further contended that the two courts below have miserably failed to consider the law points as raised by the appellant and same is time-barred and barred under sections 42 and 56 of the Specific Relief Act and so also Article 91 of Limitation Act.
13. On the other hand the learned counsel appearing on behalf of the respondent No,1 has objected to the very maintainability of instant second appeal and he has further contended that the contentions so raised in the appeal preferred before the learned first appellate court were considered in depth by the said court and since the appellant had failed to make out any case in appeal the learned first appellate court was justified in dismissing the appeal and so according to him no case is made out to in any manner inferior with the impugned judgments.
14. I have carefully perused the entire record available before me as well as in depth considered to the submissions made before me.
15. The respondent No, 1/plaintiff claimed to have purchased Plot bearing No,L-395, Sector 48-E, measuring 80 Sq.Yds. Situated at Korangi No, 2-1/2 Karachi from the respondent No,2 through his daughter (respondent No,3) on 17-2-2004 upon verbal agreement for the total sale consideration of Rs,2,10,000/- out of which an amount of Rs,10,000/- was paid by her in cash to the respondent/defendant No,2 being the advance of part payment and balance sale consideration of Rs,2,00,000/- was shown paid through Cheque bearing No,GA-00- 0723192 dated 17-2-2004 drawn on HBL in the name of the respondent/defendant No,3 Mst. Tasleem Anwar and she has further taken the stand that this has been done by her as the respondent/ defendant No,2 was not maintaining his account. Appellant/defendant and it is her claim that the respondent/defendant No,2 being owner of the leasehold rights after two months of receiving the total sale consideration amount of Rs,2,10,000/ from her and had handed over the physical vacant possession of the constructed plot so also handed over to her the original documents. It is an admitted position that appellant/defendant No,1 being her real brother requested to give permission to reside temporary in the said house/property and she acceded to such request of the appellant and accommodated to him. Thereafter according to her she had 'gone to Punjab to meet her sons and daughter where she stayed more than one year and when returned back to Karachi in May, 2006 she came to know that her said (appellant/defendant No,1) fraudulently got the sale-deed executed in his name on 29-7-2004 by committing cheating, fraud and in collusive manner Without any permission, intimation and consent of the plaintiff and ultimately she had filed the suit. Suit proceeded wherein the respondent No,1/plaintiff had examined to herself whereas appellant/defendant No,1 examined to himself and so also witness and, finally, judgment dated 29-10-2010 was passed and decree thereon was drawn on 3-11-2010 whereby the suit as filed by the respondent No, 1/plaintiff was partly decreed and partly dismissed as aforesaid. Civil Appeal No,432 of 2010 was then preferred wherein similar stand was considered in depth by the learned first appellate court and the judgment. Dated 14-7-2012 was passed whereby the findings of the learned trial court was upheld and decree thereon was drawn dated 17-7-2012 and I have no hesitation in upholding the judgments of the two courts below since same are based on sound footings, well-reasons and wherein the evidence adduced at trial was also elaborately discussed, so same calls for no interference of this court in this second appeal, scope of which otherwise is limited and, moreso, since the appellant has failed to make out any case to attract section 100, C.P.C. And in the result the impugned judgments passed by the two courts below are maintained and consequently the appeal in hand is dismissed with no order as to costs.