' MIRZA VIQAS RAUF, J. --- By way of this single judgment, I intend to decide the instant petition as well as connected Civil Revision No. 171 of 2015 as both these petitions have arisen from a common judgment and the subject-matter as well as the parties are also the same in both these petitions.
2. Precisely, the facts necessary for adjudication of instant petition are that the respondents filed a suit for specific performance of agreement to sell dated 14th of May, 2008 against the petitioner before the learned Civil Judge, Lahore. It was averred in the plaint that the defendant/petitioner entered into an agreement to sell dated 14th of May, 2008 regarding plots No. 501 and 479 comprising land measuring 10 Marlas each situated at D-Block Punjab Journalist Housing Foundation, Harbanspura, Union Council No. 41, Aziz Bhatti Town, Lahore Cant The Sale consideration was fixed as Rs. 23,00,000/- and Rs. 10,00,000/- was paid as earnest money. The suit was resisted by the petitioner and she submitted her written statement, whereby the assertions contained in the plaint were controverted. The petitioner/defendant also filed a suit for declaration and permanent injunction challenging the validity of agreement to sell.
3. Both the suits were consolidated by the learned Trial Court which resulted into framing of following consolidated issues, from the divergent pleadings of the parties:-- ' ISSUES:
(1) Whether the plaintiff is entitled to the decree for specific performance of the contract as prayed for? OPP
(2) Whether the plaintiff does not come to the Court with clean hands? OPD
(3) Whether the plaintiff had not been paid any amount to the defendant as required under Section 25 of the Contract Act? OPD
(4) Whether the defendant never executed any agreement to sell and thumb-impression obtained through fraud? OPD
(5) Whether the plaintiff has no cause of action and defendant is entitled to get special cost under Section 35-A of C.P.C., if so, of what amount? OPD (5A) Whether the defendant Mst. Sughran Bibi is entitled to the declaration that the agreement dated 14.05.2008 is based on fraud, misrepresentation and liable to be cancelled? OPD
(6) Relief.
4. After framing of issues, both the parties were directed to produce their respective evidence. In this regard, Muhammad Naveed respondent No. 1/plaintiff appeared as PW-1. Muhammad Yaqoob and Muhammad Azmat Javed Rana were produced as PW-2 & PW-3 respectively. In the documentary evidence, bank statement issued by the MCB, New Garden Town Branch, Lahore was tendered as Exhibit-P1, agreement to sell dated 14.05.2008 as Exhibit-P2, thumb impressions of petitioner/defendant over the photocopies of cheques as Exibit-P3, Bank receipt vouchers as Exhibit-P4 & Exhibit-P5, signatures of Muhammad Yaqoob over Exhibit-P2 as Exhibit-P6, signature of Muhammad Azmat Javed Rana over Exhibit-P2 as Exhibit-P7, statement of accounts of Muhammad Hafeez as Exhibit-P8 and copy of allotment of area was placed on record as Mark-A.
On the contrary, Ch. Muhammad Ilyas appeared as DW-1 whereas Mian Atta Muhammad was examined as DW-
2. Muhammad Naeem entered into the witness-box as DW-
3. In the documentary evidence, special power-of-attorney in favour of Ch. Muhammad Ilyas was tendered as Exhibit-D1, National Identity Card of Mst. Sughran Bibi was placed on record as Exhibit- D2, whereas agreement between Mst. Sughran Bibi and Muhammad Zaheer was produced as Exhibit-D3.
5. Upon completion of evidence from both the sides, the learned Civil Judge, 1st Class, vide its judgment dated 30th of March, 2013 decreed the suit filed by the respondents/plaintiffs whereas the suit filed by the petitioner/defendant was dismissed.
6. The petitioner, feeling aggrieved from the above-said judgment and decree, filed two separate appeals before the learned Additional District Judge, Lahore which were consequently consolidated. The learned Additional District Judge, seized with the matter, by way of consolidated judgment and decreed dated 30th of June, 2014 dismissed both the appeals. The instant petition questions the legality of both the judgments and decrees.
7. Learned counsel for the petitioner submitted that the petitioner was an old lady and she denied the execution of agreement to sell in favour of the respondents and to this effect, sufficient evidence was led which was completely ignored by both the Courts below. He maintained that it is admitted on the record that no person from her close relatives was available at the time of execution of agreement to sell who can give her an independent advice. Learned counsel contended that the impugned judgments are the result of gross mis-reading and non-reading of evidence. Learned counsel argued that the respondents were burdened with heavy onus to prove the execution of agreement to sell, being the beneficiaries but they have badly failed to discharge the said onus. In spite of this glaring infirmity, the suit of the respondents has been illegally decreed. In support of his contentions, learned counsel relied upon Jannat Bibi v. Sikandar All and others (PLD 1990 Supreme Court 642), Abdul Ghafoor and others v. Muhammad Rafiq through legal heirs and 2 others (2011 YLR 1377), Haji Chiragh Din v. Muhammad Rafi through L.Rs. (2007 CLC 1547) and Sardar Khan v. Abdul Ghani (1989 M LD 3656).
8. Conversely, learned counsel for the respondents submitted that initially the suit was decreed ex parte vide judgment dated 31st of May, 2010 and in compliance of the said decree, the respondents have deposited the balance amount on 25th of June, 2010 to show their bona fide. She submitted that evidence available on the record has been properly appreciated by both the Courts below and the judgments of both the Courts below are well-reasoned and in accordance with law. She further submitted that it was nowhere the stance of the petitioner that she is Parda Nashin Lady.
Learned counsel contended that connected Civil Revision No. 171 of 2015 is barred by time. In the last, she contended that there are concurrent findings on facts which cannot be disturbed in exercise of revisional jurisdiction.
9. I have heard the learned counsel for the parties and perused the record.
10. Record reveals that the respondents filed suit or specific performance on 10th of August, 2009 wherein the petitioner submitted her written statement and took her stance that she, being an illiterate and aged lady never entered into any agreement to sell with the respondents/plaintiffs.
While responding Para No. 2 of the plaint, it was asserted that Mian Khalid Bashir son-in-law of the petitioner/defendant with mala fide intention and fraudulently got her thumb impressions on some papers in order to prepare an authority letter for the purpose of correspondence, with the Journalist Housing Society, but thereafter, he fraudulently prepared an agreement to sell in favour of the respondents/plaintiffs. During pendency of the said suit, the petitioner also filed a suit for declaration and permanent injunction challenging the validity of the agreement. It is important to mention that the said suit was filed on 20th of April, 2011. In order to properly appreciate the controversy involved in both the suits, the learned Trial Court framed the consolidated issues which are already reproduced in the earlier part of the judgment. Out of framed issues, issues No. 1 & 5A are of significance importance as both these issues are interconnected with each other.
11. There is no cavil that in case of proving a document executed by a woman, the beneficiary remains always under heavy burden to prove the genuineness of the said document. In this case, in order to prove the agreement to sell the respondent No. 1 Muhammad Naveed appeared as PW-
1. He reiterated the stance as taken in the plaint and deposed that the sale consideration was agreed as Rs. 23,00,000/- and out of which Rs. 10,00,000/- was paid as earnest money to the petitioner/defendant wherein Rs. 2,00,000/- was given in cash, Rs. 5,00,000/- was paid through cheque No. 8538498, dated 15th of May, 2008 of MCB New Garden Town Branch, Lahore and Rs.
3,00,000/-was paid through cheque No. 4522855, dated 15th of May, 2008 of HBL Cantt. Branch, Lahore. He clarified that though the cheques were given to the petitioner but as she was not maintaining any bank account so on her demand, cross-cheque were given to her and these cheques were received by her through her son-in-law, namely Mian Khalid Bashir and Muhammad Yaqoob, was produced as PW-2 whereas bank statement dated 24th of March, 2010 issued by the MCB was produced as Exhibit-P1. The agreement to sell was placed on record as Exhibit-P2 and copies of the cheques, upon which thumb impressions of the petitioner was obtained in token of its receipts, were placed on record as Exhibit-P3. In order to prove the agreement to sell, the respondents also examined Muhammad Azmat Javed Rana as PW-3. In addition to the respondent No. and Muhammad Yaqoob (PW-2), Adnan Hameed appeared as CW-1 who brought the record of Lahore Press Club Housing Scheme Harbanspura. He deposed that as per record, Plots No. 479 and 501, Block-D are owned by Mst. Sughran Begum. He also placed on record the allotment letters as Exhibit-P9 & Exhibit-P10. On the contrary, the petitioner herself did not appear however, Ch. Muhammad Ilyas, being her real son and attorney was examined as DW-1. In addition to him, Mian Atta Muhammad and Muhammad Naeem were examined as DW-2 and DW-3. Ch. Muhammad Ilyas DW-1 in his examination-in-chief stated that one of our close relative came to my other and got her thumb impressions on some papers. He deposed that these thumb impressions were marked by my mother for an authority letter for the purpose of communication with the Lahore Press Club Housing Scheme Officials. Though he did not disclose the name of his close relative, however, when he was cross-examined, he admitted that the said close relative was Khalid. It has come in the statement of DW-1 that his mother owned various other plots in the said Housing Scheme out of which she has already sold some of the plots by executing agreement to sell as well as registered sale-deed. While answering a question about the stance taken by the DW-1 in his examination-in-chief, he deposed as under:-- {{URDU TEXT}} ' DW-2 Mian Atta Muhammad during his cross-examination uttered as under:--- ' Muhammad Naeem DW-3 also deposed on the same lines and showed his ignorance about the receipt of earnest money of Mian Khalid Bashir.
12. The scanning of evidence clearly suggests that the respondents have led sufficient evidence to prove the execution of agreement to sell as well as payment of sale consideration under the said agreement. All the witnesses produced by the respondents corroborated each other on all the material points. On the other hand, the suit filed by the petitioner clearly reflects that it was an afterthought idea, this was the reason that the suit was filed on 20th of April, 2011 after about two years of filing of the suit by the respondents. Had there been any genuine grievance, the petitioner must have filed the suit immediately on attaining the knowledge about the execution of agreement to sell. It is even nowhere the stance of the petitioner in her pleadings that she is a Parda Nashin Lady. Record clearly reflects that she has executed similar agreements with regard to other plots in the same manner.
13. As a sequel of above discussion, I feel no hesitation to observe that both the Courts below have rightly appraised the evidence available on the record and thereafter reached at a conclusion which in all respects is just and proper. The judgments cited by the learned counsel for the petitioner are based on facts which are clearly distinguishable and those are not applicable to the case in hand. The petitioner has failed to point out any misreading or non-reading of evidence in either of judgments of the Courts below. The jurisdiction in terms of Section 115 of the Code of Civil Procedure, 1908 can only be exercised in a case where some illegality or material irregularity is found to be floating on the record or a legal error which goes to the root of the case. There are concurrent findings on facts which are supported by evidence available on the record. Thus the same cannot be interfered with lightly in exercise of revisional jurisdiction only for the purpose that another view is possible on re-appraisal of evidence. Guidance in this respect can be sought from the case of Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCM R 1373), wherein the Hon'ble Supreme Court while dealing with the similar preposition has held as under:- "There is no cavil to the proposition that the jurisdiction of High Court under Section 115, C.P.C. is narrower and that the concurrent findings of fact cannot be disturbed in revisional jurisdiction unless Courts below while recording findings of fact had either misread the evidence or have ignored any material piece of evidence or those are perverse and reflect some jurisdictional error."
' The Hon'ble Supreme Court of Pakistan has reiterated the same principle in the case of Mst.
Zaitoon Begum V. Nazar Hussain and another (2014 SCM R 1469), Administrator, Thal Development through EACO Bhakkar and others v. All Muhammad (2012 SCM R 730) and Shafi Muhammad and others v. Khanzada Gul and others (2007 SCM R 368).
' In view of above discussion, the instant petition fails and is dismissed with no order as to costs.