MIRZA VIQAS RAUF, J. --- The instant regular second appeal is directed against the judgment and decree dated 17th of February, 2007 passed by the learned Additional District Judge, Layyah, whereby the regular first appeal filed by the respondents against the judgment and decree dated 25th of November, 2006 passed by the learned Civil Judge, Layyah, was allowed, as a result thereof, suit of the appellants was dismissed.
2. Precisely the facts necessary for adjudication of instant appeal are that the appellants filed a suit for specific performance on the basis of an agreement to sell dated 2nd of October, 1993 asserting therein that respondent No, 7, being the owner of the suit land sold out the same in favour of the appellants by virtue of said agreement with sale consideration of Rs, 2,62,000/- out of which he received Rs, 92,000/- and the remaining amount of Rs, 1,70,000/- was to be paid at the time of execution of sale-deed. The target date was fixed as 30th of June, 1994. As per averments contained in the plaint, respondent No, 7 in violation of the terms and conditions of the agreement to sell alienated the suit land in favour of respondents No, 1 to 6 by way of mutation. The suit was contested by the respondents whereby the assertions contained in the plaint were controverted and the execution of the agreement to sell was denied. The divergent stance of the parties led to the framing of following issues:--- ISSUES:
(1) Whether the defendant No, 1 executed impugned agreement to sell dated 02.10.1993 in favour of the plaintiffs? OPP
(2) Whether the defendant No, 1 received Rs, 92,000/- from the plaintiff under the impugned contract, as earnest money? OPP
(3) Whether the sale of the disputed property by the defendant No, 1 in favour of the defendants No, 2 to 7 and mutations Nos. 158 and 1542 are illegal, collusive, fraudulent and ineffective upon the rights of the plaintiffs? OPD
(4) Whether the suit is not maintainable in its present form? OPD
(5) Whether the suit is liable to be dismissed due to non-joinder of necessary parties? OPD
(6) Whether the description of the suit property is not given correctly? If so, what is the correct description and its effect? OPD
(7) Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? If so, what is the correct valuation and its effect? OPD
(8) Whether plaintiffs have no cause of action to file this suit? OPD
(9) Whether the suit of the plaintiffs is mala fide and whether the defendants are entitled to recover special costs under Section 35-A, CPC? If so, how much? OPD
(10) Relief.
' After framing of issues, both the parties were directed to produce their evidence. In this regard, the appellants examined Muhammad Hanif petition writer as PW1 whereas appellant No, 1 appeared as PW2, Riaz and Ahmad Bakhsh who were the marginal witnesses of the agreement to sell were produced as PW3 & PW4. Rana Muhammad lqbal Notary Public appeared as PW5, Sabir Ali as PW6 and Mushtaq Ahmad as PW7. In documentary evidence, agreement to sell was tendered as Exhibit-P1 and certain other documents were produced as Exhibit-P2 to Exhibit-P10 by the appellants. On the other hand, the respondents examined Ghulam Dastgeer, Registration Clerk as DW1, Tariq Mehmood as DW2, Nazeer Ahmad as DW3, Abdul Rasheed one of the respondents appeared as DW4 Jewan as DW5, Muhammad Bakhsh as DW6 and Abdul Majeed as DW7. The respondents also tendered certain documents as Exhibit-D1 to Exhibit-D11 in their documentary evidence. Upon completion of evidence and hearing both the sides, the learned Trial Court decreed the suit by way of judgment and decree dated 25th of November, 2006. The respondents, feeling aggrieved from the said judgment and decree filed regular first appeal before the learned Additional District Judge, Layyah. The appeal was though contested by the appellants, however the same was allowed by way of impugned judgment and decree dated 17th February, 2007, hence this regular second appeal.
3. Learned counsel for the appellants submitted that the appellants successfully proved the execution of agreement to sell (Exhibit-P1) by leading cogent and convincing evidence but the learned lower Appellate Court while grossly misreading the same set aside the well-reasoned judgment of the learned Trial Court. Learned counsel contended that the reasons assigned by the learned Additional District Judge for setting aside the judgment of the learned Trial Court are not tenable under the law. He added that only minor contradictions were made basis for setting aside the said judgment which is not permissible. Learned counsel while referring "Zulfiqiar and others v.
Shahdat Khan" (PLD 2007 Supreme Court 582) submitted that the alienation of the suit land in favour of subsequent vendees is illegal and unlawful.
4. Conversely, learned counsel for the respondents submitted that the appellants have failed to prove the agreement to sell. He added that the learned Trial Court, while decreeing the suit had erred in law and the learned Additional District Judge was justified to set aside the said judgment and decree in exercise of its appellate jurisdiction. Learned counsel contended that the evidence led by the appellants is deficient on all aspects and the Appellate Court was right in its approach to dismiss the suit filed by the appellants.
5. I have heard the learned counsels for the parties and perused the record.
6. The suit was filed on 30th of June, 1994 which was initially decreed in favour of the appellants vide judgment and decree dated 22nd of December, 2003. The respondents, being aggrieved from the said judgment and decree filed an appeal before the learned Additional District Judge, Layyah which was accepted vide judgment and decree dated 3rd of March, 2005 and the matter was remanded to the learned Trial Court with the following observations:- 10.....Thus I accept this appeal, set aside judgment/decree dated 22.12.2003 and the findings recorded thereunder on all issues and remand the case to the learned Trial Court with the direction to summon the witness of defendants Officer Commanding Shor Kot Cantt. Through Court or if not possible, to allow them to produce such evidence to prove that the defendant No, 7 was deputed to conduct the election on 02.10.1993 and to sign the documents from Exh.D.1 to Exh.D.9 after admitting them into evidence and then the case shall be disposed of afresh, after hearing the parties. It is needless to say that the plaintiffs would also be entitled to rebut the, evidence produced by the defendants, if any. There is no order as to costs. File of appeal be consigned to the record room after due completion while record of the learned Trial Court be sent back immediately where the parties shall put up appearance on 10.3.2005 for further proceedings with the matter. "
' In post-remand proceedings, the respondents examined Abdul Majeed as DW7 who produced copy of acquaintance roll as Exhibit-D10 and miscellaneous allowance form as Exhibit-D11. In rebuttal, the appellants also produced Sabir Ali PW6 and Mushtaq Ahmad as PW7 alongwith copy of order dated 3rd of October, 1993 as Exhibit-P10. The documents Exhibit-D1 and Exhibit-D9 were also signed in compliance of the judgment and decree dated 3rd of March, 2005. The learned Trial Court thereafter again decreed the suit vide judgment and decree dated 25th of November, 2006 and the appellants were directed to deposit remaining consideration of Rs, 1,70,000/- in the Court within one month failing which the suit shall stand dismissed.
7. The appellants though in order to fulfill the requirements laid down in Articles 17 and 79 of The Qanun-e-Shahadat Order, 1984 examined both the marginal witnesses namely Riaz and Bakhsh as PW3 and PW4 to prove the execution of agreement to sell (Exhibit-P1) but there are notable discrepancies in the statements of these two material witnesses. PW3 Riaz while appearing in the witness-box stated that Abdul Rasheed respondent No, 7 (vendor) in his presence admitted the receipt of earnest money. He further stated that payment was not made in his presence. Neither the agreement to sell (Exhibit-P1) was reduced into writing in his presence. The other marginal witness Ahmad Bakhsh (PW4) also deposed on the same lines. The appellant No, 1 who appeared as PW2 stated that he made the payment of earnest money by drawing amount from the bank which was lying in the account of his father but no cogent evidence was brought on record in order to prove this fact. The payment of earnest money is shrouded in mystery. The marginal witnesses were even not aware about the contents of agreement to sell (Exhibit-P1). These discrepancies cannot be ignored lightly when the execution of agreement to sell is specifically denied by the vendor.
8. There is yet another important aspect that though the suit land was situated in Tehsil Layyah and the vendor was residing in Tehsil Shorkot District Jhang but strangely enough, the agreement to sell (Exhibit-P1) was executed in Tehsil Kot Addu. The appellants have failed to explain why the vendor opted to execute agreement to sell (Exhibit-P1) in Tehsil Kot Addu which is far-flung from his home town. While examining the agreement to sell (Exhibit-P1), I found that the same was not signed by all the vendees and it bears the signature of only one vendee i.e, the appellant Sultan Ahmad. The agreement to sell (Exhibit-P1) even otherwise becomes non-enforceable on account of this sole legal infirmity. The judgments referred by the learned counsel for the appellants are of no help to him as the same are based on entirely different facts and circumstances. Reliance in this respect can be placed on "Farzand Ali and another v. Khuda Bakhsh and others" (PLD 2015 Supreme Court 187). The relevant extract from the judgment supra is reproduced below:--- "9. In the above context, the first and the foremost aspect of the case is, if the agreement to sell of the appellants was valid because if it is not valid the question of its enforcement through the process of law and the exercise of discretion does not arise. It is an undisputed fact that appellants agreement has not been signed by them. And an agreement to sell immovable property is not a "deed poll", unlike e.g. a power of attorney which is only executed by the principal and the agents execution is neither required nor expedient. Rather in law such an agreement (of immovable property) is a contract (note: may be executory in nature) and the first, and the foremost requisite of a contract (agreement) is that the parties should have reached agreement, which unmistakably means, that an agreement is founded upon offer and acceptance. Thus for the purposes of a valid contract (agreement) there should be the meeting of minds of the contracting parties (who are competent in law to contract). And where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e, by signing or affixing their thumb impression. So that it should reflect and establish their "consensus ad idem", which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto. In particular it refers to the situation where there is a common understanding of the parties in the formation of the contract in the absence of which there is neither a concept nor the possibility of a valid contract. But in this case this is conspicuously lacking by virtue of non-execution (non-signing) of the agreement by the appellants, therefore in law and fact it is no contract (agreement). The argument that the agreement to sell in favour of the appellants has been admitted by the vendors and, therefore, is valid and the non-signing has lost its efficacy, suffice it to say that despite the above, the respondent has joined issue with the appellants vis-a-vis the validity and valid execution of the agreement, therefore, the appellants cannot rely upon and take advantage of any admission made by the vendors, because of the law, that an admission made by a co-defendant is not binding on the other even if made in the written statement. Reliance in this regard can be placed on the judgments reported as Shah Muhammad and 2 others v. DuIla and 2 others (2000 SCMR 15488), Allah Rakha through L.Rs, v. Nasir Khan and 4 others (2007 CLC 154) and Zeeshan Bhatti v. Maqbool Bhatti and another (PLD 2001 SC 79). Besides the above, in the judgment reported as Mst.
Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334) (three members bench of this Court) while considering the specific proposition, whether the plaintiffs in a suit for specific performance was entitled to enforce the agreement which was not signed by them (the vendee), it has been categorically held that "Such unilateral agreement not signed by plaintiff- vendee was not mutually enforceable, whereupon no decree could be passed"
' The Honourable apex Court in the case of "Mst. Gulshan Hamid v. Kh. Abdul Rehman and others"
(2010 SCM R 334) also reiterated the same principles.
9. It is also noteworthy to mention here that the learned Trial Court while determining the validity of agreement to sell (Exhibit-P1) relied upon letters which were tendered as Exhibit-P2 and Exhibit-P3 written by the vendor to the father of the vendees. It is observed that the contents of said letters show no nexus with the agreement to sell (Exhibit-P1). The said letters are not sufficient to draw an inference that agreement to sell was validly executed between the vendor and vendees.
10. So far as the status of subsequent vendees is concerned, it is held that the subsequent transaction can only be effected if once the appellants succeed in proving the valid execution of the agreement to sell (Exhibit-P1). Since the appellants failed to prove the execution of agreement to sell in their favour, so the same will have no bearing upon the transactions in favour of the subsequent vendees.
11. It is well-settled principle of law by now that the agreement to sell does not confer any right to the proposed vendees in the property, subject matter of the said agreement. At the most agreement to sell equips the vendee with a right to file a suit for specific performance for the enforcement of the same. The appellants have yet to establish their right in the suit property in the light of alleged agreement to sell. The pleas raised by the appellants in their suit are self- destructive. The relief of specific performance is discretionary relief and it depends upon the judicial conscious of the Court, either to grant or refuse the same to the person claiming right under agreement to sell. The Court is empowered to refuse the relief of specific performance even in the cases where the agreement to sell was validly proved by the plaintiff. The plaintiff cannot claim the relief of specific performance as a matter of right.
12. There are conflicting views of both the Courts below. In the matter of giving preference to the judgments of learned lower Courts while analyzing them in exercise of revisional or appellate jurisdiction, the preference and regard is always given to the findings of the leaned lower Appellate Court, if those are not suffering from any legal infirmities. Reference in this respect can safely be made to the case of "Muhammad Nawaz through L.Rs, v. Haji Muhammad Baran Khan through L.Rs, and others" (2013 SCM R 1300). Relevant extract from the same is reproduced herein below:--- "12. We have also taken into consideration the judgment of the Appellate Court which is based on proper appraisal of evidence on record and the findings of the Appellate Court are to be preferred as it has been held by this Court in the cases of Madan Gopal and others v. Maran Bepari and others (PLD 1969 SC 617) that if the findings of fact reached by the first Appellate Court is at variance with that of the Trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding." This view also finds support from the cases of Muhammad Shafi and others v. Sultan Mahmood and others (2010 SCMR 827).......................
' The above view also finds support from the cases of "Amjad Ikram v. Mst. Asiya Kausar and 2 others" (2015 SCMR 1), "Muhammad Hafeez and another v. District Judge, Karachi East and another" (2008 SCMR 398) and "Mst. Saeeda through her son Muhammad Abid v. Muhammad Naeem and 3 others" (PLD 2013 Sindh 39).
13. This is a regular second appeal which has a very limited scope as provided under Section 100 of The Code of Civil Procedure (V of 1908). The judgment of learned lower Appellate Court cannot be interfered with unless some procedural defect materially effecting such findings is pointed out by the appellants. Reliance in this respect can be placed on "Bashir Ahmed v. Mst. Taja Begum and others" (PLD 2010 Supreme Court 906) and "Muhammad Feroze and others v. Muhammad Jamaat Ali" (2006 SCM R 1304).
14. For the foregoing reasons, I am of the considered view that the learned Civil Judge, Layyah has completely mis-read the evidence available on the record while decreeing the suit of the appellants. The learned Additional District Judge, Layyah rightly exercised its appellate jurisdiction and the impugned judgment and decree is unexceptionable on all scores, so no interference is required in exercise of jurisdiction contemplated under Section 100 of The Code of Civil Procedure (V of 1908). Consequently the instant regular second appeal, being without any merits is dismissed with no order as to costs.