ASHEED AHMED SOOMRO, J.---The instant second appeal has been directed against the judgment and decree dated 03.07.2014 and 04.07.2014, respectively passed in Civil Appeal No.196 of 2011 passed by Vth Additional District Judge, Karachi East who reversed the findings by setting aside the judgment and decree passed by trial Court.
2. The brief facts leading to instant second appeal are that on 16.02.2001 Muhammad Ibrahim (since deceased) being owner of the commercial plot No.E-450/1, measuring 112.50 square yards in Scheme No.19, Khudadad colony and building constructed thereon, agreed to sell the same for consideration of Rs.Five lacs only (PKR 500,000/-) to Muhammad Islam (since deceased) who paid Rs. One lac only (PKR 100,000/-) as part payment to vendor. It was also agreed that the vendor would handover vacant peaceful possession to the vendee within two months along with original documents of the property within two months in lieu of the remaining amount of sale consideration i.e. Rs four lacs only (PKR 400,000/-) which were to be paid by the vendee to the vendor before Sub-Registrar at the time of execution and registration of the sale agreement.
3. On failure to handover the possession of the above mentioned property, as agreed, the vendee (Respondent/plaintiff) served legal notice dated 20.04.2001 to the vendor (appellant/ defendant No.1) requiring him to fulfill the terms of contract and deliver the possession of property as per contents of agreement. The legal notice was duly replied by the defendant No.1 vide reply to notice dated 05.05.2001, pleading filing of Suit No.330 of 2001 by the tenant in the Court of IVth Civil Judge, Karachi East for permanent injunction. The plaintiff/respondent No.1, in response to the above stated reply wrote letter to the appellant/defendant No.1 reiterating willingness to take possession of the property in question. However, the efforts of the plaintiff/respondent No.1 vanished in thin air.
Nevertheless, the plaintiff/respondent No.1, once again sent notice to the appellant/respondent No.1 for completing the agreed transaction but again no response was received. On acquiring knowledge about pendency of Suit No.330 of 2001, the Plaintiff/respondent No.1 filed application- under Order I, Rule 10, C.P.C. for joining the litigation as party. Later on, civil suit bearing number 943 of 2001 was filed inter alia specific performance of contract, execution of conveyance deed as per terms of agreement and possession of the property in question. The trial Court concluded the matter vide judgment dated 30.09.2009 and decree. However, the first appellate Court remanded the case back to the trial Court for framing issue in respect of provisions of Section 27(B) of the Specific Relief Act, record evidence of the parties and give findings in the light of evidence adduced by the parties. Thus new suit number 1426 of 2003 was assigned to the case and the trial Court after framing such issue, recording evidence and giving findings on it dismissed the suit. The first appellate Court however after hearing the respective parties reversed the findings reached at by the trial Court and decreed the same by granting entire prayer clause of the suit. Hence instant second appeal has been filed.
4. Learned Counsel appearing for the appellant argued that judgment of the first appellate Court is against the record and settled position of law. By referring to the judgment and decree passed by the first appellate Court, the learned Advocate submitted that well-reasoned judgment of the learned trial Court has been set aside on the basis of misreading of a sentence from the statement/deposition of the appellant/respondent No.1 of the suit. The appellant has been penalized for the typographical error committed by the stenographer of the trial court. It has further been argued that the learned first appellate court has decided the appeal without addressing the objection regarding maintainability of appeal which has been filed by an unauthorized person and that too without joining the proper parties to the appeal. It has also been argued that the judgment of the first appellate court is contrary to various provisions of C.P.C. particularly Order XLI Rule 31 and non adherence to such provision has constituted material irregularity which calls for interference. It has thus been prayed that the judgment dated 03.7.2014 and decree dated 04.7.2014 passed by the VthAdditional District Judge, Karachi East, being first appellate court, in Civil Appeal No.196 of 2011 may be set aside and the judgment passed in Civil Suit No.1426 of 2003 by the IVth Senior Civil Judge Karachi East be upheld. In support of his contentions he has relied on case-law reported as Mst. Sarwar Bano v. Province of Sindh PLD 2015 (Sindh) 445 and Dr. Ghulam Hussain and 3 others v. Ahmed Nawaz and 8 others 2013 MLD 1845.
5. The learned Counsel for the respondent has argued that the judgment passed by the learned trial court was erroneous and based on misreading of evidence and the same, after taking into consideration the legal position and settled principles of administration of justice, has rightly been set-aside by the learned first appellate Court. In support of his contentions he has cited case laws reported as Muhammad and 2 others v. Mst. Banuk Naz Khatoon 1989 CLC 1819; Riaz Khan and 3 others v. Muhammad Amir and another 2004 MLD 581; Muhammad Anwar v. Muhammad Aslam 2012 SCMR 345; Mst. Noor Jehan others v. Muhammad Rafique and and others 1995 CLC 43; Muhammad Saleem v. Muhammad Shafi 2004 YLR 1882; Muhammad Ayoub Khan v. Ch. Muhammad Aslam and another 1984 CLC 2259; Bashir Ahmed v. Abdul Majid 1992 CLC 1069; Motilal Jain v. Smt Ramdasi Devi and others AIR 2000 Supreme Court (India) 2408; Federation of Pakistan v. Muhammad Farid Khan PLD 1960 (W.P) Peshawar 111; Mansoor Ahmed Khan v. Muhammad Farooq and another 1999 MLD 3329; Ghulam Hussain and another v. Muhammad Hussain 1986 CLC 770; Muhammad Siddique and 2 others v. Mst. Shagufta Begum another, 1994 CLC 1690; Talib Hussain v.
Noor Muhammad 2012 YLR 2335; Mst. Roshi and others v. Mst. Fateh and others 1982 SCMR 542; Mst.
Sardar Begum v. Muhammad Ilyas and another 2013 CLC 1013 and Government of N.W.F.P. through Secretary Forests, Peshawar and others v. Said Akbar Shah and Company PLD 2002 (Supreme Court) 394.
6. From the arguments raised by the learned Counsel for the parties, it is clear that the primary thing which requires assessm ent is execution of agreement between the appellant No.1 and respondent No. 1. The respondent No.1 at the time of trial appeared before the court and substantiated his claim of signing agreement with the appellant No.1 and paying Rs.100,000/- (One lac only) in cash to the appellant No.1 who accepted said amount. The fact of signing the sale agreement has not been denied by the appellant No.1 before the trial Court nor the payment of Rupees One lac has been denied by him. In the circumstances, fact of signing the agreement by deceased Muhammad Ibrahim and receipt of Rs. One lac pursuant to the agreement to sell stood proved beyond doubt.
7. Apparently the bone of contention between the parties has been the amount of sale consideration. As per terms of agreement the total amount of sale consideration was Rs. Five lac only (PKR.500,000/-) but the appellant No.1 vide written statement submitted in the trial court has stated that the property in question was agreed to be sold for consideration of Rs.fifteen lacs instead of rupees five lacs and the respondent No.1 has fraudulently and unilaterally amended the amount of sale consideration in the agreement and has also prepared bogus receipt regarding payment of Rs. One lac. It would not be out of place to mention here that the defendant No.1 in the original suit namely Muhammad Ibrahim had expired during pendency of the suit before the trial court thus on no occasion appeared in witness box to substantiate the version advanced by him in his written statement. The legal heirs of above named deceased defendant No.1 of the suit were brought on record. Though the legal heirs appeared in witness box for recording of their evidence before the trial Court but their evidence was merely of hearsay nature and inept to overwhelm the documentary proof, particularly the agreement to sell and receipt of Rs One lac only, before the trial Court.
8. The other point worth consideration is that the deceased Muhammad Islam respondent No.1 and plaintiff of the suit had repeatedly sent notices and letters to the deceased Muhammad Ibrahim, (defendant No.1 cited in the suit) expressing his readiness to pay the balance amount of Rs four lacs (PKR 400,000/-) within time stipulated in the agreement and requested the above named deceased vendor to perform his part of contract by delivering possession of the suit property along with its original title documents as per terms of contract. The evidence adduced by the plaintiff/respondent Muhammad Islam in this behalf appears to be confidence inspiring and corroborated by the documentary evidence which has not been refuted by the other side. From perusal of the above two pieces of evidence, it is obvious that the agreement to sell and purchase of the property in question was signed by the parties and the cash amounting to Rupees One lac only was handed over to the defendant/appellant No.1 being part payment of the total sale consideration, in lieu of receipt. The payment of Rs.400,000/- (four lacs) was offered to the vendor as per terms of agreement and request of plaintiff/ respondent No.1 for performing his part of contract has been made part of record of the trial court during the course of recording deposition.
9. The purchase of property in question by the appellant Mushtaq A. Patel cannot be sanctified for the reason that the same was subject matter of an intact agreement of vendor Muhammad Ibrahim to sell it to Muhammad Islam for total consideration of Rs.500,000/- (five lacs only) out of which the vendor had received Rs one lac only (Rs.100,000/-) as earnest money from vendee Muhammad Islam. In the aforementioned circumstances and having conscious knowledge of the said agreement, being resident of the same vicinity and taking into consideration the dictates of fair-play, the appellant Mushtaq Patel should have refrained from entering into agreement with Muhammad Ibrahim for purchase of the same property and that too in exchange of almost same amount of consideration that was previously agreed between Muhammad Ibrahim and Muhammad Islam conjointly. In case the appellant had not notice of the agreement reached between the parties, even then, instantly after acquiring such knowledge the appellant should have annulled the transaction. The appellant during course of trial has not adduced evidence for negating the factum of having conscious knowledge about agreement between the vendor Muhammad Ibrahim and Vendee Muhammad Islam to sell/purchase the property in question. The appellant Mushtaq has thus failed to discharge the onus and remained unsuccessful to prove his version, which he ought to have squared during the course of trial to show that the agreement by him to purchase the property in question was out-come of good faith. In the case reported as Muhammad Bashir and others v. Iftikhar and others in PLD 2004 Supreme Court 465 it has been held as follows:-- "7. As it is noted in above judgment that heavy onus has been placed upon the subsequently transferees to establish that they had no notice about the earlier transfer of the property and in good faith they had paid the money to the owner. In this context it has already been held hereinabove that appellants had knowledge about the sale of property by Dolat Khan in favour of Abdul Salam, therefore, in pursuance of such conclusion, it is not possible to hold that the appellants paid the money for the transfer of the property in their favour to vendor Dolat Khan in good faith. It is to be seen that expression good faith contains in its folds the element of honesty or sincerity of the purpose. For the admitted fact that the possession of the land was taken over by the appellants before execution of sale deed (Exh. P1) and at that time they had also learnt about the existence of agreement to sell between vendor Dolat Khan and vendee Abdul Salam but not only they entered into a contract with them in pursuance whereof they got sale deed (Exh.P1) registered in their favour but also paid Rs.4500/- to Noor Muhammad. Had the appellants been honest and sincere in their deed, they would have restrained themselves from executing the sale deed in respect of the property which was subject-matter of an agreement between vendor and Abdul Salam (late), therefore, such transact/on between the parties lacks the element of good faith. Thus it is concluded that appellants have failed to discharge the onus that they had no knowledge about the earlier agreement of sale of land in dispute nor they had paid money in good faith to vendor, therefore, they are not entitled for the benefit of section 27(b) of the Specific Relief Act."
10. It is well settled that Second appeal has limited scope and would lie only on the conditions and grounds enunciated under S.100, C.P.C. and not otherwise. The said appeal would be competent only when findings of the courts below are based on no evidence, or has been returned in violation of any law, or some important evidence has not been considered by the trial or first appellate court. Where the conditions envisaged by section 100, C.P.C, are not attracted the Second Appeal would not be competent.
11.For the foregoing reasons and seeking guidance from the above dicta of the Honourable Supreme Court of Pakistan, it is manifestly clear that the findings arrived at by the learned first appellate court vide judgment dated 03.7.2014 and decree dated 04.7.2014 are in line with the evidence on record. No material illegality whatsoever in the judgment of the first appellate court has been pointed out during the course of arguments.
12.The findings recorded by the first appellate court, therefore, do not call for interference by this Court. The instant second appeal, for the above reasons, is therefore, dismissed with no orders as to costs.