Through this regular second appeal under Section 100 of the Civil Procedure Code, 1908 ("C.P.C"), the appellants have challenged the judgment and decree dated 30.04.2011 passed by the learned Civil Judge, Multan and judgment and decree dated 25.04.2014 passed by the learned Additional District Judge, Multan, whereby the suit for specific performance of agreement filed by the respondent-plaintiff was decreed and the appeal against the said decision of the learned trial Court was dismissed.
2. The necessary facts for decision of this appeal are that the respondent filed a suit for specific performance of agreement contending therein; that Appellant No, 1, who was paternal aunt of the respondent being owner of the suit property entered into an oral agreement to sell with the respondent for sale of suit property on 1.11.2001 for a consideration of Rs, 12,00,000/-; that Rs, 10,00,000/-was paid by the respondent to her as an earnest money and a receipt dated 1.11.2001 was executed by her in presence of the witnesses acknowledging the payment; that the possession of the property was handed over to the respondent at that time and since the execution of the agreement, the respondent is in possession of the suit property; that the sale- deed was to be executed in favour of the respondent after receiving balance sale price of Rs, 2,00,000/-and time of one and a half year was settled between the parties; that Appellant No, 1 with mala fide intention after receiving major portion of earnest money gifted the property in an illegal manner to her sons and daughters vide Mutation No, 1246 dated 23.08.2002 which was void, against law and facts, illegal, collusive and was liable to be cancelled.
3. The suit was contested by the appellants-defendants by filing written statement raising legal as well as factual objections. The execution of agreement to sell was denied. The learned trial Court from divergent pleadings of the parties framed necessary issues and after recording evidence of the parties decreed the suit vide judgment and decree dated 30.4.2011. Feeling dissatisfied, the appellants preferred an appeal which was dismissed vide judgment and decree dated 25.04.2014 and the decision of the learned trial Court was upheld, hence this regular second appeal.
4. The learned counsel for the appellants submits that the findings recorded by the Courts below are result of misreading and non-reading of evidence; that Appellant No, 1 was illiterate parda observing lady, a strong and authentic evidence was required to prove that she entered into agreement to sell voluntarily; that the evidence of the witnesses for the respondent was contradictory on material particulars; that Appellant No, 1 was deprived from her property in an illegal and fraudulent manner.
5. Contrarily, the learned counsel for the respondent submits that there are concurrent findings of facts of two Courts below and reappraisal of evidence is not permissible in second appeal merely on the ground that another view is possible; that the respondent proved his stance through clear and convincing evidence by producing oral and documentary evidence; that the witnesses of the respondent deposed in a straight forward manner and there is no contradiction in their testimony; that opinion of Handwriting Expert about the receipt proves execution ' of the receipt by Appellant No, 1 as her thumb impression on the document matched with her specimen thumb impression.
6. Arguments heard. Record perused.
7. The respondent sought a decree for specific performance of agreement of sale of immoveable property on the basis of an oral agreement. The respondent was under a heavy burden to prove what was settled between the parties on the basis of such agreement. The respondent in order to discharge the burden of proof of Issue No, 1, appeared as PW-1 and reiterated his stance taken in the plaint, he also produced a receipt Exh.Pl which is acknowledgment of payment of the earnest money. The receipt was tendered in statement of the respondent without any objection. In support of his oral and documentary evidence, the respondent produced witnesses of the oral agreement, who are also signatories of the receipt. Muhammad Iqbal appeared as PW-3 and Muhammad Nawaz as PW-4. The scribe of the receipt Ghulam Hussain appeared as PW-2. The plaintiff and the marginal witnesses of the document as well as the scribe have testified in a straightforward manner about the transaction in question. Nothing detrimental to the case of respondent was extracted from their cross-examination. It was established that independent advise was available to Appellant No, 1 as she was accompanied by her son Ghulam Abbas. The execution of the receipt was denied by Appellant No, 1 in her written statement but there was no specific denial on her part as far as the oral agreement to sell is concerned in her written statement. The evasive denial was not enough to rebut the plea as the denial has to be in specific terms in the written statement.
8. The stance of the Appellant No, 1 in her written statement referred about the receipt as a forged and fictitious document and that it was never executed by her. However, in her evidence which was recorded through her attorney DW-1, a new fact was introduced. It was stated by the witness that a suit for pre-emption was filed by his maternal grand father and after his death his mother Mst.
Ghulam Fatima was impleaded as a party in the said suit. The matter was pursued by father of the respondent. By producing attested copies of the documents relating to the suit for possession through pre-emption and another suit for permanent injunction, it was submitted that father of the respondent got certain papers thumb marked by Appellant No, 1 and the receipt could be one such document on which writing was made through forgery which was already thumb marked. This plea was never taken in the written statement. No suggestion was put to the scribe PW-2 that he made writing on a paper which was already thumb marked. Even otherwise, if that was the case, this important fact should have been mentioned in the written statement. The witness DW-1 categorically stated that written statement was prepared on his instructions'. The plea raised during evidence seems to be a belated plea which is not worth reliance. Nothing stated outside the scope of pleadings can be looked into and no decision can be based on such evidence. Reference in this behalf is made to the cases of Combined Investment (PVT) Ltd v. Wali Bhati (PLD 2016 Supreme Court 730) and Muhammad Rafiq v. Muhammad Ali (2004 SCM R 704). The basic judgment on the point is the case of Siddik Mahomed Shah v. Mt. Saran and others [AIR 1930 Privy Council 57 (1)]
9. The Finger Expert Shafqat Anwar from the Finger Expert Bureu, Lahore appeared as CW-1. Since the thumb impression of Ghulam Fatima on the receipt was denied in the written statement, the document was sent for comparison of her thumb impression with her admitted thumb impression.
According to the report of Handwriting Expert Exh.P9, the thumb impressions matched after the comparison. This was an additional factor to hold that agreement to sell was executed between the parties, besides the testimony of marginal witnesses and the scribe. The opinion of Handwritten Expert supported by reasons deserves consideration, if it is in line with the direct evidence.
Reference in this behalf can be made to the case of Hamad Qayyum v. Muhammad Azeem (PLD 1995 Supreme Court 381). The document Exh.P1 was not objected at the time, it was tendered in evidence, no objection to its admissibility could be taken, subsequently. The Tamleek executed by Appellant No, 1 was rightly declared invalid because admittedly, possession was not handed over at the time of its execution which undeniably was with the respondent. In case one out of three ingredients of gift i,e, offer, acceptance of offer and delivery of possession is missing, the gift cannot be held as validly executed.
10. The learned Courts below have rightly appreciated the evidence, no illegality or material irregularity is found in the findings. The jurisdiction of this Court is limited while exercising jurisdiction under Section 100, C.P.0 in second appeal. The interference can only be made to the extent of question of law and not on question of fact as held in the case of Muhammad Feroze and others v. Muhammad Jamaal Ali (2006 SCM R 1304). In the case of Hamid Qayyum v. Muhammad Azeem (1991 CLC 812), it was held that where two Courts after careful appraisal of evidence found evidence of the plaintiff regarding execution of agreement to sell as reliable, such findings of fact, could not be substituted by this Court in second appeal, even if a different view was possible on reappraisal of evidence, especially when it was not established that the Courts while arriving at such findings of facts misconstrued or misread the evidence. In the circumstances, no case for interference is made out.
For what has been discussed above, this appeal has no merits and the same is hereby dismissed.
There is no order as to costs.