MUHAMMAD SALEEM JESSAR, J.---Through this Civil Revision Application, the applicant has challenged the Judgment dated 15.04.2006 passed in Civil Appeal No.108 of 2003, whereby he upheld the Judgment dated 29.03.2003 and decree dated 04.04.2003 passed by the learned 1st Senior Civil Judge, Karachi East, dismissing the Civil Suit No.634 of 1998 filed by the applicant.
2. Precisely , the facts giving rise to the filing of this civil revision are; that the applicant/plaintif f filed suit for specific performance, declaration, permanent injunction and possession against respondents Nos. 1 and 2, alleging therein that defendants / respondents Nos.1 and 2 are his-brothers. Their father namely Bahadur Khan died on 01.10.1996 leaving behind the legal heirs mentioned in the plaint including the plaintif f and defendants Nos.1 and 2. It was further stated that their late father had purchased a house bearing No.R-207, Korangi No.1-1/2, Karachi from one Khuda Bux on a sale consideration of Rs.10,000/- in the year .1973. According to the applicant / plaintif f, his late father orally declared that the said house was purchased by him for the plaintif f and physical possession thereof shall be handed over to him after his marriage, which was solemnized in the year 1975. He further averred that the possession of the property in question was handed over to him in 1978 when there was no amenity facility , therefore, he got installed utilities at his own costs. He produced utility bills as well as Ration Card issued in his name. In the year 1980, he requested his father to transfer the suit premises in his name, who directed defendant / respondent No.1 to do so. However , in the same year, the applicant went to Saudi Arabia and when in 1982 he came back to Pakistan on leave, defendant No.1 became dishonest and demand ed Rs.30,000/- from him being sale consideration of the suit premises. The applicant / plaintif f paid Rs.10,000/- as part payment and the remaining amount was agreed to be paid at the time of execution of lease deed in his name. Accordingly , the respondent No.1 issued a receipt duly signed by him. Thereafter , the applicant again went to Saudi Arabia and in the year 1984 when he again came back to Pakistan on leave, he offered defendant No.1 for balance sale consideration, who showed his inability to execute sale deed, however , he kept the applicant / plaintif f on false promises on one pretext or the other . The applicant further asserted that he spent huge amount on the cons truction of the house in which he was living without any interruption from any corner . When in the year 1984, again he went back to Saudi Arabia, defendant No.1 on the pretext that a male person is necessary to live in the property in question with the applicant's family , got possession of a single room from defendant No.2 in the suit premises. According to him, defendant No.2 did not vacate the room in his possession despite several requests made by the applicant/plaintif f, rather he obtained a lease deed for the same. He further averred that his late father during his lifetime was operating bank accounts and had cash amounting to more than Rs.25 lac in different accounts being maintained in different branches of different banks and was also owner of double story building bearing No.Q-452, Korangi No.2, Karachi and defendant / respondent No.2 being his elder son obtained letter of administration from the competent court of law in his favour and he was trying to transfer the suit property in the name of some other person instead of executing proper sale deed before the concerned Sub-Registrar . He stated that he is ready to pay the balance sale consideration towards subject premises.
3. He also asserted that defendant No.1 has also threatened the plaintif f to dispossess him with the help of gunda elements. He further alleged that the defendants have joined their hands to dispossess the plaintif f from the suit property and in case they are not restrained from doing so, they would succeed in dispossessing the plaintif f from the suit premises. The plaintif f sought reliefs i.e. (i) for specific performance (ii) for permanent injunction (iii) for issuing direction to defendant No.2 to handover the portion in his occupation and (iv) for declaration that the plaintif f is the absolute and lawful owner of the suit property and further declaration that his possession of a portion of the suit property is lawful.
4. Upon service of summons, both the respondents/defendants filed separate writte n statements. Respondent No.1 in his written statement mostly denied the averments as stated in the plaint. He raised a legal objection that the suit was time-barred because the plaintif f failed to fulfil his contractual obligations within the stipulated time. He stated that the plaintif f has concealed in the plaint that the parties have another sister namely Zaibo, who resides in India.
According to him, their father died in the year 1986 and not in 1996 as mentioned in the plaint. He further stated that the suit premises were leased out in his name and at no point of time their deceased father made a will or directed for handing over the premises to the plaintif f, which fact is evident from the conduct of the plaintif f that he entered into a sale agreement in the lifetime of their father . He admitted that the plaintif f had paid advance amount of Rs.10,000/- to him towards suit property but despite his demand the plaintif f did not pay any other amount and when he realized that the plaintif f had no intention to perform his part of contract, he returned the said amount of Rs.10,000/- to the plaintif f. According to him, the plaintif f was already in possession of a part of suit premises and was trying to grab the entire suit premise s and he, in fact, removed defendant No.2 from the portion occupied by him.
5. Defendant No.2 in his written statement also denied the averments of the plaint and also raised legal objections to the maintainability of the suit on the grounds of limitation and the suit being undervalued and non-payment of proper court fees. According to him, his deceased father had purchased the suit property for all of his legal heirs.
He stated that the plaintif f had played fraud in obtaining the amenities and Ration Card in his own name. He took the plea that, in fact, the plaintif f has raised the allegations against defendant No.1 due to some conspiracy hatched by the plaintif f and defendant No.1 to deprive other legal heirs of the deceased of their rights in the suit property . He averred that the suit property cannot be transferred in the name of any of the legal heirs of their deceased father .
6. The learned trial court after framing the issues, recording of evidence of the parties and hearing the counsel for the parties, dismissed the suit vide the aforesaid Judgment and Decree, against which the applicant / plaintif f filed Civil Appeal, which was also dismissed by the Appellate Court, hence, this civil revision application.
7. I have heard the arguments advanced by the learned counsel for the parties and perused the material available on the record.
8. It may be pointed out that during the pendency of the instant revision applic ation, respondent No.2 expired leaving behind no legal heir as is evident from the order dated 25.08.2015.
9. Learned counsel for the applicant / plaintiff contended that the two courts below erred in passing the impugned judgments, which are not sustainable in law and on facts. He further contended that the two courts below have not appreciated properly the evidence adduced by the parties and have passed the impugned judgments in a hasty manner . According to him, the trial Court, while giving the finding that the suit was time-barred, ignored the fact that respondent No.1 himself admitted to have received an amount of Rs.10,000/- as part payment. The trial Court also did not take into consideration that the applicant had been continuously pursuing respondent No.1 for execution of sale deed when he used to come in Pakistan. He further contended that the two courts below have not taken into consideration the 'possessory rights' of the plaintif f while giving their findings as the applicant/plaintif f had been in possession of the premises for several years. He further contended that the two courts below also erred in holding that the suit was undervalued and that proper court fees was not paid because the applicant / plaintif f did not seek specific performance of contract in respec t of purchase of house like a donor and donee, but it was for performance of document in lieu of payment of Rs.30,0 00/- demanded by respondent No.1 for execution of sale deed. He further contended that the judgments of the two courts below suffer from misreading and non-reading of evidence. He further contended that in the year 1975, when the allotment was issued in favou r of respondent No.1, he was a minor , therefore, the allotment itself was not in accordance with the law. He further contended that the allotment on the basis of 'regularization' is also unlawful, therefore, respondent No.1 was not the owner of the suit property and the same belongs to the applicant. He prayed for allowing the revision application and setting aside the impugned judgments of the two courts below . According to him, in appropriate cases this court has powers in exercise of its revisional jurisdiction even to interfere with the concurrent findings of the two courts below . In support of his contentions, he relied upon case-law reported as (i) Tariq Hussain v.The State Officer (CLC 1988 Karachi 473) (ii)
Arshan Bi v. Maula Bakhsh (2003 SCMR 318) (iii) Mst. Bano alias Gul Bano v. Begum Dilshad Alam (2011 CLC Karachi 88) (iv) Meer Hassan alias Ameer Hassan v. Federation of Pakistan through Secretary Ports and Shipping, Islamabad (2009 YLR 1827 ) (iv) Raees Ghulam Sarwar v. Mansoor Tariq Zaidi (PLD 2008 Karachi 458)
(v) Khalil Ahmed v. Mst. Azmat Ara (widow) (2014 YLR Peshawar 1782) (vi) Habibullah v. Muhammad lqbal Khan (2014 CLC Peshawar 489) (vii) Muhammad Shabbir v. Mrs. Farha Bibi (2010 CLC Karachi 1603) and (viii)
Khursheed Ahmed Butt v . Captain Feroze Aftab (CLC 201 1 Karachi 664 ).
10. Conversely , the learned counsel for the respondents, while supporting the impu gned judgments, contended that the findings of the courts below are based on sound and cogent reasons. According to him, the concurrent findings of the courts below cannot be interfered with by this Court in exercise of its revision al jurisdiction under section 115, C.P.C. He contended that the suit was filed in the year 1998 i.e. after a delay of about 17 years, as such, the suit was hopeless time-barred under Section 113 of the Limitation Act. He further contended that no prayer for declaration as well as cancellation of documents has been made in the plaint and in the absence whereof the suit was liable to be dismissed. He further contended that respondent No.1 has denied the receipt of part payment in the written statement as well as in his evidence. He further contended that the suit is undervalued and proper court fees was not paid thereon, therefore, it was rightly dismissed by the trial Court and the Appellate Court also rightly upheld the findings of the trial Court. He prayed for dismissal of the revision application.
11. It appears that according to the applicant / plaintif f, he filed the suit for specific performance of alleged agreement to sell dated 23.09.1982 executed by defendant No.1 in respect of suit property for sale consideration of Rs.30,000/-, out of which he paid Rs.10,000/- as earnest money , while the remaining amount of Rs.20,000/- was agreed to be paid at the time of execution of sale deed. It appears that the suit was filed by the plaintif f / applicant on 24.07.1998 i.e. about 16 years after the alleged sale agreement, whereas, the period of limitation, as provided under Article 113 of the Limitation Act, for filing a suit for specific performance is 3 years from the date fixed for the performance under the agreement or if no such date is fixed, when the plaintif f noticed that performance is refused by the defendant. From the perusal of the record it seems that no date was fixed for performance of the alleged agreement dated 23.09.1982, therefore, the period of limitation will start from the date when the plaintif f noticed that performance was refused by respondent / defendant No. 1. It may be observed that the applicant / plaintif f has not furnished any satisfactory explanation as to how he could not notice the refusal on the part of respondent / defendant No.1 during the long period of about 16 years i.e. from 23.09.1982 to 05.07.1998 as a man of prudent mind can easily gather from the conduct of a person / seller , who had been avoiding to perform his part of contract that, in fact, he was, at all, not ready and willing to get the suit property registered in the name of the purchaser . In this view of the matter , the findings of the courts below on the point of limitation appear to be correct.
12. So far as, the legal objection regarding deficiency in court fees and the suit being undervalued is concerned, it seems that the plaintif f in the suit has sought reliefs for declaration, specific performance, permanent injunction and possession but he had valued the suit only for specific performance for Rs.30,000/- and Rs.400/- for possession.
According to Section 7(iv)(a) of the Court Fees Act, the suit for declaratory decree with consequential reliefs as to right in, or title to, immoveable property based on alleged sale is to be valued according to the value of property , whereas, as per Section 7(V)(a) of the Court Fee Act, the suit for possession is to be valued according to the value of the subject matter and the market value of the subject matter shall be deemed to be such value. However , the plaintif f did not value the reliefs of possession and declaration of his title in accordance with the aforesaid provisions of law. The applicant's counsel took plea in this respect that the applicant / plaintif f did not seek specific performance of the contract in respect of purchase of the house in question but he simply sought performance of document for Rs.30,000/- demanded by respondent / defendant No.1 for execution of sale deed in the name of the applicant. Such plea of the applicant seems to be absurd on the face of it because the relief of specific performance has been sought by the applicant on the basis of alleged sale agreement / contract, which is evident from the admission of the applicant / plaintiff himself made in Para-15 of the plaint i.e. "Hence the plaintif f is entitled to claim specific performance of contract above referred against the defendant No.1 and also to claim injunction against the defendants."
13. There is yet another legal aspect of the case. In fact, the revisional jurisdiction of this Court under Section 115, C.P.C. has very limited scope and it can be exercised only in those cases where the subordinate court has exceeded its jurisdiction or has declined to exercise jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. It is now firmly settled law that findings of facts recorded by the First Appellate Court based on appraisal of evidence and raising of inferences in its discretion could not be interfered with under section 115, C.P.C. merely because of the reason that a different view was also possible to be taken. Hence, the impugned judgments passed by Courts below do not suffer for want of jurisdiction.
In the case of Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another reported as 2010 SCMR 817, the Honourable Supreme Court of Pakistan has held as under:- "It is also settled principle of law that findings on the question of fact or law, however , erroneous the same may be, recorded by any Court of competent jurisdiction, cannot be interfered with by the High Court, in exercise of its revisional jurisdiction under section 115, C.P. C. unless such finding suffers from jurisdictional defect, illegality or material irregularity . With reference to section 1 15, C. P . C. "
14. In the case of Haji Mohammad Din v.Malik Mohammad Abdullah reported in PLD 1994 Supreme Court 291, the Honourable Supreme Court has observed as under:- "It is well settled law that a concurrent finding of fact by two courts below cannot be disturbed by the High Court in second Civil Appeal much less in exercise of revisional jurisdiction under section 115, C.P.C. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. is still narrower . The High Court in exercise of its jurisdiction under section 115, C.P.C. can only interfere with the orders of the subordinate Courts on the grounds, that the Court below has assumed jurisd iction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity effecting its jurisdiction in the case."
15. Similar view was taken by the Lahore High Court in the case of Shahbaz Rasool and 4 others v. Aamir Imran and 7 others (2011 CLC 1941 ).
16. Applicant's counsel could not succeed in pointing out any such legal ground / defect in the impugned judgments, which could justify interference into the concurrent findings given by the two courts below by this Court in exercise of its revisional jurisdiction.
17. In view of above legal position, instant civil revision application seems to be not maintainable on this score also because the two Courts below have neither assumed jurisdiction, which did not vest in them, nor have they failed to exercise the jurisdiction vested in them by law and nor the Courts below have acted with material irregularity effecting their jurisdiction in the case.
18. Even on merits, the applicant / plaintif f does not have a good case. The claim of the applicant / plaintif f is based on a sale agreement (Ex-P/3) but from the perusal of the record it appears that Ex-P/3 is only a receipt. However , even if it is presumed that the same amounts to a sale agreement as alleged by the applicant / plaintif f, even then the same is not admissible in evidence for the reason that it relates to sale consideration of Rs.30,000/-, despite that it has not been registered, whereas, according to Section 17 of the Registration Act, every document having value of more than Rs.100/- is required to be compulsorily registered and the document falling short of the requirement would not operate to create, declare, assign, limit or extinguish in present or in future any right, title or interest, whether vested or contingent to or in immovable property . According to Section 49 of the Registration Act, if the document is not registered as required under Section 17 of the Act, such document cannot be tendered in evidence. As the instant revision is liable to be dismissed being not maintainable on legal grounds, as discussed above, hence there is no need of discussing the merits of the case in detail.
19. The upshot of the above discussion is that the instant civil revision applicatio n is hereby dismissed and the impugned judgments passed by the learned Courts below are maintained.