MUHAMMAD SHERAZ KAYANI, J.---The above captioned appeal has been filed against the judgment and decree passed by the District Judge, Haveli (Kahuta) dated 15.11.2012, through which the appeal filed on behalf of the present appellant has been dismissed and the judgment and decree of the Civil Judge Kahuta dated 18.01.2011 has been maintained.
2. Precise facts forming the background of the above appeal are that Faiz Alam and others plaintiffs/appellants, herein, filed a suit for specific performance of an agreement to sell against Mohammad Nasir. and others, in the court of Civil Judge Kahuta on 14.06.2000, stating therein that Father Muhammad, the predecessor -in-interest of respondents Nos, 1 to 3 alienated the land measuring 04 marla bearing old survey No, 95 renumbered as 1043-1044 situated at village Halan Shamali, in favour of appellants through sale-deed dated 14.07.1987 in consideration of Rs, 200/-. It has been contended that after taking the possession of the said land, the appellants constructed a house worth Rs, 50000/- upon the said land. It has been contended that Mohammad Naseer respondent No,1 herein, got executed a forged and fabricated sale-deed dated 10.07.1984, wherein it has been shown that Fatheh Muhammad has sold out the same land to him and thereafter, in pursuance of that forged agreement he filed a suit against the said vendor and obtained decree on 31.03.2000. It has been claimed by the plaintiff/appellants that land in question is under their possession in light of sale deed dated 14-07-1987 and the respondents fraudulently managed to execute a fabricated agreement to sale dated 10.07.1984 and the said forged instrument obtained by the respondents is liable to be struck down.
3. Upon institution of the suit, the defendants were summoned, defendant No, 4 appeared and filed written statement, wherein, he refuted the claim of the plaintiffs in toto and took the plea of cause of action and limitation. The jurisdiction of the Court was also called in question. It has been stated that plaintiffs secretly prepared a bogus and fabricated sale deed dated 14.07.1987, just to deprive the respondent from their property.
4. The learned trial Court, in light of the pleading of the parties framed issues and directed the parties to lead evidence and upon conclusion of the proceedings vide judgment and decree dated 18.01.2011 dismissed the suit. Feeling aggrieved from the said judgment and decree, the plaintiff - appellant herein, knocked the door of District Court Haveli (Kahuta) by preferring an appeal on 02.03.2012 which also met the same fate and stood dismissed vide judgment and decree dated 15.11.2012, hence, the above captioned 2nd appeal before this Court.
5. Sardar Shamshad Hussain Khan, Advocate, the learned counsel for the appellants in support of his version raised following points:--
1. That at the time of agreement dated 10.07.1984, Exh. DA, the respondent/defendant Naseer Ahmed was not major rather he was minor of the age of 16 years, hence the agreement Ex. DA is illegal and void documents and on the basis of such documents, the decree could have not been passed.
2. The plaintiffs in view of Section 79 of the Qanun-e-Shahadat Order, 1984, produced two witnesses in support of agreement to sell dated 14.07.1987, one of them, scribe Said Hussain, who is also a witness of execution of the documents and thus, the agreement to sell made in favour of the plaintiff/ appellants is fully established.
3. That the suit was filed by the plaintiff/appellants and the predecessor-in-interest of the defendants, the original owner, Kh. Fateh Muhammad filed Cognovits in the trial Court and they have admitted the claim of the plaintiff/appellants.
4. The language of the agreement to sell dated 10.07.1984 shows that in-fact it was a sale-deed as according to the alleged document, all the rights, whatsoever, were purportedly transferred to predecessor of Muhammad Naseer, defendant and in such circumstances, under the law, it was necessary that the document should have been registered before the Sub-Registrar.
5. The document; agreement to sell dated 10.07.1984 has not been proved in accordance with law as the scribe was not produced as a witness in support of his version.
6. The suit land is in possession of the plaintiffs.
6. Conversely, Sardar Iftikhar Hussain, Advocate, the learned counsel for the respondents, submitted that the evidence produced in support of the version of the plaintiffs is contradictory in nature. One of the witnesses; Hassan Din totally negated the execution of the agreement to sell dated 14.07.1987, Ex. PA and on the contrary, the defense has produced two marginal witnesses, who have supported the contents of the agreement to sell. He argued that not only, the Ex.DA was executed but later on, on the basis said agreement, a decree for declaration cum specific performance was also passed by the learned Civil Judge, Haveli on 31.03.2000 and on the basis of said decree, a sale-deed was executed in favour of the defendants. All the revenue record since, 1984 is also in favour of the defendants. The defendant/respondents, herein are not only in possession of the suit land but they have also constructed a house upon the suit land, which is admitted even by the PWs and both the Courts below have rendered concurrent findings in favour of the defendants and against the plaintiffs and concurrent findings of facts cannot be disturbed in second appeal, until and unless there is gross violation of any law or any misreading or non- reading of evidence is established.
7. I have heard the learned counsel for the parties and perused the record with utmost care.
8. Although the plaintiffs have challenged not only the validity of the agreement to sell dated 10.07.1984 but they have also challenged the sale-deed and decree passed in favour of defendant but the basic burden of proof was on the plaintiff/appellants. Their claim is based upon alleged agreement to sell dated 14.07.1987, Ex.PA. One of the marginal witnesses, Hassan Din, appeared before the Court as a defense witness and he clearly negated the execution and his signatures, purportedly, shown as his signatures on Ex. PA. The other marginal witness; Kh. Ghulam Qadir produced by the plaintiff/ appellants, in cross-examination, deposed that he has no knowledge whether the defendants are in possession of the suit land or not, he also stated that he has no knowledge whether the defendants have constructed a house upon the suit land or not. Although Said Hassan, the scribe of the document Ex.PA gave his statement in favour of the plaintiff but he has also stated that Fateh Muhammad was not identified by any other person and he stated that Hassan Din has put his signatures on the document, in his presence but Hassan Din, negated his signatures on the documents, then, the plaintiff's had the option to obtain the opinion of handwriting expert, which has not been done and definitely, the beneficiary of Ex.PA could be the plaintiff/appellants and it was for them to prove the factum of Ex.PA.
9. Even otherwise, for the sake of argument, if it is assumed that Fateh Muhammad also executed Ex.PA in favour of the plaintiffs, even then, unless, the previous agreement to sell dated 10.07.1984 is disbelieved, only then, the plaintiffs could take any benefit in respect of the suit land on the basis of agreement to sell Ex. PA but according to the judgments of both the Courts below, the factum of execution of agreement to sell dated 10.07.1984 has been established, fully and I have also perused the relevant evidence and in my opinion, it is completely established that the original owner; Fateh Muhammad executed the document in favour Muhammad Naseer.
10. The contention of the learned counsel for the appellants that the document Ex.DA, should have been registered is without any substance due to the reason that under Section 17 of the Registration Act, it is clearly mentioned that the agreement is not required to be registered. Even, according to law, an oral contract can be made and can be enforced but in the present case, it is not only an agreement to sell in favour of Muhammad Naseer/defendant but on the basis of that agreement, the decree for specific performance was passed by the Court of competent jurisdiction on 31.03.2000 and in pursuance, thereof, sale-deed was also executed in favour of the defendant/respondents, so, the question non-registration of the document becomes, immaterial.
11. The other objection of Sardar Shamshad Khan, which he emphasized with vigor that at the time of agreement dated 10.07.1984, Muhammad Naseer/defendant was of minor age and under the Contract Act, a minor cannot execute the agreement but in the present case, this proposition is not attracted due to the reason that it is for the minor or the other promisee, i,e, Fateh Muhammad or his successor to raise this question. Neither Naseer raised this objection by challenging the document dated 10.07.1984 on this ground nor Fateh Muhammad or his successors in interest challenged the document on this ground. So, with regard to this issue, in my view, the plaintiff/appellants herein have no locus standi to raise this objection. Furthermore, the agreement to sell dated 10.07.1984 was executed in favour of Muhammad Naseer and he owned it.
12. The plaintiff/appellants had not been able to place on record that when, the agreement to sell was executed in their favour in 1987, which also mentions that possession of the land was also delivered to them, why they have not taken the possession of the suit land, up-till now, after a period of about 30 years.
13. The revenue record like, copy of Jamabandi, Khasra Girdawari etc. clearly mention that the suit land is in possession of the defendant/respondents, herein, they are not only in possession but they have also constructed a house upon the said land, C which is proved on record. So, even on the basis of preponderance of evidence produced by the parties, in my opinion, both the Courts below have rightly concluded and passed the impugned judgment and decrees.
14. No misreading or non-reading of evidence and no misinterpretation or mis application of any law has been established and the law is well settled that interference in the concurrent findings returned by the D Courts below cannot be made, until and unless some misreading, non-reading of record or evidence or some departure from any law is established. There is plethora of judgments on the point. The proposition has been resolved by the Hon'ble apex Court of Azad Jammu and Kashmir in case titled Akhtar Hussain and others v. Raja Mohammad Zarin Khan [1993 SCR 114] wherein it has been observed as under:-- --A general allegation of misreading or non-reading of evidence would not render the concurrent findings of fact open to challenge-It is necessary for the party to specifically point out the witnesses whose statements were misread and support the contention by certified copies of the said statements."
15. In another case titled Adalat Khan v. Fazal Hussain and another [1995 SCR 151] the Hon'ble apex Court of Azad Jammu and Kashmir has observed as under:-- CONCURRENT FINDING OF FACTS."---Even if a different conclusion from the one reached by the Courts below is possible, the High Court is not legally competent to disturb the findings until and unless a case of non-reading or misreading of evidence is made out or a gross illegality is shown to have been committed while appreciating evidence of a witness."
16. In light of the observations made in the preceding paras and the rule of law, pertaining to the subject in issue, the instant appeal stands dismissed with no order as to costs.