The captioned appeals have been directed against the judgment and decree passed by the learned Additional District Judge, Hattian Bala, on 24.01.2008 whereby the judgment and decree passed by the learned Civil Judge, Hattian Bala, on 16.09.2006 was maintained.
2. As common questions of facts and law are involved in the captioned appeals, therefore, the same are decided through this single judgment.
3. Common facts forming the background of the Appeal No, 56/2008 are that plaintif f/appellant, herein, filed a suit for declaration-cum perpetual injunction and revocation of sale-deed dated 19.08.1995 pertaining to land Khewit No, 70 Khata No, 304 min (old) Survey No, 6 (new) Survey No, 7 min measuring 3 Kanal 4 Marlas situated in village Gojjar Bandi Tehsil Hattian Bala District Muzaf farabad. On filling of suit the defendant was summoned who appeared before the Court and filed written statement wherein claim of the plaintif f/appellant was refuted and it is prayed therein for dismissal of the suit. During pendency of the said suit, a rival suit was filed by Tariq Mehmood/plaintif f for declaration/possession-cum perpetual injunction pertaining to (old) Survey No, 6 (new)
Survey No, 7 min measuring 3 Kanal 4 Marlas alongwith Shamlat-deh land situated in Mozia Gujjar Bandi Tehsil Hattain Bala District Muzaf farabad. On suit, the defendant/appellant was summoned who appeared before the Court and filed written statement where in stand taken in the suit was repudiated entirely and it is prayed for dismissal of the same. On 24.08.1997 both the suits were consolidated and after framing 11 issues including relief, recording evidence and hearing the parties, the trial Court dismissed the suit of plaintif f/appellant, Sultan Ahmed, and partly accepted the suit of plaintif f/appellant/T ariq Mehmood whereby ,a sale-deed dated 19.08.1995 to the extent of 1 Kanal 4 Marlas was cancelled pertaining to land (old) Survey No, 6 (new) Survey No, 7 min and rest of sale-deed to the extent of 2 Kanal was restored whereas the suit filed by Sultan Ahmed was dismissed vide judgment & decree dated 16.09.2006 against which two separate appeals were filed before the learned Additional District Judge, Hattian Bala, which met the same fate vide impugned judgment & decree dated 24.1.2008, hence, these appeals.
4. The learned counsel for the appellant, Sultan Ahmed, more or less, reiterated the grounds of appeal and argued that the impugned judgments and decrees are the result of misreading and non-reading of evidence because the learned Courts below fell in error while scrutinizing the evidence. The learned counsel contended that an agreement was contracted between the parties, which is in possession of the defendant/respondent whereby it was acknowledged that the disputed land will remain in possession of the appellant and on the payment of Rs,50000/- by the defendant/T ariq Mehmood, they will mutually withdraw the sale transac tion dated 19.08.1995 whereas expenses of said transaction were borne by the appellant (donor) instead of respondent (vendee). The learned counsel averred that the appellant, proved his case through cogent evidence but the learned Court below did not take into account the same because one way trial Court admitted the claim of expenses of Rs, 14000/- borne by him but the other refused the averments the plaint and this pivotal moot point of the controversy was overlooked by the 1st appellate Court. The learned counsel prayed for acceptance of appeal while setting-aside the judgments and decrees of the learned Courts below .
5. The learned counsel for the respondent/appellant, Tariq Mehmood, mainly argued that a sale-deed dated 19.08.1995 pertaining to land measuring Khewit No, 70 Khata No, 304 (old) Survey No, 6, (new) Survey No, 7 min total measuring 3 Kanal 4 Marlas was rightly executed, which has not been denied by the other side and it is an admitted fact whereas plaintif f/respondent has not denied the entries made in sale transition and Khewit No, 70 and 71 consist of Khata No, 304 while Survey Nos, 6 & 7 are of Khewit No, 71 but inadvertently (old) Survey No, 9
(new) Survey No, 9 of Khewit No, 70 could not be written in the said sale transaction, hence, the learned Courts below ignored this vital piece of evidence apparent on the face of record. The learned counsel craved that the learned trial Court partly accepted the plaint to the extent of land measuring 2 Kanal and illegally cancelled the sale-deed to the extent of 1 Kanal 4 Marlas , hence, the learned Courts below fell in error while deciding the suit and appeal and the reliance was placed upon [2002 SCR 435].
6. I have heard the learned counsel for the parties and perused the record of the learned Courts below with utmost care.
7. The contention of the learned counsel for respondent/ appellant, Tariq Mehmood, that a sale-deed dated 19.08.1995 pertaining to land measuring Khewit No, 70 Khata No, 304 (old) Survey No, 6, (new) Survey No, 7 min total measuring 3 Kanal 4 Marlas was rightly executed, which is an admitted fact and was not denied by the other side whereas plaintif f/respondent has not denied the entries made in sale transition and Khewit Nos, 70 & 71 consist of Khata No, 304 while Survey No, 6 & 7 are of Khewit No, 71 but inadvertently (old) Survey No, 9 (new)
Survey No, 9 of Khewit No, 70 could not be written in the said sale transaction and trial Court instead of granting the decree of 3 Kanal 4 Marlas wrongly granted to the extent of 2 Kanal and the 1st appellate Court also wrongly upheld the judgment and decree of the trial Court, hence, the learned Courts below ignored this vital piece of evidence apparent on the face of record, has no substance because from perusal of sale-deed dated 19.08.1995 appended alongwith suit as "Exh.DB" it shows that plaintif f/Sultan Ahmed vendor executed the above-mentioned in favour of defendant/T ariq Mehmood vendee pertaining to Khewit No, 70 Khata No, 304 (old) Survey No, 6 (new)
Survey No, 7 measuring 3 Kanal 4 Marlas and it appears from the scrutiny of Misl-e-Haqiyat dated 19.08.1995 that actually the transaction was made from Khewit No, 71 Khata No, 304 (old) Surve y No, 6 (new) Survey No. 7 but inadvertently written as Khewit No, 70 whereas according to revenue record, Khew it No, 70 was entered as Khata No, 304 (old) Survey No, 9 (new) 9, hence, both the learned Court below rightly concurred that the transaction was made pertaining to Khewit No, 71 measuring 2 Kanal according to fractional share of Sultan Ahmed and to the extent of land measuring 1 Kanal 4 Malars , the sale-deed dated 19.08.1995 was legally revoked. The case law referred to and relied upon by the learne d counsel for the appellant, Tariq Mehmood, is distinguishable from the peculiar circumstances of the instant case because every case has its own facts. The contention of the learned counsel for the appellant/Sultan Ahmed that it was agreed through agreement executed between the parties that the land in dispute will remain in possess ion of plaintif f/ appellant and on payment of Rs,50000/- they will mutually withdraw from the above-mentioned sale transaction but the said agreement remained in possession of the defendant carries no weight because if it was so, the plaintif f/appellant, Sultan Ahmed, was in legal obligation to file the suit for specific performance under the relevant provisions of law against the defendant for fulfilling the conditions of the same but he failed to do so. Even otherwise, by producing eviden ce before the trial Court, he also remained unsuccessful to substantiate his claim with regard to the execution of the agreement.
8. As both the parties came before the Court for revocation of sale-deed dated 19.08.1995 and specific possession on the basis of ownership but the suit filed by Tariq Mehmood was rightly decre ed to the extent of 2 Kanal on payment of expenses of sale transaction Rs, 14000/- and a rival suit was rejected by the trial Court. Both the parties filed separate appeals before the 1st appellate Court.. which were rightly dismissed after scrutinizing the record and evidence led by them. Thus, no ambiguity or illegally appears to have been committed by the learned Courts below and there is now clue of misreading and non-reading of evidence because it was the duty of the litigant parties to substantiate their version through cogent and reliable evidence but they failed to specifically point out that which part of their evidence was misread or non-read by the Courts below whereas it is necessary for the party to specifically point out the witnesses whose statements were misread or non-read or which document, or part of the document was overlooked. Similar proposition has been resolved by the apex Court in a case titled Akhtar Hussain and others vs. Raja Muhammad Zarin Khan (1993 SCR 1141 in which relevant caption (a) is reproduced as under:-- "If there was any misreading or non-reading of evidence, it was essential for the petitioners to specifically point out the witnesses whose statements were misread and support the contention by certified copies of the said statements. Merely a general allegation that evidence has been misread would not render the concurrent findings of Courts below on a question of facts open to challenge. Thus finding no force in the petition it is hereby dismissed."
9. Even otherwise, the concurrent finding of facts cannot be disturbed in second appeal unless any grass illegality or infirmity is shown to have been committed by the Courts below or the grounds incorporated in Section 100 of Civil Procedure Code fulfill the assertion of the appellant, however , the same are lacking in the instant case, which do not cover the assertion of the above Section. For proper appreciation of the matter Section 100 of Civil Procedure Code is reproduced as under:-- "100. Second appeal: (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits."
Similar proposition has been resolved in a case titled Prem Singh and another vs. Mohammad Khurshid and others [AIR, 1927 Lahore 574] wherein it has been held that:-- "Findings of fact recorded by the lower appellate Court, even if erroneous, so long as they are based upon evidence, are binding in second appeal."
Same proposition has been resolved by the apex Court in a case titled Adalat Khan vs. Fazal Hussain & another [1995 SCR 151] wherein it has been observed at page 154 in the following words: "Even if a different conclusion from the one reached by the Courts below is possib le, 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."
An identical point came under considerati on before the apex Court in a case titled Fazal Karim vs. Abdul Manaf and another [1997 SCR 226] in which relevant caption (a) is reproduced as under: "It is practically a settled law that concurrent findings of fact recorded by the trial Court and the first appellate Court cannot be disturbed by the High Court, howsoever , erroneous they may be but in the instant case the findings recorded by the Courts below cannot be termed as erroneous particularly so when the same were approved and confirmed by the High Court."
10. The logical inference of the foregoing reasons is that no illegality or infirmity in the concurrent finding-of facts arrived at by n the learned Courts below dated 16.09.2006 & 24.01.2008 respectively appears to have been committed, which warrant no legal interference by this Court in second appeals, therefore, the same are hereby dismissed with no order as to costs. A copy of this judgment shall be annexed with other relevant file.