This Regular Second Appeal is directed against the judgments and decree dated 31.10.201 1 and 16.05.2015, whereby the suit for specific performance of contract/declaration alon g-with consequential relief filed by the appellant was dismissed.
2. The facts necessary for the disposal of this appeal are that, that the appellan t/plaintif f filed a suit for specific performance of a contract, along with declaration alleging therein that Muhammad Akram son of Jalal Khan real brother of the appellant, who was owner of 75-Kanals (suit land) out of 224-Kanal s. 15-Marlas to the extent of his shares 1/3, entered into an agreement to sell with the appellant regarding nil property for a consideration of Rs.
12,00,000/-, a receipt to this effect was also executed. Further alleged in the suit, that the predecessor of the respondents received whole consideration of the sale and handed over the possession of the suit land to the appellant, therefore, since then, the appellant is enjoying the possessory and proprietary rights of the suit property .
Lastly contended, that after the death of Muhammad Akram his heirs were time and again asked to register the sale deed in favour of the appellant but they instead of exceeding the legal demand of the appellant, got entered the inheritance, mutation on 09.09.1999 in their favour and on the basis of said mutation, the. transfer of suit land by way of Mutation No. 564 dated 28.02 .2006 in favour of Ameer Ali Khan is product of fraud, fabrication and collusion, therefore, liable to be declared illegal, unlawful and without lawful authority .
Suit was contested by Respondents No. 1 to'` 3 by filing their written statement wherein they denied the averments made in the plaint and also denied the transaction by deceased Muhammad Akram in favour of the appellant. It was also mentioned in the written statement, that the appellant who is real paternal uncle of the respondents, has fabricated this agreement to sell just to deprive the respondents from their inherited property .
The respondents/Defendants No. 4 to 6 submitted a consenting written statement and stated, that they would have no objection if the suit is decreed in favour of the appellant.
3. The learned trial Court out of the controversial pleadings, framed as many as nine issues, recorded the evidence of the parties, and after hearing the arguments, dismissed the suit. Being aggrieved thereof, the appellant preferred an appeal which too was dismissed. Hence, this Regular Second Appeal.
4. Learned counsel for the appellant mainly argued, that there is a written contract which is supported by a receipt, therefore, it is sufficient to prove, that the appellant and the predecessor of the respondents entered into an agreement and the total sale consideration was received by the predecessor of the respondents. Further contended, that the learned' Courts below on the baseless and flimsy ground, non-suited the appellant, therefore, the concurrent finding is against the record and the law applicable on the case.
5. Heard. Record perused.
6. It is not denied by the learned counsel for the appellant, that the real brother of the appellant, namely , Muhammad Akram died issueless and the inheritance mutation was entered in the name of the respondents who are legal heirs of the deceased Muhammad Akram; that the appellant has failed to produce the other marginal witness of the agreement to sell; that the agreement to sell and the appointment of the arbitrator to resolve the controversy qua the suit land between the appellant and the predecessor of the respondents, namely , Muhammad Akram is of the same day .
7. It looks very ridiculous, that the appellant and the predecessor of the respondents, as claimed by the appellant, entered into agreement of sale through a written agreement dated 13.06.1998 and on the same day, the matter was referred to an arbitrator with the consent of the parties. Subsequently , arbitrator announced the award which was also made rule of the Court. When this part of the record was confronted to learned counsel for the appellant, the learned counsel could not refer anything from the record to show the difference arose on the same clay and the matter was referred for arbitration.
8. The appellant as appears from the record, could not produce the other marginal witnesses of the agreement to sell, therefore, the learned Courts below rightly concluded, that the appellant has miserably failed to prove the agreement to sell by producing two marginal witnesses and there is no justification apparently appearing from the record that why the matter was referred to an arbitrator .
9. The Hon'ble Superior Court in plethora of judgments has held, that the concurrent findings on facts and law should not be interfered in routine but in a case where the glaring illegality has been committed by the learned Courts below , while in this case no such illegality , irregularity or jurisdictional defect has been pointed out.
I find support from the valuable judgments of the Hon'ble Supreme Court of Pakistan, titled "Cantonment Board through Executive Officer Cantt, Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469 ), Noor Muhammad and others v. Mst, Azmat-e-Bibi (2012 SCMR 1373 ), Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984), Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another (2008 SCMR 428), and "Abdul Ghafoor and others v.
Kallu and others (2008 SCMR 452)", that the High Court, in the case of concurrent findings, normally does not interfere unless the same is result of exercise of jurisdiction not vested in the learned Coupts below .
10. In view of the above, I see no reason to interfere with the concurrent findings rendered by the learned Courts below . Resultantly , this Regular Second Appeal is dismissed with no order as to costs.