SHAHID BILAL HASSAN-J: Brief facts, giving rise to the instant regular second appeal are as such that on 06.05.2003, the present appellant instituted a suit for specific performance of agreement to sell dated 22.09.2002 regarding land measuring 70-Kanals 07-Marlas situated in Mauza Jago Khurd, Tehsil Phalia, District Mandi Baha-Ud-Din against the respondents. The suit was duly contested by the respondents, who controverted the averments of the plaint by submitting written statement. Out of the divergent pleadings of the parties the learned trial Court framed issues and evidence of the parties in pro and contra was recorded. On conclusion of trial, the learned trial Court vide impugned judgment and decree dated 29.01.2009 dismissed suit of the appellant, who feeling aggrieved of the same preferred an appeal but it was dismissed vide impugned judgment and decree dated 09.02.2011 by the first learned appellate Court; hence, the instant regular second appeal.
2. Heard.
3. Under Section 100 of the Code of Civil Procedure 1908, a second appeal to the High Court lies only on any of the following grounds:
(a) the decision being contrary to law or 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; and
(c) a substantial error or defect in the procedure provided by CPC 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 merits.
The scope of second appeal is thus restricted and limited to these grounds, as Section 101 expressly mandates that no second appeal shall lie except on the grounds mentioned in Section 100.
However, when the impugned judgments and decrees are read together with the evidence adduced by the parties, it appears that no such ground is available to the appellant, rather it has emerged on record that the appellant was entangled in longstanding litigation with regards to the suit property as special attorney of his wife and mother in law with the respondents, the said period has been counted for more than thirty years and when the appellant remained unsuccessful upto High Court in that round of litigation, he maneuvered and fabricated the alleged receipt dated 22.09.2002 (Ex.P1), which fact was even not disclosed during pendency of writ petition before this Court as the same was dismissed on 02.10.2002. Moreover, a suit for specific performance was also got instituted through one Sultan Ahmad, which was also dismissed upto High Court and it was observed specifically that Sultan Ahmad had forged a receipt in connivance with Mubark Ali, the present appellant.
Apart from the above, the appellant could not plead and prove the original transaction as to when, where and in whose presence the purported transaction of agreement between him and the respondents took place, where-after possession was delivered to him.
Even it does not appeal to prudent mind that when the parties had been at daggers drawn for the last thirty years, what prompted the respondents to enter into agreement to sell with the present appellant, as no evidence in this regard has been led by the appellant. It has time and again been held by this Court as well as August Court of the country that even if the plaintiff succeeds in proving his case, the discretionary decree in a suit for specific performance can be denied; however, in the present case, the position is otherwise.
4. Pursuant to the above, the learned Courts below have rightly scrutinized and appreciated evidence as well as law on the subject and have reached to a just conclusion while passing the impugned judgments and decrees. No misreading and non-reading of evidence has been committed, rather the impugned judgments and decrees are upto the dexterity and do not call for any interference by this Court. Even otherwise the concurrent findings on facts recorded by learned Courts below, through reappraisal of evidence, cannot be interfered with under section 100 of the C.P.C. and in this regard guideline has been sought from cases reported as Haji SULTAN AHMAD through Legal Heirs v. NAEEM RAZA and 6 others (1996 SCMR 1729), Amjad Sharif Qazi and others v. Salim Ullah Faridi and others (PLD 2006 Supreme Court 777) and Nazeer Ahmed v. Maqsood Ahmed (2008 SCMR 190).
In the case of Nazeer Ahmed ibid the Hon'ble Supreme Court of Pakistan held: '4. It is well settled that a second appeal to the High Court shall lie from every decree passed in appeal by any Court subordinate to a High Court on the grounds: (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine same material issue of law or usage having the force of law; and (c) a substantial error or defect in the procedure provided by Civil Procedure Code, 1908 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 merits.
5. From the aforesaid discussion, it would, thus, appear that the scope of second appeal is restricted and limited to the grounds prescribed by law and second appellate Court is not expected to enter into re-appraisal of evidence or to strike down concurrent findings of fact unless the case falls within any of the exceptions described hereinabove..........'
5. Crux of the above discussion is that no infirmity is apparent on the record warranting interference by this Court. Resultantly, while placing reliance on the judgments supra, the regular second appeal in hand being devoid of any force and substance stands dismissed. No order as to costs.