SHAHID BILAL HASSAN-J: Despite reflection of name of the learned counsel for the appellants in the cause list none has entered appeared on their behalf; therefore, the instant appeal being an old one is going to be decided after hearing learned counsel for the respondent and going through the record.
2. Succinctly, the present appellants instituted a suit for specific performance of agreement to sell dated 15.08.2003 regarding land in dispute, which was duly contested by her/ respondent while submitting written statement and negated the averments of the plaint. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties was recorded. On conclusion of trial, the learned trial Court decreed the suit in favour of the appellants vide judgment and decree dated 20.12.2012 with direction to deposit the remaining sale consideration within 30 days. The respondent being aggrieved preferred an appeal and the learned appellate Court vide impugned judgment and decree dated 05.09.2013 accepted the appeal and consequently dismissed suit of the appellants/plaintiffs; hence, the instant regular second appeal.
2. Heard.
3. It is an admitted position on record that the respondent is an illiterate, rustic and village household lady. In respect of a transaction germane to property with a pardanasheen, village household and rustic ladies, the Apex Court of the country in a judgment reported as Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225) has given the parameters and conditions to be fulfilled in a transparent manner and held that:- 'In case of a (property) transaction with an old, illiterate/rustic village 'Pardanasheen' lady the following mandatory conditions should be complied with and fulfilled in a transparent manner and through evidence of a high degree so as to prove the transaction as legitimate and dispel all suspicions and doubts surrounding it:- i. That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences; ii. That she had independent advice from a reliable source/person of trust to fully understand the nature of the transaction; iii. That witnesses to the transaction were such, who were close relatives or fully acquainted with the lady and had no conflict of interest with her; iv. That the sale consideration was duly paid and received by the lady in the same manner; and v. That the very nature of transaction was explained to her in the language she understood fully and she was apprised of the contents of the deed/ receipt, as the case may be.'
Moreover, this Court has already held that old and illiterate ladies are entitled to the same protection which is available to the Parda observing lady under the law; reliance is placed on Muhammad Afzal v. Muhammad Zaman (PLD 2012 Lahore 125). Furthermore, in Ghulam Muhammad v. Zahoran Bibi and others (2021 SCMR 19), the Apex Court of country has held:- 'It is settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her.'
The same remained position in judgment reported as Muhammad Naeem Khan and another v.
Muqadas Khan (decd) through L.Rs. and another (PLD 2022 Supreme Court 99), wherein the Apex Court of the country has invariably held:- 'If any such plea is taken then it is a time-honored parameter that in case of a document executed by a pardanashin lady, the burden of proof is on the party who depends on such a deed to persuade and convince that Court that it has been rad over and explicated to her and she had not only understood it but also received independent and disinterested advice in the matter. The aforesaid parameter and benchmark is equally applicable to an illiterate and ignorant woman who may not be a pardanashin lady. If authenticity or trueness of a transaction entered into by a pardanashin lady is disputed or claimed to have been secured on the basis of fraud or misrepresentation, then onus would lie on the beneficiary of the transaction to prove his good faith and the court has to consider whether it was done with freewill or under duress and has to assess further for an affirmative proof whether the said document was read over to the pardanashin or illiterate lady in her native language for her proper understanding.'
However, in the present case, none of the above said parameters have been met with and no such evidence, showing that the respondent was having an independent advice and was fully aware and cognizant of the nature of the transaction, was brought on record by the appellants. Moreover, evidence as a whole has to be read and considered by the learned appellate Court in a minute manner, as there are contradictions on material points of purchasing of stamp paper for reducing the agreement to sell Ex.P1 in the depositions of the P.Ws. which have rightly been discussed and highlighted by the learned appellate Court.
Payment of earnest money has also not been proved as P.W.3 deposed that he reached the place after completion of the deal between the parties. Moreover, P.W.2 and P.W.3 are silent about date, time, place, month or year of alleged agreement of sale of the land in question inter se the parties.
Apart from the above, it has surfaced on record that the possession was not delivered to the appellants in pursuance of the purported agreement to sell rather the same was with the appellants. Keeping in view all the above facts, especially the factum that the brother of the appellants namely Hashmat Khan used to deposit installments of mortgaged land in the treasury establish and support the stance of the respondent that her thumb impression was obtained on the pretext of depositing the installments of mortgage of land and she has been deprived of the suit property fraudulently by the appellants in this way.
Even for the sake of arguments, it is admitted that the appellant(s) have succeeded in proving their case, it is a settled law that suit can be refused to be decreed even if the agreement has been proved as it is a discretionary relief and this discretion can be exercised on equitable terms. Since it is discretionary relief and in the present circumstances, the same can be refused because the position in this case is otherwise as the appellants have miserably failed to prove their stance.
4. In addition to the above, 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 appellants.
5. Pursuant to the above, the learned appellate Court has not committed any material illegality and irregularity while passing the impugned judgment and decree rather vested jurisdiction has rightly been exercised while discussing each and every piece of evidence and construing law on the subject in a judicious manner. Moreover, it is a settled principle, by now, that in case of inconsistency between the findings of the learned trial Court and the learned Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary. Reliance is placed on Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1), Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300).
6. For the foregoing reasons, the appeal in hand comes to naught; hence, the same is hereby dismissed. No order as to the costs.