Succinctly, the present appellant instituted a suit for possession through specific performance of agreement to sell dated 17.10.1993 regarding land in dispute against the respondents No.1 to 6 with the assertion that respondent No.6/defendant No.6 was the owenr of the suit property whereas the predecessor in interest of the respondents No.1 to 5 namely Muhammad Hussain was the purchaser of tenancy rights of the State land under the Grow More Food Scheme, who entered into an agreement of sale of the suit property with the appellant/ plaintiff on 17.10.1993 for a consideration of Rs.600,000/-; that the appellant paid the entire sale consideration to the deceased Muhammad Hussain, who executed an agreement on 17.10.1993 and affixed his thumb impression on the agreement to sell; that it was settled in between the parties that the suit property would be transferred on transfer of tenancy rights in favour of Muhammad Hussain but after the death of Muhammad Hussain, litigation in between the legal heirs of Muhammad Hussain and legal heirs of original allottee namely Ahmad Din started; that the predecessor of the respondents No.1 to 5 namely Muhammad Hussain purchased the tenancy rights of the suit property from the original allottee Ahmad Din through an agreement No.832 dated 16.08.1986; that after the death of Muhammad Hussain, purportedly the appellant got instituted suit for specific performance of agreement to sell dated 06.08.1986 by the legal heirs of Muhammad Hussain against original allottee Ahmad Din on 24.12.1997; that the appellant allegedly spent a huge amount on litigation and suit was ultimately decreed vide judgment and decree dated 06.11.2007; that after passing of decree, mutation with regards to the suit property was passed in favour of the respondents No.1 to 5 and the appellant contacted them for completion of the agreement to sell dated 17.10.1993 but they procrastinated and ultimately refused; hence, the suit. The suit was duly contested by the respondents No.2/defendant No.3 and respondent No.6/defendant No.6, whereas right to file written statement of respondents No.1, 3 & 5 was struck off. 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 appellant vide judgment and decree dated 27.10.2018. The respondents No.1 to 3 being aggrieved preferred an appeal and the learned appellate Court vide impugned judgment and decree dated 05.09.2020 accepted the appeal and consequently dismissed suit of the appellant/plaintiff; hence, the instant regular second appeal.
2. Heard.
3. Considering the arguments and going through the record it is observed that the appellant instituted a suit for possession through specific performance of agreement to sell dated 17.10.1993 with regards to the suit property, allegedly entered into with him by Muhammad Hussain, deceased, predecessor in interest of the respondents, for a consideration of Rs.600,000/- and it was agreed that the suit property would be transferred as soon as the tenancy rights be transferred in favour of Muhammad Hussain, deceased; meaning thereby at the relevant time, Muhammad Hussain was having no title document of the suit property and only he was in possession of an agreement dated 06.08.1986. After death of Muhammad Hussain, legal heirs of said Muhammad Hussain instituted a suit for specific performance of the agreement dated 06.08.1986 against the original allottee namely Ahmad Din, which was decreed on 06.11.2007 and mutation was sanctioned in favour of the legal heirs of Muhammad Hussain and when the present appellant demanded the performance of agreement to sell dated 17.10.1993, the legal heirs of Muhammad Hussain refused and denied the factum of entering of the said agreement to sell by their predecessor. In order to prove his stance, the appellant though produced the marginal witnesses of the agreement to sell Ex.P6 as P.W.2 and P.W.3 but the purchase of the stamp paper by Muhammad Hussain deceased has not been proved by him while leading unimpeachable and confidence inspiring evidence as P.W.4 namely Shahzad Rasheed, son of the stamp vendor and scribe of Ex.P6 admitted that the backside of agreement Ex.P6 does not bear the signatures of deceased Muhammad Hussain about purchase of stamp paper and this fact has also been admitted by the appellant/plaintiff (P.W.1) during cross examination. The said P.W.4 frankly admitted that his father did not deposit the stamp vendor and scribe registers in the record room and he brought the same from his house, which otherwise ought to have been deposited in the record room as per relevant rules after verification from the concerned quarters, so this fact creates doubt about the veracity and authenticity of Ex.P6. This finding further finds support from the fact that there is no mentioning of CNIC number of Muhammad Hussain on the back of the stamp paper of Ex.P6 despite the fact that deceased Muhammad Hussain at the time of purported execution of the disputed agreement to sell was the resident of District Layyah and issuance of stamp paper without obtaining the copy of CNIC or mentioning its number in the register of stamp vendor as well as not obtaining its signature or thumb impression of deceased Muhammad Hussain on the back of stamp paper casts aspersion regarding its purchase by him (Muhammad Hussain).
4. It is also notable fact that at the relevant time, the present appellant was revenue Patwari and he could not bring on record any document showing obtaining of departmental permission for the purchase of the disputed property and he also did not disclose his source of income for payment of the sale consideration. Apart from this, the possession of the disputed property is also not with the present appellant rather the same has been proved to be in possession of the respondent as has been established from Ex.D2, copy of Khasra Girdawri of the suit property from Khareef 2014 to Rabi 2018. Had the appellant paid the whole sale consideration to the deceased Muhammad Hussain, he would have been in possession of the disputed property but the position is otherwise.
5. In addition to the above, the suit of the appellant was also barred by limitation because Article 113 of the Limitation Act, 1908 provides three years for filing such a suit from the accrual of cause of action when the date of performance is mentioned or if not mentioned from the date of refusal of party against whom the suit for specific performance is filed; however, in the present case, Muhammad Hussain died in the year 1995 but the suit was instituted on 11.04.2012. Moreover, if for the sake of arguments, it is admitted that the limitation started from passing of decree for specific performance in favour of legal heirs of Muhammad Hussain on 06.11.2007, even then the suit was badly barred by limitation as the same was instituted beyond the prescribed period of limitation.
6. 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.
7. 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).
8. For the foregoing reasons, the appeal in hand comes to naught; hence, the same is hereby dismissed in limine.