' This revision application is directed against the judgment and decree, dated 8-4-1992 and 15-4- 1992 respectively passed by the learned District Judge, Nawabshah dismissing Civil Appeal No,32 of 1991 maintaining thereby the judgment and decree, dated 9-4-1991 and 20-4-1991 respectively passed by 1st Senior Civil Judge, Nawabshah whereby Suit No,46 of 1978 filed by applicant against the respondents was dismissed with costs.
2. The facts relevant for the purpose of this revision are that Faiz Muhammad Magsi, respondent No,1, who, was owner of the house on City Survey Nos.1031, 1032, 1033 and 1034, Ward "A", Nawabshah sold out these premises to Fazal Muhammad, respondent No,2 by registered sale-deed, dated 22- 1-1978. The applicant, Mst. Husna Bano set up a claim that Faiz Muhammad Magsi agreed to sell residential house situated on C-1033 and 1034, Ward "A", Gharibabad, Nawabshah to her for total consideration of Rs,7,000 and executed an agreement of sale on 1-9-1977 acknowledging therein receipt of Rs,4,000. The balance of Rs,3,000 was to be paid-at the time of registration of the final sale-deed. She pleaded that in pursuance of the aforesaid agreement, the respondent No,1 transferred the possession of the above house to her through her general attorney and as such the possession is with her. Later on through her general attorney, she approached the respondent No,1 to accept the balance of Rs,3,000 but .The respondent No,1 avoided to do so, therefore, she filed a suit for specific performance and injunction on 9-3-1978 on the ground that despite knowledge of agreement of sale in her favour the respondent No,2 purchased the premises in question. The respondents resisted the suit and filed their written statements separately. In his written statement, the respondent No,1 disclosed that he had sold his house situated on City Survey Nos.1031, 1032, 1033 and 1034, Ward "A", Nawabshah to respondent No,2 by registered sale-deed, dated 22-1-1978 and that no agreement for sale was ever executed by him in favour of the applicant. According to him the alleged agreement of sale was a forged document. Additionally, he pointed out that the boundaries and construction described in the plaint do not tally with the actual boundaries and construction of City Survey Nos.1033 and 1034. He stated in specific terms that no consideration was, at all, paid to him by the applicant. On the whole, he denied the case of applicant. The respondent No,2, in his written statement clarified that City Survey No,1032 consists of a room attached to the house bearing City Survey No,1031 while another room of the same house situated on City Survey No,1033 is also part and parcel of the said house. According to him, City Survey Nos.1031, 1032 and 1033 form one residential unit which is in his possession, while City Survey No,1034 consists of one room, one hall, one Veranda and courtyard and the applicant Mst. Husna Bano is keeping only City Survey No,1034 for the possession of which separate Civil Suit (F.C. Suit No,19 of 1979) has already been filed. He denied that an agreement for sale was executed by respondent No,1 in favour of the applicant or the possession of the premises was transferred to her in pursuance of such agreement.
3. At this stage, it would be relevant to mention that, in fact, the applicant amended her plaint with the permission of the Court after coming to know about the mistake in the said agreement and even the power of attorney, in favour of applicant, was amended but the agreement remained as it was. The respondent No,2, during the pendency of the instant suit, withdrew the other suit (F.C. Suit No,19 of 1979) and subsequently, filed a rent application against the applicant which was tried and decided by the Rent Controller, Nawabshah and First Rent Appeal has been filed against the order passed by the learned Rent Controller which is being disposed of separately. On the pleadings of the parties the trial Court settled the following issues:--
(1) Whether defendant No,1 executed sale agreement in respect of suit land in plaintiffs' favour and received amount of Rs,4,000 as part of price?
(2) Whether plaintiff was put in possession of suit land in pursuance of sale agreement?
(3) Whether plaintiff is in possession of suit land?
(4) Whether agreement, dated 1-9-1977 is forged one?
(5) What is effect of F.C. Suit No,19 of 1979 filed by defendant No,2?
(6) Whether plaintiff is entitled to the relief claimed?
(7) What should the decree be?
4. The parties led evidence on these issues and the learned Senior Civil Judge, on assessment of the evidence, dismissed the suit. .The applicant preferred an appeal which too met the same fate.
5. I have heard learned counsel for the parties and perused the relevant material.
6. Learned counsel for the parties led much stress on the scope of revisional powers to be exercised by this Court under section 115, C.P.C. Learned counsel for the applicant, on this point, placed reliance on Nasir Abbas v. Manzoor Hyder PLD 1989 SC 568 wherein it was held that if the lower Court misreads the evidence on record and fails to take notice of a vital fact appearing therein and comes to an erroneous conclusion it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court.
7. On the other hand the learned counsel for respondents referred to a number of authorities, with regard to proposition that High Court shall not interfere in its revisional jurisdiction with the concurrent finding on a question of fact rendered by the two Courts below. The latest of these authorities was Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 wherein the following observations have been made:- "4. It is well-settled law that a concurrent finding of fact by two Courts below cannot be disturbed by the High Court in second civil appeal muchless in exercise of the revisional jurisdiction under section 115, C.P.C. Unless the two Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding of fact recorded by the , two Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. Is still narrower.
The High Court in exercise of its jurisdiction under section 115, C.P.C. Can only interfere with the orders of the subordinate Courts on the grounds that the Court below has assumed jurisdiction which did not vest in him, or has failed to exercise the jurisdiction vested in him by law. Or that the Court below has acted with material irregularity effecting its jurisdiction in the case (see Umar Dad Khan v. Tilla Muhammad Khan PLD 1970 SC 288, Muhammad Bakhsh v. Muhammad Ali 1984 SCM R 504, Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 89 and Abdul Hameed v. Ghulam Muhammad 1987 SCM R 1005. Under this jurisdiction the High Court only corrects the jurisdictional errors of subordinate Courts. The fact that the High Court while reappraising the evidence on record reached a conclusion different from those arrived at by the two Courts below could never be a ground for justifying interference with the finding of a fact muchless the concurrent findings recorded by the two Courts below on the basis of evidence produced before them, in exercise of its revisional jurisdiction under section 115, C.P.C."
8. In view of the above it does not appear to be necessary to discuss other authorities on the point cited by the learned counsel, however, suffice it to say that in the cases, Gulzar Khan v. Razia Begum and 2 others 1982 SCM R 843, Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53, Mst. Khurshid Bibi v. Muhammad Rafique 1987 SCM R 1545, Muhammad Zaheer Khan and another v. Muhammad Zamir Khan 1987 SCMR 11144 and Sadiq Muhammad v. Madad Ali and 2 others 1990 SCM R 694 concurrent findings of the Courts below on a point of fact were upheld.
9. In this context, it would not be out of place to refer to the latest decision of Honourable Supreme Court relating to the scope of revisional powers under section 115, C.P.C. With regard to concurrent findings of fact recorded by Courts below the Honourable Supreme Court propounded the following guidelines in the case of Abdul Hakeem v. Habibullah 1997 SCM R 1139:-- "As earlier pointed out by us, interference with a finding of fact by the Courts below by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Could only be justified if such finding is found to be suffering from misreading of evidence or non-consideration important and material evidence or the finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C."
10. Recently in the case Naziran Begum v. Khursheed Begum 1999 SCM R 1171 the Honourable Supreme Court observed that the finding on a question of fact arrived at by the First Appellate Court which is based on no evidence, or is result of conjectures or fallacious appraisal of evidence would not be immune from scrutiny by the High Court under section 100 or 115, C.P.C.
11. Keeping in view the principles laid down by the Honourable Supreme Court it is to be seen if the Courts below, while recording the finding of fact, have either misread the evidence or ignored any material piece of evidence on record or the finding is perverse. Merely because a conclusion different from that arrived at by the two Counts below was possible shall not be made a ground justifying interference with a concurrent finding on a point of fact and unless it is established that findings are based on no evidence and are result of conjectures in consequence of fallacious appraisal of evidence, misreading, non-reading or perverse appreciation of evidence, the finding of First Appellate Court need not be disturbed in exercise of revisional jurisdiction.
12. The trial Court has, in the instant case, dealt with all the material issues together viz. Issues Nos.1 to 4 and 6. It has fully appreciated the contentions raised by the learned counsel for the parties and minutely examined the evidence concerning genuineness of the sale agreennent. The learned Judge referring to the evidence of Mst. Husna Bano has taken note of the fact that evidence given by Mst. Husna Bano in her examination-in-chief was entirely different from the averment made in the plaint. Regarding the mode of execution of the agreement she deposed in the Court in the following terms:-- "The defendant No,,l entered into the agreement of sale for the disputed house with me, for which he settled the terms and conditions with me, the other person present at that time was late Muhammad Bux. It was decided total consideration of Rs,7,000 and it was also agreed that Rs,4,000 will be paid at the time of sale agreement and he also agreed I will continue the possession of the disputed house on the basis of sale agreement. I paid Rs,4,000 to late Muhammad Bux, and they went for execution of sale agreement. The late Muhammad Bux brought the agreement after execution to me on the same date, and showed me the original agreement, and I allowed him to keep with him for safe custody."
13. On the other hand, in the plaint, she has stated that she is a Pardanasheen lady and does not move in public and that the possession of the house was transferred to her through her attorney.
Obviously, these are two flagrantly conflicting versions. The learned trial Judge has pointed out in the judgment that the copy of agreement produced as Exh.216 does not bear the signature of applicant Mst. Husna Bano. She has also given a conflicting version about the sale negotiation and signing the agreement. Her version given in the cross-examination is as follows:-- "Late Muhammad Bux Sial was residing separately at Masjid Road. I also signed the sale agreement of disputed house. My signature was obtained at house, the other witnesses present at that time were Ghulam Hussain, Misri Bhangwar, and Akbar Bhatti. The abovesaid witnesses were not known to me nor they had signed the agreement in my presence."
' The attesting witness Misri deposed otherwise, saying that he did not hear the talks of sale negotiation and that he was not on visiting terms with Mst. Husna Bano.
14. In re-examination she was confronted with the document Exh.216 and was constrained to admit that it did not bear her signature. Moreover, she further contradicted herself in cross-examination by stating that the sale negotiation had taken place one day before execution of the agreement much' against her version reproduced above. She also showed lack of her knowledge about survey numbers.
15. The witness Ali Akbar stated that he did not know Muhammad Bux, attorney of Mst. Husna Bano and he knew Faiz Muhammad Magsi alone but the learned trial Judge has pointed out that the agreement bears an endorsement that Ali Akbar introduced both parties. This witness has further stated that Shah Muhammad Shaikh was the Notary Public to whom the vendor was introduced.
He also stated that he did not know the number of disputed house and that he did not know Mst.
Husna Bano and he could not say if Mst. Husna Bano was married or not. He stated that Faiz Muhammad Magsi got Rs,4,000 in his presence from Muhammad Bux Sial but the witnesses Misri and Ghulam Hussain were not present. The learned trial Court considered in details all the infirmities appearing in the evidence of applicant and her witnesses and came to the conclusion that the evidence was not satisfactory. On the other hand the trial Court on examining the evidence produced on behalf of the respondents took the view that the evidence was fully consistent with the plea taken in the written statement and despite lengthy cross-examination nothing adverse could come on record to disbelieve them. The Court concluded that the applicant failed to discharge her burden and that her evidence on oath was totally against the averment made in the plaint while her witnesses stated something different.
16. The learned trial Court further took notice of the order passed in a rent case which was also placed on record Of the instant suit as Exh.229. This order shows that the applicant, in the ejectment proceedings instituted against her for the same premises, took the plea that the disputed property was rented out to her. As against this, her case in the instant suit is that she was put in possession in pursuance of agreement for sale.
17. The First Appellate Court has fully examined all these drawbacks and weakness in the case of applicant/plaintiff, it has also examined the evidence in details and has wholly agreed with the trial Court that the evidence on record did not establish the execution of the sale agreement in question by respondent No,1 Faiz Muhammad Magsi.
18. Since the main controversy with regard to execution of sale agreement has been resolved by both the Courts below by holding that the applicant/plaintiff failed to prove her case and the evidence placed on record did not establish her case, it is needless to examine the other aspects of the case as to whether the applicant was put in possession in pursuance of the said agreement.
19. The learned Senior Civil Judge and the learned Additional District Judge both have decided the issues by giving cogent reasons. Although the learned counsel for the applicant argued that the points for determination had not been framed within the meaning of Order XLI, Rule 31, C.P.C., therefore, in view of the rule laid down in PLD 1989 SC 568 (supra) the judgment of Appellate Court be set aside, but in this regard it may be pointed out that in the aforesaid judgment the Honourable Supreme Court had held that if the evidence on record has not been fully weighed and considered, that does not fulfil the requirements of Order XLI, Rule 31, C.P.C. And the judgment is liable to be set aside on revision. As discussed earlier in the foregoing paras, the trial Court and the First Appellate Court have fully discussed all the material points of fact and addressed themselves to the significant aspects, therefore, it could not be said that vital points have escaped notice or have been ignored. Moreover, it has been observed in 1982 SCM R 542 (supra) that a noncompliance with the strict provision of Rule 31 of Order XLI of Civil Procedure Code, 190$ may not vitiate the judgment and make it a nullity and the irregularity may be ignored if there has been substantial compliance with it. Further, 1 am of the considered opinion that while exercising supervisory jurisdiction under section 115, C.P.C. The technicalities may be avoided. There appears to be no plausible reason that merely because of technical flaws in the judgment the finding based on assessm ent of the substantive evidence on record be disturbed.
20. Learned counsel for the applicant pointed out that the applicant had moved an application for examining the scribe of the sale agreement Rasheed Ahmed which was disallowed by the trial Court by order, dated 2-4-1991. The applicant also moved an application for further examination of P.W. Ghulam Hussain which was disallowed on 8-4-1991. Learned counsel contended that the case may be remanded for retrial in which the evidence of these witnesses may be ordered to be recorded.
21. I have gone through the orders, dated 2-4-1991 and 8-4-1991 whereby the learned Senior Civil Judge has rejected the applications moved by the applicant in this behalf. It has been pointed out in the first-mentioned order that in her application under Order 16, Rule 2, C.P.C. (Exh.106) the applicant had named four witnesses including Rasheed Ahmed but after examining three witnesses the fourth one, Rasheed Ahmed was given up vide statement Exh.200. Only in the second round of evidence the applicant nreferred to call the witness Rasheed Ahmed although she recalled Misri and Ali Akbar Bhatti only. The learned trial Judge after appreciating the circumstances of the case rejected the application.
22. As regards the witness Ghulam Hussain, the order rejecting the application was passed on 8-4- 1991 and the learned counsel for the respondents submitted that the applicant was not able to get those orders set aside and now after about eight years there is no justification to upset the concurrent findings and remand the case for trial.
23. The learned trial Court further took the view that, no doubt, the plaint was amended with the permission of the Court and the power of attorney was also amended but the fact remained that the contents of agreement still maintain different particulars of the construction/boundaries of the property. Learned counsel for the applicant submitted that mentioning of wrong survey number in sale-deed was of no consequence and in this respect he placed reliance on. Mst. Shah Begum and 7 others v. Raj Muhammad and 2 others 1985 CLC 1171 [SC (AJ&K)]. In this authority it was held that mere mentioning of wrong survey number in sale-deed was of no consequence when both the parties are unanimous that the suit land which was given in possession of the appellants was, in fact, sold to them and the parties did not act under any mistake with regard to identity of land sold.
In the instant case the factual position is otherwise. The respondents have been contesting the matter not only because of misdescription of the construction/ boundaries/area but they maintain that the agreement itself is a forged one, the observations made in this authority would, therefore, not advance the applicants' case. The Appellate Court has adverted to the question of non- examination of the scribe Rasheed Ahmed and further examination of witness Ghulam Hussain and has taken the view that even if the scribe was examined and further evidence of Ghulam Hussain was recorded the execution of disputed agreement by respondent No,1 would not have been established.
24. On thorough examination of all the ambient circumstances of the case and the reasoning given by the trial Court and the First Appellate Court I am convinced that neither there is misreading of the evidence nor the findings of the Courts below are perverse. The applicant's own case is full of infirmities and she has failed to establish her case. The concurrent finding of the Courts below that the alleged agreement for sale has not been executed by Faiz Muhammad Magsi in favour of the applicant and as such the applicant is not entitled to relief of specific performance does not warrant interference. It could not be established that the Courts below exercised jurisdiction illegally or with material irregularity. The revision application is without merits and is, therefore, dismissed. There has been long litigation between the parties, hence there would be no order as to costs.