1. ' The brief facts out of which the present appeal arises are that allegedly agreement to sell was executed between Malik Muhammad Iqbal respondent No,1 and Bakhtawar respondent No,2 regarding the property in question for consideration of Rs,1,50,000 out of which Malik Muhammad Iqbal paid Rs,50,000 to Bakhtawar respondent as earnest money. Bakhtawar sold the land in question vide registered sale-deed dated 12-12-1983 for consideration of Rs,1,80,000 to the present appellants. Muhammad Iqbal respondent No,1 filed suit for permanent injunction on 17-12-1983 against Bakhtawar and three others to restrain them to alienate the property in question to third person which was rejected on the same day under Order 7, Rule 11, C.P.C. Muhammad Iqbal filed a suit for specific performance of agreement to sell dated 15-9-1983 against Bakhtawar and appellants on 1-2-1984. The appellants and respondent No,2 filed joint written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed the following issues:--
(1) Whether the defendant No,1 agreed to sell the suit property to the plaintiff for Rs,1,50,000 OPP.
(2) If issue No,1 is proved whether the defendant No,1 received Rs,50,000 as earnest money from the plaintiff? OPP.
(3) Whether the plaintiff is entitled to specific performance of the contract? OPP.
(4) Whether the alleged agreement to sell is fictitious and bogus? OPD.
(5) Relief.
2. ' The trial Court decreed the suit vide judgment and decree dated 14-1-1987. The appellants being aggrieved by the aforesaid judgment and decree filed appeal before the District Judge, Faisalabad who entrusted the same to learned Additional District Judge, dismissed the same vide judgment and decree dated 3-2-1991, hence the present second appeal.
2. The learned counsel of the appellants contended that in case the contents of the two plaints are put in juxtaposition then it is evident that the agreement to sell executed between Muhammad Iqbal and Bakhtawar contained different dates and consideration price. In the first plaint the consideration amount was mentioned Rs,2,60,000 whereas in the second plaint consideration amount is mentioned Rs,1,50,000. He further stated that respondent No,1 failed to produce Rab Nawaz other attesting witness meaning thereby produced only one attesting witness, therefore, both the Courts below decided the case against the appellants without adverting to the Articles 79 and 17(2) of Qanoon-eShahadat Order, 1984 and the law laid down by the superior Courts and he relied upon the following judgments:-
(1) PLD 1995 Lah. 395,
(2) 1996 SCMR 256 and
(3) 1994 MLD 1622.
3. ' He further stated that Muhammad Iqbal admitted in cross-examination that Rab Nawaz second attesting witness is not related to him but subsequently he admitted that he is son of his real brother Allah, Ditta, therefore, statement of Muhammad Iqbal was wrongly given due weight by both the Courts below. He further stated that statements of P.Ws.2, 3 and 4 are at variance regarding the possession of the land given to Muhammad lqbal. Similarly Exh.P.1 agreement to sell also reveals otherwise, therefore, judgments of both the Courts below are result of misreading and non-reading of the record. He further sated that second suit is barred by law by virtue of Order 2, Rule 2, C.P.C. He further stated that subscriber did not attest the agreement to sell as attesting witness, therefore, his statement cannot be considered as attesting witness as the principle laid down by the Hon'ble Supreme Court in PLD 1984 SC (AJ&K)
138. He further stated that judgments of both the Courts below are result of misreading and non-reading of evidence and this Court has ample jurisdiction to set aside the concurrent finding of fact as the principle laid down by the Hon'ble Supreme Court in the following judgments:-
(1) PLD 1974 SC 22 and
(2) PLD 1992 SC 838.
4. ' The learned counsel of the appellants stated that circumstantial evidence proves that agreement to sell was not executed between respondents Nos.1 and 2 as the principle laid down by the Superior Court in 1991 CLC Note 119 at p.96 ' 1991 CLC Note 132 at p,109.
5. ' The learned counsel of the respondents stated that both the Courts below have given concurrent finding of fact that agreement to sell was executed between respondents Nos.1 and 2. This Court has no jurisdiction to disturb the finding of fact even if view of both the Courts below are erroneous as the principle laid down in 1992 SCMR 2298, He further stated that learned counsel of the appellant failed to point out any piece of evidence which was misread by both the Courts below, therefore, this Court has no jurisdiction to substitute its own finding in place of decision of both the Courts below. He further urged that both the Courts below have given finding of fact after proper appreciation of evidence, therefore, R.S.A is not maintainable as the principle laid down in PLD 1955 FC 38. He further stated that Exh.D.5 was not proved by the appellants in accordance with law as no question was asked from the P.W. Regarding Exh. D.5, therefore, same is to be excluded by virtue of Articles 47 and 48 of the Qanun-e-Shahadat Order 1984. He further urged that first suit was filed by the respondent No,1 for permanent injunction against Muhammad Iqbal and three others regarding different property and different owners as mentioned in the first suit plot measuring 18 marlas and 1 sarsai whereas in the second suit semi-constructed plot is mentioned measuring 19 marlas and 7 sarsais, therefore, Order 2, Rule 2 is not attracted in the present case. He further stated that subscriber of Exh.P.1 Muhammad Farooq appeared and admitted that agreement to sell was executed in his presence and attesting witness signed the same in his presence, therefore, requirement of Article 79 of Qanun-e-Shahadat Order is fulfilled as the principle laid down by this Court in PLJ '1997 Lah. 117 (sic). He further stated that joint written statement was filed by the appellants and respondent No,2 but subsequently it appears that Bakhtawar engaged another counsel and the opportunity was given to him to cross-examine P.W.1., P.W.2., P.W.3 but he did avail the opportunity as is evident from the record. Therefore, statements of P.W.1 to P.W.3 be accepted as gospal truth against Bakhtawar. He further stated that the suit was decreed against the appellants and Bakhtawar but Bakhtawar did not file appeal before the first appellate Court and also did not file second appeal before this Court, therefore, judgments of both the Courts below are final qua Bakhtawar and the appellants have to come under the foot-print of Bakhtawar. The learned counsel of the respondent stated in this case respondents produced two types of evidence consisting of documentary and oral evidence i.e agreement to sell Exh. P.1 which was duly proved and corroborated by P.W.1. P.W.2 and P.W.3. He further urged that appellant and respondent No,2 failed to take objection in their written statement, therefore, these points cannot be looked into.
6. Parties are bound by their pleadings by virtue of Order 6, Rule 2, C.P.C. He summed up his arguments that the report of the Handwriting. Expert is in favour of respondent No,1 which was obtained on the application of the appellant and respondent No,2. They. Did not file any objection regarding this report. Learned counsel for respondents stated that agreement to sell was executed on 15-9-1993 and Qanun-e-Shahadat Order, 1984 was promulgated and enforced on 28-10-1984.
7. The provisions of Qanun-e-Shahadat Order are not applicable in the present case as competent body at the time of promulgation, the Order does not provide enforcement of the Order with the retrospective effect. Therefore, Articles 79 and 17(2) of Qanun-e-Shahadat Order, 1984 are not applicable. He relied upon the following judgments: ' 1997 CLC 1580 and 1992 MLD 860.
8. ' He further stated that at the cost of repetition that the appellant/respondent No,1 filed joint written statement and the defence was taken only by respondent No,2 to the denial of execution of agreement to sell. The appellants did not take independent defence in the written statement.
9. Therefore, appellants are not entitled to take benefit of bona fide purchaser as is evident from the plaint and the written statement that the appellant did not take any specific stand qua the bona fide purchaser that is why the trial Court did not frame issue regarding this controversy. He further urged that there are different modes proving the document which are as follows:-
(i) By producing attesting witness.
(ii) By producing scriber.
(iii) Admission for executant.
(iv) Handwriting Expert.
10. ' In the present case scriber and one attesting witness appeared and proved that agreement to sell was executed. The report of the Handwriting Expert is also in favour of the respondent No,1.
11. ' Therefore. Both the Courts below were justified to give concurrent findings of fact against the appellants. He further stated that certified copy of the earlier suit was only brought on record but the same was not proved in accordance with the provisions of the Evidence Act. In the earlier suit consideration was mentioned as Rs,2,60,000 but respondent No,1 admitted in cross-examination to the extent that the consideration was fixed Rs,1,50,000. The plaint could be amended after the knowledge of the consideration mentioned in the plaint amounting to Rs,2,60,000. The consideration mentioned in the sale-deed is amounting to Rs,1,80,000 which is close to the consideration mentioned by respondent No,1 in the subsequent suit. The contents of the para. 2 of the plaint was denied specifically. Exh.P/1 was proved on the record in accordance with law. He further stated that appellant has not taken specific stand in the joint written statement that he purchased the land in question bona fidely. Therefore, appellants have no locus standi to file first appeal as well as second appeal before this Court. He further stated that in view of the admitted position that appellants did not take specific independent stand in their written statement.
12. Therefore, Order 41, Rule 33 is not attracted and the appeal is liable to be dismissed on this ground alone as the vendor has to sink with the vendee. He further stated that non-production of attesting witnesses is not material as the principle laid down in 1995 CLC 1441. Scriber is also attesting witness. He relied upon 1993 CLC 2597. He further stated that learned counsel for the respondent No,2/defendant No,1 closed his evidence on 1-12-1986 and Exh.D/5 was produced after closure of the evidence. Therefore, same is not placed on record in accordance with the provisions of Article 140 of the Qanun-e-Shahadat Order, 1984. The same document can be ignored. He further stated that respondent No,1 stated in his written statement that property in question was in his possession at the time of executing agreement to sell with respondent No,2. The sale deed was executed subsequently. Local Commission was appointed by the trial Court who has given report in favour of respondent No,1 that property in question is in possession of respondent No,l. He summed up his arguments that both the Courts below have rightly attested the case against the appellants and the 2nd appeal is not maintainable against the concurrent findings of fact arrived by both the Courts below.
3. Learned counsel for the appellants in rebuttal stated that Muhammad Farooq scriber admitted in the following terms in the cross-examination:{{URDU TEXT}} ' In view of the aforesaid admission at the scriber is not termed as attesting witness as mentioned in Article 79 of Qanun-eShahadat Order and the law laid down by the supreme Court of AJ&K PLD 1984 SC (AJ&K)
138. He further stated that the Hon'ble Supreme Court has interpreted the Article 17 read with Qanun-e-Shahadat Order. 1984 and laid down principle that agreement to sell be attested by two witnesses in PLD 1996 SC 256. He further stated that \respondent No,2 has sold the land in question to the appellants and he is no more interested in the proceedings and the appellants were party in the proceedings since the suit filed by respondent No,1 against the appellant and the respondent No,2 therefore the appellants are well within their right to file appeal before the first appellate Court as well as before this Court and he relies upon PLD 1982 SC 457. He further stated that evidence on record qua issue No,4 produced by the respondent No, I has lot of discrepancies. The agreement to sell Exh.P/1 mentioned the date of execution i.e 15.9.1983 whereas Exh.D/5 mentioned the date of execution January 1982. Agreement to sell is written on plain paper.
13. P.W.2 admitted that, stamp paper was brought by Muhammad lqbal appellant. Similarly there is a difference regarding consideration of the plot in question in the earlier plain/Exh.D/5 reveals that consideration amounting to Rs,2,60,000 whereas the present plaint reveals consideration amounting to Rs,1,50,000. Similarly, evidence on record is contradictory in nature qua the possession as is evident from the contents of the agreement to sell, para. 1 of the plaint as statement of P.W.2. He further stated that contention of the learned counsel for the respondent No,1 that properties mentioned in/both suits are differed has no force as the same is factually incorrect and is against the record as P.W.4 Muhammad Iqbal admitted that properties mentioned in both the suits are one and the same. He further stated that Exh. D/5 has brought on record without objection of respondent No,1. The same, cannot be ignored. The respondent No,1 has no authority to challenge the admissibility of the document in the 2nd appeal. He relied upon: ' 1989 SCMR 1001, AIR 1943 PC 83 and PLD 1968 SC 140.
14. ' He further stated that opinion of the Handwriting Expert is very weak evidence. He relied upon the following judgments: ' 1987 SCMR 155 and 1985 SCMR 359.
15. ' This Court has ample power to grant any relief. Even to the party who has not filed appeal by virtue of Order 41, Rule 33, C.P.C.
4. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record. I would like to deal the preliminary objection of the learned counsel for the respondent No,1 that respondent No,2 accepted the judgment and decree of the trial Court and did not file the appeal before the First 'Appellate Court 2nd appeal before. This Court. Therefore, 2nd appeal is not liable. The contention of the learned counsel for the respondent has no force as the appellants have purchased the land from respondent No,2 and are competent to file appeal before the first appellate Court as well as before this Court by virtue of section 146 of the C.P.C. Even otherwise this Court has ample power to vary the judgment of the trial Court or appellate Court or pass decree in favour of any party, although such party had not filed any appeal by virtue of Order 41, Rule 33, C.P.C. As the law laid down by the superior Courts in the following judgments;- ' Dr.Mazhar Hussain's case PLD 1962 Lah. 38, ' PLD 1964 Dacca 119; PLD 1992 Kar.78, ' Akram Aziz's case NLR 1992 Civil 537, ' Hashim Ali Shah's case 1993 MLD 889, ' Mst.Ifat Chaudhry's case 1993 MLD 695 and ' PLD 1966 Pesh.147 and Allah Bachayo Khan's case PLD 1964 Kar.569.
16. The contention of the learned counsel for the respondent that Exh.D-5 was not properly proved has no force as the document was exhibited without any objection. I am fortified by the following judgments.
17. ' AIR 1943 PC 83; 1989 SCMR 1001 and AIR 1943 PC 83; PLD 1968 SC 140.
18. It is admitted fact that agreement to sell was executed on 15-9-1983 and Qanun-eShahadat Order was promulgated on 2.81101984, therefore, provisions of Article 17(2) of Qanun-e-Shahadat is not applicable. I am fortified by the law laid in Muhammad Anwar's case 1992 MLD 860 that document cannot be ignored .That it was not attested by two witnesses in violation of the aforesaid Articles as the law laid down by the Division Bench of this Court in Syed Muhammad Sultan's case 1997 CLC 1580. It is admitted fact that Muhammad Amin one of the attesting witnesses of agreement to sell while appearing in witness-box approved the contents of agreement to sell. Muhammad Farooq P.W.2 appeared who is subscriber of agreement to sell and stated in his examination-in-chief and admitted that agreement to sell was written by him in presence of Muhammad Amin and Malik Rab Nawaz, who signed the documents in his presence and admitted in examination-in-chief in the following terms.{{URDU TEXT}} Therefore, P.W.2 Muhammad Farooq is also termed as attesting witness. I am fortified by Nazir Ahmad's case 1993 CLC 257 and the relevant observation is as follows: - "The position is different if after writing, the deed is actually executed in the presence of the scribe.
19. In the present case, the parties had executed the document in the presence of the scribe and signed it. Even the two attesting witnesses had signed the document in the presence of the scribe.
20. Under these circumstances the scribe can be treated to be an attesting witness although he has not signed it in that capacity. The requirements of the provisions of Qanun-e-Shahadat have been substantially complied with. The view that a scribe, in suitable cases, can be treated as an attesting witness, finds support from judgments in the case, of Thakurdas and another v. Topandas and others AIR 1929 Sindh 217, Ghanshamsingh Tirathsing and another v.
21. Muhammad Yacoob AIR 1933 Sindh 257."
22. ' I am also fortified by Mst. Noor Bibi's case 1991 SCMR 1281. The judgment cited PLD 1984 SC (AJ&K)
23. 138 by the learned counsel for the appellant is distinguished on facts and law as in the cited. Case on the ground that a witness who identified the execution before the Sub-Registrar cannot be treated as attesting witness if he does not sign the endorsement before the Sub-Registrar in presence of execution but in the present case agreement to sell was written by P.W.2 and attesting witnesses have signed in his presence. In view of these circumstances the requirements of Article of 17(2) and Article 79 are fulfilled.
24. ' It is also admitted fact that respondent No,2 did not deny his thumb impression on the agreement to sell. The report of handwriting expert was obtained by the Trial Court on the application of respondent No,2. Muhammad Ashraf Baig P.W.1 approved the contents of report Exh.P.3 and stated I am hundred per cent sure that thumb-impression of Bukhatwar is on the agreement to sell.
25. Respondent No,2 simply denied that agreement to sell in the written statement but subsequently changed his version at the time of recording the evidence, thumb-marked on the white paper on the intervention of Nawaz and Muhammad Akbar Inspector Police. This fact was not mentioned in the written statement which clearly reveals that it is afterthought as the report of expert is against him. Both the Courts below have given concurrent findings of fact against the appellant and respondent No,2 that Agreement to sell was executed in favour of respondent No,1 after appreciation of on record.
26. ' Having perused the entire evidence with the assistance of learned counsel for the parties I find myself in agreement with the Courts below. The execution of document has been established by respondent No,1 as mentioned above, respondent No,2 admitted in cross-examination that he thumb-marked the blank paper, therefore, onus is automatically shifted upon respondent No,2 and appellant to prove that agreement to sell Exh.P/1 was not executed by respondent No,2 in favour of respondent No,1 with definite evidence but the appellant Respondent No,2 failed to discharge their onus to bring on record definite and strong evidence that the agreement to sell was executed by respondent No,2 in favour of respondent No,1 by fraud and misrepresentation. It is also admitted fact that appellant did not allege ground of bona fide purchaser in his written statement, therefore, both Courts below rightly ignored the principle of bona fide purchaser as the principle laid down by the superior Courts in the following judgment: ' Muhammad Khan's case PLD 1994 Pesh.209, ' Mukhtar Ahmed's case PLD 1994 SC 674 and ' Muhammad Ashiq's case 1991 CLC 676 ' It is pertinent to mention here that before the first appellate Court appellant's counsel has only challenged the finding of the trial Court on issue No,4. It is admitted fact by .The appellants and respondent No,2 do not contain any assertion that agreement to sell was executed by respondent No,2 in favour of respondent No,1 by fraud and mis-representation or force. Respondent No,1 changed its version outside the contents of the written statement which is not permissible in the eyes of law. I am fortified by the judgment of the Hon'ble Supreme Court reported as PLD 1972 SC
25. The appellants and respondent No,1 maximum create atmosphere of suspicion that the document was executed by respondent No,1 also under the undue influence of Muhammad Akbar Thanedar and Nawaz, Member Local Bodies. Both the Courts below decided the case against the appellants in accordance with the law laid down by the Division Bench of this Court in Mumtaz's case PLD 1973 Lah.47. The trial Court as well as the first appellate Court after scrutinizing the whole evidence on record for cogent reasons believed the evidence of respondent No,1 as to the execution of agreement to sell. It is well-settled that interference in concurrent findings of fact can be made by the High Court only when the evidence is misread and finding is based on surmises and conjectures or based on inadmissible evidence or there existed as error or defect is the procedure which may possibly have introduced an error or defect in the decision on merits as the principle laid down by the Federal Court in PLD 1955 FC 38. The learned nounsel of the appellants failed tc point out any piece of evidence which was misread or non-read by the Courts below or committed any material irregularity. Mere fact that respondent No,2 admitted his thumb- impression on agreement to sell. He did not file any suit for cancellation of the agreement to sell after filing the suit against him by respondent No, 1 or did not raise any objection in his written statement that this thumb-impression was taken on blank paper by Muhammad Akbar Thanedar.
27. Discrepancies pointed out by the learned counsel of the appellants are not material, therefore, findings of both the Courts below after proper appreciation of evidence against the appellants is not result of misreading or non-reading of the record.
28. ' In view of what has been discussed above this appeal has no merit and the same is dismissed.