' KHALIL-UR-REHMAN RAMDAY, J.---This appeal under Article 185(2) of the Constitution is directed against a judgment and decree dated 8-10-2001 passed by the Lahore High Court in Regular Second Appeal No,35 of 1993 whereby concurrent judgments and decrees dated 5-7-1983 and 27- 4-1993 of the learned trial Court and the learned First Appellate Court were set aside by the High Court as a result whereof the suit filed by Alamdar Hussain (the appellant before us) was dismissed with costs throughout.
2. Alamdar Hussain appellant had filed a suit in the Court of the learned Senior Civil Judge, Lahore, against one Muhammad Shafi, his son Nazir Hussain and two others, namely, Nawab Din and Muhammad Arshad praying for the grant of a decree directing specific performance of two agreements of sale dated 10-6-1974 and 15-12-1978 regarding 140 Kanals and 14-1/2 Marlas of land which agreements were allegedly executed by Muhammad Shafi defendant (since dead). The case of the appellant/plaintiff was that the said Muhammad Shafi had entered into an agreement with him on 10-6-1974 (Exh.P.1) for the sale of 106 Kanals and 8 Marlas of land situated in Raiwind for a total consideration of Rs,30,000 out of which the said defendant had already received Rs,18,000 while the balance amount of Rs,12,000 was to be paid by the plaintiff to the said defendant at the time of the registration of the sale-deed. It had been added by the plaintiff that under this agreement he was also required to pay the mortgage money to the Agriculture Development Bank of Pakistan which was due from Shafi defendant to the said bank on account of the loan taken by the said defendant upon mortgage of the said land.
3. It had been further claimed by the appellant/plaintiff that about 4-1/2 years after the execution of the above mentioned first agreement and before the sale-deed in pursuance of the said first agreement could be executed and registered, Shafi defendant had entered into a further agreement (Exh.P.2) with the plaintiff on 15-12-1978 whereby he had agreed to sell another piece of his land measuring 34 Kanals and 6-1/2. Marlas situated in village Raiwind of Tehsil Lahore for a total consideration of Rs .42,500 out of which the said defendant had allegedly received Rs,22,500 while the balance was again to be paid at the time of registration of the sale-deed. The plaintiff/appellant had further alleged that he satisfied the loan secured by Muhammad Shafi from the A.D.B.P. And on tendering the unpaid amount of Rs,32,000 in pursuance of the 'two \ above mentioned agreements, he called upon Muhammad, Shafi to execute the requested sale-deeds and to have the same registered but the said defendant declined to do so on the ground that in violation of the said agreements the said Shall defendant had sold some of the land inquestion to Nazir and Nawab defendants and that Nazir defendant had further sold some of the said land to Irshad defendant. The plaint further disclosed that the possession of both the parcels of land above mentioned had been delivered to the plaintiff at the time of the execution of the above mentioned two agreements and it had consequently been prayed that Shafi defendant be directed through a decree of the Court to execute the requisite sale-deeds in respect of the land in dispute and to have the same registered.
4. Shafi defendant and his son Nazir defendant pleaded inter alia, through their written statement that the suit filed by the plaintiff was a false and frivolous claim; that Shafi defendant had never executed any agreement for the sale of the land in question to Alamdar plaintiff; that the two alleged agreements were fake and forged documents which had been fabricated to deprive Shafi defendant and his son of the land in dispute; that the father of Alamdar Hussain plaintiff, namely, Muhammad Fazil was the general attorney of Muhammad Shafi defendant from 5-11-1970 till 11-7- 1979 and that in the circumstances there was no occasion for Shafi defendant to personally enter into an agreement with Alamdar plaintiff in the years 1974 and 1978 and that in the circumstances the suit was liable to be dismissed.
5. As a result of the trial which ensued, the learned trial Judge through his judgment and decree dated 5-7-1983 decreed the suit in favour of the plaintiff and against Muhammad Shafi defendant in respect of the suit-land except 7 Kanals, 3 Marlas and 80 Sq. Ft. Of land falling in Khasra No,341 which was found to have been already sold by Shafi defendant. Through the said judgment and decree the plaintiff was directed to pay the balance amount of the sale price till 23-7-1983 falling which the suit was to be treated as having been dismissed. The said suit vis-a-vis defendants Nos.2 to 4 was, however, dismissed as it was found that they had nothing to do with the specific performance of the alleged agreement.
' Muhammad Shafi defendant impugned the above noticed judgment and decree of the trial Court before the learned District Judge which was dismissed by a learned Additional District Judge at Lahore through his judgment and decree dated 27-4-1993.
7. The second appeal filed by Shafi defendant before the Lahore High Court bearing Regular Second Appeal No,35 of 1993 was, however, allowed, as mentioned above, as a result of which the above mentioned concurrent judgments and decrees passed by the two subordinate Courts were set aside and whereby the suit filed by Alamdar plaintiff was dismissed with costs throughout.
8. Hence this appeal by Alamdar Hussain plaintiff.
9. The said second appeal had been accepted by the Honourable High Court after it had found that the original judgment and decree was the result of gross misreading of evidence on the part of the learned trial Judge and it also appeared to the High court that the learned First Appellate Court had not even read the record and the evidence before concurring with the findings of the learned original Court.
10. Before we proceed any further with this judgment, it would be appropriate to bring on record certain further facts which, though not disclosed through the plaint had, however, come on record during the course of the evidence recorded at the trial.
11. It was admitted at the trial that Shafi defendant was an elder brother of the father of Alamdar plaintiff, namely, Muhammad Fazil. It further transpired that Shafi defendant had constituted his said brother, namely, Fazil as his general attorney to look after his lands and to deal with the same through a registered power-of-attorney dated 5-11-1970 who continued to retain the said powers till 11-3-1979 when the said power of attorney was revoked by Shafi defendant. It also came on record that Alamdar Hussain plaintiff was 22 years of age at the time when he appeared as P.W.4 at the trial which was in the year 1980 and was thus less than 16 years of age in June, 1974 when the first alleged agreement (Exh.P.1) was executed between him and his Taaya Shafi defendant.
Alamdar Hussain plaintiff had further disclosed that he was engaged to the daughter of Shafi defendant; that Rs,18,000 which were shown to have been paid as part payment in Exh.P.1 had not been paid by him to Shafi defendant in lump sum but his defendant Taaya used to take loan from him from time to time which amount of loan ultimately accumulated to Rs,18,000 and it was on his demand for the repayment of this amount of loan that his defendant Taaya agreed to sell 106 Kanals and 8 Marlas of his land to the plaintiff for a total consideration of Rs,30,000. The plaintiff had further claimed that he had passed his matriculation examination in the year 1972 i.e, at the age of 14 years whereafter he had started doing his independent business and it was out of the money so earned by him that he used to advance loan to his defendant Taaya which by the year 1974 had come to be Rs,18,000. It had been further admitted by the P.Ws. Including Alamdar plaintiff himself that about 82/83 acres of land belonging to Shafi defendant had been transferred by the father of Alamdar plaintiff, namely, Muhammad Fazil to his sons including Alamdar plaintiff exercising his authority as the attorney of Shafi defendant.
12. We have heard the learned counsel for the parties at some length and have perused the record in the light of the said submissions.
13. From the impugned judgment of the High Court it transpires thatthe concurrent judgments of the two subordinate Courts had been set aside by the Honourbale High Court essentially for the following reasons:-- that although it had been mentioned in the plaint itself that when the plaintiff had demanded performance of the two agreements, Muhammad Shafi defendant had told him that he had already sold part of the land in dispute to defendants Nos.2 to 4 yet the plaintiff never -volunteered, through his plaint, to seek performance of the two agreements only vis-a-vis the land which still remained unsold and in fact prayed for a decree for the performance of the entire contract and that in the circumstances partial performance of the contract could not be directed otherwise than in accordance with section 15 of the Specific Relief Act and that both the learned' subordinate Courts had omitted to notice the said plea of the plaintiff and the said mandatory provision of law;
(b) that the plaintiff was less than 16 years of age at the time of the alleged execution of the first agreement which fact had gone unnoticed by the two subordinate Courts and on account of which fact it could not have been reasonably held that a lad of 16 years of age could have arranged enough money which could have rendered him capable of advancing different amount of loan to his Taaya at different points in time prior to his attaining the age of 16 years;
(c) that the father of Alamdar Hussain plaintiff who was a youngerbrother of Shafi defendant was the general attorney of the saidShafi during the years when the two agreements in question had been allegedly executed by Muhammad Shafi defendant for the sale of the land in dispute and that during the same years the said Fazil had transferred 82/83 acres of Shafi's lands to his sons including the plaintiff as the attorney of his defendant-brother and the two subordinate Courts had failed to notice that no explanation had been offered by the plaintiff or his witnesses including Fazil as to why the land in dispute could also not have been transferred by the said Fazil to his son as the attorney of Shafi defendant and why in the case in hand it had become necessary to secure execution of the sale agreements from Shafi himself;that the original and the Appellate Court had failed to notice that the stamp vendor who had sold the stamp paper for execution of the first agreement (Exh.P.1) had not been produced by the plaintiff and further that the endorsement at the back of thestamp paper on which the said agreement had been scribed mentioned that the same had, been purchased by one Waqar who was a brother of the plaintiff and not by Shafi defendant as claimed by the P.Ws.;
(e) that the learned subordinate Courts had also failed to read the statement of Sajjad Hussain P.W.1 who was the scribe of Exh.P.1 as the said P.W. Had specifically admitted that he did not know Shafi defendant nor he could identify him despite claiming that all the parties had put their signatures to the said document in front of him and that the said Exh.P.1 did not carry the signatures of Alamdar Hussain plaintiff;
(f) that the learned subordinate Courts had also not considered the effect of the non-production of his register by Sajjad Hussain P.W.1 who was a petition writer and who was the scribe, as mentioned above, of Exh.P.1 nor did the said learned Court consider the effect of the suggestion that the said register had not been brought to Court because the same did not carry the signatures of Shafi defendant;
(g) that the learned trial and the Appellate Courts had also omitted to notice the effect of the scribe not signing at the end of the agreement (Exh.P.1) despite his admission that enough space was available for his signatures at the end of the writing;
(h) that the said learned subordinate Courts had also ignored the fact that although Siddique P.W.2 was a nephew of Shafi defendant like he was a nephew of the father of Alamdar plaintiff but in addition to it he was married to a sister of Alamdar plaintiff which would make him more interested in the plaintiff party as against the defendant party and further that no explanation existed as to why Exh.P.2 i.e, the second agreement dated 15-12-1978 was written by this Siddique P.W. Allegedly in the house of Shafi defendant when the first agreement i.e, Exh.P.1 had been got scribed allegedly by a regular petition writer after coming all the way to the Courts at Lahore for the said purpose and moreso when Siddique P.W. Admitted that he had never ever authored any other agreement either before scribing the agreement in question or even thereafter;
(i) that it had also escaped the notice of the learned subordinate Courts that Siddique P.W. Had declared that Exh.P.1 had been witnessed by Muhammad Din, Alam, Fazil and Amin also but it was available on record that the said document had not been witnessed by Muhammad Din and Muhammad Amin;
(j) that P.W.2 and P.W.3 never stated that Shafi defendant had put his signatures on Exh.P.1 in their presence and similar was the position of P.W.2 vis-a-vis Exh.P.2;
(k) that Hand Writing Expert, namely, Zaka A. Malik P.W.5 though declared the alleged signatures of Shafi defendant on the two agreements to be similar to those of his specimen signatures yet he conceded several points of variance in the admitted signatures and disputed signatures of Shafi defendant;
(1) that the concurrent judgments and decrees failed to notice that the father of Alamdar Hussain plaintiff, namely, Fazil was the general attorney of. His brother Muhammad Shafi defendant and was looking after. The lands of his said brother and the possibility of the plaintiff party being in possession of the land in question pursuant to the said power of attorney and not necessarily because of the sale agreements in question could not be ruled out and similar could be the position with regard to the deposit of the amount of loan taken by Muhammad Shafi from the A.D.B.P. Towards the satisfaction of the said loan and finally;
(m) that there was a definite possibility emanating from the evidence available on record that the two agreements in question had been fabricated after Shafi defendant had cancelled the power of attorney executed by him in favour of the father of Alamdar plaintiff in order to deprive the said defendant of the land left with him after the father of Alamdar Hussain plaintiff had transferred 82/83 acres of Shafi defendant in favour of his sons including Alamdar plaintiff exercising his authority as attorney of Shafi defendant.
14. Having examined all aspects of the matter, we find that no exception could be taken to the conclusions reached by the Honourable High Court which had persuaded the learned Judge in Chamber to set aside the concurrent judgments of the two subordinate Courts. Needless to mention here that there was no absolute rule that the concurrent judgments of the subordinate Court could never be interfered with by the High Court even if the said judgments were found to be based on gross misreading, non-reading or misconception of the evidence available on record.
Laying down such a law would have the effect of setting the provisions of section 100 and section 115 of the C.P.C. At naught.
15. In view of what has been noticed above, we find no merit in this appeal which is accordingly dismissed with costs throughout.