JUDGMENT SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil
Revision Application No. 106 of 2009
|
APPLICANT |
: |
MolviMuhammadin
through Mr. Sarfraz A. Akhund, Advocate |
|
RESPONDENT
NO.1 |
: |
Muhammad
Bachal through Mr. Ch. ShahidHussain Rajput, Advocate |
|
RESPONDENT
NO.2 |
: |
Naseer
Khan through M/s. Shaikh Amanullah, and Asif Aman Shaikh, Advocates |
|
|
|
|
|
DATES OF HEARING |
: |
26.09.2016,
28.09.2016 and 03.10.2016 |
|
DATE OF JUDGMENT |
: |
03.10.2016 |
JUDGMENT
Muhammad
Humayon Khan, J:
This
civil revisionunder Section 115CPC is filed against the Judgment and Decree
dated 03.09.2009 passed by the learned IIIrd Additional District Judge, M.
Mathelo, in Civil Appeal No.30 of 2008, whereby, the learned Additional District
Judge dismissed the appealof the applicant and upheld the Judgment dated 20.05.2008and
Decree dated 27.05.2008 passed by the learned Senior Civil Judge, Ubauro, in F.C.
Suit No. 07 of 2007.
2. The relevant and material facts of the
case for the disposal of this revision applicationare thatthe respondent No.1filed
suit for specific performance of contract and permanent injunction against the respondent
No.2on 06.02.2007. The case pleaded in the plaint isthat the respondent No.1 is
owner in possession of land bearing Survey No. 70 (2-32) acres to the extent of
(1-36) acres, situated in DehSonan, TalukaUbauro, District Ghotki and the
respondent No.2 was owner of remaining area admeasuring (0-36) acres from the
said survey (hereinafter referred to as “the suit land”). It is further pleaded
that previously the respondent No.2 had agreed to sell (0-20) acre out of the
said suit land to the respondent No.1 but subsequently the respondent No.2
turned greedy to extort more money and therefore the respondent No.1 filed F.C.
Suit No. 28 of 2005 for specific performance of contract. It is further pleaded
that subsequently the respondents Nos. 1 and 2 arrived at compromise out of
Court and entered into fresh sale agreement dated 08.09.2006 regarding sale of
the suit land. It is further pleaded that according to fresh agreement, the
respondent No.2 agreed to sell the suit land to the respondent No.1 for the
total sale consideration of Rs.10,00,000/-. It is further pleaded that the said
sale agreement dated 08.09.2006 was executed in presence of witnesses after
receiving advance sale consideration of Rs. 2,00,000/- and possession of the
suit land was handed over by the respondent No.2 to the respondent No.1. It is
further pleaded that according to the terms and conditions of the said sale
agreement, Rs. 4,00,000/- was to be paid on 11.09.2006 and remaining Rs.
4,00,000/- was to be paid on 15.12.2006 and thereafter the suit land was to be
transferred in favour of the respondent No.1. It is further pleaded that the
respondent No.1 paid Rs.4,90,000/- on 12.09. 2006, making in all the total sum
of Rs.6,90,000/-. It is further pleaded that on 15.12.2006, the respondent No.1
alongwith witnesses approached the respondent No.2 for transfer of Khata of
suit land in his favour after receiving balance sale consideration of
Rs.3,10,000/- but the respondent No.2 avoided on one or the other pretext and
finally refused to perform the said sale agreement and therefore the respondent
No.1 filed the instant suit against the respondent No.2, wherein, the
respondent No.1 claimed the following reliefs:-
i)
To direct the Defendant/respondent No.2to
transfer “Khata” of the suit land bearing Survey No. 70 (2-32) acres to the
extent of (0-36) acres, situated in DehSonan, TalukaUbauro, District Ghotki,
while executing sale deed duly registered after receiving remaining sale
consideration Rs.3,10,000/- and in case of his failure to do so the needful may
be got done through Nazir of this Hon’ble Court.
ii)
To grant perpetual injunction in favour
of the plaintiff/respondent No.1 thereby restraining the Defendant/ respondent
No.2 from interfering with the peaceful
possession pertaining to suit land or dispossessing the plaintiff/respondent
No.1 from the same or any part thereof in any manner whatsoever, moreover
restraining the defendant/respondent No.2 from selling, transferring, gifting, exchanging
or alienating the suit land in favour of anybody else except the
plaintiff/respondent No.1 or mortgaging, leasing or encumbering the same in any
manner whatsoever.
iii)
To award costs of the Suit.
iv)
To grant any other equitable relief
which deems fit and proper in the circumstances of the case.
3. The respondent No.2 filed his written
statement, wherein, the respondent No.2 raised legal objections regarding
jurisdiction of Court and maintainability of suit.The respondent No.2 denied
the entire case of the respondent No.1and pleaded that no compromise was
arrived between the respondents Nos. 1 and 2 and in fact the previous F.C. Suit
No. 28 of 2005 was dismissed for non-prosecution and no permission to file
fresh suit was granted. It is further pleaded that the respondent No.2 has not
sold out the suit land to the respondent No.1 nor accepted any earnest money,
hence question of remaining part of payment does not arise. It is further
pleaded that the said sale agreement is fraudulently made by the respondent No.1and
the respondent No. 2 is in peaceful possession of the suit land. In the end,
the respondent No.2 prayed for the dismissal of the instant suit.
4. Originally, the applicant was not party
to the instant suit but he was joined as defendant No.2 upon his application
under Order 1 Rule 10 CPC. The applicant filed his written statement, wherein,
he raised legal objections regarding maintainability of suit and limitation.
The applicant denied the entire case of the respondent No.1 and pleaded that the
respondent No.2 sold out the suit land to the applicant through sale agreement
but later on refused to perform the said agreement and therefore the applicant
filed civil suit against the respondent No.2. It is further pleaded that the
respondent No.1 filed the instant suit with ulterior motive to usurp the
valuable land of the applicant as he is first purchaser and both the respondents
Nos. 1 and 2 are in collusion to give loss to the applicant in as much as both
of them have committed fraud with the applicant, who is real owner of the suit
land. It is further pleaded that it was in the knowledge of the respondent No.1
that the suit land has already been sold out to the applicant by the respondent
No.2. In the end, the applicant prayed
for the dismissal of the instant suit.
5. The learned Senior Civil Judge framed the
following issues:-
i)
Whether suit of plaintiff is
maintainable and plaintiff have cause of action to file the present suit?
ii)
Whether suit of plaintiff not properly
valued?
iii)
Whether this Court has jurisdiction to
entertain the suit?
iv)
Whether suit of plaintiff is barred by
law?
v)
Whether after compromise of private
parties of F.C.S. No. 28/2005 Re: (Muhammad Bachal V/S P.O. Sindh & others)
fresh agreement was executed by plaintiff and defendant No.1 on 08.09.2006
regarding suit land in consideration of Rs.10,00,000/- (ten lac) in presence of
witnesses and received advance sale consideration of Rs.2,00,000/- and handed
over possession of suit land by defendant Naseer Khan to plaintiff, and thereafter, plaintiff
paid Rs.4,90,000/- on 12.09.2006 on receipt and acknowledging the receipt to
Rs.6,90,000/-?
vi)
Whether defendant No.1 sold out suit
land to defendant No.2 Deen Muhammad through sale agreement dated 15.01.2005
and suit of Deen Muhammad for specific performance of contract is pending in
this Court against defendant No.1 as well as plaintiff?
vii)
Whether plaintiff is entitled to the relief
claimed?
viii)
What should the decree be?
6. The respondent No.1 examined himself and four
witnesses namely (i) PW-1-Mohammad Asif, (ii) PW-2- GhulamNabi, (iii)
PW-3-Shabbir Ahmed and (iv) PW-4- Wazir Ahmed and produced documents. On the
other hand, the respondent No.2 examined himself only and produced documents.
The applicant examined himself and four witnesses namely (i) DW-1- Abdul
Hakeem, (ii) DW-2-Muhammad Ibrahim, (iii) DW-3-Jamaluddin and (iv) DW-4-Altaf
Hussain Shah but the applicant did not produce any document in evidence.
7. The learned Senior Civil Judge by his
Judgment dated 20.05.2008 decreed the instant suit for specific performance of
contract against the respondent No.2 and directed the respondent No.2 and
applicant to handover possession to the respondent No.1 within one month.
8. Against the aforesaid Judgment, the
respondent No.2 did not file any appeal. However, the applicant filed Civil
Appeal No. 30 of 2008, which was dismissed by the learned Additional District
Judge vide Judgment dated 03.09.2009.
9. Against the concurrent findings of both
the Courts below, the applicant has filed this revision application under
Section 115 CPC. However, the respondent No.2 has not filed any second appeal
or revision application against the Judgment dated 03.09.2009.
10. I have heard the learned counsel for the parties
and perused the material available on the record.
11. The learned counsel for the applicant
raised the following contentions:-
i)
Since the respondent No.1 has not proved
the said sale agreement, he was not entitled for specific performance and
accordingly the discretion under Section 22 of the Specific Relief Act was exercised
arbitrary by both the Courts below. In support of this contention, he
reliedupon the cases of (i) AshiqHussain etc. Vs. Nisar Ali etc. (1969 S C M R
341) and (ii) Mst. KulsoomBibi and another Vs. Muhammad Arif and others (2005 S
C M R 135);
ii)
The respondent No.1 has not claimed
relief for possession and therefore both the Courts below had exceeded their
jurisdiction to grant relief of possession. However, he has not cited any
case-law in support of his contention;
iii)
Revision application is maintainable
against the concurrent findings of both the Courts below and the High Court has
power to re-appraise the evidence and can set-aside the concurrent findings of
both the Courts below. However, he has not cited any case-law in support of his
contention.
12. On the other hand, the learned counsel for
the respondentNo.1 raised the following contentions:-
i)
The applicant has no locus standi to
file appeal or revision against the decree for specific performance of contract
when the decree has been passed against the respondent No.2 and therefore this
revision application is not maintainable in law. In support of this contention,
he relied upon the cases of (i) Mst. Rasheeda Begum through her L.Rs. Vs. Mst.
Saeeda and others (1993 CLC (Karachi)
1263) and (ii) Fazal Dad through L.Rs. Vs. Adnan Ali and 8 others (2013C L C (Supreme Court( AJ &
K) 754);
ii)
Since the respondent No.1 has proved the
said sale agreement through attesting witnesses, the discretion under Section
22 of the Specific Relief Act was rightly exercised by both the Courts below.
In support of this contention, he relied upon the case of (i) Mst. Nagina Begum
Vs. Mst. Tahzim Akhtar and others (2009
S C M R 623);
iii)
Since the applicant has not produced the
alleged sale agreement in his favor or copy of his suit for specific
performance of contract, judicial notice cannot be taken of a document which is
not a part of the record. In support of this contention, he relied upon the
case of (i) Muhammad Younis and others Vs. Essa Jan and others (2009 S C M R 1169);
iv)
Relief of possession is incidental to
the main relief of specific performance and therefore the same should be
granted even not prayed for in the plaint. In support of this contention, he
relied upon the cases of (i) KhadimHussain and 2 others Vs. Waris Ali and
another (2005 C L C (Lahore) 1144) and (ii) Ahmad Nawaz Khan
Vs.MuhammadJaffar Khan and others (2010S
C M R984);
v)
Revision application against the
concurrent findings of both the Courts below is not competent and the High
Court has no power to re-appraise the evidence and cannot set-aside the
concurrent findings of both the Courts below. In support of this contention, he
relied upon the cases of (i) Muhammad Feroze and others Vs. Muhammad Jamaat Ali
(2006 S C M R1304), (ii) Ahmad Nawaz Khan Vs.MuhammadJaffar Khan and others (2010 S C M R 984), (iii) Muhammad Waqas
Rafi BhattiVs. Mst. NaseemRahat and another(2011YLR(Lahore) 1982), (iv) MirzaShakeelBaigVs.
JaffarBaig(2012YLR (Sindh) 385), (v) Farmanullah and 6 others Vs. Ghulam
Habib(2015 YLR (Peshawar) 2072) and (vi) Iqbal Ahmed Vs. Managing Director
Provincial Urban Development Board, N. W. F. P. Peshawar and others (2015 SCMR
799).
13. However, the learned counsel for the
respondent No.2 argued that both the applicant as well as respondent No.1 have
committed fraud with the respondent No.2 and both the sale agreements are bogus
in as much as the respondent No.2 never sold the suit land to any party
including the applicant and respondent No.1. Upon my query that why the
respondent No.2 did not file any appeal or revision against the decree for
specific performance of contract, his reply was that he was not the advocate
for the respondent No.2 at the relevant time and the advocate, who appeared for
him in the instant suit did not advise the respondent No.2 for filing appeal. I
am not satisfied with this reply for the simple reason that it was the
respondent No.2, who should have filed appeal or atleast cross objections in
Civil Appeal No. 30 of 2008 filed by the applicant against both the
respondents. Accordingly, non-filing of appeal by the respondent No.2, being
the real owner of the suit land, amounts to accepting the Judgment and Decree
passed in the instant suit and therefore he is estopped in law to challenge the
same in any subsequent stage in any proceedings.
14. The first important point for determinationin
this revision application is that whether the applicant has locus standi to
file appeal or revision against the decree for specific performance of contract
when the decree has been passed against the respondent No.2. To resolve this
vital point, it is necessary to discuss relevant admitted or proved facts,which
are as follows:-
a)
Admittedly, the respondent No.1 filed
instant suit for specific performance of contract against the respondent No.2 on the footing of
agreement of sale dated 08-09-2006 executed between the respondents No.1 and 2;
b)
Originally, applicant was not party to
the instant suit but he was joined as defendant No.2 upon his application under
Order 1 Rule 10 C P C;
c)
In written statement, the applicant
pleaded that he is the first purchaser of the
suit land by sale agreement executed between him and the respondent No.2,
who failed to perform the said agreement and therefore the applicant filed suit
for specific performance of contract against the respondent No.2. It is
pertinent to mention here that the applicant neither produced the said sale
agreement nor copy of the plaint alongwith his written statement;
d)
The applicant examined himself as
Exhibit 60 but neither produced the said sale agreement nor copy of the plaint
in his evidence;
e)
The instant suit was decreed against the
respondent No.2 by the learned Senior Civil Judge vide Judgment dated
20-05-2008 and Decree dated 27-05-2008;
f)
The respondent No.2 did not file any
appeal against the said Judgment and Decree passed in the instant suit;
g)
However, the applicant filed Civil
Appeal No. 30 of 2008. Even in this appeal, the respondent No.2 did not file
any cross-objections. This appeal was dismissed by Judgment and Decree dated
03-09-2009;
h)
Against the aforesaid Judgment and
Decree, the applicant filed this revision application. It is pertinent to
mention here that the respondent No.2 neither filed any revision application
nor cross-objections in this revision application;
i)
The applicant filed F.C. Suit No.03 of
2007 against the respondent No.2 and others for specific performance
of contract, which
was withdrawn on 02-04-2008;
j)
Against the aforesaid Order dated
02-04-2008, the applicant filed an application for restoration of the said suit
which was dismissed by Order dated 18-03-2009;
k)
The respondent No.1 filed Execution
Application No. 07 of 2010 against the respondent No.2
and applicant, which was allowed
by Order dated
26-05-2010;
l)
Against the aforesaid Order dated
26-05-2010, the applicant filed Civil Revision No. 27 of 2010, which was
dismissed by the learned IV Additional District Judge, MirpurMathelo, vide
Order dated 29-09-2010;
m)
It is pertinent to mention here that the
respondent No.2 neither filed objections in the said execution application nor
filed any appeal or revision against the said Order dated 26-05-2010 passed in
the said execution application.
In
view of the above admitted position, I came to the conclusion that the
applicant has no locus standi to file appeal or revision against the decree for
specific performance of contract when the decree has been passed against the
respondent No.2. Accordingly, the appeal of the applicant before the learned
Additional District Judge was not competent and this revision application is
also not competent. It is a settled law that the question of legality or
validity of a sale agreement can be raised only by the executant or a person
having a right in the property and a third person has no right to challenge the
same on the ground that he is in possession of the property and hence the third
person cannot maintain an appeal only on the ground that he is in the
possession of the property. Reliance can be placed upon the cases of (i) Mst.
Rasheeda Begum through her L.Rs. Vs. Mst. Saeeda and others (1993 C L C
(Karachi) 1263) and (ii) Fazal Dad through L.Rs. Vs. Adnan Ali and 8 others
(2013 C L C (Supreme Court (AJ&K)) 754).
15. It is well settled law that relief by
way of delivery of possession in a suit for specific performance of contract
would spring out of contract for sale and would be incidental to main relief of
specific performance granted in the suit and it is not at all necessary to make
a specific prayer for possession. Reliance can be placed upon the cases of (i) BirgisJahanBajiga Malik
Vs. Muhammad Hasan and others (P L D 1964 Dacca 202), (ii) Momtazul Karim and
others Vs. Abu Hussain and another (1970 S C M R 816), (iii) KhadimHussain and
2 others Vs. Waris Ali and another (2005 C L C (Lahore) 1144) and (iv) Mst.
Yasmeen Riaz through Special Attorney Vs. Riaz Ahmed and 7 others (2016 Y L R
(Lahore) 321).
16.Apart
from this, to attract the provisions of Section 115 CPC, the applicant has to
satisfy this Court that the sub-ordinate Courts have:
a)
exercised a jurisdiction not vested in
them by law, or
b)
failed to exercise a jurisdiction so
vested, or
c)
acted in the exercise of the
jurisdiction illegally or with material irregularity.
The
learned counsel for the applicant has not been able to point out any illegality
or irregularity committed by both the Courts below. However, I have carefully
gone through the pleadings and evidence of the parties and both the Judgments
of the Courts below and I came to the conclusion that both the Courts below
have exercised discretion under Section 22 of the Specific Relief Act on sound
reasons, which is neither perverse nor arbitrary nor inequitable. It is well
settled that specific performance, by no means, absolute right but one which
rest entirely in judicial discretion and always with reference to the facts of
a particular case and where Trial Court has exercised its discretion in one way
and that discretion has been judicially exercised on sound principles and the
decree is affirmed by the Appellate Court, the High Court in second appeal or
revision will not interfere with that discretion, unless same is contrary to
law or usage having the force of law. Reliance can be placed upon the cases of
(i) GhulamNabi and others Vs. Seth Muhammad Yaqub and others (PLD 1983 Supreme
Court 344) and (ii) Naseer Ahmed Siddique through Legal Heirs Vs. AftabAlam and
another (PLD 2011 Supreme Court 323).
17. In these circumstances, both the Courts
below have exercised their jurisdiction in accordance with law and have not
committed any illegality and irregularity in deciding the instant suit and
accordingly my considered view is that this revision application under Section
115 CPC is not competent against the concurrent findings. My this considered
view finds support from the cases of (i) Muhammad Bux Vs. Muhammad Ali (1984
SCMR 504), (ii) Haji Muhammad Zaman Vs.
Zafar Ali Khan and others (PLD 1986 Supreme Court 88), (iii) Muhammad Nawaz and
others Vs. Muhammad Sadiq and another (1995 SCMR 105), (iv) Abdul Hakeem Vs.
Habibullahand 11 others (1997 SCMR 1139), (v) Muhammad Feroze and others Vs.
Muhammad Jamaat Ali (2006 S C M R 1304) and (vi) Ahmad Nawaz Khan
Vs.MuhammadJaffar Khan and others (2010S
C M R 984).
18. In view of the above discussion, thisrevision
application alongwith listed applications was dismissed with costs by short
Order dated 03.10.2016and the above are the reasons for the said short order.