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Civil Petitions Nos. 1276 and 1277 of 1980, decided on 10th September, 1985.

(Against the Judgment and Order, dated 24‑5‑1980 of the Lahore High Court, Lahore, in R.S.A. No. 786 of 1979).

‑‑‑S. 100‑‑Second appeal‑‑Concurrent findings of fact‑‑Interference with‑‑Findings concurrently arrived at by two Courts below being based on misreading and non‑reading of evidence reversed in second appeal‑ Held: In a case where entire evidence had not been kept in view or where legal result flowing from such evidence was not duly given effect to, High Court was amply justified in interfering in second appeal with findings of fact.

A.R. Shaukat, Senior Advocate Supreme Court instructed by M. Aslam Chaudhry, Advocate‑on‑Record for Petitioners.

M. Ismail Qureshi, Senior Advocate Supreme Court with S. Inayat Hussain and Tanvir Ahmad, Advocate‑on‑Record for Respondents.

Date of hearing: 10th September, 1985.

The defendants in suit for specific performance of agreement to sell by two separate petitions seek leave to appeal against the judgment of the Lahore High Court, dated 24‑5‑1980 whereby the Regular Second Appeal of the plaintiff was accepted the judgment and decree of the two Courts below was set aside and the suit decreed.

2. Muhammad Ismail, the plaintiff‑respondent claimed to have entered into an agreement (Exh. P. 1) on 30‑9‑1975 to purchase a residential plot measuring one Kanal in Chak No. 439/E.B. Burewala, of which Noor Muhammad the predecessor‑in‑interest of petitioners (in C.P. 1276 of 1980) was a co‑sharer. The price fixed was Rs.12,500 of which two thousand was received and the remainder was to be paid on 28‑10‑1975 and the conveyance deed got registered. On 20‑10‑1975 the plaintiff instituted a civil suit claiming a declaration that he was in possession of this plot under the agreement to purchase it and the owner should be restrained from alienating it to anyone including the other petitioner Abdul Hameed. It was claimed by the plaintiff that the very next day to the institution of the suit, the vendor Noor Muhammad accepted the balance and executed a receipt for the amount. This receipt (Exh. P. 2) was executed by no other person than Abdul Hameed petitioner. Nevertheless, the vendor executed on the same day a registered deed in favour of Abdul Hamid for the same plot for Rs.9,000. The plaintiff withdrew the suit for declaration and injunction and instituted a suit for specific performance of the agreement to sell. The suit was contested and nine issues were framed.

3. The trial Court doubted the very execution of the argeement to sell in favour of the plaintiff and so did the first appellate Court. The trial Court dismissed the suit and the appellate Court dismissed the appeal. It was in Regular Second Appeal that after an exhaustive discussion the findings of fact were reversed, Abdul Hamid was held to be purchaser with notice and the suit was decreed "in its entirety with costs throughout".

4. The learned counsel for the petitioners contended that a considered finding of fact recorded by the two Courts could not be reversed in second appeal,. There was sufficient material on the record for the trial Court and the first appellate Court to draw the conclusions of fact which they did. The conclusions drawn were neither perverse nor against low. They could not be interfered with in second appeal.

5. We have heard the learned counsel for the petitioner and have gone through the entire evidence and the other material that was available at the hearing. The High Court in the impugned judgment had exhibited the awareness that it was concurrent finding of fact recorded by the two Courts below which was being assailed before it in Second Appeal. It has considered in depth such evidence and has come to a conclusion different from that of the trial Court and we consider that there was sufficient justification in law for doing so.

6. The trial Court dealt with the evidence on the material issues in the following manner:

"Muhammad Abdullah petition‑writer has appeared as P.W. 1 to depose that he is the scriber of the document agreement to sell and it was executed on 30‑9‑1975. The document was written by him and Noor Ahmad executed the document in favour of Muhammad Ismail the plaintiff. The witness however has admitted in the cross‑examination that Noor Ahmad the executants was not present at the time of the writing of the document Exh. P.1. The witness has also admitted that no payment was done in his presence. The petition‑writer witness has further admitted that the document was written on the instance of the son of Ismail the plaintiff. He admitted in the last line of the cross‑examination that Noor Ahmad did not execute the writing. These admissions on the part of the petition‑writer throw a lot of doubt on the execution of the document Exh. P. 1."

7. The first appellate Court reappraised the evidence in the words that follow:‑

"The learned trial Court has referred to some material discrepancies in the statements of Muhammad Abdullah, scribe and Allah Bux P.W. 2 an attesting witness of Exh. P.1. These discrepancies are regarding the presence of Noor Ahmad at the time of execution of the document and payment of Rs.2,000 as earnest money to him. The attesting witness is related to the appellant which fact has also been taken notice of by the learned trial Court in discarding the appellant's evidence. In any view the conclusion arrived at by the learned trial Court in view of the discrepancies noticed in the statements of the scribe and the attesting witness of Exh. P. 1 is not open to question."

8. After re‑examining the entire evidence, the High Court came to the conclusion which is reflected as hereunder:‑

"Manifestly, the plaintiff‑appellant wholly discharged the initial onus of proving a prima facie case which would entitle him to relief prayed for. In civil‑matters, the initial onus of proving a case is always on the plaintiff and if he discharged that onus, then it shifts on to the defendants to prove otherwise as to disentitle plaintiff to relief claimed for. In the instant case, the defendants‑respondents on the other hand absolutely failed to prove circumstances as to smash the plaintiff's case. The net result, therefore, is that it can safely be held that Exh. P. 1 and Exh. P. 2 were duly proved documents on the file which furnished an unrebutted and undoubted legal basis of title to the plaintiff with regard to plot in suit. As a result of this conclusion, the findings concurrently arrived at by the learned Courts below, being based on misreading and non‑reading of, evidence, are not sustainable in the eye of law and are apt to' reversal in this appeal."

9. In a case where the entire evidence had not been kept in view or where the legal result flowing from such evidence was not duly given effect to, the High Court was amply justified in interfering in second appeal with findings of fact and we find that there is no merit in the petitions and leave to appeal is, therefore, refused.

M.I. Leave refused.

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