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Civil Revision Application No. 157 of 1977, decided on 8th October, 1986.

‑‑‑S. 54‑‑Sale of immovable property, validity of‑‑Vendee claiming that he had purchased property of original allottee from vendor who himself had purchased same from the original allottee‑‑To prove valid sale in his favour, vendee, held, was required to prove valid transfer of disputed property in favour of vendor by original allottee.

‑‑Ss. 115 & 96‑‑Findings of Trial Court‑‑Reversal by Appellate Court‑ Revisional jurisdiction, exercise of‑‑Findings of Trial Court arrived at by proper appreciation of evidence on record, based on weighty and cogent reasons‑‑Reversal of such findings by First Appellate Court without giving any logical reason to disagree with such findings but instead taking into consideration irrelevant and unauthentic documents, held was wholly uncalled for and based on conjectural approach by Appellate Court‑‑High Court in exercise of revisional jurisdiction setting aside judgment and decree passed by Appellate Court, restored that of Trial Court in circumstances.

Syed Muhammad Afzal for Applicant.

Khalid Dawood Pota for Respondents.

Date of hearing: 8th October, 1986.

This revision application under section 115, C . P. C . is filed by the applicant /plaintiff against the order of the First Appellate Court, dated 18‑2‑1977. The First Appellate Court by the impugned order reversed the judgment and decree passed by the trial Court in favour of the applicant in Suit No.244 of 1967 instituted for recovery of possession against the respondents and dismissed the suit with costs.

2. It is contended by the learned counsel for the applicant that the reversal of the findings of the trial Court by the First Appellate Court is based upon misreading of evidence and consideration of documents which were irrelevant to the issue before the Court. On the other hand, learned counsel for the respondents has supported the judgment of the First Appellate Court and contended that the conclusions drawn by the First Appellate Court on the basis of evidence on record are not only cogent but they find full support from the surrounding circumstances of the case as well as record. After hearing the learned counsel for the parties, I am of the view that the First Appellate Court misdirected himself in reversing the judgment of the trial Court in dismissing the suit of the applicant /plaintiff. The dispute in the case related to Quarter No. 123/1, 11‑G, New Karachi. It is an admitted position that this quarter was allotted to the applicant by the K . D . A . and he was handed over possession of the same. The case of the respondent before the trial Court was that this quarter was sold to him by one Haji Ataur Rehman who in turn had purchased this quarter from the allottee (petitioner). In support of the assertion that the respondent had purchased through a valid transaction the quarter in dispute from one Haji Ataur Rehman the respondent examined himself, HaR Ataur Rehman and one Ashaq Ali who claimed to have written documents Exhs. 1/3 and 1/4. The trial Court after analysing the evidence in support of the claim of the respondent reached the conclusion that in so far witness Ashiq Ali is concerned he was not a truthful witness and was deposing falsely in the case. The reason given by the trial Court in discarding the evidence of Ashiq Ali was that although Ashiq Ali claims that he wrote the disputed documents Exhs.l/3 and 1/4 and that the applicant allegedly signed on these documents in his presence but his presence was not confirmed in the evidence of Ataur Rehman. Learned trial Court also noticed the damnare of the witness and that he was in the employment of Mr. M. Shah, Advocate as his Court clerk who was appearing for the plaintiff in the case and after analysing his evidence in that perspective reached the conclusion that the witness cannot be relied upon as his evidence did not inspire any confidence. It is an admitted position that the present respondent does not claim having purchased the quarter from the original allottee (applicant). The claim of the respondent before the trial Court was that he purchased the quarter from one Haji Ataur Rehman who in turn had purchased this quarter from the applicant (allottee). It was, A therefore, necessary for the respondent to have established a valid transfer of the quarter in dispute by the applicant in favour of Haji Ataur Rehman in order to succeed in his defence before the trial Court. In support of his case the applicant examined Haji Ataur Rehman, who produced the disputed documents Exhs.l/3 and 1/4 namely the alleged agreement of sale and power of attorney executed by Inayat Ali (applicant) in favour of Haji Ataur Rehman. A perusal of the document Exh.l/4 will show that it is a special power of attorney which was allegedly given by the applicant Inayat Ali to Haji Ataur Rehman in connection with his appearance before the K.D.A. to make full payment of the quarter and to obtain receipt therefor. This power of attorney nowhere authorised Ataur Rehman to further transfer or sell the property to another person. The document Exh.l/3 on the other hand states that in consideration of an alleged loan of Rs.1,200 which was outstanding against the applicant due to the said Haji Ataur Rehman the applicant had surrendered his rights in the quarter in dispute in favour of Haji Ataur Rehman. Both these documents were allegedly attested by two witnesses namely Shahabuddin and Hussain Khan. These two documents are also attested by a notary public namely S. Ali Haider. In view of the categorical denial by the applicant of the execution of these documents and his signatures thereon the trial Court held that these documents could not be proved in the absence of the examination of the two attesting witnesses shown in the documents and the notary public who allegedly attested the same. The learned First Appellate Court, however, reversed the finding of the trial Court on this issue and reached the conclusion that the statement of the respondent was fully corroborated by the evidence of Haji Ataur Rehman and that of Ashiq Ali who claims himself to be an ascribe of the documents and further stated that these documents were executed in his presence. However, the learned First Appellate Court while reversing the finding of the trial Court on this issue did not discuss and notice the weighty and cogent reason assigned by the trial Court for discrediting the evidence of Ashiq Ali The learned First Appellate Court also failed to take into consideration the other reasons given by the trial Court for discarding the documentary evidence namely Exhs.l/3 and 1/4 in the case. The learned trial Court found that neither the attesting witnesses of these documents nor the person who allegedly attested the same as a notary public was examined in the case to prove its execution. These considerations which prevailed with the learned trial Court were not only ignored but no logical reason was given to disagree with these conclusions, by the First Appellate Court while reversing the finding of the trial Court. The learned First Appellate Court completely by passed these conclusions of trial Court and felt satisfied only by observing that the statement of the respondent was corroborated by the evidence of his witness Ataur Rehman and. therefore, the execution of the document was proved. In arriving at this conclusion the learned First Appellate Court completely lost sight of the fact that the evidence of the respondent in the case was of no avail or relevance as the said respondent never claimed to have seen the applicant having executed the documents Exhs. 1/3 and 1/4. The evidence of Haji Ataur Rehman was similarly could not be relied upon as the execution of these documents was completely denied by the applicant and no effort was made either before the trial Court or before the First Appellate Court to produce and summon the attesting witnesses of the documents and the notary public who allegedly attested the documents. One of the consideration which prevailed with the First Appellate Court in reversing the finding of the trial Court on this issue was that he was influenced by the documents Exhs. 2/1, 2/2 and 2/3. These documents were equally irrelevant for the purposes of deciding the issue before the Court. Exhs. 2/1, 2/2 and 2/3 are the documents which have been executed by Haji Ataur Rehman in favour of the respondent. None of these documents are relevant for proving the valid transfer of the possession of title of the quarter in dispute from the applicant to said Ataur Rehman. In these circumstances, the reversal of the finding of the trial Court on the main issue namely issue No.l was wholly uncalled for and based on conjectural approach by the First Appellate Court. The respondent failed to establish a valid transfer of possession of the quarter in dispute by the applicant to Haji Ataur Rehman and as such its further transfer by the said Haji Ataur Rehman to respondent had no validity in law. I accordingly accept this revision application, set aside the judgment and decree passed by the First Appellate Court and restore the judgment and decree of the trial Court. The costs of proceedings throughout will be borne by the respondent.

H . B . T . Application accepted.

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