IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Second Civil Appeal No.S-07 of 2015
Appellant : Mohammad Rafique Aghani, through
Mr. Ghulam Dastagir A. Shahani, Advocate.
Respondents : Mohammad Ali Aghani & others, through
Mr. Tahir Abbas Shah, Advocate.
Date of hearing : 19-01-2023.
Date of decision : 26-01-2023.
O R D E R
Adnan Iqbal Chaudhry, J.- Suit for specific performance filed by the Appellant/Plaintiff was dismissed by the IV-Senior Civil Judge, Larkana vide judgment/decree dated 11.10.2014, and his Civil Appeal No.40/2014 by the District Judge, Larkana by judgment dated 30.05.2015; hence this Second Civil Appeal under section 100, CPC.
2. F.C. Suit No.172/2009 (new F.C. Suit No.38/2013) was filed by the Appellant/Plaintiff for specific performance of an agreement to sell dated 17.3.2005 allegedly executed by Mohammad Ali, deceased father of the Respondents, for selling 15-07 acres of agricultural land with possession in part performance. It was the Appellant’s case that of the agreed sale consideration he had paid Rs.100,000/- to Mohammad Ali on execution of the sale agreement, and the balance of Rs.30,000/- was payable in 2008 on execution of the sale deed; that Mohammad Ali, and thereafter his legal heirs, the Respondents, refused to perform the sale agreement and the latter instead filed a complaint against the Appellant under the Illegal Dispossession Act, 2005.
On the other hand, it was the case of the Respondents that the sale agreement was forged and fabricated as Mohammad Ali had never executed the same; that the Appellant had in fact taken possession of the suit land by force, and hence a complaint was filed against him under the Illegal Dispossession Act, 2005.
Pending appeal before the District Judge, the complaint under the Illegal Dispossession Act was dismissed by judgment dated 24.7.2015 finding doubt in the allegation of dispossession, and for the reason that civil proceedings between the parties were pending.
3. Heard the learned counsel and perused the record.
4. The first submission of learned counsel for the Appellant was that the judgment of the learned District Judge did not fulfill the requirement of Order XLI Rule 31 CPC, in that, it did not discuss each and every issue separately. But it has been held in Muhammad Iftikhar v. Nazakat Ali (2010 SCMR 1868) that where the appellate court does not reverse the findings of the trial court, a decision on each issue may not be distinctly recorded as long as the provision of Order XLI Rule 31 CPC is complied with in substance. In Roshi v. Fateh (1982 SCMR 542) it was held that it is substantial compliance with Order XLI Rule 31 CPC if the finding on a question of fact had been arrived on proper and legal evidence. In Zaitoon Bibi v. Dilawar Muhammad (2004 SCMR 877) it was held that: “where the appellate court decides to affirm the findings of the trial court, it would be sufficient compliance with the provisions of law if the evidence is essentially discussed and findings recorded. At any rate it would not amount to violation of law if some issues are discussed and decided together. Real question for deciding an appeal should be whether a party has been prejudiced and there has been gross miscarriage of justice.”
5. Here, the judgment impugned of the appellate court categorically records that the point for determination was whether the sale agreement was executed, and if so, whether it was enforceable. Such point was the central issue involved in the suit, others being either consequential or ancillary. On that central issue, the evidence was duly reappraised and a finding was arrived after a speaking order. Since the Appellant could not prevail on that central issue, the other issues had become inconsequential. Therefore, in my view, there was substantial compliance with the provision of Order XLI Rule 31 CPC. The argument to the contrary has no force.
6. Both the Courts below held that since the Appellant had examined only one of the two witnesses who had allegedly attested the execution of the sale agreement, the requirement of Article 79 of the Qanoon-e-Shahadat Order, 1984 was not met, and consequently the Appellant had not proved execution of the sale agreement. It was further held that the alleged payment of Rs. 100,000/- had not been proved independently; and since the suit land had been granted by the Government to Mohammad Ali on harap basis, it could not have been sold/transferred in any case.
7. The requirement of Article 79 of the Qanun-e-Shahadat Order, 1984 is that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence. There is a proviso for a registered document, but that is not relevant for the present purposes. Pursuant to Article 17(2)(a) of the Qanun-e-Shahadat Order, the sale agreement in question, being a document involving a financial and future obligation, was a document required by law to be attested.
8. The two attesting witnesses to the sale agreement were Irfan Ali and Muhib Ali. Per the deposition of the Appellant, both said witnesses had also accompanied him to the residence of Mohammad Ali to offer him the balance sale consideration which was refused. Admittedly, the Appellant had examined only one of those witnesses, namely Irfan Ali. The other attesting witness, namely Muhib Ali, was not examined. Learned counsel for the Appellant submitted that Muhib Ali could not be called as witness as he had passed away. However, there was no evidence to that effect. Neither the Appellant nor any of his witnesses had ever deposed that Muhib Ali had passed away, nor was that pleaded by the Appellant in his appeal before the District Judge. As held in Farid Bakhsh v. Jind Wadda (2015 SCMR 1044) and Hafiz Tassaduq Hussain v. Muhammad Din (PLD 2011 SC 241) that the mandatory requirement of Article 79 of the Qanun-e-Shahadat Order is not met by examining only one of the attesting witnesses. The Court may well draw an adverse presumption under Illustration (g) of Article 129 that had the second witness been called, he would not have supported the case of the Appellant/Plaintiff.
9. In view of the foregoing, where the execution of the sale agreement was not proved, the impugned judgments/decrees do not suffer from any legal infirmity. Appeal is dismissed along with the pending application.
Qazi Tahir PA/*