MUHAMMAD WARIS Versus SOHBAT KHAN
These appeals by leave of the Court are directed against the judgment of the Peshawar High Court dated 25-11-1985, which dismissed the appellants' regular first appeal arising from concurrent findings regarding a disputed land transaction and pre-emption suit. The core legal question was whether the High Court and trial court misread or ignored material evidence regarding an alleged agreement to sell and whether the appellants proved their status as co-vendees. The Supreme Court held that the lower courts correctly interpreted the document as an agreement to sell rather than a sale deed, and that concurrent findings regarding discrepancies, interpolations in the scribe's register, and lack of proof of consideration were based on proper appreciation of evidence without any misreading. The Court laid down that concurrent findings of fact regarding the appreciation of evidence and the validity of transaction documents will not be interfered with by the apex court unless clear misreading or omission of material evidence is established.
- Whether an agreement to sell can be construed as a completed sale deed?
- Can concurrent findings of fact by lower courts regarding document interpolation be interfered with in appeal?
- Whether the High Court misread the evidence regarding the status of co-vendees in the disputed land transaction?
ABDUL QADEER CHAUDHRY, J : ‑‑These two appeals by leave of the Court are directed against the judgment of the Peshawar High Court dated 25‑11‑1985.
2. The facts of the case as borne out from the record and noted in the Leave Granting Order are as under:‑‑
3. On 8‑6‑1974 a mutation was attested whereby Suhbat Khan, respondent No. 1, was stated to have sold land measuring 43 Kanals 10 Marlas, situate in village Sheikh‑ul‑Bandi of Tehsil Abbottabad to Muhammad Atiq, respondent No.4, for a sum of rupees 62,000. Abdul Malik and Pervez Khan, respondents Nos.2 and 3, filed a suit for a declaration‑cum‑pre‑emption. They alleged that the alienation made by Suhbat Khan was in excess of his entitlement as he had by an earlier sale sold 6 Kanals and 24 Marlas out of the same land to another person. They also sought to pre‑empt the sale on the basis of their superior right. While this suit was pending the appellants who are brothers of Muhammad Atiq, filed a suit for a declaration‑cum‑specific performance. They averred that by an agreement dated 6‑2‑1974 they together with Muhammad Atiq had jointly agreed to purchase the land in dispute from Suhbat Khan in equal shares. They were thus joint owners in the land in dispute alongwith Muhammad Atiq. In the alternative they sought specific performance of the agreement of 6‑2‑1974.
4. In the suit filed by the appellants, respondents Nos.2 and 3 were impleaded as parties on their own requests. It were they alone who seriously contested the suit. By his judgment and decree dated 1‑10‑1980 the Senior Civil Judge, Abbottabad, dismissed the suit after holding that the appellants' claim that they were joint vendees, was not proved and that they had brought the action for the benefit of Muhammad Atiq. The appellants being dissatisfied, filed a regular first appeal in the High Court.
5. By a judgment of the same date, that is, 1‑10‑1980, in the suit filed by respondents Nos.2 and 3 the Senior Civil Judge, Abbottabad, refused the relief of declaration but allowed them to acquire the entire land in dispute on the basis of their superior right of pre‑emption on payment of Rs.50,000. Muhammad Atiq as well as respondents Nos.2 and 3 filed appeals from the decree of the learned Senior Civil Judge. The learned District Judge, Abbottabad, dismissed the appeal of Muhammad Atiq but accepted the one filed by respondents Nos.2 and 3 inasmuch as he reduced the price of the land to be paid by them to Rs.43043.66. Muhammad Atiq filed a revision petition in the High Court.
6. The regular first appeal brought by the appellants and the Civil Revision filed by Muhammad Atiq were heard together in the High Court. Both these were dismissed on 25‑11‑1985.
7. Learned counsel for the appellants submitted that Muhammad Waris and Umar Farooq were co‑vendees of the suit land with Muhammad Atiq their brother. It was sold by respondent Suhbat Khan to the appellants for a consideration of Rs.50,000 through an agreement dated 6‑2‑1977 and . Mutation No. 7467 to that effect was attested in favour of the appellants on 21‑5‑1979.
8. Leave to appeal was granted to consider the contention of the appellants that the High Court has misread the evidence and has also ignored, the material evidence.
9. The claim of the appellants is based on the agreement dated 6‑2‑1974. According to the learned counsel for the appellants this was a sale‑deed executed in favour of the appellants. After going through the recital of the agreement, it is clear that it is only an agreement of sale and not a sale deed. The learned Senior Civil Judge and the High Court have also come to the same conclusion and we do not see that in interpreting the document, the two Courts have misread the evidence. In this sale agreement, the area given is 42 Kanals and 19 Marlas but in the mutation the area mentioned is 43 Kanals 10 Marlas. Thus, there is a variation between the agreement of sale and the Mutation No. 7467. The learned trial Judge has noted certain deficiencies in the sale agreement Exh.P.W.2/1. According to the Court, the line marked as "a" was not in the handwriting of the scribe. The extract from the Petition Writer's register shows that there is a reference of an agreement to sell the land by defendant No.1 to the three brothers and the names of all the proposed vendees have been entered in the third column while in good faith it was not necessary to have it all done. The full page does not contain any such particular. Similarly, the extract from the scribe register proves that additions and deletions have been made on Serial No.446. The names of Muhammad Waris and Muhammad Umar Farooq have been added between the lines but the singular term "Wald" (son) of Muhammad Rafiq could not be changed into plural. Thus these efforts to name all the vendees between the lines create doubts and the executant of the agreement becomes dubious. The above facts pointed out by the trial Court have not been rebutted by any convincing evidence. The sale agreement was in favour of three brothers but the mutation was entered in favour of four brothers. The two Courts have discarded the sale agreement. Once it is left out of consideration there is no case of the appellants on merits. The finding of the two Courts is not open to exception that there was collusion to defeat the claim of Abdul Malik. Another important fact is that the suit for pre‑emption was filed by Abdul Malik and Pervez Khan on 2‑6‑1975 whereas the appellants brought the declaratory suit in 1976. In the suit for pre‑emption Waris had appeared as an attorney of Atiq. In the suit filed by Waris and Umar Farooq, Muhammad Atiq was arrayed as one of the defendants but no relief was claimed against him. The High Court has held that sale consideration by Muhammad Waris and Umar Farooq has not been proved and there is no material to repel this finding of fact which is based on proper appreciation of evidence. There is neither any misreading of evidence nor any important evidence has been excluded from consideration by the two Courts.
10. In the result, these appeals have no force and, they are dismissed leaving the parties to bear their own costs.
AA./M‑1798/S Appeal dismissed.