' This revision petition calls in question the judgment and decree dated 20-10-1992 of the learned Additional District Judge, Kasur whereby the judgment and decree dated 20-7-1991 of the learned trial Court dismissing the suit for specific performance filed by respondents Nos.1 to 4 was set aside. This revision petition is by subsequent vendees and arises out of the following circumstances.
2. On 13-10-1986, respondents 1 to 4 filed a suit for specific performance in respect of land measuring 9 Kanals, 11 Marlas. Their case was that Muhammad Ishaq, the predecessor-in-interest of respondents Nos.5 to 15, orally agreed to sell the said land in favour of the plaintiffs-respondents for a consideration of Rs.15,000, received a sum of Rs.6,000 as earnest money. A report was recorded by Muhammad Ishaq in the Roznamcha Waqiati on 31-8-1983 at Serial No.463.
Muhammad Ishaq handed over possession of the disputed property to the plaintiffs-respondents on receipt of the balance sale consideration of Rs.9,000. Explaining the reason for not getting the mutation entered and attested, it was stated that the revenue estate was under consolidation therefore, it was agreed that after the completion of the consolidation proceedings, Muhammad Ishaq, the vendor, will get the mutation attested in favour of the plaintiffs-respondents. It was averred that despite the aforesaid agreement with the plaintiffs-respondents the land in dispute was sold in favour of the present petitioners on 11-10-1986 through a registered sale-deed.
3. The suit was contested by the petitioners as well as by the legal heirs of Muhammad Ishaq who had, meanwhile, died. The defence in the suit was that the report in the Roznamcha Waqiati did not constitute an agreement to sell and was not enforceable.
4. Necessary issues were framed and the parties led evidence in support of their respective contentions. The learned trial Court found that the report Roznamcha Waqiati had no legal value because it did not constitute a valid agreement. The suit was also held to be barred by limitation.
Accordingly, it was dismissed on 20-7-1991.
5. The plaintiffs filed an appeal before the learned District Court. The learned Appellate Court found that after having received the sale consideration, Muhammad Ishaq had reported the matter to the Patwari on which a report was recorded in the Roznamcha Waqiati, this agreement was competently made and reliance was placed on Prem Masih v. Irshad Masih ' and others (1988 SCMR 1009). The plea of the petitioners that they were bona fide purchasers for value was rejected on the ground that it was not raised in the written statement. The suit was held to be within time.
6. The learned counsel for the petitioners has raised the following contentions:-
(i) That the report Roznamcha Waqiati Exh.P-1 did not constitute an agreement because it lacked mutuality as none of the vendees had signed it or undertaken any reciprocal obligation.
(ii) Exh.P-1 was not duly proved by examining the Patwari.
(iii) Exh. P-1 is recorded in the Roznamcha Waqiati of Pialkalan and not. Mouza Abubakar Kotly where the land in dispute is situated.
(iv) There was no receipt for payment of Rs.9,000 or Rs.6,000 as alleged by the plaintiffs.
(v) Possession was not transferred wider the agreement as is borne out by the entries in Khasra Girdawar ',Exh . D1 .
(vi) The suit was barred by limitation.
(vii) No notice was ever issued or served on the vendor by the plaintiffs after conclusion of the consolidation proceedings.
(viii)The petitioners were bona fide purchasers for value and were not hit by section 41 of the Transfer of Property Act.
7. On the other hand, the learned counsel for respondents Nos.1 to 4 submits that the questions whether the report Roznamcha Waqiati constituted an agreement, payment of, sale consideration, the plea that the petitioners were bona fide purchasers for value are questions of fact which stand concluded by the learned first Appellate Court as a, result of re-appraisal of evidence and no fault could be found with the aforesaid findings.
8. The submissions made by the learned counsel for the parties have been considered. The first contention of the learned counsel for the petitioners has no merit. The case of the plaintiffs has been that it was an oral agreement to sell and report Roznamcha Waqiati was being relied upon as corroborative evidence of the said agreement. As far as the plea of mutuality is concerned, since payment of consideration has been believed by the learned first Appellate Court, the aforesaid agreement having been acted upon, this plea; as such, is not sustainable. Likewise, the plea of being bona fide purchasers for value was not even raised in the written statement.
Payment of consideration was proved through P.W.2 and P.W.3 and the question whether their evidence should or should not have been believed is plainly beyond the scope of revisional jurisdiction of this Court. As far as the contention that the plaintiffs were not in possession is concerned, suffice it to say that a suit for specific performance is a suit for possession in respect of land subject-matter of the agreement. As far as-the plea of limitation is concerned, it has no merit either because in accordance with report Roznamcha Waqiati, no specific time was fixed and it is not on the record as to when consolidation proceedings in the village had concluded.
9. Perusal of the plaint shows that respondents Nos.2, 3 and 4 were minors and the suit on their behalf was filed by Atta-ur-Rehman, their real brother. In view of the observations of the Hon'ble Supreme Court in Haji Abdullah Khan and others v. Nisar Muhammad Khan and other (PLD 1965 SC 690) the question that attracted my attention was as to the effect of minority of respondents Nos.2 to 4 and whether the point not raised either before the learned two Courts or even in the grounds of revision petition before this Court could be allowed to be raised. Accordingly, the learned counsel for the parties were directed to address this Court on the said issue. Apart from relying on the observations in the case of Haji Abdullah Khan supra the learned counsel for the petitioners relied on section 11 of the Contract Act and Nur Ahmed v. Election Tribunal and others (1982 SCMR 453),Muhammad Rashid v. Azad Jammu and Kashmir Government, through Chief Secretary and 20 others (PLD 1987 SC (AJ&K) 60).
10. On the other hand, the learned counsel for respondents Nos.1 to 4 has strenuously urged that the point not having been raised before any of the Courts including this Court cannot he taken into consideration in revisional jurisdiction. According to him, it involves at least determination of the question whether the agreement was for the benefit to the minors. He also relied on Muhammad Hussain v. Saleem Jan and others (PLD 1995 Peshawar 98), Haji Sharif Khan through Legal Heirs and another (2000 CLC 4), Muhammad Mursaleen v. Syed Noor Muhammad Hussaini (PLD 1968 Karachi 163) and Noor Muhammad and another v. Muhammad Ishaq and another (2000 MLD 25) in which agreement to sell in favour of the minors was held to be enforceable if it was for their benefit.
11. The submission of the learned counsel for the parties on this question have been considered. The observations in the case of Haji Abdullah Khan supra support the case of the petitioners. In the said case, the effect of minority of two of the vendees was sought to be raised in appeal before the High Court which was refused to be entertained and the Hon'ble Supreme Court had allowed it to be raised on the ground that it was a pure question of law. However, the following observations of the Hon'ble Supreme Court clearly restrict the scope of raising a question of law for the first time before a higher forum: - "A party is not bound to engage a counsel, whether law becomes applicable on the admitted or proved facts law has to be given effect to whether or not it has been relied upon by a party. Of course we are referring here to proceedings before original and appellate Courts and not to revisional Courts whose jurisdiction to interfere is determined by the statute that creates the jurisdiction. Under section 115 of the Civil Procedure Code for instance' the revisional Court cannot interfere on the sole ground that on the merits the decision was not in accordance with law, though the fact that a statute was overlooked and no decision was given with respect to it may constitute an irregular exercise of jurisdiction."
12. The ratio of the aforesaid observation, to my mind, is that while a question of law could be raised before the Court of appeal, even at the time of hearing, the principle was not applicable while exercising revisional jurisdiction, the scope of which is to determine whether the subordinate Courts, on the basis of the material placed before them and the pleas of the parties have exercised their jurisdiction illegally or with material irregularity. Therefore, the determination of this question will be beyond the scope of revisional jurisdiction.
13, For what has been stated above, I find no merit in this revision petition which is, accordingly, dismissed. No order as to costs.