' JAWWAD S. KHAWAJA, J.---The petitidners are the L.Rs, of Riaz Gul Khan, who was the plaintiff before the learned trial Court. The petitioners impugn the appellate judgment and decree dated 10-3-2004, whereby a suit filed by Riaz Gul Khan seeking specific performance of agreements dated 20-12-1986 (Exh. P-1) and 28-6-1988 (Exh. P-3), has been dismissed. While doing so, the learned, appellate Court has set aside the decree dated 5-5-1996 passed by the learned trial Court decreeing the suit for specific performance filed by the aforesaid Riaz Gul Khan.
2. The facts of this case are that lot No,6-A measuring 98 Kanals 1 Marla situated in Chak No,3 in Mauza Rakh Mauj Garh, Tehsil Mankera was allotted to one Bagh Ali (respondent No,2 herein) on 8- 5-1985. It is the case of the petitioners that the said respondent Bagh Ali executed the agreement (Exh. P-1) and the registered agreement (Exh.P-3), whereby the lot in question was agreed to be sold to Riaz Gul Khan upon conferment of proprietary rights on Bagh Ali. Bagh Ali also received the total consideration of Rs,1,10,000 from Riaz Gul Khan, vide receipt dated 2-4-1988, (Exh. P2). In addition to the aforesaid documents, on 28-6-1988 Bagh Ali executed and registered a general power of attorney (Exh. P-4) in favour of one Rauf in respect of the disputed land.
3. Thereafter, on 27-2-1991 orders were passed conferring proprietary rights on Bagh Ali. This was followed by execution andregistration of a sale-deed dated 13-5-1991 by the Collector in favour of Bagh Ali. Bagh Ali, however, according to the contents of the plaint, refused-to convey the land to Riaz Gul Khan and as a consequence, the said Riaz Gul Khan was constrained to file his suit seeking specific performance of the agreements (Exh. P-1 and Exh. P-3), referred to above.
4. The suit was resisted by Pathana (respondent No,1). At this point, it may be noted that Pathana claimed that on 14-5-1991 i.e, one day after the sale-deed in favour of Bagh Ali by the Collector, Bagh Ali had convyed the land to the respondent Pathana. Pathana also alleged in his written statement that on 6-5-1987 the respondent Bagh Ali had executed and registered an agreement to sell in his favour. This agreement is Exh. D-1 on the record and records that possession of the disputed land was delivered to Pathana at the time of execution of the said agreement.
5. On' the basis of the pleadings of the parties, the learned trial Court framed as many as seven issues, including that of relief. The parties led evidence on the said issues. After consideration of the same, the learned trial Court decreed the suit for specific performance. However, as noted above, the learned appellate Court has reversed the findings of the learned trial Court and has proceeded to dismiss the suit of the petitioners.
6. What has prevailed with the learned appellate Court is, firstly, that the agreements (Exh. P-1 and Exh.-3) and the receipt (Exh.P-2) have not been proved. This finding is not in accordance with the record and is, therefore, not tenable. It is to be noted that Bagh Ali through his written statements had admitted the aforesaid documents. The written statement itself was exhibited on record as P- 15 and was proved through the testimony of Malik Fazal Ali, Advocate who appeared as PW-13. In the light of the express averments in the written statement there was no further need or formal proof of the above noted documents through marginal witnesses. Nevertheless, marginal witnesses were also produced for the purposes and were relied upon by the learned trial Court.
Learned counsel for the respondent Pathana attempted to argue that the said documents had been collusively prepared with the object of defeating Pathana's title in the suit-land. There is, however, not a shred of evidence to show collusion between Riaz Gul Khan and Bagh Ali although issue No,8 was framed in respect of-the alleged collusion and onus of proving the same was placed on. Pathana.
7. Learned counsel for the petitioners also contended that the critical question, which. Is dispositive of the dispute between the petitioners and Pathana (respondent No,1), is the question of possession.Pathana himself appeared as DW-1 and admitted that Arab Gul (petitioner No,1) the son of Riaz Gul Khan, was in cultivating possession of the suit-land on the date of its allotment in 1985. Furthermore, learned counsel produced in Court rapt No,248 from the Roznamcha Waqiati of the concerned Patwari, wherein the crop sown by the petitioner on the suit-land, has been ordered to be attached by the Tehsildar on the basis of the impugned appellate decree dated 10-3-2004 passed in this case. The Revenue Record adduced in evidence also shows the petitioners as being in continuous cultivating possession of the suit-land. It was, on this basis, argued that the possession of the petitioners on the suit-land stood established. This itself constituted notice to Pathana of the interest claimed by the petitioners and before them, by their predecessor-in- interest Riaz Gul Khan, in the suit-land. Therefore, even if the agreement dated 6-5-1987 and the sale-deed dated 14-5-1991 in favour of Pathana are accepted as valid documents, the said Pathana could not have succeeded in defeating the suit filed by Riaz Gul Khan.
8. Secondly, it was argued that the agreement dated 6-5-1987 relied upon by Pathana, does not specify any consideration having been paid by him to Bagh Ali. Furthermore, the said agreement records that possession has been handed over to Pathana. This stipulation as to possession, is contrary to the circumstances noted above and, according to learned counsel for the petitioners, detracts from the authenticity of the agreement dated 6-5-1987.
9. Learned counsel for the petitioners next argued that Pathana did not produce the marginal witnesses to the sale-deed dated 14-5-1991 and also did not produce Khadim Hussain, one of the marginal witnesses to the agreement dated 6-5-1987. Moreover, it was argued that the agreement of 6-5-1987 was purportedly executed on behalf of Bagh Ali by one Muhammad Amin. Muhammad Amin did not appear as a witness nor was his power of attorney exhibited on record. Furthermore, Inayatullah, who purportedly identified the alleged attorney and executant before the Sub- Registrar, was not examined to prove the identity of these persons.
11. Learned counsel appearing for the respondent Pathana was unable to controvert the well reasoned arguments advanced on behalf of the petitioners. Most importantly, he was unable to show that possession of the disputed property had been delivered to Pathana, either in 1987 when Bagh Ali allegedly agreed to sell the property to him, or in 1991 when the alleged sale-deed was executed in his favour by Bagh Ali. As noted above, the question of possession is of material significance because Pathana had setup the defence that he was a bona fide purchaser of the suit property and issue No,7 had also been framed in respect ofthis plea. Here I may also add that a receipt for zar-e-legan (Exh. P-5) had also been produced by the petitioners/plaintiffs which is strong proof in support of their case.
12. The above discussion shows quite clearly that the documents (Exh.-P-1, Exh P-2 and Exh.P-3) stood proved. Secondly that cultivating possession of the petitioners over the suit-land at all material times was established beyond doubt. Consequently, the claim of the respondent that he was a bona fide purchaser entitled to protection of his title was not proved. Lastly the allegation of collusion between Ijaz Gul Khan and Bagh Ali as alleged by Pathana and encapsulated in Issue No,8, also could not be proved by Pathana.
13. Unfortunately, the learned appellate Court has not taken note of the material facts considered above and has proceeded on the basis of conjectures. It has thus erred in law. The appellate decree, as a consequence, is not legally sustainable and is, therefore, set aside. The decree of the learned trial Court dated 5-5-1996 stands restored. The petitioners shall also be entitled to their costs throughout.