MUHAMMAD MUZAMMAL KHAN, J.--Instant civil revision assailed the judgments/decrees, dated 27-6-1997 and 17-10-2000 passed by the learned Civil Judge and the learned Additional District Judge, Kasur, whereby suit filed by the predecessor-in-interest of the respondents for possession was decreed and appeal of the petitioner was dismissed, respectively.
2. Succinctly, relevant facts are that Fazal Din deceased, predecessor-in-interest of the respondents, filed a suit for possession of land measuring 6 Kanals, 14 Marlas, duly detailed in the plaint with permanent injunction as consequential relief. It was pleaded in the plaint that the petitioner was tenant of the suit-land and he with a view to avoid his ejectment, forged the agreement to sell, dated 2-10-1984, in his favour. It was further averred that the petitioner filed a suit for specific performance of the agreement against Fazal Din deceased which was dismissed on 2-3-1991, thus, he has no right to remain in possession of the land owned by Fazal Din. A decree for permanent injunction was also prayed to the effect that the petitioner be permanently restrained from alienating the suit-land or changing its nature by raising construction.
3. The petitioner being defendant in the suit, contested the same by 'filing his written statement wherein he pleaded that he is in possession of the suit-land under the agreement to sell executed by Fazal Din. The petitioner also averred that he has spent an amount of Rs.30,000 on development of the land. Certain preliminary objections regarding payment of court-fee and lack of jurisdiction were also raised in the written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter after doing the needful, decreed the shit of Fazal Din predecessor-in-interest vide his judgment and decree dated 27-6-1997.
4. The petitioner aggrieved of the decision, filed an appeal before the learned Additional District Judge where he offered that in case Fazal Din deceased makes a statement on oath of the Holy Qur'an that he did not enter into a bargain of sale with the petitioner and he did not execute the agreement to sell, his appeal may be dismissed. This offer of the petitioner was accepted by the deceased Fazal Din and statement of both the parties were recorded by the Court on 17-10-2000.
5. Fazal Din deceased according to the offer of the petitioner stated on oath of the Holy Qur'an that he did not enter into any bargain with the petitioner and had not executed any agreement to sell in his favour. After oath on the Holly Qur'an, the appellate Court again recorded statement of the petitioner which was countersigned by the learned counsel for the parties, expressing his satisfaction about oath administered and thereafter appellate Court dismissed the appeal of the petitioner vide order dated 17-10-2000. The petitioner. Thereafter, filed instant civil revision, which was admitted to regular hearing and after completion of record has now been fixed for hearing.
Respondents An response to notice by this Court, were represented through their counsel Mr. Muhammad Ijaz Ahmad Lashari, Advocate.
6. I have heard the learned counsel for the parties and have examined the record, appended herewith. Submissions of the learned counsel for the petitioner that according to showings of the respondents themselves, their predecessor-in-interest (Fatal Din) was a man of unsound mind and thus, could not file suit In his own name, without next friend and that respondent's suit for possession was barred under Order II, rule, 2, C.P.C., as earlier suit by Fazal Din for declaration of his ownership over the suit-land was dismissed, have not impressed me for multiple reasons.
7. The petitioner did not raise any such objection ha his written statement that Fazal Din was a man of unsound mind and could not file suit in his own name under Order XXXII, C.P.C. On the other hand, Fan( Din deceased was not adjudged to be of unsound mind by any competent Court, hence a bald statement that Fatal Din was not mentally fit to distinguish between his good and bad was not enough to hold that C he was a man of unsound mind. Above all, the petitioner himself called upon Fatal Din deceased, pending appeal, to give an oath on the Holy Qur'an was sufficient to conclude that he was not a man of unsound mind. Declaratory suit filed by Fatal Din, was dismissed on the ground that he was in position to seek further relief of possession and thus, was barred under section 42 of the Specific Relief Act, 1887. Fatal Din deceased after filing instant suit for possession, withdrew his civil revision emanating out of his declaratory suit, hence bar as contained in Order It, rule 2 was not attracted, as his earlier suit was not maintainable. Reference is made to the judgments in the eases of Ghulam Nabi and others v. Seth Muhammad Yagoob and others PLD 1983 SC 344; Saeed Ahmad and 3 others v. Tanveer Ahmad and another 1990 M LD 788; Ejaz Hussaina v. Abbas Ali 1993 CLC 2478 and Khaleeq Ahmad v. Tahir Saeed and others 1998 DC 740.
8. The petitioner has not disputed his offer to deceased Fatal Din for giving oath on the Holy Qur'an regarding existence or otherwise of the transaction/agreement as two statements in this behalf were duly signed by him and his counsel. In presence of statements of the parties dated 17-10- 2000 the petitioner cannot be permitted to turn back to pick fake defects in the suit which did not come up for scrutiny before the First Appellate Court, due to requirement of the petitioner, for decision of the case on oath by the deceased.
9. For the reasons noted above, appellate Court committed no illegality/irregularity in dismissing the petitioner's appeal, thus, instant petition being devoid of any merit, is dismissed, with no order as to costs.