JUDGMENT JAWWAD S. KHAWAJA, J.~ Respondents Nos. 1,2,3,6, and 8 are represented by Sahibzada Badar-ul- Hassan, Advocate, In the circumstances, the ex-parte order against respondents Nos. 1, 2, 6 and 8 passed on 13.12.2005 is recalled.
2. The petitioners / plaintiffs are the L.Rs of Ghulam Rasul (deceased) who was the original plaintiff in this case. They impugn the concurrent decrees pf the learned trial Court dated 30.4.2003 and of the learned appellate Court dated 14.7.2005 whereby a suit, filed by the plaintiff Ghulam Rasul seeking declaration and in the alternate specific performance of an oral agreement has been dismissed.
3. The case of the plaintiff was that the owner of the suit property which measures. 1 kanal 16 marlas, namely, Noor Muhammad and one of his sons, namely, Muhammad Shuqin (respondent No. 4) were. Convicted in a murder case. Noor Muhammad sold the suit land through the oral agreement to the plaintiff Ghulam Rasul for a consideration of Rs. 7500/- to fund his defence in the murder trial. The consideration, according to the petitioners, was paid and the possession of the suit land was delivered to the plaintiff as far back as 1981-82.
4. Thereafter when the said vendee Noor Muhammad died, at his Jinaza the petitioner Ghulam Rasul asserted his right to the land, It is also contended that the legal heirs of Ghulam Rasul also agreed that they will complete the formalities for formal conveyance of the suit land to Ghulam Rasul. However, they did not do so. When Muhammad Shuqin was released from prison after serving his sentence, the petitioners once again demanded, that the defendants should do the needful but this was not done.
5. In the above circumstances, Ghulam Rasul filed the present suit He himself appeared as PW-1 and examined Muhammad Ashraf (PW-2) and Qutab Din (PW-3) in support of his case and , in particular, to prove the oral agreement asserted by him. The respondents filed a written statement resisting the suit. However, during the currency of the suit respondents Nos. 4,5,7,9 and 10 stated that they would have no objection if the suit of the plaintiff is decreed. Here it is important to note that the respondents/ defendants did not appear up the witness box to rebut the evidence of the PWs and nor did they produce any other witness in support of their defence.
6. The learned Trial Court nonetheless proceeded to dismiss the suit on the ground that there were certain contradictions in the testimony of the PWs. These contradictions, however, are not of a material nature and, in any event, were not sufficient to non-suit the plaintiff, particularly, in view of the fact that some of the respondents, noted' above , had accepted the case of the plaintiff. This itself was material evidence to corroborate the testimony of the PWs as it constituted an admission by the aforesaid respondents / defendants against their own interest.
7. The learned appellate Court has also adopted the reasoning of the learned trial Court without taking note of the circumstances. Mentioned above.
8. The most important circumstances, in the present case, is that none of the respondents chose to enter the witness box to testify on oath and to submit to cross- examination. Learned counsel for the respondents was asked to explain this material omission on the part of the respondent. He, however, was not in a position to give any reason as to why the respondents did not appear as witnesses to deny the agreement asserted by the petitioner.
9. As to the discrepancies noted by the learned trial Court, none of the same are of a material nature, In any event, as noted above, the claim of the petitioner was conceded by some of the respondents and this was, by itself, strong evidence in support of the petitioner. Another aspect of the case is that he is in possession of-the disputed property. This fact also provides support to the petitioner's case, particularly, since there is no evidence from the other side to show that the petitioner's possession was unauthorized or that he had forcibly taken over the disputed property.
10. Unfortunately, none of the above circumstances has been considered by the learned Courts below. The impugned decrees in the circumstances are a result of non-reading of the record and illegality in the exercise of the jurisdiction of the Courts below. The impugned decrees are, therefore, set aside. As a result, the suit of the petitioner/plaintiff is decreed as prayed for with costs throughout.