' MIAN SAQIB NISAR, J.---The suit for the declaration and in the alternate for the specific performance brought by respondents Nos. 1 and 2, inter alia against the appellants has been decreed by the learned Civil Judge, vide judgment and decree, dated 27-6-1998; the appeal of the appellants, has also failed on 26-10-1999.
2. Briefly stated the facts of the case are that the land in question,was owned by the Provincial Government, which was allotted in the name of Lal Khan son of Harri. It is the claim of the appellants that Lal Khan, had sold the suit-land for a total consideration of Rs,8,00,000 to the predecessor-in-interest of the appellants vide Mutation No,1308, dated 18-11-1990 and that the proprietary rights were also granted to Lal Khan, through another Mutation No,1307 on the same day. Be that as it may, respondents Nos.l and 2, on 19-11-1990, brought a suit for the declaration and in the alternate, sought the specific enforcement of an agreement to sell, dated 5-12-1988, claiming that Lal Khan has agreed to sell the suit-land, after attaining the proprietary rights of the property to them for a total consideration of Rs,2,00,000 and had received the entire consideration and the possession was also delivered to them; this suit was not contested by Lal Khan, who filed his conceding written statement but the appellants, who were originally not impleaded as the defendants, but on their application under Order 1 Rule 10, C.P.C., which was accepted on 26-11-1991, they were made the party and filed their written statement claiming that the alleged agreement to sell between the plaintiffs and Lal Khan, is fictitious and bogus; they asserted that they have purchased the suit property through Mutation No, 1308, dated 18-11-1990; in the written statement, they have also taken up the plea that they are the bona fide purchasers without notice; issues wereframed; parties were put to trial. It may be pertinent to state here that the issue about the bona fide purchaser has not been framed by the learned trial Court and at no stage, the appellants moved any application for framing of such issue; even in the first appeal, this was not one of the grounds of the appellants that the issue about the bona fide purchase has not been framed and that any prejudice on account of the above, has been caused to the appellants. On the conclusion of the trial, the learned Civil Judge, as mentioned above, allowed the suit by giving finding on issue No,5, that the agreement to sell, dated 5-12-1988 stands proved in favour of the respondents Nos. 1 and 2, whereas, on issue No,6, the Court has come to the conclusion. "Thus I am of the considered opinion that the plaintiffs have succeeded to prove that Mutation No,1308 has not been attested beyond the shadow of doubt. Thus it can be said as a result of fraud, misrepresentation."; on the issue of territorial jurisdiction, it was held that as the Provincial Government has been impleaded as a party therefore, the suit could only be tried by the Senior Civil Judge at the District Headquarter and not at the Sub-Divisional level. Against the above, the appellants preferred an appeal, but without any success. There is a concurrent finding of fact recorded by the two Courts below that the agreement to sell, dated 5-12-1988 between the plaintiffs and Lal Khan, was validly executed and they have paid the entire consideration and the Mutation No,1308, dated 18-11-1990 sanctioned in favour of the appellants has not been validly proved.
3. Learned counsel for the appellants assails the above findings on the grounds firstly, that the transaction of the respondents/plaintiffs was hit by the provisions of section 42 of the Land Revenue Act, as the agreement to sell was not got incorporated in the Revenue Record; such provisions are mandatory in nature and thus the violation thereof has rendered the sale and the agreement as invalid'; it is also stated that Dewan has appeared as P.W.3 in the matter but subsequently; he was reexamined as P.W.5 in violation of the Order 18 Rule 17, C.P.C., this was done with an object to fill up the lacuna left by the plaintiffs in the case, while examining him at the first stage. It is also submitted that no issue about the bona fide purchaser has been framed by the trial Court and this omission on part of the Court has caused serious prejudice to the case of the appellants, which was set out in the written statement and has vitiated the trial.
4. I have heard learned counsel for the parties. As far as theobjection about the breach of the provisions of section 42 is concerned, suffice it to say that the agreement to sell under the provisions of law is not required to be incorporated in the Revenue Record and thus as the respondents/plaintiffs were only claiming the agreement, having paid the entire consideration on the basis thereof, as the declaration of their ownership and in the alternate claimed the specific enforcement,therefore, in fact, it is the suit for the specific performance because they had also paid Rs,15000 as the court-fee upon the plaint. Therefore, for all intents and purposes, the suit was treated by the learned trial Court, as the suit for the specific performance.
5. As regards the question about the violation of Order 18 Rule 17, C.P.C. Is concerned, suffice it to say that at the time, when the respondents re-examined P.W.5, no objection was taken that he cannot be examined but can only be recalled in terms of the said law, therefore, the appellants are estopped by their own conduct to raise such objection.
6. For the last submission that the appellants were bona fide purchasers and no issue in this regard, has beenframed by the learned trial Court, which was its duty, it may be stated that the appellants slid not press this issue at any stage of the proceedings of the trial, thus under the law, it shall be deemed to have been waived. There is a concurrent finding of fact recorded by the two Courts below that the agreement to sell Exh.P-2, has been duly proved by the respondents/plaintiffs and such finding is not shown to be the result of any misreading and non reading of the evidence or no other factual or legal infirmity has been established, calling for interference within the purview of section 100, C.P.C. This appeal thus has no merits and the same is hereby dismissed.