' SYED HAMID ALI SHAH, J.--- This revision petition has assailed the validity and legality of the judgment and decree, dated 19-1-1998 of learned Additional District Judge, Lahore whereby he dismissed the appeal filed by the petitioner against judgment and decree, dated 1-3-1986 of learned Civil Judge, Lahore whereby suit filed by the petitioner for a decree for specific performance of contract against the respondents was dismissed.
2. Very intricate, complex and jumbled facts, chequered, protracted and cumbersome litigation spreading over around 24 years from the background of this revision petition. The litigation started through filing a suit on 27-11-1982 which was dismissed by learned trial Court on 1-3-1986. The appeal met the fate of dismissal on 19-2-1989. The revision petition filed before this Court was accepted on 17-2-1997 and the case was remanded to learned Appellate Court. The appeal, after remand was dismissed through the impugned judgment and decree dated 19-1-1998. Hence this petition.
3. The dispute in the instant litigation pertains to land measuring 8 Marlas, 72 sq. Ft. Located at Sahuwari, Shalimar Link Road, Lahore, .e. The disputed property. Abdul Aziz respondent No,1 was P.T.O. Holder of the disputed property. He purportedly through agreement to sell dated 30-11-1964, contracted to sell the disputed property to the petitioner for a consideration of Rs,8,320. Part payments were received by respondent No,1. It was agreed between the petitioner and respondent No,1 that on receipt of P.T.D./T.O., registered sale-deed would be executed. Respondent No,1 appointed respondent No,2 Professor Nadeem, since deleted upon his demise, as his attorney to pursue his cases in the Settlement Department. The said attorney obviously for considerations and being hands in gloves with respondent No,1 out smarted the petitioner by executing agreement of association between respondent No,1 and Kaleem Jabran, respondent No,3, a son of respondent No,1. Consequently, P.T.D. Of the disputed property was issued in the name of respondent No,3. The petitioner had assailed the aforesaid agreement of association before the Settlement authorities but his petition was dismissed. Thereafter respondent No,3 had sold the disputed property to respondents Nos.4 to 7. Respondents Nos.6 and 7 had sold their share in the disputed property to respondent No,8. The latter sold it to respondent No,9 and finally respondent No,9 sold the disputed property to respondent No,10.
4. Against such a sad and somber backdrop, the petitioner brought the aforesaid suit for specific performance of the agreement dated 30-11-1964. The suit was contested and various issues were struck. After conclusion of trial, the learned Civil Judge held that agreement to sell Exh.P.1 had been proved. However, the suit was found time-barred. The subsequent vendees namely respondents Nos.4 to 10 were found bona fide purchasers for consideration, without notice. The suit was however, dismissed on the question of limitation. The appeal filed against the said judgment and decree, met the same fate. However, revision petition filed by the petitioner succeeded. The suit was held within time. The case was thus, remanded to learned Appellate Court for fresh decision after recording findings on Issue No,9, which relates to the plea of respondents Nos.4 to 10 that they are bona fide purchasers for consideration without notice. Learned Appellate Court vide impugned judgment and decree, dismissed the appeal.
5. I have heard the learned counsel for the parties and perused the material available on the record.
6. The plank of the petitioner's case is that the agreement to sell Exh.P.1 which he had executed with respondent No,1 was found proved and the suit was also found within time and as such learned trial Court, being Court of plenary jurisdiction, ought to have struck down the P.T.D. Of the disputed property issued in favour of respondent No,3 and the suit for specific performance of the contract was liable to be decreed. The petitioner has also taken the plea that respondents Nos.4 to 10 were posted with the knowledge of the agreement Exh.P.1 and as such could not be found bona fide purchasers for consideration and without knowledge. The petitioner has thus, urged that both the Courts below committed illegality and material irregularity in non-suiting him. It was contended that learned lower Appellate Court has committed material illegality in failing to advert to the terms of remand order. The case was remanded to learned lower Appellate Court for decision on Issue No,9, afresh. Learned Court while passing the impugned judgment and decree, has not read the relevant evidence. Ignoring material evidence on Issue No,9, renders impugned judgment, legally not sustainable. Case of Sardar Ali and others v. The State PLD 1967 SC 217 and Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67 were referred in this respect. The petitioner emphasized that non-appearance of Kaleem Jibran in the witness-box is fatal and adverse inference can be drawn against the respondents on this score. Case of Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 was cited in support of this contention. It was urged that the impugned decision is not sustainable as no weightage was given to possession of disputed property and also to the fact that agreement was void ab initio.
7. Respondent No,1 having nothing at stake has staged a volte face. His learned counsel has overtly toed the case of the petitioner.
8. Inversely learned counsel for respondents Nos.3, 4 and 9 has cogently argued that the suit of the petitioner cannot be decreed without first setting aside the P.T.D. Of the disputed property issued in favour of respondent No,3, a job which cannot be performed by Civil Court. Learned counsel has referred to the cases of Zafarul Hassan and others v. Muhammad Kalim and others 1993 SCMR 2028 wherein it was laid down that for specific performance of agreement and the challenge to agreement of association recourse to civil suit is not the right remedy and right course is to approach the relevant forum in the hierarchy of Settlement Department. Learned counsel added that to determine the character of property Civil Court has no jurisdiction. Cases of Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lah. 441 and Muhammad Younis and others v. Abdul Ghaffar and others 2004 SCMR 817 were referred to challenge the agreement of association to contend that in such cases jurisdiction of the Civil Court is ousted. Learned counsel has amplified that the Civil Court cannot look into the vires of the agreement of association. Learned counsel for respondent No,10 has also inter alia canvassed that under the law the Civil Court cannot go into the vires of the agreement of association on the basis of which P.T.D. Of the disputed property was issued in favour of respondent No,3 who subsequently, alienated the same in favour of the remaining respondents. Learned counsel has given the history of the case and has submitted that case has passed through various stages. Firstly, two applications were moved on 10-1-1979 with the prayer that T.O. May not be issued, which was dismissed by Deputy Settlement Commissioner vide order, dated 26-11-1979. Resultantly, T.O. Was issued on 27-11-1979. Secondly, the petitioner applied on 9-10-1977 to Settlement Department for transfer of property under Settlement scheme No,9. Form was rejected on 4-2-1979. Thirdly a suit for permanent injunction was instituted, where learned trial Court observed that remedy was return of money received under agreement to sell and rejected the plaint under Order VII, rule 11, C.P.C. The appeal met the fate of dismissal on 31-10-1979. Fourthly, suit for declaration was filed on 26-7-1979 which was withdrawn with permission to file afresh, fifthly, F.I.R. No,237 was lodged which was terminated through order, dated 29-5-1980. Sixthly proceedings under section 145, Cr.P.C. Were initiated which were dropped on 5-6-1979 and revision against the order was dismissed on 2-8- 1980. It was contended that the petitioner was not willing to perform agreement otherwise there was no occasion for him to seek transfer of land under Schedule No,9.
9. I have given my serious considerations to the submissions of the petitioner and learned counsel for the respondents.
10. At the outset, I must mention that the revisional jurisdiction of this Court is restricted and constricted. It is not co-extensive with the powers of trial Court and Appellate Court which have to advert to all legal and factual controversies. A revisional Court within the scheme and stance of section 115, C.P.C. Has merely to see whether there was failure to exercise jurisdiction vested in the Court, the jurisdiction was exercised which was not so vested and there was material illegality and irregularity.
11. With this in mind, I advert to the controversy. The petitioner is seeking decree for specific performance of contract Exh.P.1 of the disputed property, which he had executed with respondent No,l. This agreement, as noted earlier, was found proved .But respondent No,1 had never legal, valid and enforceable title qua the disputed property. His title was rather speculative, contingent, fluid, nascent and unborn. Not only this the petitioner was presented with fait accomplice by the execution of agreement of association between respondent No,1 and respondent No,3 which culminated in the issuance of P.T.D. Of the disputed property in the name of respondent No,3. This is insurmountable stumbling block in the passage of decree in favour of the petitioner.
12. So what falls for determination is whether it is within the competence of this Court to strike down the agreement of association, to scrap the P.T.D. Issued in favour of respondent No,3, foist it upon respondent No,1 and then decreed the suit after holding that respondents Nos.4 to 10 were not bona fide purchasers for consideration and without notice. This is daunting task indeed. This requires survey of case-law.
13. In the case of Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 it was held that Civil Court being Court of ultimate jurisdiction has jurisdiction to examine acts of such forums to see if such are in accordance with law or even mala fide. But in the cases of Zafarul Hassan and others v. Muhammad Kalim and others 1993 SCMR 2028; Mst. Mukhtaran Bibi and others v. Ata Muhammad and another 1985 SCMR 1506 and Mst. Fazal Bibi and others v. Settlement Commissioner and others PLD 1983 SC 163, it was held that acceptance of agreement of association by the Settlement Department is valid and such transfer cannot be interfered by the Civil. Court. Similar view was adopted in the case of Muhammad Sarwar and 5 others v.
Muhammad Ali and 18 others 2002 SCMR 829. It would thus, follow that Civil Court has no power to assail the validity of agreement of association.
14. There is cavil with the proposition that a Court when reaches the conclusion that it has no jurisdiction, it cannot pass any order except to return the plaint or dismiss the suit for want of jurisdiction, as the case may be. The impugned judgment and decree of learned lower Appellate Court is devoid of any illegality or legal infirmity.
15. In all earnestness, I may mention that the case of the petitioner has a touch of pathos. He remained embroiled in litigation in settlement and Civil. Court hierarchy for around three decades without any tangible benefit. By twist of circumstances the agreement executed in his favour has become unenforceable at law. He was comprehensively outwitted and elbowed out by the execution of agreement of association. The petitioner had the option to sue for the recovery of earnest money or damages but he has not deemed it expedient to avail of this remedy.
16. For the foregoing reasons, I do not find any substance in this revision petition and as such dismiss the same with no order as to costs.