MUHAMMAD JEHANGIR ARSHAD, J.- The petitioners were plaintiffs before the learned Trial Court in a suit for specific performance of agreement to sell, originally filed against Mehboob Elahi respondent No. 1, on the basis of agreement dated 13.9.1988 executed by said Mehboob Elahi in their favour for a consideration of Rs. 2,00,090/, out of which Rs. 1,00,000/- were stated to be paid as earnest money. The original suit was contested by Mehboob Elahi present respondent No. 1 vide written statement dated 27.9.1993. However, as respondent No. 1 had in the meanwhile transferred the suit property to respondents Nos. 2 to 4, hence, they were also impleaded as party whereafter they filed their .Separate written statement dated 17.2.1999. In the written statement filed by Mehboob Elahi respondent No. 1 and also the written statement filed by remaining respondents Nos. 2 to 4, the legality/validity of agreement to sell dated 13.9.1988 was challenged by contending that same was barred by Section 19 of the Punjab Colonization of Government Lands Act, 1912 . And.
Also that they said agreement was false, forged, fictitious, etc. In view of contesting pleadings of the parties, the learned Trial Court framed the following issues and directed the parties to lead their respective evidence:- ISSUES:
(1) Whether the defendant No. 1 agreed to sell suit land in favour of plaintiff vide agreement dated 13.9.1988 received earnest amount of Rs. 1,00,000/- if so the. Plaintiffs are entitled for decree of specific performance of contract on what terms and conditions? OPP.
(2) Whether the suit is hit on the principle of resjudicata as per preliminary objection No. 1 of the written statement? OPD. - .
(3) Whether alleged agreement is hit under Section 19 of the Colony Act, if so the suit is liable to be dismissed? OPD.
(4) Whether the defendants Nos. 2 to 5 are bona i.e purchaser for value without notice, if so', their rights are protected? OPD.
(5) Whether the defendants are entitled to get special costs under Section 35-A, C.P.C.? OPD.
(6) Relief, On the (conclusion of trial, the learned Trial Court vide judgment dated 25.9.2000 decreed the suit of the petitioners directing them to deposit remaining Rs. 1,00,000/- in the Court and in case the said amount was deposited the same would be paid to respondents Nos. 2 to 4 being bona i.e purchasers for value. Against the said judgment and decree of the learned Trial Court dated 25.9.2000, only respondents Nos. 2 to 4 namely Abdul Hameed; Jamal Pin and Mst. Zainab Bibi filed appeal against the petitioners as well as Mehboob Elahi respondent No. 1 impleading him as respondent No. 4. Before the learned Appellate Court. The learned Appellate Court/Additional District Judge however, vide order dated 23.12.2004 accepted the appeal of respondents Nos. 2 to 4 and remanded the case directing the learned Trial Court to implead .The State/Provincial Government as party to the suit and after framing the following additional issue:- Whether the agreement to sell dated 13.9.1988 was forged, fictitious, collusive and based on fraud?
OPD-1.
To decide the suit afresh including the question of res judicata. This order of the learned Additional District Judge had been challenged through this Civil Revision.
2. Learned counsel for the petitioners has argued that neither the State/Provincial Government was necessary party nor . Any additional issue as suggested above was required and that if the learned Appellate Court was dissatisfied with the findings of the learned Trial Court on Issue No, 2 on he point of principle of res judicata, there was sufficient material available on record and the learned Appellate Court could itself record its own findings agreeing or disagreeing with the Trial Court but in no eventuality there was any occasion for the learned Appellate Court to remand the case on this point for the simple reason that said Court was not satisfied with the conclusions drawn by the Trial Court, nor there was any justification for such remand and that the Hon'ble Supreme Court of Pakistan in the case "Ashiq AH and others versus Mst. Zamir Fatima and others" (P.L.D 2004 S.C 10) .And "Anwar Ahmad versus Mst. Nafis Bano through Legal Heirs" (2005 S.C.M.R 152) deprecated the practice of remanding the case holding that "unless the same becomes absolutely .Necessary and inevitable in view of insufficient or inconclusive evidence on record, the case be not remanded just on technical grounds.". The further argument of learned counsel for the petitioner is that although when the petitioners and respondent No. 1 entered into contract dated 13.9.1988 the suit land was owned by the Provincial Government and was subject to provisions of the Punjab Colonization of Government Lands Act, 1912 yet at the time of institution of the suit dated 6.2.1991 as Mehboob Elahi respondent No.1 had acquired proprietary rights of the disputed property vide sale-deed dated 21.4.1990 registered on 19.7,1990, hence, the same was not subject to the provisions of Punjab Colonization of Government Lands Act; 1912 nor the Provincial Government had any interest left with the property in dispute, as such the Provincial Government was neither necessary nor even proper party and the learned Appellate Court erred in taking the view that State/Provincial Government was a necessary party in the absence of which no-effective decree could be passed and the trial of the suit be held de novo, after impleading the State/Provincial Government. The learned counsel further contends that in the present of Issue No. 1 there was no need at all to frame the additional issue as proposed above, because fate of the entire suit hinges on decision of Issue No. T. If Issue No: 1 is answered in favour of the petitioners there is no question of the said agreement being false, forged or fictitious and in case the findings on Issue No. 1 are otherwise, then the said agreement would be presumed to be false, forged or fictitious.
3. On the other hand, Mr. Behram Khan, Advocate appearing on behalf of the respondents had opposed this Civil Revision by arguing that the order- of remand was just, fair and in accordance with law.
4. I have considered the above-mentioned arguments of learned counsel for the parties keeping in view the judgments of two Courts below as well as the material available on record.
5. At the every outset it would not be out of place to point out that after conferment/acquisition of proprietary rights the property in dispute came out of the pale of provisions of Punjab Colonization of Government Lands Act,. 1912 because in terms of Section 30 of the said Act, thereafter such land ceases to be subject of any statement of conditions under said Act. Although at the time of entering into disputed agreement to sell the property in dispute was governed by the provisions of Punjab Colonization of Government Lands Act, 1912 yet after conferment of proprietary rights through sale-deed dated 21.4.1990 registered on 19:7.1990 (certified copy attached with this petition as ANNEX-L), the same was not subject to the statement of conditions in view of Section 30 of the said Act and the suit as filed on 28.9.1990 was therefore, correctly filed without impleading the State/Provincial Government because after acquisition of proprietary rights the State/Provincial Government had got no interest left in the suit property and as held by Hon'ble Supreme Court of Pakistan in the case "Shamir through Legal Heirs versus Faiz Elahi through Legal Heirs" (1993 S.C.M.R 145) and "Sher Muhammad Khan and others versus Ham Din and others" (1994 S.C.M.R 470), "after acquisition of proprietary rights, suit for specific performance was not only competent but the same could legally be decreed provided the disputed agreement has been proved", therefore, the remand order directing implead ment of State/Provincial Government as party and trial of the suit afresh, is not sustainable.
6. Similarly there is a considerable force in the contention of learned counsel for the petitioners that proposed additional issue was not relevant at all, as the fate of entire suit hinges upon findings on Issue No. 1 recorded by the learned Trial Court and in case the learned Appellate Court after appraisal of evidence had come to the conclusion that same was not proved, as a necessary corollary the result would have been that disputed agreement could be declared as forged, fictitious, etc. Therefore, the ground for remand of the case due to non framing of said additional issue is also not legally sustainable.
7. Finally, the findings of the learned Appellate Court on the principle of res judicata cannot be seen eye to eye with. On the basis of evidence available on record, the learned Appellate Court could agree or disagree with the findings of the learned Trial Court and record its own findings but the fact that learned Appellate Court was not satisfied with the findings of the learned Trial Court on the issue regarding res judicata, can hardly be a ground for remand of the case.
7. The upshot of above discussion is that none of the grounds given by the learned Appellate Court for remanding the case to the learned Trial Court have any footings. Since the learned Appellate Court while passing the order of remand did not come to the conclusion that material available on record was not sufficient or the evidence led by the parties was inconclusive making the remand absolutely necessary, hence respectfully following the law declared by the Hon'ble Supreme Court of Pakistan in the above-cited judgments, J have no option but to set aside the impugned order of the learned Appellate Court, declaring the same as against the provisions of law as well as dictum laid down by the Hon'ble Supreme Court. Accordingly this civil revision is allowed, the impugned order dated 23.12.2004 passed by learned Additional District Judge, Liaqatpur is set aside and it is held that appeal filed by respondents Nos. 2 to 4 shall be deemed pending before the learned Appellate Court/Additional District Judge, Liaqatpur which shall be decided afresh in accordance with law as well as on merits. The parties are directed to appear before the learned Appellate Court/Additional District Judge, Liaqatpur on 2.4.2006 and the learned Appellate Court shall ensure that said appeal is decided as early as possible.