This civil revision has been filed to challenge the judgment and decree dated 17.11.1993 whereby suit for specific performance of agreement to sell filed by Muhammad Hanif predecessor-in-interest of petitioners was dismissed and also the judgment and decree dated 10.1.1996 passed by learned Additional District Judge, Mudan dismissing petitioners' appeal.
2. The facts in brief are that Muhammad Hanif predecessor-in--interest of the petitioners and Haider Ali predecessor-in-interest of Respondents No, 2 to 7 entered into an agreement to sell (Ex.
P-3) on 9.2.1976 in respect of land measuring 94 Kanals 17 Marlas in Chak No, J31/E.B Tehsil & District Vehari, for a price of Rs, 80,000/-. Out of the fixed sale price of Rs, 80,000/- Haider Ali allegedly received Rs, 38000/- at the time of execution of the said agreement and agreed to receive Rs, 27000/- at the time of completion of sale-deed, whereas R. 15000/-were agreed to remain with Muhammad Hanif for deposit of Government dues. On 9.2.1976 Haider Ali also executed power of attorney (Ex. P-10) in favour of Muhammad Zafar predecessor-in-interest of Respondents No, 8-A to 8-I and got the same registered with Sub-Registrar, Vehari. However, on 11.2.1976, a second agreement (Ex. P-2) was executed between Muhammad Hanif and Haider Ali and was also got registered on 11.2.1976. It was agreed in both the above mentioned agreements that after acquisition of proprietary rights of the land allotted to Haider Ali under Islamabad oustees Scheme, the sale-deed would be executed. Again on 13.8.1979 a third agreement (Ex. P-1) was executed between Muhammad Hanif and said Haider Ali, not himself but this time through his general attorney Muhammad Zafar and in the said agreement to sell price was enhanced to Rs, 105000/- out of which Rs, 93000/- were stated to have been received by Haider Ali himself whereas, Rs, 12000/- were agreed to remain with Muhammad Hanif as necessary expenses for execution of the sale-deed and attestation of mutation, etc. from the Government on acquisition of the proprietary rights. It so happened that Muhammad Hanif when smelled some foul play on the part of Haider Ali, he immediately filed a suit for declaration and permanent injunction against Province of Punjab and heirs of Haider Ali, etc. with the prayer that they should refrain from alienating the suit property to any one else as against him. The suit was however, dismissed as withdrawn by learned Civil Judge, Vehari on 18.12.1989 with permission to file a fresh suit. The judgment of the learned civil judge is available as Ex. D-1. In the meanwhile, as Haider Ali the original allottee had expired and his mutation of Inheritance No, 847 was attested on 21.10.1985 (Ex. P-7), his heirs moved an application before he District Collector, Vehari with the prayer to grant leave to transfer the said property in favour of Munawar Ahmad, present Respondent No, 9 in terms of Section 19 of the Colonization of Government Lands Act, 1912 and the said prayer was allowed vide order dated 18.12.1989 (Ex. P-4).
Consequent upon said permission to transfer by the District Collector, Vehari the legal heirs of Haider Ali also executed sale-deed dated 21.11.1985 (Ex. P-6) in favour of Rao Munawar for a sum . of Rs, 5,00,000/-, Rao Munawar thereafter, obtained proprietary rights from the Provincial Government and sale-deed to this effect was executed in his favour by the Collector. on 6.7.1989 (Ex. P-8) and in consequent thereto Mutation No, 444 was also sanctioned in his favour. Conferment of proprietary rights in favour of Rao Munawar respondent compelled Muhammad Hanif to file a suit for specific performance on 25.7.1991 against the legal heirs of Haider Ali deceased (Respondents No 2 to 7), Muhammad Zafar predecessor-in-interest of Respondents No, 8-A to 8-I, Rao Munawar Respondent No, 9 and Province of Punjab Respondent No, 1, seeking specific performance of agreement to sell dated 9.2.1976, 11.2.1976 and 13.8.1979 in respect of the land, in dispute. The said suit was contested by' Rao Munawar respondent only through his written statement dated 17.5.1992, whereas, Muhammad Zafar predecessor-in-interest of Respondents No, 8-A to 8-I filed consenting written statement but Respondents No, 2 to 7 heirs of Haider Ali opted to remain absent and were thus proceeded against ex parte. The learned trial Court in view of divergent pleadings of the parties framed the following issues and invited the parties to produce their evidence:-- ISSUES:
1. Whether the Defendants No, 1 to 7 entered into sale agreement of the suit land with the plaintiff through agreements dated 9.2.76, 11.2.76 and 13.8.79 for Rs, 1,05,000/-? OPP.
2. Whether the plaintiff has paid Rs, 65,000/- to the Defendants No, 1 to 7 in pursuance of the agreements? OPP.
3. Whether the plaintiffs has performed his part of the contract? OPP.
4. Whether the plaintiff is entitled to the decree for specific performance of the contract? If so, to on what terms and conditions? OPP.
5. Whether the suit is incompetent in view of preliminary Objection No,1? OPD.
6. Whether the sale agreement is violative of Section 19 of the Colonization of Government Lands Act? OPD.
7. Whether the agreements are fictitious, bogus, and collusive between the plaintiff on the one hand and the Defendants No 1 to 7 on the other hand? OPD.
8. Whether the suit is barred by limitation? 'OPD.
9. Whether the Defendant No, 8 is bona fide purchaser for consideration and without notice? If so its effect? OPD.
10. Whether the defendants are entitled to special costs under Section 35-A CPC? If so, to what extent? OPD.
11. Relief.
Both the sides led evidence for and against and on the conclusion of the trial, vide judgment and decree dated 17.11.1993 the suit was dismissed. Against dismissal of his suit, Muhammad Hanif filed an appeal and the learned Additional District Judge, Vehari vide judgment dated 10.1.1996 although reversed the findings of the learned trial Court on all the issues in favour of Muhammad Hanif but dismissed the appeal on Issue No 8 holding the suit of the petitioners as time barred,. although the learned trial Court recorded no findings on said issue as the same was not pressed by learned counsel for the defendants/respondents. Against dismissal of their appeal the present petitioners filed Civil Revision No, 191/96 which was allowed by this Court vide judgment dated 16.7.2004 with the result that the findings of learned Additional District Judge on Issue No 8 were answered in favour of the petitioners and their suit was decreed with costs. Against judgment of this Court Rao Munawar respondent filed C.P. No, 934/2004 before the Hon'ble Supreme Court which was allowed on 25.10.2004 on the concession extended by petitioner's counsel Mr. Gul Zarin Kiani, Advocate and the case was _remanded for decision afresh keeping in view the law laid down by the Hon'ble Supreme Court of Pakistan.
3. At the very outset Mian Shamas-u1-Haq Ansari, Advocate appearing for Rao Munawar respondent has taken an objection that since Mr. Gul Zarin Kiani, Advocate for the present petitioners before the Hon'ble Supreme Court conceded all the arguments of learned counsel for the respondent, therefore, despite remand by the apex Court the petitioners cannot be heard and this petition be only decided on the basis of arguments of learned counsel for the respondents; and that only point which the petitioners could validly agitate before this Court is that of limitation. I am afraid the above contention of learned counsel has any force. The judgment of the Hon'ble Supreme Court dated 25.10.2004 leads no doubt in one's mind that the apex Court remanded the case to this Court with a direction for its decision afresh keeping in view the law laid down by the apex Court. Para 4 of the said judgment clearly spells out the arguments of learned counsel, rather it appears that learned counsel appearing on behalf of respondent did not place the correct factual position before the Apex Court inasmuch as, it was contended that there were concurrent findings of facts which were earlier upset by this Court, whereas, the findings of two Courts below are not concurrent. The learned trial Court although dismissed the suit of the petitioners on the basis of its findings under Issues No, 1 to 7 and 6, whereas, no findings were recorded by the learned trial Court on the question of limitation i,e, Issues No, 8 being not pressed and the learned Appellate Court reversed findings of the trial Court on Issues No, 1 to 7 and 9 yet dismissed the appeal as well as suit of the petitioners by suo moto recording findings on Issue No, 8 which were 'interfered by this Court on 16.7.2004 in C.R. No, 191/1996. Similarly, it was argued before the apex Court that findings of two Courts were based on concurrent findings of facts, therefore, no case was made out to bring the same within four concerns of Section 115-C.P.C. justifying interference, which is again against the record as noted above because there is no concurrent finding of fact. However, the Hon'ble Supreme Court was impressed by the contention of learned counsel for the respondent that even in the absence of or without filing any cross-objections under Order 41, Rule 22 C.P.C. the respondent still had a right to challenge the findings on all the issues decided against them but the respondent was wrongly refused permission to challenge the findings on those issues which had been decided against him by the learned Appellate Court and in this view of the matter, the Hon'ble Supreme Court thought it appropraite to remand the case for deciding it afresh after allowing the respondent to challenge the findings of the learned Appellate Court on those issues which were decided against him and to defend the decree in terms of Order 41, Rule 22 C.P.C. even without filing or in the absence of any cross objections. I am, therefore, satisfied that the remand order has opened the field for both the parties and case was sent back to this Court for its decision afresh on all the issues in accordance with law, hence, there is no force in the objection of learned counsel for the respondent that petitioner has no right to be heard, thus the objection is overruled.
4. It is argued by learned counsel for the petitioner that the Appellate Court has got no jurisdiction to suo moto record findings on Issue No, 8 after the same was left undecided being not pressed by the respondent and that even otherwise, findings of the Appellate Court on Issue No, 8 are not sustainable for the simple reason that it was specifically provided in the agreements that sale- deed would be executed within one month after acquisition of proprietary rights and since admittedly such rights were obtained on 6.7.1989 through sale-deed (Ex.P-8) and the suit was filed on 25.7.1989 which was well within time of three years in terms of Article 113 of the Limitation Act.
Reliance in this respect has been placed on the case reported in 'Mst. Bibi Khatoon & 7 others vs. Abdul Jalil" (PLJ 1978 SC 306), 'Noor Muhammad vs. Ghulam Muhammad (1984 C.L.C. 1183) and "Muhammad Hussain vs. Saleem Jan and others" (P.L.D. 1995 Peshawar 98).
5. Exercising his right of rebutted on Issue No, 8 and other issues, learned counsel for the respondent submits that as held by the Hon'ble Supreme Court of Pakistan in the case 2003 S.C.M.R.
74 an also the remand order that respondent even without filing any cross objection or in the absence of the same can argue to support the finding of the learned lower Court on all the issues decided against hi therefore, he has a right to challenge the findings of the learned Appellate Court on Issues No, 1 to 7 and 9 to substantiate that the decree of dismissal by the learned trial Court was still sustainable. In view of the law laid down by the Hon'ble Supreme Court in the cite judgments as well as directions contained in the remand order of the apex Court. I have no option but to allow the learned counsel for the respondents to challenge the findings of the learned Appellate Court of Issues No, 1 to 7 and 9 decided against him and to defend the decree a provided under Order 41, Rule 22 C.P.C. even in the absence of without filing cross-objections.
6. On the question of limitation i,e, Issue No, 8 learned counsel for the respondent argued that without admitting execution of agreement Ex. P-1 to Ex. P-3, since it is proved from the record that respondent obtained permission to transfer lease rights , from District Collector under Section 19 of the Colonization of Government Lands Ac 1912 accorded on 18.11.1985 (Ex. P-4) and that in the light of the said order sale-deed with regard to transfer of tenancy rights was also executed and registered in favour of the Respondent No, 9 on 28.11.198 (Ex. D-5) and since registration of the said documents is a notice is terms of Section 3 of the Transfer of Property Act, therefore, permission granted on 18.11.1985 through Ex. P-4 was a notice, to all including the petitioners and thus his suit could be filed within three years from the date of 21.11.1985 in terms of second part of Article 113 of the Limitation Act but the suit was filed in 1991 which was hopelessly time barred and was rightly held so by the Appellate Court under Issue No, 8 It is also argued that although Issue No, .8 was not pressed before the learned trial Court yet the fact is that in terms of Section 4 of the Limitation Act, it is the duty of the Court to decide the question of limitation without any objection having been raised by the respondent In support of his arguments, learned counsel has placed reliance on the case reported in "Inam Naqshbandi Haji Sheikh Ijaz Ahmad" (N.L.R 1985 Civil 500) and 'Ata Muhammad and others vs. Mst. Khurshia Begum" (P.L.D. 1964 Lahore 224). On the findings of learned Appellant Court under Issues No, 1 to 7, learned counsel for the respondent has argued that petitioners have relied upon three agreements to sell, on executed on 9.2.1976 (Ex. P-3), second on 11.2.1976 (Ex. P-2) and their on 13.8:1979 (Ex. P-1). So far as Ex. P-1 is concerned, the same w allegedly executed and registered on 13.8.1979 through Muhammad Zafar alleged attorney of Haider Ali, whereas Haider Ali had ahead died on 18.4.1978 (Ex. D-8) and his mutation of Inheritance No, 34 through sanctioned on 30.10.1985 yet the same did contain his date to death as 13.5.1979, therefore, as with the death of Haider Ali the alleged power of attorney in favour of Zafar also stood revoked on the date of his death therefore, the agreement Ex. P-1 even if found correct, would neither have any effect nor would be binding on the respondent. With regard to Ex. P-2 and Ex. P-3, learned counsel argues that witnesses PW-1 to PW-5 produced by the petitioners and attorney of Muhammad Hanif PW-6 have not been able to prove the execution of Ex. P-2 and Ex. P-3 in accordance with law inasmuch as,- there is no evidence on the record about passing of consideration to Haider Ali, the original allottee nor any documentary evidence to this effect has been produced by the petitioner. It is also argued by learned counsel that since Zafar the alleged attorney of Haider Ali was closely related to Hanif petitioner therefore, without the permission of his principal namely Haider he could neither execute Ex. P-3 without firstly informing him or his permission nor the same Was binding on the respondent being against the law as well as judgments of the Hon'ble Supreme Court reported in "Haji Faqir Muhammad and others vs. Pir Muhammad and other" (1997 S.C.M.R. 1811). Further argues that since Ex. P-10 is certified copy of Special Attorney, therefore, same is not admissible unless absence of the original is satisfactorily proved. Reliance is placed on "Syed Mansoor Ahmad vs. Mst. Maqbool Begum and others" (1990 S.C.M.R. 1259). It is next contended that as Zafar has failed to prove the alleged power of attorney in his favour therefore, his evidence has got no evidentiary value as attorney and in this situation it was incumbent upon Hanif petitioner to have appeared in the witness box to prove his case and his non-appearance in the -witness box was a sufficient circumstance to discredit his version as held in "Mst. Khair-ul-Nisa and 6 others vs. Malik Muhammad Ishaque and 2 others" (P.L.D. 1972 S.C.
25), "Feroz Khan and others vs. Mst. Waziran Bibi" (1987 S.C.M.R. 1647), 'Muhammad Bashir and others vs. Chiragh Din through legal heirs and others" (2003 S.C.M.R. 774) and 'Muhammad Afzal vs. Muhammad Ayub and others" (2003 S.C.M.R. 961). Further argued that petitioner could prove passing of consideration by summoning the Registrar as held in "Waris Khan and 2 others vs. Mst.
Zainab Nisa and others" (1997 S.C.M.R. 526). It is next argued that in the presence of permission dated 18.11.1985 (Ex.' D-2) under Section 19 of the Colonization of Government Lands Act, the sale- deed (Ex. D-5), Mutation (Ex. D-6), Khasra Girdavri dated 8.7.1987 (Ex. D-10) and sale-deed from Government (Ex. D-7), the Civil Court had no jurisdiction to try the suit, especially when no such rights were ever conferred on Hanif under the Colonization of Government Lands Act, as held in 'Ata Muhammad and others vs. Mst. Khurshid Begum" (P.L.D. 1964 Lahore 224). It is further argued that in the presence of decision of the earlier suit filed by Hanif titled "Hanif vs. Province of Punjab etc." (Ex.
D-3) filed on 11.2.1985 and the judgment of this Court in C.R. No, 488/1996 the suit was not competent at all. On Issue No, 9 it has been argued by learned counsel for the respondent that since the respondent specifically took the plea of bona fide purchaser in the written statement and denied the existence of any prior agreement to sell in favour of Hanif petitioner, the onus to prove that respondent did have the notice about existence of prior agreements. Further that Rao Munawar respondent in his evidence as DW- 1 has specifically stated. that before the purchase of property he checked out the revenue record and further that since it was specifically mentioned in sale-deed (Ex. D-5) that the property in question was free from any charges and encumbrances and that Munawar obtained leasehold rights after obtaining permission from the competent authority under Section 19 of the Colonization of Government Lands Act and got the sale-deed registered in his favour, therefore, the respondent has successfully proved his case that he was bona fide purchaser of the suit land for valuable consideration and the learned trial Court rightly decided Issue No, 9 in his favour which has been reversed by the learned Appellate Court. Learned counsel in support of his arguments has placed reliance on the case reported in "Mst. Khair ul Nisa and 6 others vs. Malik Muhammad Ishaque and 2 others" (P.L.D. 1972 S.C. 25) and "Sana Ullah and 17 others vs. Muhammad Rafiq" (2003 C.L.C. 138).
7. On the other hand, Syed Kabeer Mehmood Shah, Advocate learned counsel-for the petitioners while controverting the arguments of Mian Shamas ul Hag Ansari, Advocate, submits that as Haider Ali the original allottee of the land in dispute who according to the petitioners executed Ex. P-1, Ex. P- 2 and Ex. P-3 or any of his legal heirs, never denied the execution of these documents nor even they filed written statement to this effect or appeared in the witness box to deny these documents, therefore, in terms of proviso to Article 79 of the Qanun-e--Shahadat Order (Section 65 of the Evidence Act), the execution of these documents shall be presumed admitted and petitioners neither required any evidence for proving any of these documents nor required to call any witness as required by above-mentioned provisions of law. It is further argued that since Ex. P-2 is a registered document and same was registered in the presence of Haider the original allottee, therefore, the endorsement recorded on the back of Ex. P-2 by the Registrar with regard to payment of consideration is sufficient proof for passing of consideration to him as held by this.
Court in "Pirla, etc. vs. Noora, etc." (P.L.D. 1976 Lahore 6). It is further contended that despite that petitioners did produce Abdul Rashid PW-3 who identified Muhammad Hanif before the Registrar at the time of registration of Ex. P-1 and Ex. P-2. Similarly, Muhammad Iftikhar PW-5 was also produced to prove these documents. About Ex. P-1 it has been argued by learned counsel for the petitioners that it was executed on 13.8.1979 by Zafar, the attorney of Haider Ali and in case if Haider Ali had died by that time the factum of death was not in the knowledge of Zafar respondent and even otherwise, it is not established from the evidence by the respondents that in fact on 13.8.1979 Haider had already expired. Regarding Ex. D-8 .e. death certificate of Haider Ali it is submitted that said documents pave neither been provided in accordance with law nor can be given any weight for the simple reason that same was kept dormant inasmuch as mutation of inheritance of Haider All Bearing No, 348 (Ex. D-1) was got anctioned on 30.10.1985. Further argued that even otherwise, Ex. P- 1 as been excluded from consideration by the learned Appellate Court and that petitioners also have no objection if the said document is not relied upon for any reason as through this document the amount of consideration was only enhanced, whereas, the original agreement between the parties is sufficiently proved by Ex. P-2 and Ex. P-3 and once Ex. P-2 is a registered document, presumption of truth is attached of the same and further that since there is no denial of the same either by its executant Haider Ali or any of his heirs, therefore, the petitioners pave successfully proved the execution, as such Issues No, 1 to 4 were sightly decided by the learned Additional District Judge. On Issue No, 9, earned counsel argued that findings of the learned Additional District Judge do not suffer from any illegality or jurisdictional defect. The respondents never took a specific plea about their being bona fide purchaser for value without notice and the plea taken to this effect in Preliminary Objection No, 9 cannot be considered as express plea, rather he same appears to have been inserted later on which is evident from the writing itself. Learned counsel for the petitioners contends that finless plea of bdna fide purchaser for value without notice was expressly Laken in the written statement neither any issue to this .effect could be 'rammed nor evidence could either be produced or looked into on this point. Reliance has been placed on the case "Hakim All vs. Muhammad Salim and another" (1992 S.C.M.R. 46), 'Binyameen and 3 others vs. Chaudhry Hakim and another" (1996 S.C.M.R 336), therefore, the findings of the learned Additional District Judge on Issue No, 9 are not Ten to interference. Lastly, on the question of legality of Ex. P-1 and Ex. P-2 on the touchstone of Section 19 of the Colonization of Government Lands Act; learned counsel by placing reliance on the case 'Rajab Ali vs. Mst. Aisha and others" (1989 S.C.M.R. 135) argued that such plea is only available to the grantee of the state land i,e, Provincial Government and no other person .and secondly as held by the Hon'ble supreme Court in "Shamir, through Legal Heirs vs. Fiaz Elahi, through legal Heirs" (1993 S.C.M.R 145), "Sher Muhammad Khan and others vs. lam Din and others" (1994 S.C.M.R. 470), 'Muhammad Iqbal and others vs. Mirza Muhammad Hussain and others" (P.L.D. 1986 S.C. 70), "Inam Vaqshband vs. HO Shaikh Ijaz Ahmad" (P.L.D. 1995 S.C.
314) and by his Court in K.L.R. 2006 Revenue cases 1, learned counsel has argued that suit for specific performance of agreement to sell after the acquisition of proprietary rights was not only competent but the same could legally be decreed on the proof of the agreement to sell. Learned counsel while concluding his arguments on behalf of the petitioners submits that since the respondent voluntarily did not press Issue No, 8 i,e, limitation, therefore, the learned Additional District Judge had no jurisdiction to record findings On Issue No, 8 of its own. It is also argued that since no specific appeal or cross objections have been filed by the respondents on the issues decided against them by the learned Additional District Judge, they can though support the findings of the learned Additional District Judge on Issue No, 8 by referring to the findings of the learned trial Court on the remaining issues yet they cannot argue for dismissal of this Civil Revision on the basis of the findings of the learned trial Court on such issues which have been rightly set aside by the learned Appellate Court.
8. The above mentioned arguments with reference to the record and other material have been considered.
9. The first pivotal point requiring determination of the fate of the suit is the question of limitation i,e, Issue No,
8. Admittedly, this issue was not pressed by the respondent before the trial Court; therefore, no finding on merit was recorded on the said issue by the trial Court. However, the learned Appellate Court even without any objection and dispute in its wisdom though it appropriate to reopen the question of limitation by holding that same being a question of law could be reopened and decided even without any objection in terms of Section 3 of the Limitation Act. There is although no cavil to the provision of Section 3 of the Limitation Act yet the fact remains as to whether in this case the question of limitation, despite the fact that respondents did not press the issue of limitation before the trial Court could still be reopened by the Appellate Court of its own cannot be ignored lightly. TO any mind, such question could not be reopened by the learned Additional District Judge for various reasons; firstly, the question of limitation in this case being not a pure question of law but one of fact also and the decision of the same depends upon the existence as well as proof of certain facts before declaring the suit of the petitioner as time barred; and secondly, the suit filed by the petitioner was also prima facie not barred by limitation within the meaning of Article 113 of the Limitation Act. Article 113 of the Limitation Act provides a period of three years as limitation for filing suit for specific performance of contract. Column No, 3 of the said Article provides time from which such period begins to run. According to Column No, 3 the period of three years limitation is to run from the date fixed for the performance of the contract or if no such date is fixed when the plaintiff has notice that performance is refused. A perusal of the agreement to sell Ex. P-2 and Ex. P-3 makes it abundantly clear that no date for performance of the contract is fixed, therefore, the suit filed by the petitioner was to be governed by second part of the said Article, according to which the period of three years was to commence from the date of refusal of performance. It is specifically mentioned in both the agreements that sale-deed was to be completed after conferment of proprietary rights by the Provincial Government, meaning thereby, the specific performance of agreement was based on happening of certain future event i,e, issuances of sale-deed by the Provincial Government and thus the suit could be filed by applying second part of Article 113 and period of three years was to commenced from the execution of the sale-deed by the Provincial Government. In this case sale-deed Ex. P-8 was admittedly executed on 6.7.1989, whereas, suit was filed on 25.7.1991 which was thus within the period of limitation as held by the Hon'ble Supreme Court of Pakistan in 'Mst. Bibi Khatoon & 7 others vs. Abdul Jalil" (P.L.J. 1978 S.C. 306). The contention of learned counsel for the respondent on Issue No, 8 that suit could only be filed within three years from the date of execution/registration of sale-deed by the heirs of Haider in favour of Munawar Respondent No, 87 on 2.11.1985 (Ex. P-6) even without obtaining proprietary rights from the state, is not legally sustainable nor the case law relied upon by the learned counsel is applicable. Resultantly, it is held that neither the learned Appellate Court could of its own reopen the question of limitation under Issue No, 8 having been not pressed by learned counsel for the respondent before the learned trial Court nor the findings of the learned Additional District Judge recorded under Issue No,8 are correct and the same are reversed and decided in favour of the petitioners.
10. Now I am left with the contention of learned counsel for the respondent that on the issue decided by the learned Appellate Court against the respondent and against which the respondent till date has never filed any appeal nor cross objection and the question as to whether in the absence of any cross appeal or cross objection by the respondent and despite the fact that they can support the decree of dismissal of suit by two Courts below, can still ask the Court for reversal of findings of the learned Appellate Court recorded against them. To me the answer is no, because the language of Order 41 Rule 22 C.P.C. is very much clear which does not allow the Appellate Court to reverse the findings recorded by the lower Court in the absence of any cross-objection or appeal. However, in the light of abovementioned order of the Hon'ble Supreme Court noted above, learned counsel for the respondent was afforded full opportunity to argue the case on the issues decided against them in order to support the decree of dismissal of the suit. Admittedly, neither Ghulam Haider the original allottee of the suit land nor any of his heirs either filed written statement or entered the witness box to deny the execution of agreements Ex. P-2 and Ex. P-3, therefore, there is a considerable force in the contention of learned counsel for the petitioner that in terms of proviso to Article 79 of Qanun-e-Shahadat Order (Section 65 of the Evidence Act), the execution of these documents shall be presumed admitted, especially with Ex. P-2 is a registered document and was got registered by Haider the original allottee and further endorsement recorded by the Registrar on the back of Ex. P-2 raises a presumption of truth about genuineness of the executant of the said document. The said endorsement also carries a presumption of truth regarding passing of consideration under the document to its executant, as held by this Court in "Pirla etc. vs. Noora, etc." (P.L.D. 1976 Lahore 6).
11.So far as the fact that when Ex. P1 was executed Haider the original allotted had by that time had expired, is concerned, the same losses significance for the simple reason that not only the learned Appellate Court/Additional District Judge but also the petitioners did not press the said agreement on the ground that same was in fact a collateral document having been executed by attorney of the executant with the object of ,enhancing the price only, otherwise, the bargain/agreement was struck on the basis of transaction entered into through Ex. P-2 and Ex.P-3 and since both these documents were executed by Haider himself and have neither been denied nor challenged either by the executant or his heirs, therefore, the same was binding on Munawar Respondent No, 8 being successor in interest of Haider the original allottee. Therefore, the contention of learned counsel for the respondent against Ex. P-2 and Ex. P-3 cannot be looked into at all. Resultantly, the findings recorded by the Additional District Judge/Appellate Court on Issues No, 1 to 7 are sustained and it is held that there was a valid agreement between Haider the original allottee and Hanif predecessor- in-interest of the petitioners and on conferment of proprietary rights through sale-deed Ex. P-8 dated 6.7.1981 they were to be duly performed not only by Haider the original allotted but also by his legal heirs as well as Munawar Respondent No, 8 being successor-in-interest.
12.So far as the contention of learned counsel for the petitioner that without permission under Section 19 of Colonization of Government Lands Act, 1912, neither the agreement could be executed nor the suit was maintainable is concerned, the same is over ruled and it is held that suit filed by the petitioner's predecessor in interest namely Hanif was maintainable as declared by the Hon'ble Supreme Court in "Rajab Ali vs. Mst. Aisha and others" (1989 S.C.M.R. 135), 'Muhammad Iqbal and others vs. Mirza Muhammad Hussain and others" (PLD 1986 S.C. 70), "Shamir through Legal Heirs vs: Faiz Elahi, through Legal Heirs" (1993 S.C.M.R 145), 1994 S.C.M.R 470, "Inam Naqshband vs. Haji Shaikh Ijaz Ahmad" (PLD 1995 SC 314) and by this Court in K.L.R. 2006 Revenue 1.
13.Lastly, Issue No, 9 remains in the field. The argument of learned counsel for the respondent on this issue is that the learned Appellate Court wrongly reversed the findings on this issue in favour of the petitioner. I have gone through the same and find no infirmity in the said findings. The order dated 18.11.1985 granting permission in favour of Rao Munawar Respondent No, 8 under Section 19 of the Colonization of Government Lands Act, 1912 is very much available on the file and perusal of the same clearly indicates that while allowing permission to the respondent, it was in the knowledge of the colony authorities as well as Respondent No, 8 that there was earlier litigation between Haider and Hanif and an application was moved by Muhammad Zafar (attorney of Muhammad Hanif) before the colony authorities that he also be heard before making any such decision but according to the District Collector he was not present at that time, however, it is not evident that whether before passing the order dated 18.11.1985 granting permission in favour of Munawar under Section 19 of the above Act, any notice was also issue to said Zafar. Prima facie the proceedings conducted by the Collector are sufficient evidence to hold that Munawar at the time of obtaining permission under Section 19 of the Act was very well in the knowledge of the existence of agreements between Hanif and Zafar. The learned counsel for Respondent No, 8 argued that respondent before obtaining permission under Section 19, above, made discreet inquiry about the title of Muhammad Hanif by, inspecting the revenue record but the proceedings conducted by the colony authorities noted above itself negate the contention of Respondent. No,
8. Since till the grant of permission in favour of Munawar ownership of the property in dispute was still with the Provincial Government and same remained so till 6.7.1989 when Munawar obtained sale-deed from the Provincial Government, hence, mere inspection of revenue record showing firstly, Haider as original tenant of the state land and secondly Munawar as such, therefore; only inspection of the revenue record was not sufficient to hold Respondent No, 8 as bona fide purchaser.
14. It is further argued by learned counsel for the respondents by placing reliance on Section 3 of the Transfer of Property Act and 'Maulana Nur ul Haq vs. Ibrahim Khalil" (2000 S.C.M.R 1305) that registration of a deed is notice to public at large, but the said contention is not sustainable for the simple reason that provision of Section 3 of the Transfer of Property Act is not applicable to the Province of Punjab as held by this Court in 'Muhammad Sharif and others vs. Muhammad Shafi and others" (P.L.D. 1956 Lahore 675) and "Haider AIL and another vs. Akbar Ali and another" (P.L.D. 1973 Lahore 546), hence registration is no notice, therefore, the judgment relied upon by the learned counsel in support of his above contention has no application to the facts and circumstances of the present case, as same relates to N.W.F.P. province where provisions of Section 3 of Transfer of Property Act might be in force and secondly the same is with reference to the limitation under N.W.F.P. Pre-emption Act, 1987. The plea of the respondent on Issue No, 9 has been controverted by learned counsel for the petitioner on the ground that such plea was not specifically taken in the written statement, and even otherwise, the Preliminary Objection No, 9 taken by the respondent in his written statement is not only evasive but also appears to have been inserted later on with different ink, therefore, neither any issue could be framed nor evidence could either be produced or looked into at all. Copy of the written statement is available on the file and has been perused.
Prima facie the above noted contention of learned counsel for the petitioner lends support from Preliminary Objection No, 9 of the written statement. As findings of learned Additional District Judge on Issue No, 9 do not suffer from any misreading or non-reading of evidence, therefore, the same cannot be interfered with, especially when the respondent did not filed any appeal or cross objection against the same and the provisions of Order 41 Rule 22 CPC cannot be used in favour of the respondent to reverse findings of the lower Court in the garb of defending the decree of dismissal.
15.Before parting with the judgment I would also like to point out that learned counsel for the respondent has also not been able to cite any judgment to the effect that provisions of Order 41 Rule 22 C.P.C. i,e, supporting the decree without filing or in the absence of any cross revision or cross-objection, (which are apparently applicable to appeal under C.P.C.), also apply to the Civil Revision and if this point had been raised before the Hon'ble Supreme Court at the time of hearing of C.P. No, 934/2004, most probably necessity of even remand would not have been felt with by the apex Court.
16.The upshot of above discussion is that this Civil Revision succeeds and while maintaining the findings of the learned Appellate Court/Additional District Judge on Issues No, 1 to 7 and 9 in favour of the petitioner and reversing the findings of the Appellate Court on Issue No, 8 in favour of petitioners their suit is held to be within time and suit filed by the petitioner is ordered to be decreed subject to deposit of balance sale consideration of Rs, 12000/- and for depreciation in the monitory value of rupee a further sum of Rs, 1,00,000/- (total Rs, 1,12,000) as earlier agreed by the petitioner before this Court on 16.7.2004, if not already deposited, within a period of two months from today, failing which the suit shall be deemed dismissed. The amount so deposited shall only be disbursed to Respondent No,
8. However, the Respondent No, 8 shall be at liberty to file a suit for recovery of sale price against the estate if any left by Haider the original allottee. Decree sheet be also prepared. There is no order as costs.