1. ' DR. RANA MUHAMMAD SHAMIM, J.---Applicants have preferred this Civil Revision Application against the judgment and decree, dated 13-6-1987 passed by learned I-Additional District Judge Khairpur whereby Civil Appeal No. 122 of 1984 (14 of 1985) was allowed by decreeing the suit filed by the respondents and judgment and decree, dated 18-10-1984 passed by learned Senior Civil Judge Ist. Kahirpur was set aside.
2. The facts out of which this Civil Revision Application arises are that Muhammad Siddique, father of respondents Nos.6 to 14, filed suit for declaration, possession, mesne profits on the premises that Mir Ghulam Ali Khan made an oral agreement on 3-9-1970 with him, which was reduced into writing on 2-2-1971 for sale of land in question for a consideration of Rs.55,080 out of which Rs.25000 was acknowledged to have been received. The agreement was registered on 30-4-1971.
2. In the agreement it was also agreed that the plaintiffs shall be entitled for execution of a registered sale-deed on their payment of outstanding dues to the Agricultural Development Bank of Pakistan with whom the land in question was mortgaged. The plaintiffs on 10-5-1971 redeemed the land in question on payment of outstanding dues on 10-5-1971 which followed by execution of sale-deed in favour of the plaintiffs on 20-5-1971. Thereafter the plaintiffs applied for mutation on 2-7-1971 to the Mukhtairkar Khairpur who refused the same on the ground that the land in question already stood mutated in the name of defendants Nos. 2 to 8 on the basis of oral statement of defendant No.1 before the Mukhtairkar on 13-3-1971. The plaintiffs challenged the mutation in the appeal before the Settlement Officer and Collector Khairpur but the request of the plaintiffs was declined with the advice to approach the Civil Court. Hence the plaintiffs filed the suit with the plea that the oral sale has no value under the law and it is void ab initio.
3. The applicants/defendants Nos. 1 to 8 in their joint written statement have refuted the claim of the plaintiffs. Defendant No.1 has denied to have sold the land in question to the plaintiffs on oral agreement so also the subsequent agreement and registered sale-deed and termed the same to be fabricated and stated that by fraud the signatures were obtained on the said documents on the belief that it was in respect of some other transaction. The defendants further pleaded that the land in question was leased out to them for ten years from 1967 to 1977 during which defendant No.1 executed agreement for sale of the same on 1-1-1970 against consideration of Rs.86,880, and formal possession was also delivered to the defendants No.2 to 8 who were already in possession.
3. On payment of balance amount on 13-3-1971 the statement of sale was recorded by defendant No.1 before the Mukhtiarkar. It is further stated that the plaintiffs were already in knowledge of such transaction and despite that challenged the sale on statement in application, dated 7-4-1971 before Mukhtiarkhar which was rejected on 20-4-1971. Defendant No.1 also sworn affidavit before Civil Judge and F.C.M. Khairpur on 12-6-1971 stating therein that he had sold the land to the defendants and so also served a notice, dated 15-8-1971.
4. The learned trial Court on the pleadings of the parties settled the following issues on 15-3-1974:--
(1) Whether the suit is not maintainable according to law?
(2) Whether the suit is time-barred?
(3) Whether the suit is time-barred? (sic.)
(4) Whether this Court has no jurisdiction to try this suit?
(5) Whether the plaintiffs are exclusive owners of suit-land by virtue of registered sale-deed and the agreements made by defendant No.1?
(6) Whether the sale agreement executed in favour of the plaintiff is forged and fraudulent?
(7) Whether the defendant No.1 had sold the land to defendants Nos. 2 to 8 by giving statements before Revenue Authorities. If so, its effect?
(8) Whether the plaintiffs are entitled to mesne profits since, 1971?
(9) Whether the plaintiffs are entitled to possession as prayed for the then?
(10) Whether the plaint is properly stamped, if not what is the effect?
(11) Whether the suit is undervalued for the purpose of jurisdiction of the Court?
(12) What should the decree be?
4. ' Both the parties led their evidence and also produced certain documents in support of their claim.
5. The learned trial Court after hearing both learned counsel for both the parties and perusal of the material available on record, dismissed the suit of the plaintiff/respondents vide judgment, dated 27-10-1980 by learned Senior Civil Judge Khairpur.
6. ' The respondents preferred appeal against the said judgment vide Appeal No.3 of 1981 (renumbered as 4 of 1982), which was allowed and the case was remanded by learned I-Additional Sessions Judge, Khairpur vide judgment and decree, dated 21-2-1984 by framing following issue with the direction to the learned Trial Court to decide the same after affording opportunity to the parties to lead additional evidence, if any:-- ' Whether the respondent No.1 in collusion with the other respondents has got the two agreements executed and manipulated in back dates on 1-1-1970 and 20-1-1970?
7. ' On receiving the case by the learned trial Court, the matter was put up for evidence of the parties on above additional issue. However, the plaintiffs did not lead any evidence vide their statement, dated 5-9-1984 while the defendant examined the witnesses, after which the learned trial Court again dismissed the suit vide judgment, dated 18-10-1984 on the ground that the burden to prove additional issue was on plaintiff who failed to lead any evidence. Consequently, plaintiffs/ respondents preferred appeal against such order of dismissal vide Civil Appeal No.122 of 1984 (Renumbered as 14 of 1985), which was allowed and the suit of the plaintiffs/respondents was decreed vide judgment and decree, dated 13-6-1987, hence this Revision Application.
8. ' Contentions of learned counsel for the applicants are that the impugned judgment is not sustainable in law and the same is liable to be dismissed; that under the provisions of section 101 of Evidence Act the burden to prove the additional issue was on the respondents which they failed to discharge; that the respondents did not lead any evidence in support of additional issue vide statement filed by their counsel and such statement of their counsel is binding, which fact has not been considered, in the impugned judgment; that the plea of the respondents that they have not given any such instruction not to lead evidence is not sustainable in law; that the learned appellate Court was to give decision on the additional issue only but he has discussed the entire case and thus the impugned judgment is liable to be set aside; that from the perusal of material available on record the registered agreement, dated 1-5-1971 appears to be forged and manipulated as the stamp paper was purchased on 3-9-1970, When the oral agreement was made between the respondents and applicant No.1, the agreement was executed and signed on 2-2-1971, identified on 30-4-1971 and registered on 1-5-1971. Per learned counsel when the stamp paper was available on 3-9-1970 whey the agreement was not written, executed, signed or identified on the same day.
9. Learned counsel further argued that the applicant No.1 has very specifically denied any oral agreement with the respondents so also his signature on the registered sale-deed. He contended that since the applicant No.1 was not owner of the property oh 20-5-1971 question of execution of registered sale-deed did not arise. The earlier sale agreement with possession of applicants Nos.2 to 8 prevails over subsequent registered sale-deed in favour of the respondents. He contended that the oral statement before the Mukhtairkar Khairpur on 13-3-1971 does not require registration.
10. Learned counsel further contended that the applicants Nos. 2 to 8 claim title on the basis of statement, dated 13-3-1971 before the authority i.e. Mukhtairkar and thus has been done in lawfully manner as per section 114 of the Evidence Act and such proceedings do not require to be conducted in Jalsa-e-Aam. Furthermore, such plea has not been taken before the lower Courts and hence cannot be agitated before this Court. In support of his contentions learned counsel has placed reliance on 1981 SCM R 1119, 1997 SCM R 1079, 2001 M LD 568, NLR 2004 SCJ 825, 2007 SCM R 298, PLD 1964 SC 456, 2004 SCM R 530, 1999 SCM R 1245 and PLD 2007 SC 609.
11. ' On the other hand learned counsel for the respondents while refuting the contentions of learned counsel for the applicants contended that the impugned judgment is based on proper reasoning and does not call for interference by this Hon'ble Court. He further contended that the claim of the applicants on the suit property 'is based on oral statement which is not valid in view of subsection
(8) of section 42 of the Specific Relief Act which requires the oral sale to be made in common assembly (Jalsa-e-Aam). He further contended that since the statement filed by learned counsel for the respondents was not under instructions, the same has no value on being denied by the respondents. He contended that there is material contradictions in the depositions of the witnesses of the applicants which has been very specifically discussed in the impugned judgment. The oral sale was not proved therefore, the entries made in revenue record and mutation effected in revenue record is offended under section 42(6)(7) and (8) of the Land Revenue Act, 1967. He further contended that the private respondents acquired the right in suit property by sale through registered sale deed and the same is protected under section 53-A of Transfer of Property Act and section 27 of the Specific Relief Act.
12. I have heard the learned counsel appearing for the parties and with their assistance have also perused the material available on record. I have noted that the parties are litigating for the last about 37 years since the year, 1971 and the entire process has been completed except that the statement, dated 5-9-1984 given by learned Advocate for the respondents was without the consent of the respondents. In my humble view, this cloud may shatter the entire exercise continuing for over 37 years and again give a cause to keep the matter pending for an indefinite period, therefore, in all fairness and to save the parties from such ordeal, it will be in the interest of justice that respondents may be given an opportunity to lead the evidence on additional issue whereafter the learned trial Court may decide the case on its own merits in accordance with law.
13. ' In the light of above discussion, the Revision Application is allowed and the impugned judgment and decree, dated 13-6-1987 passed by learned I-Additional District Judge Khairpur is set aside and the case is remanded to the learned trial Court to examine the witnesses of respondents and others mentioned in the remanding order, whereafter matter be decided on its own merits in accordance with law within a period of six months.
14. ' Above are the reasons of my short order, dated 29-2-2008.