' ALI AKBAR QURESHI, J.----This order shall dispose of Civil Revision 839 of 2004 filed by the petitioner Yar Muhammad to call in question the validity of judgment and decree dated 22-10-2003 of the learned Additional District Judge Depalpur through which appeal preferred by respondent Mst.
Azizan Bibi was allowed against the judgment and decree of the trial Court dated 15-12-2000 partially decreeing petitioners' suit for specific performance.
2. Relevant facts of the case are that on 9-4-1990 petitioner filed a suit for specific performance against Jan Muhammad predecessor in interest of respondent on the basis of agreement to sell dated 2-4-1989 through which said Jan Muhammad allegedly agreed to sell land measuring 240 Kanals (detailed in the plaint) for a consideration of Rs,2,65,000 of which an amount of Rs,1,52,000 was paid by petitioner/plaintiff as earned money. However, later on respondent Azizan Bibi, Qurban Ali Shah, Aman Ali Shah and Muzafar Shah were also impleaded as defendants through amended plaint filed on 12-9-1990. Jan Muhammad died during pendency of the suit and his successors in interest were impleaded as defendants through amended plaint dated 20-7-1992. It was the case of the plaintif that on 2-11-1989 Jan Muhammad had entered into agreement to sell with him with reference to agricultural land measuring 240 Kanals in village Dulla Taija Ka for a consideration of Rs,2,65,000 out of which, an amount of Rs,1,52,000 was paid to him. It was further averted that suit land was allotted to Jan Muhammad as retired employee of the Pak Army under the Border Scheme and the N.O.C. Was required for transfer of the land from the General Headquarters. He also purchased the requisite stamp paper for execution o the sale-deed by spending Rs,20,000 from his own pocket and that when the same was ready for registration, Jan Muhammad got a suit filed for permanent injunction through Qurban All Shah and stated that sale-deed would be got registered after conclusion of said suit. It was next contended that Jan Muhammad refused to perform his part of the contract, hence, he filed the present suit.
3. Suit was contested by Jan Muhammad by filing written statement on 9-6-1990 stating therein that agreement to sell was executed by him with the petitioner on 2-11-1989 and received Rs,52,000 towards the receipt of earnest money at the time or the execution of agreement and total consideration was settled as Rs,2,65,000 and that it was agreed between the parties that remaining consideration was to be paid upto 5-2-1990 and on the request of the petitioner time was extended till 15-12-1990 on which date petitioner did not pay the remaining amount, and according to the terms of the agreement mutually agreed upon by the parties, payment of the balance amount by the petitioner. It was next asserted that petitioner had only paid Rs,52,000 but in the agreement he had tampered the amount and by interpolation made it as Rs,1,52,000. He further stated that he had transferred a portion of the land measuring 104 Kanals to Qurban Ali, Aman Ali, Muzafar Ali and respondent Azizan Bibi vide mutation 224 dated 3-4-1990. On factual side, averments of the plaint were denied stating that on 15-2-1990 the agreement stood terminated between the parties, whereafter Jan Muhammad transferred a portion of land to aforesaid persons who were subsequently impleaded as defendants by filing amended plaint on 12-9-1990 pleading that Jan Muhammad had transferred the land to them with collusion of the Halqa Patwari who was the husband of respondent Azizan Bibi and the transaction being illegal and void ab initio, was liable to be cancelled. It may be stated that Qurban Ali, Aman Ali and Muzafar filed separate written statements claiming to be the bona fide purchasers. Likewise, tespondent Mst. Azizan Bibi also filed separate written statement reiterating that she was also a bona fide purchaser with rest of the defendants against consideration of Rs,30,000 vide mutation dated 3-4-1990. After demise of Jan Muhammad during the pendency of the suit, defendants were impleaded before the trial Court and the petitioner again filed amended plaint on 15-5-1991.
4. Consequent upon divergent pleadings of the parties issues ware framed and evidence of the parties recorded and consequently while deciding issue No,3 the learned trial Court observed that petitioner had made statement before the trial Court as P.W.4 in favour of defendants 10 to 12 regarding land measuring 8 Acres transferred to them vide Mutation No,224, dated 3-4-1990 Exh.D2 hence, the finding on this issue will not have any effect on the said land, and thus the suit was decreed to the extent of remaining suit land. Only Mst. Azizan Bibi filed appeal and remaining defendants did not file any appeal against the judgment and decree of the trial Court subject matter of appeal before the learned Judge of the first appellate Court.
5. On 9-4-1990 petitioner filed suit seeking specific performance of agreement to sell dated 2-11- 1989 alleged to have been executed by Jan Muhammad 'predecessor in interest of defendants 2 to 9 with regard to land measuring, 240 Kanals, and in the written statement he had reiterated that petitioner did not perform his part of the contract according to the binding conditions settled inter se the parties, and that on 15-2-1990, the agreement between them stood terminated, whereafter he alienated land measuring 104 Kanals in favour of Qurban Ali Shah, Aman Ali Shah, Muzafar Ali Shah and Mst. Azizan Bibi vide Mutation 224 dated 3-4-1990 Exh. D2 which indicates that defendants 10 to 12 had purchased land measuring 8 acres while respondent Mst. Azizan Bibi had purchased 5 acres of land. Petitioner appearing as P.W.4 stated before the trial Court that he had compromised with the owners of land and relinquished his share to the extent of 8 acres of land purchased by defendants 10 to 12 from Jan Muhammad, and on the basis thereof, it was observed by the trial Court that though defendants 10 to 12 were not the bona fide purchasers, but since the petitioner himself relinquished his claim, hence, his finding will not affect the land purchased through Mutation No,224 dated 3-4-1990. Whereas, finding on issue No,1 were in favour of the petitioner and defendants 2 to 9 i.e,, successors in interest of Jan Muhammad who did not challenge the same in appeal. Now the controversy to be resolved in appeal was whether respondent Azizan Bibi was the bona fide purchaser.
6. Jan Muhammad owner of the land pleaded in his written statement that he transferred 104 Kanals land in favour of Qurban Ali, Aman Ali, Muzafar Ali and respondent Mst. Azizan Bibi vide Mutation No,224 dated 3-4-1990 against receipt of consideration, whereas suit was filed on 9-4- 1990 by the petitioner. It was the case of defendants 10 to 12 that they were the bona fide purchasers of land transferred to them through Mutation No, 224 dated 3-4-1990 for which petitioner had relinquished his claim by effecting compromise with them by making statement in their favour stating that he would not purchase 8 acres of land transferred in their favour, whereas, respondent Mst. Azizan Bibi had purchased the land through same mutation. And admittedly, on 3- 4-1990 Jan Muhammad predecessor in, interest of respondents 2 to 9 was the owner of land and his name very much existed in the revenue record. It has not been proved that petitioner had informed Halqa Patwari or the defendants regarding the execution of agreement to sell in his favour by Jan Muhammad. It further transpires that Qurhan Ali Shah had filed a suit for permanent injunction against Jan Muhammad on 20-2-1990 Exh.D3 pleading that Jan Muhammad had entered into an agreement to sell with him on 28-6-1989 regarding the land in dispute and that during pendency of that suit, Jan Muhammad had transferred the land in favour of defendants 10 to 12 and respondent Azizan Bibi. She was not a party in the suit filed by defendant Qurban Ali Shah against Jan Muhammad.
' Learned trial Court observed that Muhammad Younas Halqa Patwari was aware as to the agreement to sell between the petitioner and Jan Muhammad, and respondent Azizan. Bibi had knowledge about the transaction, hence, she was not a bona fide purchaser. However, it was not proved by the petitioner through evidence that whether he "had'' informed Halqa Patwari as to the factum of entering into agreement with an Muhammad of the suit land. Case of the respondent was on much better footing than that of defendants 10 to 12 whose claim has been acknowledge by petitioner. Facts on record reveal that respondent Mst. Azizan Bibi had no knowledge as to the agreement to sell between the petitioner and Jan Muhammad predecessor in interest of defendants 2 to 9. Thus, it was observed by the learned Judge of the first appellate Court that finding of the trial Court on issue No,3 was not inconsonance with the facts established on record and thus reversed the same and consequently deciding the said issue in her favour declared Mutation No, 224 '.Dated 3-4-1990 Exh.D4 to be valid and in tact. Since defendants did not challenge the finding of the trial Court on issue Nos.1 and 2 nor in the course of arguments pressed the same, hence, findings of the trial Court on all the remaining issues were upheld subject to findings on issue No,3 and consequently by accepting the appeal of respondents, the learned Judge of the first appellate Court modified judgment and decree of the trial Court to the effect' that petitioner's suit for specific performance was decreed in favour to the extent of land measuring 17 acres excluding the land mutated in favour of respondent Mst. Azizan Bibi and defendants 10 to 12 through Mutation No,224 dated 3-4-1990 Exh.D2 and the same was ordered to remain intact.
7. Arguments heard. Record perused. Both the Courts have given different interpretation to the evidence recorded in relation to issue No,3. Petitioner of his own choice recorded his statement while relinquishing his right to the extent of defendants 10 to 12 and the learned trial Court without evaluating and appreciating the evidence simply recorded that because of the statement of the petitioner in the witness-box findings on Issue No,3 would not have any affect upon the rights of defendants 10 to 12. On the other hand learned Judge of the first appellate Court has interpreted the finding on Issue No,3 in a way that respondent Azizan Bibi is a bona fide purchaser and consequently held that Mutation No,224, dated 3-4-1990 Exh.D2 shall remain in-tact to her extent. In the case of specific performance of the agreement, the Court has tried to find out the truth from the pleading as well as the evidence so produced by the parties as the law requires that while filing suit for specific performance both the parties should come forward to the Court with clean hands and with bona fide intentions. In this case both the Courts below have failed to appreciate the evidence available on the file, and the material brought on record by the parties requires fresh decision particularly keeping in view the transaction firstly executed between the petitioner and I Jan Muhammad deceased and thereafter selling of land through said mutation in favour of respondent Mst. Azizan Bibi and defendants 10 to 12 and also the statement made by the petitioner relinquishing his rights to the extent of defendants 10 to 12 particularly during the pendency of the suit.
8. For the foregoing facts and reasons and without commenting upon the merits of the case, this Court deems it appropriate to set aside the judgment and decrees of both the Courts below impugned herein, remand the case to the trial Court to re-decide the lis afresh by discussing the material available on record including the bona fides of the parties expeditiously and strictly in C accordance with law within three months on the basis of record/evidence available on record.
Parties shall appear before the trial Court on 4-8-2008. ' in the terms indicated ibid.