' ZIA-UR-RAHMAN KHAN, J.---Impugned herein is the judgment dated 17-5-2007 recorded by the court of learned Additional District Judge, Karak at Takhti Nusrati whereby while dismissing the appeal of the petitioner, the judgment and decree dated 23-12-2005 decreeing the suit of the respondents in the sum of Rs,1,12,000 has been upheld.
2. The relevant facts in precise manner are that suit for specific performance was filed by the contesting respondents_as plaintiffs against the present petitioner and others with regard to the disputed property duly described in the head note of the plaint. The averments of the paint are that the petitioner and his brother Muhammad Hanif being owners of the disputed property entered into a sale transaction with the plaintiffs-respondents and the entire sale consideration to the tune of Rs, 1,12,000 was received by the petitioner and in this regard proper statement was recorded in the 'Roznamcha Waqiati' on the basis of which two mutations were also entered. It is further averred in the plaint that the petitioner and his brother subsequently backed out of their promise and collusively alienated the disputed property through a collusive decree. On being summoned, the petitioner and other defendants submitted their written statement wherein they raised many legal and factual questions by controverting any sale in favour of the plaintiff-respondents. In their written statement they also admitted the decree in favour of defendant No,4 as correct. After framing of necessary issues emanating from the divergent pleadings of the parties, they were put on trial. After the conclusion of trial, the learned trial Court being convinced with regard to the payment of sale consideration to the petitioner, a proper decree was granted in favour of the contesting respondents for the recovery of the decretal amount as an alternative remedy pleaded by them in their plaint. Whereas their plea with regard to the property was declined on the ground that the subsequent purchase in favour of defendant No,4 was bona fide one and he being in possession of the disputed property for valuable consideration could not be deprived from its ownership. The appeal of the petitioner failed and thus the instant revision petition.
3. Learned counsel for the petitioner firstly contended that although the petitioner has raised many grounds in the memorandum of appeal but the learned appellate Court in violation of Order XLI, Rule 31, C.P.C. Has recorded a non-speaking judgment in a slipshod manner. He also contended that no presumption of correctness is attached to the entries of `Roznamcha Waqiati' and the payment of any sale consideration was required to have been received by the petitioner through cogent and reliable evidence. He also contended that the contesting respondents have no cause of action against the petitioner and their suit is liable to be dismissed.
4. On the contrary, learned counsel for the contesting respondents hotly controverted the contentions of the learned counsel for the petitioner and supported the concurrent findings recorded by the two courts below while granting a decree in favour of the decree holders.
5. I have considered the arguments of both the learned counsel for the parties and myself I went through the entire record available on the file.
6. As stated above, the respondents/decree-holders in support of their contentions examined Patwari Halqa who produced the extracts of Roznamcha Waqiati besides the extracts of fard jamabandi, khasra girdawari and also the copies of two mutations entered on the dint of the statement of the petitioner in the Daily Diary. They also examined one Shakoor as P.W.2 in whose presence the disputed amount was paid to the petitioner whereas Muhammad Amir son of Abu Samand appeared as P.W.3 and Ano Khan son of Jabbar Khan appeared as P.W.4. All these statements show that it was the petitioner who received the disputed amount from the plaintiff but later on resiled from the performance of his part of the contract. On the contrary, the petitioner did not appear himself rather he recorded the statement through his general attorney Gul Muhammad Ayaz Khan who in his examination-in-chief confirmed the fact of the petitioner's entering into a sale bargain for a sum of Rs,1200,000 but according to him in the Roznamcha a lesser amount to the tune of Rs,1,12,000 was entered. Although according to him, the sale was finalized in the sum of 1200.000 and was denied by the respondents decree holders but about this fact, the petitioner has not produced any evidence. It is by now settled principle of law that written proof about certain facts cannot be tarnished through oral assertion. This witness in his cross-examination in crystal manner has admitted the signature of the petitioner on the daily diary and he has also confirmed the entries and the statement thereon in favour of the contesting respondents. This admission of the attorney on behalf of the petitioner leads this court to an irresistible conclusion that it was the petitioner and none else who put his signature on the daily diary after realizing the decretal amount as sale consideration. This fact also makes it clear that he instead of selling the disputed property to the respondent/decreeholder, sold it to defendant No,4 and both the courts below have held the respondents/decree holders entitled only to the recovery of the disputed amount. The contention of the learned counsel for the petitioner that despite admission on the part of the attorney of the petitioner with regard to the signature on the daily diary, the petitioner was required to prove the factum of signature through their own evidence, is of course without substance. The obvious reason is that no body would like to make an admission against his own interest unless the same rings true and more particularly how the petitioner could be expected to sign the daily diary of the Patwari Halqa without receiving any amount from the respondent/decree holders. In this view of the matter, the courts below have rightly passed a decree in favour of the respondents/decree-holders against the petitioner.
7. As far as the plea of non-compliance of provision of order XLI, Rule 31, C.P.C. Is concerned, the same in view of the above parley of facts and written proof against the petitioner looses its importance. Needless to mention that whenever the appellate Court decides to affirm findings of the trial Court, it would be sufficient compliance if the effect of the evidence of the parties is taken into account and thereafter record its own findings. For the satisfaction of the learned counsel for the petitioner, this court as a revisional court once again examined the entire evidence both oral and documentary but nothing beneficial in nature to the cause of the petitioner could be found.
Reliance in this regard is placed upon the judgment of the august Supreme Court of Pakistan reported as Mst. Zaitoon Bibi v. Dilawar Muhammad (2004 SCM R 877).
8. On careful assessm ent of the entire material, the instant revision petition in the absence of any irregularity, illegality, mis-reading and non-reading of evidence does not require any indulgence by this Court and the same being without any force and substance is hereby dismissed leaving the parties to bear their own costs.