MAZHAR ALAM KHAN MIANKHEL, J.---The petitioners, who are closely related to the respondents, brought a suit for specific performance of the agreement deeds dated 10-5-2003 against the respondents vide which the parties had agreed to exchange their respective lands to the extent of 8 Kanals, 3 marlas from the side of petitioners out of the total land measuring 40 Kanals, 18 marlas in Khasra Nos. 81, 82, 84. 85, 91 to 93, Khata No,306, Mahal Leekpani, and land measuring 8 kanals 3 marlas out of the total land measuring 18 kanals 7 marlas from the side of defendants in Khata numbers 285 to 294, 298 and 299 in Mahal Lund Khwar. Out of the defendants, only defendants Nos.1, 4 and 7 contested the suit whereas the remaining defendants admitted the claim of petitioners by filing compromise, Exh.P.W. 5/3 and recording joint statement, Exh.P.W.5/2. The petitioners were, however, non-suited by the trial Court vide judgment and decree dated 22-6- 2009 on the ground that he, after the aforesaid agreement, had sold out the suit property to one Samandar Khan vide sale deed dated 9-8-2003, hence could not ask for specific performance of the exchange agreement in question. The appeal of the petitioners before the learned ADJ-I Mardan also met the same fate. The learned appellate Court, in the impugned judgment, referred to a copy of the judgment and decree passed on 9-7-2005 (Exh.DW-1/1), vide which the plaintiffs therein (defendants of the suit in hand) had filed a suit against Samandar Khan by challenging the above said sale deed dated 9-8-2003 in his favour, but the same was dismissed. The property referred to in their plaint is the same which has been given to them through the exchange deed.
2. The learned counsel for the petitioners contended that the learned Courts below have failed to take notice of the fact that the contesting defendants neither in their written statements had taken the plea that petitioner had sold out the suit-land to Samandar Khan through the agreement ibid or filing of the suit by respondents against Samandar Khan and its dismissal on the strength of sale-deed dated 9-8-2003, nor the witnesses of the petitioners were confronted with the same during cross-examination nor any specific issue in this regard was framed. He further submitted that the petitioners themselves were not party to the case, the factum of which was brought on the record in the shape of copy of a judgment and decree. His next contention was that in spite of compromise and joint statement of many of the respondents, the same was neither considered by the Courts below nor any finding was given in this behalf. The appellate Court, while observing that the petitioners are estopped to ask for their relief as they had sold some of the property to one Samandar Khan, has failed to observe about the overall ownership of the petitioners in the khata.
Hence, the impugned judgments/ decrees of the Courts below are liable to be set aside. The learned counsel in support of his contentions placed reliance on the judgments reported in Bhika Mal and others v. Puran Mal and others (AIR 1923 Lahore 123), Mt. Ramjhari Kuer and others v.
Deyanand Singh and others, (AIR 1946 Patna 278), Rahim Bukhsh v. Nathu Bibi and others, (PLD 1951 Peshawar 61), Adalat Khan v. Mst. Begum Bibi through legal heirs and another, (1991 SCMR 1381), Din Muhammad and another v. Subedar Muhammad Zamanl, (2001 SCMR 1992).
3. As against that the learned counsel for the contesting respondents argued that case of the petitioners was only to the extent of exchange, which was not proved within the meaning of section 118 of the Transfer of Property Act and that the learned Courts below have rightly placed reliance on the copy of judgment and decree produced by the respondents. He in this regard placed reliance on the judgments reported in Nawab Ali v. Sardar Ali 2007 YLR 1794 and Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others (2008 SCMR 1702).
4. I have heard the learned counsel for the parties and have perused the record.
5. The arguments advanced by the learned counsel for the petitioners have got force for the reason that admittedly, the factum of alleged sale of property by the petitioners in favour of Samandar Khan was not alleged in the written statement. Again, the witnesses of the petitioners were not confronted with the same during the course of cross-examination. It is well-settled that A neither the respondents could have made deviation from their pleadings by setting up a new defence in their evidence nor the credibility of petitioners' evidence could have been effectively doubted until and unless the petitioners were confronted with the same by affording them proper opportunity to explain the position. Over and above, neither any Revenue Record is available on the file to show, nor it has come through the mouth of patwari, about the overall entitlement of the petitioners in the khata so that the property of 1 kanal and 14 marlas transferred by petitioner No,1 in favour of Samandar Khan if excluded from his total entitlement, it would disentitle him to ask for the relief in question. Similarly, both the Courts below have not given any findings on the evidence brought on record by the petitioners in the shape of compromise between petitioners and defendants Nos.4 to 9, 11 to 15 as well as their joint statement before the Court in support thereof.
6. It has now become settled that where the concurrent findings of facts by the Courts below are found perverse, arbitrary or fanciful the same could be interfered with in exercise of revisional jurisdiction of the High Court under section 115, C.P.C. In this case too, the findings of both the Courts below are not only arbitrary but also the result of misreading and non-reading of the material evidence on record. Reliance in this regard can be placed on. the dictum laid down by the august Supreme Court of Pakistan in the case of Muhammad Akbar v. Mst. Manua and 3 others, (2001 SCMR 1700). The judgment and decrees of the Courts below are, therefore, not sustainable in the eyes of law.
7. When the findings of the Courts below are silent on material evidence on the record then in the circumstances, remand of the case has become inevitable. In the given circumstances, this Court cannot give any finding for the first time in exercise of its revisional jurisdiction. The case-law referred to and relied upon by the learned counsel for the petitioners has relevance with the facts and circumstances of the case which can be considered by the trial Court while deciding the case afresh in the light of observations of this Court. However, the case law referred to by the learned counsel for the respondents, in the circumstances, has got no relevance.
8. The judgment and decrees of the Courts below are set aside and the case is remanded to the trial Court with the direction to record the detailed statement of the Patwari Halqa to ascertain the overall entitlement of the petitioners and then decide the factum of sale to Samandar Khan and the relief asked for in this suit by keeping in mind the compromise of some of the respondents.
However, the parties would also be entitled to record their further statements, if they desired so. The trial Court is supposed to do the needful within the shortest possible time but not later than two months. Parties are directed to appear before the Court of Civil Judge-XII, Mardan on 10-2-2011.