MUHAMMAD AMEER BHATTI, J. --- 'This revision petition has been filed by the petitioners against the judgment and decree dated 19.04.2004, whereby the learned Additional District Judge accepted the appeal of the respondents and the decree of the learned Trial Court was set aside, hence this revision petition.
2. The brief facts of the case are that the petitioners filed a suit for specific performance of contract in respect of land measuring 14-K. According to the averments of the plaint, the original owner Sarfraz entered into an agreement to sell dated 13.11.1977 with Imam Bukhsh in respect of the land in dispute for a consideration of Rs. 8,000/- which was paid at the time of execution at the agreement to sell. The suit was filed on 28.11.1983 as the respondents refused to execute the sale-deed. The respondents filed the written statement, controverted the facts of the case and denied the execution of the agreement to sell as well as thumb-impression on the purported agreement to sell. Issues were framed and parties led their evidence. The learned Trial Court vide judgment dated 29.09.1987 decreed the suit in favour of the petitioners and appeal filed by the respondents was dismissed by the learned first Appellate Court vide judgment dated 13.03.1990. On revision petition No. 1501/1990, this Court vide order dated 03.11.2003 remanded the case to the learned first Appellate Court for deciding the matter strictly in accordance with law by giving the reasons. The learned first Appellate Court in post remand proceedings accepted the appeal of the respondents vide judgment dated 19.04.2004, resultantly, the suit of the petitioners stood dismissed.
3. The learned counsel for the petitioners contends that there are consistencies in the evidence of the petitioners as such the evidence of the petitioners has been misread and misconstrued by the learned first Appellate Court. Further contends that the application for additional evidence filed by the petitioners before the learned first Appellate Court for the comparison of the thumb- impression of Sarfraz was dismissed without giving any reason. The application of the petitioners for the comparison of thumb-impression of Sarfraz has been dismissed summarily and the learned first Appellate Court at the very outset, itself declared that there was no similarity between the two thumb marks, hence the other findings of the learned first Appellate Court were the outcome of a prejudiced mind, as such, the findings recorded by the learned first Appellate Court are not be termed as impartial, as before recording the finding on merits disclosed his predetermined mind with the declaration that the similarity between two thumb marks are visible. Henceforth, the findings of the learned first Appellate Court cannot be considered unbiased finding, as such, the case of the petitioners should have been remanded back and the application of the petitioners for comparison of thumb-impression of Sarfraz should also be accepted.
4. The learned counsel for the respondents states that the learned first Appellate Court has recorded the findings not only after making the comparison of the thumb-impressions but also considered the evidence of both the parties and decided the case after discussing the evidence of the parties and the conclusion drawn by the learned first Appellate Court is in line of the evidence available on the record, as such, the learned first Appellate Court has not committed any illegality or irregularity.
5. The case of the predecessor (Sarfraz) of the respondent is based on total denial of having executed the agreement to sell as he altogether negated the thumb impressions on the Ex.P.1 and took the stand that his thumb-impressions are forged or manipulated.
6. From the available facts of the case, instead of dilating upon the other issues and to determine whether document was essential or not, learned Judge of first Appellate Court has given its opinion which is not valid in the eye of law inasmuch as he did not possess the technical-expertise to make comparison with the naked eye. Hence in such circumstances, in the presence of the original document, the agreement to sell and the written statement as well as Wakalatnama, it is appropriate that the application for getting the comparison of thumb-impression of Sarfraz, the vendor of the suit land ought to be got compared with the documents available in the file of the learned Trial Court and thereafter the matter should be decided by considering the other evidence available on the record.
7. In this view of the matter, this petition is allowed . Consequently, the judgments and decrees of both the learned Courts below are set aside and the matter is remitted back to the learned Trial Court, which shall frame the issues according to the pleadings of the parties and also send all the admitted documents submitted by Sarfraz (the vendor) for their comparison with the agreement to sell and thereafter proceed with the case strictly in accordance with law. Parties are directed to appear before the learned. Senior Civil Judge on 30.03.2012, who shall take on this matter either himself or entrust it to any learned Civil Judge for adjudication. Since it is an old matter, the learned Trial Court shall decide the same within a period of three months from the entrustment of this case.
With this direction, this petition stands accepte.