' CH. SHAHID SAEED, J.---Through the present Regular Second Appeal, the appellants have challenged the judgment and decree dated 19-3-2004 passed by learned District Judge, Hafizabad who dismissed the appeal of the appellants and upheld the judgment and decree dated 24-5-1993 passed by learned Civil Judge, Hafizabad whereby the suit of the respondents- plaintiffs was decreed with costs.
2. The cause of action as given in this appeal is that the respondents-plaintiffs filed a suit for specific performance of agreements to sell regarding land measuring 176 kanals, 19 marlas, fully described in the plaint. It was alleged in the plaint that one Sher Muhammad agreed to sell the said land to the respondents against consideration of Rs,3,34,246 vide agreement dated 22-5-1985 and also received a sum of Rs,175,000 as earnest money. It was agreed between the parties that the sale-deed will be executed up-till 31-1-1986. Thereafter, another agreement dated 23-5-1985 was executed whereby Sher Muhammad not only affirmed the agreement dated 22-5-1985 but also delivered the possession of the property in dispute. The plaint further states that a third agreement between the parties was executed on 1-2-1986. Through this agreement, Sher Muhammad received a sum of Rs, 1,04,500 and agreed to execute sale-deed in favour of the plaintiffs till 5-3-1986, however, before that date, he fell ill and expired in May, 1986. It is also mentioned in the plaint that Sher Muhammad during the period his illness further received a sum of Rs,12,000 as part of sale price which was not reduced in writing. The plaintiffs accordingly averred that they had paid a sum of Rs,291,500 and were ready to pay the residual amount of Rs,42,746.
3. The suit was contested by the appellants-defendants except defendant No,5 that the suit is baseless as no such agreement was executed. Defendant No,5 Mst. Sardaran Bibi, widow of Sher Muhammad, however, admitted the contents of the plaint as correct. She also appeared before the court on 21-10-1986 and got recorded her statement to the effect that the agreements to sell were duly executed and the amount was also received by Sher Muhammad as alleged in the plaint.
4. Out of divergent pleadings of the parties, learned trial Court framed issues, recorded oral as well as documentary evidence and decreed the suit of the respondents vide judgment and decree dated 24-5-1993. The appeal preferred thereagainst by the appellants could not succeed and was dismissed by the learned District Judge, Hafizabad vide judgment and decree dated 19-3-2004.
Hence this RSA.
5. Learned counsel for the appellants inter alia contends both the learned courts below have based their judgments merely on the conceding statement of defendant No,5, Mst. Sardaran Bibi whose statement has no evidentiary value as neither her statement was made, in presence of the parties nor any opportunity of cross-examination was given to the other side, i,e, appellants. Further argues that the learned lower courts below have failed to apply their judicial mind and did not pass their findings issue-wise which is not permissible under the law. He avers that the conceding statement of the lady at the most could be considered to her own extent and not to the extent of all defendants. Learned counsel further maintains that there are glaring contradictions in the statements of P.Ws., which cannot be ignored including that P.Ws. Other than the scribe . State that the amount was paid to the scribe who further paid the same to Sher Muhammad whereas the scribe states that no payment was made in his presence. Learned counsel prays that the instant RSA be allowed, the judgments and decrees passed by learned courts below be set aside and the suit of the respondents be dismissed.
6. On the other hand, learned counsel for the respondent's states that Mst. Sardaran Bibi being widow of Sher Muhammad was well aware of the facts regarding execution of agreements and receipt of money, therefore, her statement is of very much significance. He avers that the judgments and decrees passed by learned courts below are in accordance with law and even if the statement of defendant No,5 is not considered, even then, the agreements to sell were duly proved by the plaintiffs by producing marginal witnesses of the same before the court who affirmed the contents of the agreements to sell and also supported the version of the plaintiffs. He maintains that there are concurrent findings of law and fact against the appellant which are immune from interference by this Court as the appellants side could not point out any illegality or misreading/non-reading of evidence therein. Learned counsel for the respondents asserts that the RSA in hand has no force, it be dismissed.
7. I have heard the arguments advanced by learned counsel for the parties and perused the record with their able assistance.
8. Bare perusal of impugned judgments and decrees reveals that both the learned courts below have relied merely upon the statement of defendant No,5 Mst. Sardaran Bibi, widow of executant Sher Muhammad who not only assented the contents of the plaint but also appeared before the court on 21-10-1986 and deposed that the agreements to sell (Exh.P9, Exh.P10 and Exh.P.11) were executed by Sher Muhammad. She also deposed that the amount as alleged by the respondents- plaintiffs was also received by Sher Muhammad.
9. Admittedly and also apparent from the face of the record that the case was not fixed for evidence when the statement of Mst. Sardaran Bibi, widow of executant Sher Muhammad was recorded on 21-10-1986. The statement of the lady was neither recorded on oath nor in presence of the parties. No party, especially whose rights were going to be infringed by her statement, was provided opportunity of her cross-examination. It seems that none except defendant No,5 and the Presiding Officer was present when she got recorded her statement. However, thumb-impression of the lady is present in the margin of the order sheet. The statement is also not in consonance with clause (3) Of Rule 16 of Order XVIII, C.P.C. As neither the statement was read over to the lady nor there is any certificate by the learned Judge or any other person regarding its accuracy. It is also clear from the record that the lady was not cross-examined by either side. In my view, it was obligatory upon the court to provide opportunity of cross-examination to the party whose right were going to be infringed by the statement made by Mst. Sardaran. In absence of her cross- examination, the statement of Mst. Sardaran cannot be treated as piece of evidence and it has no evidentiary value as provided under Article 133 of Qanun-eShahadat Order, 1984.
10. Learned courts below have merely relied upon conceding statement of Mst. Sardaran Bibi that the agreements to sell in dispute were executed by Sher Muhammad and the consideration money as alleged in " the plaint was also received by him. However, it is prima facie clear from the record the lady figures nowhere when the agreements to sell were executed or the amount was paid to the alleged vendor. The statement of the lady is not direct evidence because neither had she executed the agreements herself nor she was present at the time when the agreements were reduced in writing nor she ever participated in the proceedings of the sale transaction.
11. Furthermore, there were three agreements to sell and lengthy evidence was recorded but both the learned courts below have failed to discuss the evidence issue-wise as required under the law and decreed the suit in a slipshod manner to which the law does not permit. It is also pertinent to mention that the learned trial court has discussed the crucial issues Nos.1 to 3 jointly in violation of Order XX, Rule 5, C.P.C. And also no evidence has been discussed while deciding the other issues.
The learned lower appellate court has also dealt with the matter similarly. The courts, are presumed to have all the laws in their sleeves but the learned courts below have failed to look into the evidence as well as the law on the point. Therefore, I am not in consonance with the findings of learned courts below.
12. In a nutshell, Mst. Sardaran Bibi, widow of the executant Sher Muhammad was neither sworn nor cross-examined by the adverse party whose rights were infringed by her statement nor she participated in the proceedings of the alleged sale transaction, therefore, her statement until and unless cross-examined by the other side has no validity in the eye of law. Learned courts below have erred in law while placing their whole reliance and decreeing the suit merely on the basis of conceding statement of the lady and not discussing the evidence available on record issue-wise, therefore, the judgments and decrees passed by learned courts below cannot sustain in the eye of law. Resultantly, this appeal is allowed, the judgments and decrees dated 19-3-2004 and 24-5- 1993 passed by both the learned courts below are set aside and the, case is remanded to the learned trial court to decide the matter afresh after giving opportunity of hearing to both sides in light of the observations made herein-above and on the basis of the evidence available on record expeditiously, preferably within four months, strictly in accordance with law. Parties are directed to appear before the learned trial court on 24-3-2012.