' This civil revision relates to a house which was provisionally transferred to the respondent, Ahmad Raza Khan, under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Thereafter, the respondent executed an instrument, termed as a mortgage deed, in favour of the petitioner, Raza Ahmad Khan, mortgaging the house, with possession, in favour of the petitioner, for Rs, 4,750.
In the aforesaid document, it was also stipulated that when the ownership of the house would be permanently transferred to the respondent, he would sell the house to the petitioner in lieu of the above consideration without charging anything more. However, when the house was permanently transferred to the respondent he declined to execute a sale deed alienating the house in favour of the petitioner. The petitioner, therefore, filed a suit for specific performance of the agreement of sale as embodied in the aforesaid document. The suit was resisted by the respondent contending that the document in question simply created a mortgage in favour of the petitioner and, therefore, the suit brought by the petitioner was misconceived, After usual trial of the suit, it was decreed by a Civil Judge. Thereupon, the respondent went in appeal before an Additional District Judge. During the pendency of the appeal, it was proposed by the petitioner that if the respondent would swear by the Holy Qur'an that he had not sold the house to him (petitioner) and had simply mortgaged the same, his appeal may he accepted leaving the parties to bear their own costs. The offer was accepted by the respondent and he also made the prescribed oath. Then the petitioner again made a statement to the effect that since the respondent had taken the oath, his appeal may be accepted. Resultantly, the learned Additional District Judge accepted the appeal and set aside the judgment and decree of the learned trial Court leaving the parties to bear their own costs. It is the aforesaid decision of the learned Appellate Court which has been challenged by the petitioner by means of the civil revision in hand.
2. Learned counsel for the petitioner contended that the oath in question was not in respect of the subject-matter of appeal and, therefore, the appeal could not be disposed of in accordance with the oath proceedings. He pointed out that the dispute related to an agreement of sale and not any sale in regard to the house in question and, therefore, the oath made by the respondent to the effect that he had not made sale of the house in dispute in favour of the respondent could not constitute a valid basis for the disposal of the appeal.
3. The statements of the parties relating to the oath read as follows :- {{URDU TEXT}}
4. As indicated earlier, the dispute between the parties was in regard to the true character of the transaction recorded in the instrument termed as a mortgage-deed. The petitioner's assertion was that it was an agreement' of sale while the plea raised by the respondent was that it was nothing but a mortgage. The petitioner desired the respondent to state, by making oath on the Holy Qur'an, that the transaction in dispute was simply a mortgage, and he did make the oath accordingly. The mere fact that in the statements in regard to the oath in question the parties had used the word " {{URDU TEXT}}" (sale) instead of the words {{URDU TEXT}} (agreement of sale) is immaterial in view of the circumstances of the present case they were fully concious of the real controversy between them and had agreed to settle the same on the basis of oath. The fact that after the respondent had made the proposed oath it was stated by the petitioner that in consequence of his (respondent's) having done so, the appeal may be accepted leaves no room for doubt that the petitioner was entirely satisfied with the oath proceedings taken out at his instance and he had willingly agreed to the acceptance of the appeal preferred by the respondent. It is, therefore, not now open to him to assail the validity of the judgment and decree of the learned Additional District Judge by which he had allowed the appeal filed before him.
5. There is no merit in this revision petition, It is, therefore, dismissed in limine.