AMIN-UD-DIN KHAN, J.---Through this civil revision the petitioners have :challenged the judgment and decree dated 25-4-2003 passed by the learned Additional District Judge Bahawalnagar whereby the appeal filed by the petitioner was dismissed and the judgment and decree dated 22- 7-2002 passed by the Civil Judge Bahawalnagar whereby suit for specific performance filed by respondent No,1 was decreed.
2. With the concurrence of the learned counsel for the parties, this case is being decided as Pacca rase as preadmission notice was issued on 13-8-2003.
3. Brief facts of the case are that respondent No,1/plaintiff filed a suit for specific performance of agreement to sell dated 15-4-1996 and, receipt dated 15-4-1996, which was renewed on 26-8-1996 along with receipt dated 26-8-1996 regarding land measuring 16 kanals owned by Muhammad Aslam defendant No,
1. The case of the plaintiff was that he and his brother Javid Akhtar defendant No,6 entered into an agreement to sell with Muhammad Aslam owner of the suit-land. The petitioners were also arrayed as defendants Nos.2 to 5 on the basis that after entering into agreement to sell of the suit-land, defendants Nos.2 to 5 petitioners got entered mutation of Sale No,794 on 8-12-1996 about the whole of the land of defendant No,1, in their favour. The mutation has not so far been sanctioned. Written statement was filed. Defendant No,1 admitted the agreement but pleaded that plaintiff has not fulfilled the terms of the agreement; therefore, he is not entitled to decree. Respondents Nos.2 to 5/ petitioners also filed written statement and contested the suit. The learned trial Court on 11-3-1998 framed various issues and invited the parties to produce their respective evidence. Both the parties produced their respective oral as well as documentary evidence. The learned trial Court vide judgment and decree dated 22-7-2002 decreed the suit. An appeal was preferred by defendants Nos.2 to 5/revision petitioners which was dismissed. The original owner Muhammad Aslam opted not to file any appeal against the judgment and decree granted by the trial Court. One more important fact is necessary to mention here that Muhammad Aslam original owner filed a suit against the entrance of Mutation No,794 dated 8-12-1996 which lis is still pending and admittedly above said mutation has not so far been attested.
4. Learned counsel for the petitioners states that they are bona fide purchasers. Further that original agreement as well as its renewal was regarding land measuring 16 kanals, half of the land was to be received by the plaintiff, whereas half of the land was to go to defendant No,6. Learned counsel for the petitioners contends that defendant No,6 has not filed suit, therefore, decree of 16 kanals is not competent. Further that the appeal was also wrongly dismissed. Further states that the contract was not enforceable as it was not signed by the plaintiff. Further that partial decree was also not permissible. Further those petitioners are in possession of the suit-land; further that plaintiff did not prove that his agreement to sell was in the knowledge of defendants. Nos.2 to 5.
5. On the other hand learned counsel for the plaintiff and defendant No,6 i.e, respondents Nos.1 and 3 states that there were some contradictions in the Revenue Record and in the identity card of the vendor Muhammad Aslam, therefore, there was no fault on the part of the plaintiff and on refusal the suit was rightly filed against the vendor Muhammad Aslam as well as the alleged subsequent purchasers. Learned counsel further states that defendant No,1 has not denied from the agreement and receipt of the money. Further that even defendants Nos.2 to 5 /revision petitioners have also not denied from the agreement and the receipt of payment of money under the agreement. They have just stated that they were not in the knowledge of the alleged agreement to sell and receipt.
Further stated that no specific denial was made by defendants Nos.2 to 5 about the agreement, therefore, agreement and receipt will be presumed to be admitted documents, when defendant No,1 has also admitted these documents. Further stated that P.W.1 was not cross-examined on the point of impugned agreement to sell and receipt by defendants Nos.2 to 5. P.W.3 --- plaintiff categorically stated that defendants Nos.2 to 5 were in the knowledge of the agreement of the impugned land with the plaintiff. This point has not been cross-examined by their counsel. Learned counsel further states that defendant No, 6 is real brother of the plaintiff and he was an employee in Pakistan Army, therefore, he could not be joined as plaintiff. Ile plaintiff has stated this fact in his plaint. Further states that defendants Nos.2 to 5 have no right to raise this objection.
6. Learned, counsel for respondent No,2 has supported the impugned judgment and decree.
7. I have heard the arguments advanced by the learned counsel for the parties and have examined the record with their able assistance.
8. It is an admitted fact that the I alleged mutation in favour of the revision petitioners has not so far been sanctioned. The owner, defendant No,1 has filed a suit against the entrance of that mutation. Admittedly, this lis is still pending. All the objections raised by the learned counsel for the revision petitioners did not lie, with regard to the partial decree and with regard to filing of suit by one of the alleged vendee under the agreement and that the impugned agreement does not contain the signatures of the alleged vendees. All these objections were available to the vendor i.e, defendant No,1 who has not raised these objections. The only objection available with the revision petitioners/defendants Nos. 2 to 5 was that they are the bona fide purchasers for value with consideration without notice of the impugned agreement. The petitioners even failed to make out a case of purchase of the suit property because entrance of mutation of sale of the land owned by the seller i.e, Muhammad Aslam is under challenge before the court and admittedly the mutation in their favour has not so far been sanctioned. Further that they have not specifically denied in their pleadings the existence of valid agreement to sell between the plaintiff, defendant No,6 with defendant No,1. Further the assertions of the plaintiff and his witness P.W.1 that the impugned agreement to sell was in the knowledge of defendants Nos. 2 to 5 has not been cross-examined therefore, under the law it will be presumed that they have admitted this portion of statement given by this witness. Therefore, they cannot claim the suit-land under the umbrella of section 27 of the Specific Relief Act, 1877. Vendor defendant No,1 has not challenged the decree before the first appellate court and before this court. Even otherwise there are concurrent findings of fact recorded by both the courts below on the basis of evidence produced by both the parties.
For what has been discussed above, this civil revision having no merit is dismissed with costs.