' AMIN-UD-DIN KHAN, J.-- Through this appeal, appellants-defendants have challenged the judgment and decree dated 9-4-2001 passed by learned Addl: District Judge, Sargodha, whereby the appeal filed by them was dismissed, and the judgment and decree dated 7-12-1996 passed by learned .Civil Judge 1st Class, Sargodha, whereby the suit filed by the respondents-plaintiffs was decreed.
2. Briefly, the facts as leading to this appeal are that on 27-11-1989 the respondents-plaintiffs filed a suit for declaration that they be declared owner in possession of suit property fully mentioned in the head note of plaint. In the suit they also challenged the orders passed by the revenue hierarchy up to the Member Board of Revenue. In the alternate they prayed for decree for specific performance of agreements to sell dated 15-1-1976 and 4-8-1977 with regard to the suit property on the basis of full paid amount of Rs,60,000. The written statement was filed and suit was contested. Learned trial Court framed issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the closing of trial, vide judgment and decree dated 7-12-1996 suit was decreed by learned trial court. Feeling aggrieved thereby, an appeal was preferred before the learned first appellate court, which was dismissed vide judgment and decree dated 9-4-2001. Hence, this appeal by the appellants-defendants.
3. Learned counsel for the appellants-defendants argues that to the extent of declaration the suit has been dismissed by learned trial Court and the respondents-plaintiffs have not filed any appeal or cross-objections to the extent of dismissal of their suit for declaration; that learned trial Court has decreed the suit for specific performance while ignoring major contradictions in the evidence produced by the respondents-plaintiffs; that the agreement to sell on the basis of which the suit has been decreed was not signed by the vendee, therefore the agreement was not enforceable by law; that on the basis of insufficient evidence the suit was liable to be dismissed but learned trial Court has decreed the suit for specific performance, therefore the findings are not sustainable under the law; that the respondents-plaintiffs were the beneficiary of agreement; that the claim of respondents-plaintiffs was self-contradictory. Further argues that the orders passed by the revenue hierarchy were absolutely in accordance with law, therefore to the extent of declaration the suit has rightly been dismissed and that the respondents-plaintiffs were not entitled for a decree of specific relief.
4. On the other hand, learned counsel for the respondents-plaintiffs argues that there are concurrent findings recorded by two courts below which need not be set aside by this Court when no defect has been shown therein to the extent of decree granted for specific relief. Further argues that the findings of two courts below with regard to the declaration are not correct, therefore states that there is absolutely no ground for acceptance of this appeal. Prays for dismissal of the same.
5. I have heard the learned counsel for the parties at full length and also gone through the record as well as. Case-law referred to by them with their able assistance.
6. The facts in series are that on 27-11-1989 the respondents-plaintiffs filed a suit that they be declared the owner in possession of suit property fully described in the head note of plaint and order dated 1-9-1988 of Member Board of Revenue whereby the registered sale-deed in favour of predecessor of defendants No,1 to 5 was cancelled, be declared illegal. The plaintiffs also challenged the proceedings for preparation of sale-deed in favour of successors of said Wali Muhammad and attestation of mutation of inheritance of Wali Muhammad bearing No,437 & 438.
They also challenged the cancellation of sale-deed registered on 18-2-1980 in their favour and also Mutation No,436 whereby the suit-land was transferred from the name of plaintiffs in the name of Provincial Government. In the alternate it was prayed that on the basis of agreements to sell dated 15-1-1976 and 4-8-1977 the suit property be transferred in the name of plaintiffs as full consideration amount of Rs,60,000 (sixty thousand) has already been paid. The case pleaded by the plaintiffs that Wali Muhammad was allottee of land in Chak No .46-Shumali Tehsil and District Sargodha and in accordance with agreement to sell dated 15-1-1976 after receiving whole of the consideration amount i,e, Rs,30,000 (thirty thousand) he agreed to transfer the property in favour of plaintiffs and a receipt was also executed. It was also ,pleaded that in the agreement it is mentioned that the suit land is within the prohibited zone, therefore there is entitlement of Wali Muhammad for alternate land and in case of alternate allotment of land, the plaintiffs would be entitled for alternate land. For the alternate allotment and transfer of proprietary rights, Sardar Bakhsh (defendant No,7) was appointed as Attorney of Wali Muhammad with an irrevocable power of attorney. Thereafter land in Chak No,169-Shumali was allotted in alternate in 'the name of Wali Muhammad then Wali Muhammad demanded further Rs,30,000 (thirty thousand) sand as such an amount of Rs,29,500 (twenty nine thousand and five hundred) was paid and he instructed his Attorney to' get the land transferred in the name of plaintiffs after preparation and attestation of Sanad Sultani', therefore said Sardar Bakhsh got registered an agreement to sell in favour of plaintiffs on 4-8-1977 and after completion of document for sale-deed in favour of Wali Muhammad, same was submitted in the office of Collector. The remaining amount of Rs,500 was also paid to Sardar Bakhsh, the Attorney of Wali Muhammad on 10-8-1977. The sale' deed in favour of Wali Muhammad could not be completed on the basis that someone filed an application on behalf of Wali Muhammad for alternate land in Chak No,116-Shumali for the alternate land in exchange of land in Chak No,46-Shurnali, as Wali Muhammad had already been allotted land in Chak No, 169-Shumali and when this fraud came into the notice of parties, the plaintiffs informed the Collector that the alternate land has already been allotted in Chak No,169- Shumall, therefore the matter of alternate allotment in Chak No,116-Shumali ended and the sale-deed of land situated in Chak No,169-Shumali was subsequently completed and registered in favour of Wali .Muhammad on 18-2-1980. Subsequently when the sale-deed was completed and registered in the name of Wali Muhammad and Attorney of. Said Wali Muhammad transferred the land through registered sale- deed in favour of plaintiffs, the revenue hierarchy cancelled the sale-deed' in favour of Wali Muhammad as well as the plaintiffs, therefore the' plaintiffs were forced to file the suit. The defendants Nos.1 to 5, legal heirs of Wali Muhammad, totally denied the claim of plaintiffs, whereas defendant No,7 (Sardar Bakhsh) filed consenting written statement.\
7. The questions for determination or point in issue before this Court are very simple i,e, whether after registration of sale-deed in favour of allottee by fulfilment of condition of allotment, the Collector or Board of Revenue has power to cancel the sale-deed and when on the basis of this sale-deed the property has been further transferred through another registered sale-deed, whether the subsequent sale deed can also be cancelled by the Board of Revenue and the last question is that whether the concurrent findings recorded by two courts below with regard to grant of a decree for specific performance in favour of respondents-plaintiffs are not sustainable under the law?
8. Though learned trial Court has declined the decree for declaration prayed for by the respondents-plaintiffs and the suit was decreed to the extent of specific performance of agreements and the decree for specific performance of agreements was granted in favour of respondents-plaintiffs, who have not filed any cross appeal or cross objections. The only appeal was filed by the judgment debtors-defendants and when their appeal was dismissed, this second appeal has been filed by the latter and even before this Court no cross objections or cross appeal has been filed. But I believe that when the matter is before this Court and the findings on a pure question of law are before this Court, the hands of this Court are not fastened and the Court is not powerless, not to touch these findings. There is registered sale-deed for the sale and grant of agricultural land in Canal Colonies by the Collector in favour of Wali Muhammad. The sale-deed was prepared on 1-8-1977 and stamp duty was paid upon this original deed which is Exh.P-6 on the record and its cancellation by the Board of Revenue only on the basis that it was registered on 4-2- 1980 and Wali Muhammad passed away in the year 1978, without assigning any violation of conditions by the allottee and further the Attorney of transferee Sardar Bakhsh subsequently transferred the suit-land through registered sale deed in favour of plaintiffs. In my view, order of cancellation of both the sale deeds was not in the jurisdiction of revenue hierarchy including the Board of Revenue. In this context, light can be taken from the judgment of august Supreme Court of Pakistan reported as "2008 SCM R 749 (Province of the Punjab, through District Officer, Toba Tek Singh and others)".
9. The refusal of grant of decree of declaration by the courts below is not sustainable under the law, as this question is purely of an academic nature in this case. Therefore, I do not further dilate upon the same.
10. So far as the concurrent findings of facts recorded by learned courts below while granting the decree for specific performance in the alternate are concerned, when the courts came to the conclusion that the declaratory decree cannot be granted, which finding is also not in accordance with law as I have discussed supra but when the court was of the opinion that a declaratory decree cannot be grained, therefore the courts have dilated upon the alternate prayer of specific performance of agreements to sell. While dealing with the second appeal concurrent findings cannot be interfered with unless on the touchstone of section 100 of the C.P.C. Learned counsel for the appellants is able to attack the same. The only legal point raised that the agreement was not signed by the plaintiff's party and in the light of dictum laid down by the august Supreme Court in the judgment reported as "2010 SCM R 334 (Mst. Gulshan Hamid v. Kh. Abdul Rehman and others)" the same is not enforceable by law. I do not agree with the arguments of learned counsel for the appellants because these agreements are not of the nature where any part performance on the part of plaintiffs is left, as they have performed their part while making full payment in the first agreement and at the time of second agreement almost all the amount was paid and the fractional amount of Rs,500 was also paid to the Attorney. There is an irrevocable registered power of attorney by Wali Muhammad in favour of Sardar Bakhsh dated 15-1-1976, registered as document No,36. On the basis of this power of attorney there is registered agreement to sell by the Attorney in favour of Khizar Hayat etc. Dated 4-8-1977, both these documents are Exh.P-3 and Exh.P-4, respectively. The appellants-defendants have filed written statement wherein all these documents have been denied but they have not filed any suit for cancellation of these "documents, Therefore, there is no defect in the concurrent findings of facts recorded by two courts below..
11. In this view of the matter, no case for interference by this Court while exercising jurisdiction under section 100 of the C.P.C. Has been made out. Resultantly, this appeal having no force is dismissed.