' ABDUL LATIF KHAN, J.---Through this single Judgment I propose to decide the Revision Petitions bearing No.544 of 2011 filed by Khuda Bakhsh, No.517 of 2011 filed by Ikramullah and No.528 of 2011 filed by Khuda Bakhsh. All the above mentioned revision petitions relate to one and the same property.
2. Brief facts leading to the instant revision petitions are that respondents/ plaintiffs namely Fazal- ur-Rehman and three others filed a suit for declaration to the effect that the suit property was the ownership of defendant _No.1, who sold the same to the plaintiffs through sale deed dated 11-12- 1983 and since then they are owner in possession of the same. The defendant No.1 was requested to mutate the suit property in the name of plaintiffs by cancelling Mutation No.2753 attested on 2- 4-2004 in favour of defendant No.2 but they refused. The respondent namely Khuda Bakhsh also filed a separate lis against the respondents namely Allah Nawaz and others. The respondents appeared before the learned trial Court and filed their written statements. The learned trial Court after framing issues from the divergent pleadings of the parties, recorded evidence of the parties, hearing arguments of learned counsel for the parties, decreed the suit of the respondents/plaintiffs namely Fazal-urRehman and dismissed the suit of respondent Khuda Bakhsh through separate judgments and decrees on 26-1-2010. The present petitioners aggrieved from the judgments and decrees of the learned trial Court filed separate appeal before the learned appellate court. The learned appellate after hearing arguments of. The learned counsel for the parties, dismissed the appeals vide judgments and decrees on 1-8-2011, hence the instant revision petitions.
3. Learned counsel for the petitioners contended that the courts below have wrongly appreciated the evidence available on file. It was argued that an unregistered document has been based to bestow the right upon beneficiary which is totally illegal. 'It was contended that the suit of the respondents/plaintiff was hopelessly time-barred. So far as the possession of the property is concerned, it was argued that the same was never handed over. It was contended that unregistered document creates no title in favour of the beneficiary. It was further contended that there is no consent of Allah Nawaz with regard to the alleged agreement. It was contended, with regard to connected Revision Petition , No.517 that instead of suit for declaration, specific performance ought to have been sought by the plaintiffs and on this formal defect the suit is liable to be dismissed. He contended that initially the suit was filed against the defendant Khuda Bakhsh, in which the petitioner, moved an application for impalement and was arrayed as defendant in the amended plaint, however, during trial the suit was dismissed for non-prosecution and in application for restoration of suit, the present petitioner was not made party nor summoned, so the remaining proceedings were not in knowledge of the petitioner. He contended , that the learned lower courts have travelled beyond the jurisdiction as the petitioner, has the right to be heard, after the restoration of the suit. He prayed for the acceptance of instant revision petition by setting aside 'the judgments and decrees of the learned lower courts and dismissal of the suit filed by: the plaintiff.
4. As against that, the learned counsel for the respondents contended that the courts below have rightly assessed 'the evidence available on file and after proper , appraisal of the evidence, a decree has been granted which has been upheld by the learned appellate court.. It was further argued that the judgments and decrees of the learned appellate court are concurrent and no exception can be taken in the revisional jurisdiction of this court.
5. I have heard the arguments of learned counsel of the parties and perused the record, in the light of which my discussion is as under.
6.. The plaintiffs previously filed a suit for declaration on the basis of sale agreement deed dated 11- 2-1983 against the predecessor of the petitioner Khuda Bakhsh, which was later on added the relief for possession through specift performance. The defendants contested the same by filing written statement and raised numerous factual and legal objections. The plaintiff produced patwari halqa as P.W.1, who has brought on record the revenue papers. P.W.2, Khazanchi' of Tehsil Kulachi whereas petition writer, was , examined as P. W.3'. The plaintiff 'himself appeared as P.W.4 and marginal witnesses of the deed were examined as P.W.5 and P. W.6 respectively. After the submission of amended plaint APW-1, APW-2 and APW-3 were examined while the defendant examined their attorney as DW-1, denied the execution of the document and relied upon the revenue record in his support by rebutting the evidence of the plaintiff and termed it as insufficient evidence. The defendant has also transferred property measuring 3 kanals to Ikramullah, petitioner in Revision Petition No.517.
7. The perusal of evidence produced by the plaintiff reveals that disputed property measuring 11 kanals 12 marlas was allegedly purchased by the plaintiff from the respondent No.1 in the year 1983 for consideration of Rs.9,600, which was a substantial quantum of money and in the absence of receipt in this transaction, payment of sale consideration stand unproved. Moreover, claim of plaintiff that property in dispute acquired in lieu of sale. Consideration of Rs.9600 through unregistered deed, despite establish law that property having value of more than Rs.One hundred, could transfer only through registered instrument and without which no valid and legal title vests in the purchaser and cannot claim any legal title as owner of land on the basis of unregistered document. The instant suit has been :filed on 5-5-1998 after about 14/15 years, there is no explanation to this effect as to why the plaintiff has filed the suit so delayed. The period prescribed for filing suit on the basis of agreement to sell is three years from the denial. There is no evidence on file, when denial was made by the defendant lastly, and as such, the suit being hopelessly time- barred, is liable to be dismissed. The deed Exh.P.W.2/1, is the document on the basis of which the suit has been filed, which has not been proved. There is no receipt in respeci of sale consideration of Rs.9,600, which was a huge amount in the year 1983 sand the sale consideration being prime factor, has not been proved. There is no evidence to the effect that the money has exchanged hands between the parties to the agreement. The Revenue Record speaks about the ownership of the defendant and there is no entry in the Revenue Record in respect of change of possession which is necessary for the proof of purchase of land by dint of unregistered deed. It is not proved that in the instant case the plaintiff was inducted into possession of the property under the Impugned sale by the vendor. The statement of P.W.1 and P.W.2 are not confidence-inspiring as they were unaware of the facts because they were not in service at that time when the stamp paper was purchased for that purpose. The provision of limitation is meant to eliminate fraud committed efflux of time. Though the Khazanchi/clerk has been produced' but due to lapse of time he was unable to justify the purchase of stamp paper because he was not even in service at that time. The P.W. In cross-examination deposed that Khuda A Bakhsh received the sale consideration in his presence, however, shows ignorance as to whether the Sahib Jan received back this money or not. This statement is contradictory to the alleged deed itself, as. Exh.APW2/1 reveals that sale consideration was paid prior to the execution of the deed in the presence of elders of the locality when an arbitration took place between the parties. None of these elders has been produced by the plaintiff, to prove the convening of Jirga/arbitration or payment of sale consideration. Even the plaintiff himself was unable to prove the payment of sale consideration or the oral sale in his favour through cogent evidence. The entire evidence is silent in this respect as to why the mutation or registered sale deed was not got attested in favour of plaintiff during the long 14/15 years. Knowing the fact that the agreement deed does not create any title in its favour. As agreement to sell under section 54 of the Transfer of Property Act, 1882 does not, reate or purpose to create any right or interest in the property, therefore, no right of ownership vests in the plaintiff/respondent. The marginal witnesses are also silent to this effect that how the sale consideration was paid to the defendant. The learned courts below have been swayed by the consideration other than judicial.
No proper evaluation of evidence has been made in true perspective.
8. So far as the judgment rendered by the learned appellate court is concerned, it was obligatory upon the learned appellate court to have given its own findings; but the learned appellate court seems to have simply endorsed the findings of the learned trial Court. It was the duty of the learned appellate court to thrash out the sufficient evidence available on file. Mere dismissal of appeal mainly depend upon the findings, of the learned trial Court was not judgment in the eye-law. The legislature has entrusted an important duty upon the learned appellate court to decide all the question of fact finally as being district apex court of facts should not easily agree without taking trouble of rendering its own findings and easy path could not be chosen and cases be decided stricto sensu on merit.
9. The leaned counsel for the petitioner has made a statement that Allah Nawaz respondent in Revision Petition No.528 of 2011 has settled the matter with the petitioners and there remains no issue between the parties to this effect. However, the issue is the same regarding which the Revision Petitions No.517 and 544 of 2011 are filed. The other side has also no reservation to this judgment, though the issue was a bit different but decided along with the abovementioned revision petition as the same is not contested one and is being disposed of with instant petition.
10. For the foregoing reason, all the three revision petitions are accepted, the impugned judgments and decrees passed by the learned lower courts are set aside and while dismissing the suit filed by Fazal-urRehman and four others, the suit filed by Khuda Bakhsh is hereby dismissed as prayed for in the plaint. No order as to costs.