' ABDUL LATIF KHAN, J.---Through this common judgment, I propose to dispose of instant C.R.
No,422/2011 (Alam Khan v. Shah Nawaz and 8 others) and connected C.R.No,131-D/2013 (Shah Nawaz and another v. Alain Khan and 7 others) as both the revision petitions are the outcome of one and the same judgment and decree dated 2-7-2011 passed by the learned Additional District Judge-V, D.I.Khan vide which the appeal filed by Alam Khan petitioner against the judgment and decree dated 31-5-2010 of learned Civil Judge-VI, D.I.Khan was partially accepted, the impugned judgment and decree dated 31-5-2010 was set aside and suit of petitioner was decreed to the extent of relief Jeem.
2. Learned counsel for the petitioner contended that the judgment passed by the learned trial Court specially on issues Nos.4 and 5 is against law, material available on file and against the norms of justice. It was argued that findings of appellate Court, on reliefs 'A' & 'B' are the outcome of misreading and non-reading of evidence. It was argued that the appellate Court has reached to the conclusion that petitioner succeeded to prove the execution of agreement to sell between plaintiff and defendant No,1 Shah Nawaz, therefore, should have granted decree as prayed for instead of granting relief 'Jeem' to the petitioner. It was argued that respondents have acquired the land during the pendency of suit which is hit by the principle of lis pendense. It was argued that no reasonable care has been taken by the subsequent purchasers and do not fall within the ambit of bona fide purchasers and cannot claim protection as such.
3. As against that, the learned counsel for respondent No,1 Shah Nawaz argued that the findings of the Courts below are at variance which need reappraisal of evidence. He argued that the learned appellate Court has failed to comprehend that the alleged agreement has not been proved through tangible evidence. It was contended that agreement was fake, fictitious and manipulated and evidence produced in this regard is deficient and contradictory. It was argued that plaintiff failed to appear in person, which amounts to withholding best evidence and adverse inference has to be taken against him. He argued that respondent No,1 has filed connected C.R.No,131-D/2013 to set aside the impugned judgment passed by the learned appellate Court.
4. Learned counsel for respondents Nos.2 to 8 contended that the respondents have purchased the property with reasonable care bonafidely and their rights are protected in accordance with law. It was added that the respondents had no knowledge of agreement and suit filed by the plaintiff. He argued that plaintiff has failed to prove the agreement to sell and has not produced the witnesses and stamp vendor. He argued that petitioner had purchased other property than the property in dispute, from the vendor/respondent No,1 and to this effect mutation No,2139 was attested on 16-2- 2004 and has no concern with the property in dispute. He argued that the respondents were inducted into possession of the property in dispute and the petitioner never remained in possession of the property. He prayed with vehemence for the dismissal of instant C.R.No,422/2011.
5. I have given my deep thought to the arguments of learned counsel for the parties and perused the record with their able assistance.
6. The perusal of record reveals that agreement to sell was executed between the petitioner Alam Khan and respondent No,1 Shah Nawaz on 30-11-2004 regarding landed property measuring 12 kanals. The suit was decreed in earlier round of litigation, appeal against which succeeded and the case was remanded back to the trial Court, who dismissed the suit but in appeal, the agreement was admitted to be proved but instead of granting decree for specific performance, suit for recovery, prayed for in alterative, was decreed through the impugned judgment.
7. The respondent No,1 has filed connected C.R. No,131-D/2013 on 12-11-2013 against the judgment and decree dated 2-7-2011, after about two years and four months, which is beyond the period of ninety days prescribed for filing revision petition and is hopelessly time barred. No explanation has been advanced for delay nor any application for condonation of delay has been moved.
9(sic) As respondents Nos.2 to 8 have not challenged the impugned judgment and only respondent No,1 has questioned the same through above referred C.R. No,131-D/2013, which was filed only to counterblast the instant C.R. No,422/2011 and that too after two and a half years, therefore, it shows that the respondent No,1 was not interested to question the impugned judgment, which has attained finality to their extent and they can only support it and cannot ask for its variation.
10. The appellate Court has admitted the execution of agreement to sell and, its proof by the plaintiff through reliable evidence. The scribe of the agreement was produced, who produced copy of relevant entry in his register regarding the agreement to sell (Exh.P.W.3/1). Marginal witnesses namely Muhammad Khan (P.W.4) and Ahmad Gul (P.W.5) were produced who fortified the stance of plaintiff regarding transaction and execution of agreement to sell and verified their signatures upon it and deposed that partial payment of Rs,1,00,000 out of total sale consideration of Rs,3,84,000 was made in their presence through cheque.
11. Bank official was examined as P.W.1 who confirmed the payment of cheque amounting to Rs,1,00,000 out of account of Alam Khan petitioner in favour of Shah Nawaz respondent. Plaintiff appeared as P.W.6 and reiterated his stance and as such succeeded to prove the execution of agreement to sell. No contradictions were found in the statements of witnesses. Stamp vendor was not necessary to be produced, as his production could only be necessary if stamps purchased from the place other than that where the property is situated. There is no rebuttal of the evidence and the respondent No,1 failed to prove otherwise. Shah Nawaz (DW-1) appeared and flatly refused the execution of agreement and sale of land. The vital aspect of the statement of Shah Nawaz respondent No,1 is that he has not deposed about transfer of land in favour of vendees/respohdents Nos.2 to 8, who claim purchase from him, which shows his conduct that he used to sell lands and then denies the same, as a routine. The attorney for respondents Nos.2 to 8 appeared as DW-3, who stated to have purchased property from Shah Nawaz, respondent No,1 . He showed ignorance about the sale by Shah Nawaz in A favour of petitioner, Alam Khan. Admittedly the subsequent purchasers have acquired the property by dint of Mutations Nos.2213 and 2214 attested on 15-8-2006 during pendency of suit, as it has been filed on 28-7-2005 and they were arrayed as defendants when mutations were entered with patwari halqa and were kept pending during subsistence of status quo order but the moment the stay order vacated by lapse of six months period, the subsequent purchasers got the property mutated in their names and as such is hit by the doctrine of lis pendense. The plea that they had no knowledge of suit, is totally misconceived and afterthought and thus they cannot claim to be bona fide purchasers, as the requirements for that are not fulfilled in the instant matter. No reasonable care taken by them, rather intentionally gone a step ahead of law by getting mutations attested when suit was pending adjudication.
12. The learned appellate Court was swayed by the consideration other than judicial by holding the subsequent transaction as intact, which is alien to law, for the reasons that agreement to sell already stands proved and admitted to have been proved, by the appellate Court and at the same time affirms the subsequent sale, despite the fact that it was hit by lis pendense and creates no title in favour of subsequent purchasers. The main prayer of petitioner in plaint, in case of proof of agreement to sell through tangible and trustworthy evidence has to be taken into consideration and not the alternative. The appellate Court has wrongly ignored the main relief and focused on alternative and benefit of that has been given to subsequent purchasers, which is misconceived and runs counter to established principle of procedure, law besides and proclaims its own arbitrariness. It is not out of place to mention that no provisions of any enactment empowers the Court to grant double amount, with detail of rupees one lac original plus one lac as 'Tawan', which is alien to law and not sustainable.
13. For the reasons mentioned above, I while dismissing C.R. No,131-D of 2013 as being time barred, allow the instant C.R.No,422/2011, set aside the impugned judgment partially to the extent of relief 'Deem' and grant of relief in favour of respondents Nos.2 to 8, subsequent purchasers, whereas maintain the same to the extent of proof of agreement to sell and grant a decree in favour of petitioner/plaintiff Alam Khan for specific performance of agreement dated 30-11-2004 on payment of remaining sale consideration, within a period of thirty days, failing which the suit shall stand dismissed and annul the mutations attested in favour of respondents Nos.2 to 8, during pendency of suit. No order as to costs.