MUHAMMAD GHAZANFAR KHAN, J.- Through this single judgment, I propose to dispose of instant C.R.No.94-D/2014 and C.R.No.126-D/2014 as both the petitions are the outcome of one and the same judgment.
2. In essence, plaintiff Ashiq Hussain (petitioner in C.R.No.94-D/2014) brought a suit for specific performance of agreement to sell dated 26.02.2004 in respect of land measuring 25 kanals 05 marlas situated in Mouza Muryali, Tehsil and District D.I.Khan. He also prayed for cancellation of mutations No.10266 attested on 08.6.2005, 10478 attested on 29.7.2005, 11029 attested on 06.5.2008.
He also prayed for recovery of Rs.7,62,500/- paid by him as sale consideration.
3. The suit was contested by defendants (petitioners in C.R.No.126-D/2014) by submitting their written statement. The learned trial Court framed issues arising out of the pleadings of the parties.
The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge-I, D.I.Khan dismissed the suit of plaintiff vide judgment and decree dated 31.10.2011.
4. Dissatisfied with the judgment and decree dated 31.10.2011, the petitioner/plaintiff preferred an appeal. The learned Additional District Judge-II, D.I.Khan, vide judgment dated 15.5.2014, partially accepted the appeal of petitioner to the extent of relief 'B', hence the instant revision petitions.
5. The learned counsel for petitioner solicited that the judgment of the learned appellate Court being result of misreading and non-reading of evidence may be modified and suit of the petitioner may be decreed as prayed for.
6. On the other hand, the learned counsel for respondents (petitioners in C.R.No.126-D/2014) contended that the judgment of the learned trial Court is based on correct appreciation of evidence and law besides, but the judgment of the learned appellate Court is against law, facts and evidence available on the file, hence is not tenable in the eye of law. He further contended that the lis containing plethora of evidence has been decided by the learned appellate Court in a cursory manner and in one paragraph which is against the norms of C.P.C.
7. Having heard both the learned counsel for the parties and gone through the record with their valuable assistance, it is found that the bone of contention between the parties is a deed dated 26.02.2004 which was allegedly executed between Ashiq Hussain and Shah Nawaz, the latter being original owner of the suit property. This deed was finalized by one Malik Mohammad Ehsan, special attorney of Shah Nawaz (petitioner No.1 in C.R.No.126 D/2014). In the instant case, necessary points for adjudication were that (i) whether limitation runs against divine law, (ii) whether the plaintiff Ashiq Hussain has been able to prove the execution of impugned deed strictly in accord with the provisions of Qanun-e-Shahadat, (iii) whether after cancellation of power of attorney executed in favour of Malik Mohammad Ehsan, the attorney holder was authorized to receive the payment and
(iv) whether admission made by a party in written statement can be used against its maker, but all these points have neither been discussed nor adjudged by the learned appellate Court and the appeal has been dealt with in a very cursory manner. In the circumstances, the judgment and decree passed by the learned appellate Court is without lawful authority and against the norms of law and justice, thus cannot be maintained.
8. For the reasons mentioned above, both the revision petitions are accepted, the impugned judgment and decree dated 15.5.2014 is set aside and the case is remanded to learned Additional District Judge-II, D.I.Khan (appellate Court) for decision afresh by considering the above formulated propositions of law, after giving opportunity of hearing to both the parties.