AMIN-UD-DIN KHAN, J. Through this civil revision the petitioners/plaintiffs have challenged the judgment & decree dated 17.11.2005 passed by the learned Additional District Judge, Multan, whereby the appeal filed by them was dismissed, and the judgment & decree dated 02.07.2002 passed by the learned Civil Judge 1st Class, Multan, whereby the suit for declaration filed by the petitioners/plaintiffs was dismissed.
2. Respondent No.2 was already represented. Respondents No.1 to 3 have been served for today but no one appeared on behalf of them, therefore, respondents No.1 to 3 are proceeded against ex- parte. It is reported that respondent No.4 has passed away, who is the mother of respondents No.1 to 3 and widow of original defendant Ghulam Muhammad. Therefore, office to make note to this extent as her legal heirs are already party. I proceed to decide the civil revision after hearing the learned counsel for the petitioners/plaintiffs, as it is one of the oldest cases.
3. The brief facts of the case are that predecessor of petitioners/plaintiff on 30.10.1986 filed a suit for declaration against the predecessor of respondents/defendant that he is owner of suit property fully described in the head note of plaint. The case pleaded is that defendant was owner of suit property measuring 8-kanals fully described in the head note of plaint and a bargain struck for purchase of suit property by the plaintiff from the original defendant. A sale deed was written and payment was made. The possession was also delivered to him. The defendant thumb marked the same, when the same was presented before the Tehsildar for registration on 20.11.1983, the Tehsildar demanded original identity card of the vendor/defendant, who prayed for a short time in order to bring the identity card from his house and then disappeared. Therefore, the plaintiff was forced to file the suit for declaration. The defendant filed written statement and denied from the execution of sale deed and any agreement of transfer of property and then disappeared from the Court. Thereafter the plaintiff/predecessor of petitioners produced oral as well as documentary evidence in support of his version. On 13.06.1989 suit was dismissed by the learned trial Court. An appeal was preferred before the learned first appellate Court, which was accepted on 30.11.1995 and the matter was remanded. Again the suit was dismissed by the learned trial Court vide judgment & decree dated 31.03.1999 and an appeal was preferred before the learned first appellate Court. Learned Additional District Judge vide judgment dated 20.06.2001 allowed the application for permission to amend the suit from declaration to specific performance and remanded the case and the suit was amended as specific performance. Learned trial Court vide judgment & decree dated 02.07.2000 dismissed the suit. An appeal was preferred, which also met with the same fate vide judgment & decree dated 17.11.2005. Hence, this civil revision.
4. Learned counsel for the petitioners argues that the petitioners/plaintiffs have fully proved the execution of sale deed, delivery of possession and payment under the sale deed Ex.P-1; that the evidence is un-rebutted and that the petitioners also produced affidavit of vendor/defendant as Ex.P-2, copy of Register Haqdaran Zamin for the year 1978-79 as Ex.P-3 which shows ownership of vendor/defendant, copy of Jamabandi for the year 1986-87 as Ex.P-5 and copies of Khasra Girdawaries as Ex.P-4 and Ex.P-6. Learned counsel argues that when there is un-rebutted evidence produced by the plaintiffs, no lacuna is left in the evidence of plaintiffs and when suit was fully proved, the judgments & decrees passed by both the courts below are not sustainable under the law; that the suit was dismissed by the learned trial Court on the basis that after 15 years of filing of suit the amendment has been sought, argues that it is absolutely not a ground to non suit the plaintiffs when the true story was narrated in the plaint which is supported by the document Ex.P-1; that all the formalities were completed and even district council fee was paid and all the taxes were also paid, therefore, the plaintiffs rightly filed a suit for declaration but in order to avoid the legal complications they converted the suit for specific performance when the vendor/defendant before registration of sale deed fled away. Learned counsel argues that after filing of written statement by the original vendor no one appeared at any stage to defend the suit, despite that both the courts below have disregarded the un-rebutted affirmative evidence produced by the plaintiffs/petitioners and dismissed the suit as well as appeal, which findings recorded by the courts below are absolutely not tenable under the law. Further states that since the transfer of land in favour of petitioners/plaintiffs, after construction of houses they are in possession of purchased land. Learned counsel for the petitioners has relied upon the judgments reported as "2005 M LD 261 (Mst. Allah Jawai and others Vs. Maqbool shah and others), NLR 2006 Civil 277 (Sharafat Hafeez Goreja, Etc Vs. Habib Bank Limited), 2005 M LD 1954 (Riazur Rahman and others Vs. Muhammad Urs), 1990 CLC 1014 (Manzoor Hussain Khan Vs. Mst. Asia Begum and 21 others), 1995 CLC 136 (Dewan Ali Khan Vs. Jehandad Khan through Legal Heirs and 2 others), 1995 CLC 43 (Mst. Noor Jehan and others Vs. Muhammad Rafique and others), 2003 CLC 245 (Din Muhammad Qureshi Vs. Government of Sindh and others), 1999 CLC 62 (Shaukat Ali Vs. Mst. Razia Bibi and others), 2004 CLC 1644 (Noor Muhammad and others Vs. Ahmad Bakhsh and others), 2000 CLC 825 (Syed Khurshid Ahmed alias Wahid Hussain through General Attorney Vs. Rao Muhammad Akram Khan), PLJ 1998 Lahore 401 (Pakistan Tobacco Company Vs. Pakistan Chest Foundation etc), PLD 1974 Supreme Court 207 (Aslam and another Vs. Mst. Kamalzai and others), AIR 1976 Delhi 175 (Harbhajan Singh Vs. Smt. Shakuntala Devi Sharma and another), AIR 1976 Delhi 56 (M/s Ex-Servicemen Enterprises (P.) Limited Vs. Sumey Singh), 1994 SCM R 1836 (Muhammad Bakhsh and 4 others Vs. Province of Punjab through District Collector, Multan (now Lodhran) and 2 others), 2002 M LD 1002 (Muhammad Sharif Vs. Mst. Sardaran Bibi and others), 1982 SCM R 816 (Ali Muhammad Vs. Muhammad Hayat and others), 1997 M LD 778 (Haji Sher Muhammad Vs. Muhammad Hassan Siddiqi and others), 1998 SCM R 760 (Abdul Wali Khan through Legal Heirs and others Vs. Muhammad Saleh) and PLJ 1989 Lahore 408 (Haji Ghulam Qasim Vs. WAPDA through its Chairman and 2 others)".
5. I have heard the learned counsel for the petitioners at full length, scanned the evidence, case law referred to by the learned counsel as well as the findings recorded by both the courts below.
6. I have noticed that the findings recorded by both the courts below are against the settled principles of law as well as the clear un-rebutted evidence produced by the plaintiffs. The view taken by the courts below while non suiting the plaintiff that after 15 years of filing of suit the amendment was sought. In my view the principle of amendment is that if the amendment is granted; it is effective from the day of filing of suit and as such taking the view that suit was amended after 15 years of filing of the same and on that ground non suited the plaintiffs, is not sustainable under the law. Both the learned courts below fell in error while wrongly applying the settled law against the petitioners/plaintiffs when they fully proved the execution of sale deed Ex.P- 1, delivery of possession under the sale and payment of consideration amount. They were entitled to the decree for specific performance. No doubt this draft sale deed Ex.P-1 is not signed by the predecessor of petitioners/original plaintiff and it was not the requirement of law that sale deed should be signed by the vendees, therefore, when it is treated as an agreement to sell the principle that it should be signed by the vendees is not applicable in the circumstances of this case, as the full consideration amount was paid and possession was delivered and no act was required to be done by the vendees/plaintiffs, therefore, in this case non signing of draft sale deed which has been presumed as an agreement to sell afterward is not a defect.
7. In this view of the matter, the findings recorded by both the courts below are not sustainable in the light of case law referred to by the learned counsel for the petitioners-plaintiffs. This civil revision is allowed and the impugned judgments & decrees passed by both the courts below dated 02.07.2002 and 17.11.2005 are set aside. The suit filed by the petitioners/plaintiff shall stand decreed in their favour. The decree shall be got executed by the Executing Court, as the whole of consideration amount has already been paid.