' ALI AKBAR QURESHI, J. --- The petitioner is aggrieved of judgment and decree date 22.08.2008, passed by the learned first Appellate Court, whereby the appeal filed by the respondent was allowed and the suit was dismissed.
2. As reveals from the record, the petitioner instituted, a suit stating therein, that the suit property measuring 5 Marla bearing Khasra No, 1699, Khata/Khatoni No, 594/668 was owned by the predecessor of the petitioner which was transferred by way of oral gift Mutation No, 743 dated 15.08.2001 in favour of the petitioner; half of the land measuring 02-1/2 Marla was forcibly taken by erecting a wall by the defendant and lastly prayed, that the petitioner be declared owner of the whole land measuring 05 Marla.
3. In response of the notice issued by the learned Trial Court, the respondents appeared and submitted their written statement, wherein it was alleged, that the respondent No, 1 purchased 2- 1/2 marla land from one Muhammad Yaqoob through an agreement to sell who purchased this property from one Saen Ahmad, therefore, the respondent No, 1 is owner in possession in his own right and the petitioner has no concern whatsoever with the suit property.
' The learned Trial Court framed issues out of the controversial pleadings, recorded the respective evidence and finally decreed the suit, against which an appeal was filed by the respondents, which was allowed and the suit filed by the petitioner was dismissed. Hence, this civil revision.
4. In order to adjudicate the matter fairly, the record of the case was examined with the assistance of learned counsel for the parties. It is found from the record, that the respondent No, 1 claimed the ownership admittedly on the basis of an agreement to sell executed in his favour regarding the property in question by one Muhammad Yaqoob. The agreement to sell does not bear the Khasra Number and other particulars of land which is mandatory in law. On the other hand, the petitioner is claiming the ownership/title of the land on the basis of a mutation entered in the Revenue record on the basis of oral gift made in his favour by his father. In the revenue record, still the name of the petitioner exists against the suit land.
5. On the basis of the above documentary evidence, it can safely and conveniently be observed, as held in plethora of judgments by the Hon'ble Supreme Court of Pakistan as well as this Court, that mere agreement to sell does not create or confer any right or title in favour of the purchaser/respondent No,
1. Moreover, the agreement to sell is completely silent about the description i.e, Khasra Number etc. Of the suit property and admittedly the respondents had already filed a suit for specific performance of the aforesaid agreement against said Muhammad Yaqoob.
6. In these circumstances, the respondent, in any case, cannot claim the title of the suit property nor he can forcibly or unlawfully take the possession of the suit property. The petitioner, in any case, has succeeded to prove his title through valid, authentic, reliable and confidence inspiring documentary evidence, thus, the learned Trial Court, as evident from the findings, rightly decreed the suit in favour of the petitioner. On the other hand, the learned Appellate Court has gone beyond the scope of the parameters of an appeal and has decided the lis on the basis of the record which was not available on the file.
7. Learned counsel for the respondents although tried to defend the judgment and decree impugned herein but could not offer anything from the record, and frankly admitted, that the respondent No, 1 allegedly purchased the suit land through an agreement to sell without mentioning the Khasra Number etc. And the respondent No, 1 had already filed a suit for specific performance against Muhammad Yaqoob, vendor.
8. In view of the above, it is held, that the petitioner has successfully proved his case but the learned Appellate Court, without referring any material from the record, allowed the appeal which is against the record and not sustainable.
9. Resultantly, this revision petition is allowed, the judgment and decree dated 22.08.2008 passed by the learned Appellate Court is set aside and the judgment and decree dated 07.05.2008 passed by the learned Trial Court, is upheld. No order as to cost.