Judgment: WIQAR AHMAD, J. Impugned herein is the judgment and decree dated 07.04.2010 passed by learned Additional District Judge-IV Mansehra whereby appeal of respondent No.1 against the judgment and decree of learned Civil Judge-VII Mansehra has been allowed by reversing the verdict of learned trial court.
2. Briefly stated facts of the case are that respondent No.1 / plaintiff (Muhammad Ramzan) had filed a suit against the petitioners and respondent No.2 (Muhammad Ishaq) / defendants for specific performance of contract and recovery of suit property through correction of disputed mutations etc, detailed in the heading of plaint. On being summoned, defendants No. 2 to 35 / petitioners herein, contested the suit by filing their joint written statement, raising therein many factual and legal objections. Out of divergent pleadings of the parties seven (07) were framed. The learned trial court after recording pro and contra evidence and hearing counsel for the parties dismissed the suit vide judgment and decree dated 15.02.2010. Respondent No.1 / plaintiff filed an appeal before the learned District Judge Mansehra, which was entrusted to learned Additional District Judge-IV Mansehra for disposal. The learned appellate court allowed the appeal and decreed suit of the plaintiff as prayed for. Feeling aggrieved from findings of learned appellate court, the petitioners / defendants have filed instant civil revision.
3. I have heard arguments of learned counsel for the parties and gone through the record.
4. Perusal of record reveals that certain facts in this case have been admitted between the parties.
The admitted facts included; "that a dispute had arisen, in pursuance to agreement to sell whereby respondent No.1 (Muhammad Ramzan) had agreed to transfer his property in Khasras No. 1745, 1746 and 1748 situated at Chur Parhial District Rawalpindi upon the second party namely, Muhammad Ishaq (respondent No.2)". The latter had filed a suit at civil court Rawalpindi for specific performance of agreement and obtained an ex-parte decree, whereagainst an appeal had been filed before Hon'ble Lahore High Court, Rawalpindi Bench. During pendency of the appeal Muhammad Ramzan and Muhammad Ishaq entered into a compromise in which petitioner No.1 (Noor Muhammad Anwar) had stood as marginal witness beside Asad Khan (PW-7). Instant dispute had arisen out of this compromise. The compromise was reduced into writing and produced before the Hon'ble Lahore High Court, Rawalpindi Bench whereupon the appeal was dismissed as withdrawn vide order dated 31.10.2007 and it was also held that parties shall be bound by the compromise."
Later on, respondent No.1 filed a suit for declaration to the effect that 27 Kanals and 09 Marlas land in Khasra No.1410/1135, 03 Kanals 01 Marla land in Khasra No.1412/1136 situated at Mauza Chamorha Ghazikot District Mansehra and 08 Kanals 08 Marlas land in Khasras Nos. 324, 251, 304, 317, 318/1, 471, 462, 463, 2347/291, 470, 318, 393, 395, 394, 309, 2352/312/1, 2352/312/2/2, 316/2, 474, 302/1, 475, 327, 467, 469, 321/2, 314, 315, 302/2, 2350/296, 298/2/2, 298/2/3, 310, 336, 337, 307, 309, 329, 335 and 320/2 were his ownership in possession while the defendants had got no concern with it. He also challenged unattested mutation No. 9825 entered on behalf of defendant No.37 (Muhammad Ishaq) in favour of defendants No.1 to 20 as well as mutation under consideration entered on behalf of defendant No.37 in favour of defendants No.21 to 36, being illegal and without lawful authority rather need cancellation so far as affecting his rights. Besides, the plaintiff had also prayed for grant of perpetual injunction to the effect of restraining the respondents from alienating the suit property or attesting the pending mutations No. 9895 and 14812 or changing nature of the property in dispute in any manner. Suit of respondent No.1 was dismissed by the learned civil court while same has been decreed by the learned appellate court. Since judgments and decrees of the courts below are at variance, therefore, reappraisal of evidence would be required in the case in hand.
5. It was case of respondent No.1 before learned civil court that in the compromise deed it had been promised with him that properties mentioned in mutations No. 9895 and 14812 at Mauza Ghazikot (Chamorha) and Labarkot District Mansehra would be transferred in his name and that said contract had been enforceable, therefore, he had become owner of the property in dispute and that the fact that through the impugned mutations property had been transferred in favour of defendants No.1 to 36 therein were illegal, ultra vires and ineffective upon his rights. It also needs mention here that the mutation had been entered with the Patwari Halqa as proposed mutation which had been attested by order of Tehsildar on 16.11.2007. Mutation had in fact been attested the day when suit had been instituted i.e. on 16.11.2007. Defendant No.20/ petitioner No.1 namely, Noor Muhammad Anwar filed his written statement wherein he asserted that respondent No.1 / plaintiff had received full consideration for sale of his property at Rawalpindi and that in the impugned mutation an area of five (05) Kanals had also been transferred in his name as well as in the name of his wife, in addition to the amount of consideration he had received in cash. It was also mentioned that defendant No.20 was Property Dealer and he had been doing such business alongwith defendant No.37 / respondent No.2 namely, Muhammad Ishaq and that the later had also established his relations with the plaintiff / respondent No.1 which had resulted into a series of transactions relating to sale of property at Rawalpindi, described fully in Para-4 of his written statement.
6. Defendant No.20 to 35 claimed in their written statement that they had been bonafide purchasers and had purchased property after paying handsome consideration. They also claimed to have constructed houses on the purchased parts of property in dispute. Earlier the suit had once been decided on the basis of compromise entered into between the plaintiff (respondent No.1) and defendant (respondent No.2) on 13.05.2008 but same was reopened on acceptance of application filed under Section 12 (2) CPC by other defendants / petitioners No.1 to 21.
7. Plaintiff / respondent No.1 in support of his case produced seven (07) witnesses while the defendant produced Abdur Rehman as DW-1. Muhammad Riaz, Patwari Halqa, appeared as PW-1, who produced mutation No. 7137 dated 26.06.1998. SOK Mansehra appeared as PW-2 who produced mutations No. 9867 to 9895 of Mauza Ghazikot and mutations No. 14812-14813 of same Mauza attested on 17.12.2007. Bashir Ahmad Patwari Halqa Labarkot appeared as PW-3, who produced mutations No. 14812 and 14813 attested on 17.12.2007. Jan Nisar NOK appeared as PW-4, who produced mutation No. 9893 attested on 17.11.2007. Muhammad Ramzan / plaintiff appeared as PW-05 and narrated same story as mentioned in the plaint. Arshad Khan son of Khawas Khan appeared as PW-6, who also supported the stance of plaintiff. Asad Khan son of Muhammad Afzal Khan, appeared as PW-7.
8. The learned civil court while giving its finding on Issue No.4 has noted that plaintiff had laid his claim on property situated in revenue estate Labarkot and Chamora Ghazikot both situated at District Mansehra but through an application filed by him and noted in order No.22 dated 22.07.2009 he had waived his claim on the property situated at Labarkot. His suit had then remained alive to the extent of property situated at revenue estate Chamora Ghazikot. In the amended plaint subsequently filed by plaintiff, he had challenged mutation No. 9895 attested on 17.11.2007 as well as mutation No. 14812 attested on 17.12.2007. He has, however withdrawn his suit in respect of mutation No. 14812 of Mauza Labarkot District Mansehra. After appraisal of evidence, the learned civil court had also concluded as follows: - "Afore mentioned evidence of parties and revenue papers produced by concern official alongwith Ex.PA and order of Lahore High Court Rawalpindi Bench makes it clear that admittedly plaintiff and defendant were entered into compromise to each other. Similarly, admittedly plaintiff and defendant had alienated his property situated in Rawalpindi to defendant No.1 but plaintiff through this suit claim that defendant No.1 did not fulfilled his obligations and suit property belongs to defendant No.1 did not alienated in favour of plaintiff. But this claim is not correct and not accordingly. In fact through simply it reveals that defendant did not fulfilled his obligation but really the picture is otherwise. In fact before execution of Ex.PA plaintiff had got suit property which is belongs to defendant No.1 situated in Mansehra and he (plaintiff) sold out the same to defendants Nos. 2 to 35 and also received sale consideration from them in the compound of Lahore High Court Rawalpindi Bench at the time of execution of Ex.PA, therefore, it is mentioned in the last para Ex.PA that he has got property from defendant and delivered the same to others. It is also mentioned in Ex.PA that mutations (mentioned in Ex.PA) are pending. Afterward these mutations were attested. It is evident that mutations which were mentioned in Ex.PA were entered on the wishes of plaintiff and he had received the sale consideration from defendant No.2 to 35. In spite of all these fact if plaintiff aggrieved by any act of defendant No.1 did fraud or misrepresentation to him all these are series of Ex.PA. Therefore, plaintiff can hesitate or raise this fraud before competent forum which is Hon'ble Lahore High Court Rawalpindi Bench."
9. While hearing appeal filed by respondent No.1, the consideration that prevailed with the learned appellate court was with regard to failure of defendants in proving payment of sale consideration to respondent No.1 / plaintiff. Additionally, it was also found by learned appellate court that the property had been promised to be transferred to plaintiff of the case vide agreement Ex.PA produced before Hon'ble Lahore High Court, Rawalpindi Bench and, therefore, the owner of the property i.e. Muhammad Ishaq has been bound to have transferred all the property in his favour.
The learned appellate court also did not find defendants No.2 to 34 to be given the benefit of bonafide purchasers and instead directed that they should search for the person who had received sale consideration from them and may pursue his remedy against such person. The suit was decreed as prayed for by the learned appellate court. The learned Appellate Court was however not clear whether it was granting a decree for specific performance of contract or a decree for declaration of rights under Section 42 of the Specific Relief Act, 1877. Clarity regarding this question is important because this question is related to maintainability of the suit. At one place while discussing the suit, the learned appellate court has held that the plaintiff was entitled to specific performance of the agreement but when it came to relief part of the suit same has been decreed as prayed for. Even otherwise, while decreeing the suit no order relating to payment of consideration had been made in respect of the constructed houses and improvements made by defendants No.2 to 34 in the property in dispute. Their plea of bonafide purchaser was also not considered despite the fact that they had purchased the property from ostensible and recorded owner, about whose title there was no dispute at that time. Except defendant No.35 (Noor Muhammad Anwar) who had been privy to the compromise entered into between the parties (before the Hon'ble Lahore High Court, Rawalpindi Bench) no other defendant could be shown to have been in knowledge of said developments.
10. The learned appellate court also failed to take notice of the fact that in the very compromise deed Ex.PA numbers of those proposed mutations had been mentioned which have been challenged by same person i.e. plaintiff, despite being signatory to the deed. His son had appeared before Lahore High Court Rawalpindi Bench, who was also his attorney and on the basis of said deed case before the Hon'ble Court had been decided. Even in respect of part of said property, he had chosen to withdraw his suit and had continued his litigation in respect of one of the mutation.
The factum of non payment of consideration has prevailed with the learned appellate court but the learned appellate court had not been able to holistically consider the series of transactions between the parties wherein consideration for the property sold by plaintiff at Rawalpindi had been coming to him in piecemeal. The learned appellate court in this respect failed to take note of the earlier and subsequent transactions. Contents of the agreement was itself referring to some of such transactions. The agreement also bore a recital that the earlier transactions between the parties would stand cancelled. During pendency of the suit, plaintiff had withdrawan his suit in respect of part of the property situated at Mauza Labarkot District Mansehra. Through impugned mutation bearing No. 9895 a part of 05 Kanals land had also been mutated in favour of Muhammad Ramzan and his wife Mst. Younas Bibi. He has also received a sum of Rs. 20,00,000/- at the time of compromise. The earlier agreements (that had been cancelled in the subsequent contract) had also been showing that part payment had been made to him at the time of earlier agreement. All these pieces of evidence have been ignored by the learned appellate court while giving its finding that payment of consideration for the property sold by plaintiff to defendants No.2 to 35 had not been proved. Reading of the evidence indicates that there had not been a single transaction but a series of transactions involving sales and purchases of properties in different Mauzas. Respondent No.1 has been accepting consideration in piecemeal and in different kinds, which is not only evident from the agreement deed Ex.PA but also earlier deeds which have been provided to be cancelled therein. Respondent No.1 has filed another suit against petitioner No.1 as well as Muhammad Ishaq (respondent No.2 herein) that also for specific performance of an agreement to sell dated 03.05.2000 in respect of same property situated at Chur Parhial District Rawalpindi (copy of said plaint is also available in the instant petition at Page-47). Proceedings in said suit has been stayed by learned trial court under Section 10 CPC. In said plaint, he had also admitted receipt of a sum of Rs.8,35,000/- in para-2 thereof. Plaintiff has also been accepting landed property as part of consideration, which is also evident from the agreement Ex.PA as well as contents of his earlier suit mentioned above. All this shows that it was not a simpliciter agreement to sell wherein the bonafide purchaser (defendants No.2 to 34 in the plaint) could be burdened with the onus of proving payment of money to the plaintiff / respondent No.1. The last vendees had not been privy to all those transactions which had mainly taken place from time to time between the plaintiff i.e Muhammad Ramzan, defendant No.35 namely, Noor Muhammad Anwar and defendant No.37 namely, Muhammad Ishaq. In this background when this court read the agreement Ex.PA the conclusion as drawn by learned civil court becomes irresistible. The above mentioned persons had been changing money, at some times while at other times landed property. They had also been authorizing one another to make sale of some properties to outsiders for recovery of the amount and clearing of the respective liabilities. Above all, respondent No.1 / plaintiff had signed an agreement which was bearing the numbers for final attestation of proposed mutations. Said proposed mutations were also containing the names of those persons, in whose favour the property was going to be transferred. As stated earlier, such names also included names of plaintiff / respondent No.1 as well as his wife as its beneficiaries. By reading evidence in this perspective, one can solve the riddle that the complicated nature of numerous transactions between the above mentioned three (03) persons had posed in this case before the learned civil court as well as the learned appellate court. The riddle has rightly been solved after diagnosing the real nature of transactions between the parties by the civil court but the learned appellate court could not understand the nature of affairs which had resulted into instant litigation.
11. The learned appellate court has granted a decree for declaration in favour of respondent No.1 / plaintiff on the basis of compromise deed Ex.PA. Said document was unregistered deed and it was just carrying a promise of entry of attestation of the three mutations mentioned therein. On the dent of said deed it could not be claimed by the plaintiff that he had acquired a perfect title to the property in dispute. The three mutations mentioned in the deed had subsequently been attested and plaintiff / respondent No.1 could only claim the area mutated in his favour on the dent of said mutation to the extent mentioned therein but he could not have laid a claim of acquiring title in respect of the entire property in dispute. Legally a suit of declaration under Section 42 has wrongly been decreed by the learned appellate court in his favour on the basis of recital of said agreement.
When learned counsel for the petitioners was confronted with this situation, he stated that Hon'ble Lahore High Court Rawalpindi Bench (at the time of disposing of FAO) had held that the compromise would be enforceable. Enforceability of an agreement is one thing but nature of a document creating title in respect of immoveable property is another. Even on the basis of legally enforceable agreement to sell or another agreement containing a promise for transfer of title, a suit for specific performance is supposed to be brought and not that of declaration of title under Section 42 of the Specific Relief Act. Under the law, such an agreement or promise does not operate to create title.
12. It is also important to note that plaintiff / respondent No.1 had not been claiming specific enforcement of the contract Ex.PA. His case before the learned civil court was that he had been hoodwinked at the time of signing the compromise or disposal of the suit thereupon. The promise as contained in Ex.PA, had in fact been fulfilled with attestation of said mutations, but it was case of the plaintiff that the property mutated in favour of other persons i.e. defendants No.2 to 34 had wrongly been mutated therein, and that by mentioning said mutations, he had been defrauded.
13. He has been claiming the rights on the basis of said compromise deed but has been alleging that in a place where the numbers of mutations had been entered in the compromise deed, he had been subjected to a fraud. If for a while this court takes the plea of respondent No.1 / plaintiff that he had been defrauded in the compromise deed and on the basis thereof an order has been obtained from Lahore High Court Rawalpindi Bench in a case related to sale of property situated at Rawalpindi, then also he cannot claim acquisition of a title in respect of property situated at District Mansehra which had earlier been owned and possessed by Muhammad Ishaq, who had admittedly sold it to defendants No.2 to 34. Another aspect of the case is that in that event also he was supposed to have filed an application under Section 12 (2) before Hon'ble Lahore High Court and got his case re-opened in respect of the property which he had sold at Rawalpindi and in respect of which the case had been got disposed of from the Hon'ble Court on the dent of so- called fraudulent compromise deed. Reliance in this respect may also be placed on judgment of Hon'ble Supreme Court of Pakistan delivered in the case of "Muhammad Aslam & others Vs. Mst.
Kundan Mai & others" reported as 2004 SCMR 843. All these aspects of the case have not been properly appreciated by the learned appellate court while reversing a well reasoned judgment of learned civil court.
14. Learned counsel for respondent No.1 has also contended that preference is to be given to findings of learned appellate court where it is found in conflict with findings of learned civil court but this is not an absolute rule. A revisional court is not supposed to dovetail findings of learned appellant court even if same arises out of misreading and non-reading of evidence. Hon'ble Supreme Court of Pakistan in the case of "Abdul Hameed & others Vs. Khalid & others" reported as 2007 SCMR 938, has held that even concurrent findings of two courts on a question of fact could not be treated sacrosanct for a revisional court. Further reliance in this respect may also be placed on the judgment of Hon'ble Supreme Court of Pakistan delivered in the case of "Abdul Sattar Vs. Mst. Anar Bibi 7 others" reported as PLD 2007 SC 609.
15. In light of hat has been discussed above, this court has come to a conclusion that the impugned judgment and decree of learned appellate court has been the result of misreading and non- reading of evidence, whereby a well reasoned judgment and decree of learned civil court has been set-aside. Resultantly, on allowing of the instant civil revision, judgment and decree dated 07.04.2010 of learned appellate court is set-aside and judgment and decree dated 15.02.2010 of learned civil court stands restored.