ABDUL RAHIM KAZI, J.- By this common judgment I intend to dispose of these two appeals as the two lower courts also have passed common judgments in the two suits.
2. Briefly the facts are that the present respondent No.1 and 2 owned agricultural lands in Deh Jamma taluka Shahdadpur District Sanghar admeasuring 17-32 acres and 37-12 acres respectively. The present appellant claims to have purchased the same from the respondents hrough in an agreement of sale executed at Karachi on 1.4.1966 for a total valuable consideration of Rs. 49,600/-. The said agreement of sale was executed by the present respondent No.1 for himself and on behalf of respondent No.2 as his attorney, it is alleged that at the time of execution of sale agreement an amount of Rs. 30,240/- was paid to the respondent No.1 towards the sale price, of this amount the entire amount of Rs. 16,030.00 being price of land of respondent No.1 was paid while the amount of Rs. 14,210/- paid towards the price of the land of respondent No.2 and the remaining amount of Rs. 19,360/- was to be paid by the present appellant which he had deposited in Court inspite of his claim that he had made some payment during this period. The present respondent, thereafter filed suit Nos. 467 and 438 of 1969 respectively for cancellation of sale agreement dated 1.4.1966 against the present appellant on the ground of having obtained the same through fraud. These suits were ultimetely withdrawn by the respondents with the permission to file fresh suits on 12.8.1971. In the meanwhile, the present appellant filed suit for specific performance of the contract being suit No. 2345 of 1971 against both the respondents wherein he claimed that the said land as mentioned above was sold to him by the respondents vide referred to sale agreement dated 1.4.1966 for valuable consideration. The appellant further contended that the amount of Rs. 30,240/- was paid in advance and thereafter he had been making payments to and on behalf of the respondents and that in consequence of the sale agreement the possession of this land was handed over to him by way of part performance of the contract. The respondent No.2 filed his written statement whereby he contended that he had never given any power of attorney to the respondent No.1 authorising him to sale his land. He had submitted that he (respondent No.2) and his mother had executed one special power of attorney in favour of the respondent No.1 authorising him to act on their behalf before the Settlement Authorities in order to gel their claims settled for the land left by them in India. However, subsequently the present respondent No.2 also filed a suit being suit No. 2086 of 1975 wherein he prayed for declaration, permanent injunction, possession and mesne profit. The present appellant and respondent No.1 were arrayed as defendants in that suit. The two suits were consolidated and the learned trial court was pleased to settle the following issues:
1. Is the suit within limitation?
2. Was the defendant No.1 authorised by the defendant No.2 to make agreement dated 1.4.1966 for sale of the disputed agricultural land of defendant No.2 under Power of Attorney dated 18-10-1961 executed by the defendant No.2 in favour of defendant No.1. If so or not to what effect?
3. What amount did the Plaintiff pay to defendant No.2 on account of disputed agreement for sale of agricultural land owned by defendant No.2 in suit and to what effect?
4. Whether there was sale agreement between the parties in respect of disputed land and the same was acted upon?
5. Was the time extended from 20.5.1967 by mutual consent as pleaded in papa 5 of the plaint?
6. To what relief if any is the Plaintiff entitled?
7. To what amount of mesne profits, past and future, in the defendant No.2 entitled from the Plaintiff?
The plaintiff examined himself and also his witnesses, namely, Syed Akhtar Hussain. Mohammad Umer, Wa/.Ir Ali, Azhar Beg, Manzoor Ahmed, Shah Mohammad Ansari and Noor Mohammad while the two respondents examined themselves only. The trial court after hearing arguments was pleased to find the issues to 5 in favour of the present appellant & decreed the suit of the present appellant while the suit of respondent No.2 was dismissed. Being aggrieved the respondent No.2 preferred two appeals being C.A. Nos. 144 of 1985 and 145 of 1985 which were heard and allowed by the IIIrd Additional District Judge, Karachi (East) vide judgment passed on 2.8.1987. By this judgment the lower Appellant Court decreed the suit of respondent No.2 (suit No.2086/1975) and dismissed the suit of the present appellant (suit No. 2345/1971) in entirety. The present appellant has, therefore, preferred these two appeals against the said common judgments of lower Appellate Court.
I have heard the learned counsel for the appellant and the respondent. Mr. Z.U. Ahmed, Advocate appearing for the appellant has at the very out set attacked the judgment of the lower Appellate Court on the three grounds as mentioned hereinbelow: 1) The judgment of the lower Appellate Court is not based on all the issues and is in violation of Order 41 Rule 31 CPC.
2) In view of the admitted position about the execution of sale agreement of respondent No.1, the suit of the present appellant could not be dismissed in its entirety.
3) The details of payment have not been taken into consideration by the lower Appellate Court whereas the payments as mentioned in the evidence were proved to have been received by respondent No.1 and certain payments were made by the present appellant on behalf of both the respondents.
3. As regards the first point taken by the learned counsel for the appellant it will be appropriate to reproduce provisions of Order 41 Rule 31 CPC reads as under: "31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in a writing and shall state--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and,
(d) where the decree appealed from is reserved or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concerning therein."
He has submitted that in the present case the Lower Appellate Court has neither dealt with each issue separately nor has dilated upon material issues with regard to limitation and payments made by the present appellant. He has further submitted that in case the suit of the present appellant was to be dismissed then the lower appellate court should have considered as to how would these payments be appropriated. He has placed reliance on the case of Syed Hassan Shah vs. Syed Malik Shah (1087 CLC 2281), wherein it has been held by Saeeduzzaman Siddiqul, J.- (as his lordship then was) as under:- "As the learned first appellate court did not decide any of these issues which were decided by the learned trial Court except issue No.9, I accept this Revision Application, set aside the judgment of the first appellate Court and remand the case back with the direction that the learned first appellate Court should re-hear the appeal and decide the same issue-wise. There will be no order as to costs in the circumstances of the case. As the appeal was instituted in the year 1974 the learned first appellate Court will make every effort to dispose of this appeal within three months from date of receipt of R and F."
4. On the second point the learned counsel has submitted that the evidence on the record shows that it has not been denied that the respondent No.1 had entered into the said agreement of sale for the entire land belonging to himself as well as respondent No.2. He has further submitted that in this case even if it is held that the agreement to sale with regard to the land of respondent No.2 was not a valid sale agreement then also the same would be binding on respondent No.1 and could be held to be valid to that extent. Lastly, the learned counsel for the appellant has submitted that the lower appellate courts have erred in not considering the fact that it was not body's case in the pleadings of the two suits that the land in dispute was ever on lease (muqata) with the present appellant. From this the learned counsel has submitted that the findings of the lower appellate court that the subsequent payments made by the present appellant to the respondents or on their behalf were against the lease money are enonexous.
As against this Mr. Hameed Mohammad Siddiqui, Advocate appearing for the respondent No.2 has submitted that since the agreement of sale to the extent of the land of respondent No.2 cannot be held to be a valid agreement, therefore, the entire agreement of sale should be treated as a void agreement. He has also submitted that the possession of land in dispute is with the appellant and if the agreement of sale is held to be void then it should be presumed that the appellant is a lessee of the disputed land. Contentions of the learned counsel are based on hypothesis and premises. In the first instance it is not denied by the respondent No.1 that he had entered into such agreement of sale and received said amounts from the appellant, thus, the respondent No.1 could not be exonerated of his liability. As regards the resumption of lease I cannot agree to the submissions of the learned counsel for the respondent No.1 in absence of any material on record to support his such contention. The sale agreement docs not state if the appellant was in possession as a lessee nor any document of any kind has been placed on record to show that the disputed land was on lease with the appellant. Two respondents have made an oral assertion only but they have not examined any witness to support their such contention.
In the light of the above discussion, I would accept the two appeals, set aside judgments and decrees passed by the lower appellate court and remand the appeals to the court of IIIrd Additional District Judge, Karachi (East) with the direction to give a chance of hearing to the parlies and give fresh decision on merits issue-wise. The parties will appear before the lower appellate court on 4.4.1993 and the appellate court will dispose of these appeals within a period of one month from the dale the parlies appear before it and the record is received However, there will be no order as to costs.
Above are the reasons for the short order announced in Court today.