1. ' Briefly stated facts of the case out of which present petition has arisen are that Karam Ali petitioner No,1, who was owner of the landed property measuring 143 Kanals and 5 Marlas out of his total Haqiyat in the village Jalap Tehsil Bhalwal measuring 145 Kanals and 15 Marlas sold the same in favour of Muhammad Nawaz and other minor respondents (Nos.1 to 3) through Ghulam Hussain their father vide registered sale-deed dated 25-7-1973. Subsequently, the mutation entered on the basis of this sale-deed was rejected by the Revenue Authorities on the ground that as whole the Haqiyat has not been purchased by the respondents who are non-owners in the village, the sale being void, mutation cannot be sanctioned on the basis of the same. Thereupon, according to the plaintiff, sale amount of Rs,80,000 was returned to the respondents' guradian Ghulam Hussain vide written receipt dated 10-7-1974 which is Exh.PI on record of the case. Respondents allegedly continued interfering with the ownership and possessory rights of Karam Ali plaintiff. Consequently, he filed a suit seeking declaration to the effect that the sale being void under Land Reforms Regulation, 1972 and having been cancelled and total sale amount having been returned, he continues to be owner in possession of the land in dispute and the respondents have no right to interfere with his rights of ownership and possession.
2. During the pendency of the suit Muhammad Khan and two others, who are petitioners before this Court purchased the land in question from Karam Ali petitioner and they were also impleaded as parties to the suit who are presently respondents Nos. 4 to 6. This suit has been contested by respondents Nos.1 to 3 on the grounds that the plaintiff has no locus standi to file the suit, and that the sale has never been cancelled, nor they have received the sale amount of Rs,80,000 and therefore, they continued to be the owners of the land in question. It is further pleaded that the Sale Mutation No,40 has already been sanctioned in their name, therefore, the plaintiff has no right or interest left in the property. On the pleadings of the parties plea of defect in form of the suit and estoppel has also been taken. Learned trial Court has framed the following issues:--
(1) Whether the suit is not maintainable in its present form?
(2) Whether the plaintiff has got no cause of action and locus standi to bring this suit? OPR.
(3) Whether the valuation of the suit for purposes of valuation is not correct and if so, what is the correct valuation? OPD.
(4) Whether the plaintiff is owner-in-possession of the suit-land? OPP.
(5) Relief.
2. ' After recording of evidence produced by the parties vide judgment and decree dated 2-2-1980 learned trial Court dismissed the suit filed by the petitioner. It may be mentioned here that statement of Ghulam Abbas as D.W.1 which supports the plaintiffs was not taken into consideration mainly for the reason that it is the statement of a defence witness, hence cannot be relied upon.
3. Learned trial Court further held that it is not proved that the sale has been cancelled or that an amount of Rs,80,000, which was the sale amount has since been returned. Regarding parties, who had purchased the land during the pendency of the suit, it has been held that the principle of lis pendens applies, therefore, they are bound by the original judgment. It may be observed here that the learned trial Court while dismissing the suit failed to take into consideration the material pieces of evidence which if considered may have resulted in different findings than the findings recorded by the learned trial Court presently. It may be further mentioned here that although the question was not raised before the learned Civil Judge, learned Civil Judge did not advert to the legal question as to whether Civil Court could hold that sale is violative of the provisions of M.L.R.115.
4. Aggrieved by the said judgment and decree, the plaintiff as well as the added defendants referred to above, filed Regular First Appeal in the District Courts of Sargodha, which has been dismissed by the learned District Judge, Sargodha vide judgment and decree dated 14-6-1983. Learned District Judge on the basis of the application filed by the petitioner appointed an expert to compare the thumb-impression of Ghulam Hussain on the receipt with his admitted thumb-impression and relied upon the negative report of the Finger Print Expert without summoning him as a witness and without giving opportunity to the parties to cross-examine him or to allow them an opportunity to lead further evidence if they so liked in the light of the report of Finger Print Expert. It may be mentioned here that the report of the Finger Print Expert was not made as a part of evidence.
5. Learned District Judge, however, took judicial notice of this report and while holding that Exh.PI does not bear the thumb-impression of Ghulam Hussain, guardian of respondents Nos. 1 to 3, also relied upon this report. Learned District Judge also relied upon the statement of the learned counsel appearing for respondents Nos. 1 to 3 which was to the effect that the sale in question does not violate Martial Law Regulation No,115 and relied upon the same as a piece of evidence for holding that the sale is not void and that the same has not been cancelled, nor the sale amount has been returned. Learned District Judge also applied the principle of lis pendens against the party who had purchased the land in question during the pendency of litigation. Learned District Judge further held that principle of bona fide purchaser is also not available to the persons who have purchased the property in pendente lite. The suit has also been dismissed on the ground that the plaintiff being not in possession, form of the suit is defective and as such declaratory suit is not competent.
6. These two judgments have been challenged by the petitioners before this Court in the present civil revision.
2. Mr. Shamim Abbas Bokhari, Advocate learned counsel for the petitioners has argued that the findings of the Courts below to the effect that the suit is not maintainable as the plaintiff is not in possession of property and hence is liable to be dismissed, are not in consonance with the law laid in the judgment reported as PLD 1971 SC 762 (Ahmed Din v. Muhammad Shafi and others).
7. Argument of the learned counsel is that the plaintiff should have been allowed to amend the plaint and the suit could not have been dismissed merely for the reason that the plaintiff was not found to be in possession of the land in question. Learned counsel has further argued that the judgment recorded by the learned trial Court as well as by the learned First Appellate Court is based upon misreading/non-reading of evidence and reliance upon inadmissible evidence and therefore, both the learned Courts below have exercised their jurisdiction illegally and with material irregularity.
8. Elaborating his argument, learned counsel argued that the learned trial Court illegally refused to rely upon the statement of D.W.1 Ghulam Abbas merely for the reason that he has been produced as defence witness by another set of the respondents whose interest is adverse to the contesting respondents. Learned counsel states that of whatever worth the statement may be, it was incumbent for the learned District Court to have taken into consideration and then to have taken a decision in the matter. Learned counsel further argued that there is ample evidence on record of the case that Exh.P1 was executed by Ghulam Hussain, guardian of the respondents and therefore, the sale stood cancelled and the conclusions drawn in this behalf by both the learned Courts are not maintainable. Learned counsel has further pointed out that the learned First Appellate Court which was the final Court of fact although allowed the disputed thumb-impressions to be compared by a Finger Print Expert, yet used the report submitted by Finger Print Expert without calling him as a witness and without giving opportunity to the petitioners to cross-examine him or to produce any other evidence rebuttal of the report submitted by him, and, even without making the report as a part of evidence. Learned counsel argued that this piece of evidence could not have been taken into consideration while deciding the question involved in the suit. Learned counsel further argued that the learned two Courts below in fact have illegally brushed aside the overwhelming evidence produced by the petitioners in support of the execution of Exh.P1 by Ghulam Hussain, guardian of the respondents. Therefore, according to the learned counsel, both judgments and decree passed by the Courts below are liable to be set aside.
9. ' Ch. Muhammad Afzal Wahla, learned counsel for respondents Nos. 1 to 3 has vehemently argued that the suit is not maintainable in its present form inasmuch as the plaintiff is not proved to be in possession of the land in question. Hence the same has rightly been dismissed as being incompetent. He further argued that the Civil Court has no jurisdiction to grant the declaration prayed for in the suit. Learned counsel in support of his aforementioned contention relied upon Nasir Ahmad Khan v. Mst. Asmat Jehan Begum 1968 SCM R 667. Learned counsel further contends that documentary evidence Exh.D1 and D2 clearly demonstrates that the vendor-plaintiff was owner of the land measuring 143 Kanals and 5 Marlas at the time of execution of the sale-deed in dispute, and this is the whole land which has been purchased by the respondents, therefore, it cannot be said that the total Haqiat has not been purchased by the respondents. Learned counsel further argued that the report of the Expert could be taken into consideration by the learned First Appellate Court without summoning the Finger Print Expert and examining him as a witness under the provisions of section 60 read with section 45 of the Evidence Act. When confronted with the proposition that in case of allowing production of additional evidence by the learned District Court, the Expert should have at least been summoned in Court so that he could have been cross- examined with regard to the correctness or otherwise of the report submitted by him, and, thereafter, the reliance could have been placed on the report, learned counsel states that this procedure should have been adopted by the District Court but it will not make any difference on the merits of the case. According to the learned counsel, even otherwise, it stands established that the document Exh.P1 which is allegedly receipt of return of the sale amount was not executed by the guardian of the respondents Nos.1 to 3. Learned counsel has further argued that the land was purchased in the name of the minors, therefore, the title vested in the minors and the sale could not have been cancelled by receipt of consideration amount by Ghulam Hussain, their father. On this ground as well, the suit is not maintainable.
3. I have considered the arguments addressed by both the learned counsel for the parties and have also perused the record. So far as the objection with regard to the form of the suit is concerned, I agree with the learned counsel for the petitioners that the suit could not have been dismissed simply because it was found that the plaintiff is not in possession of the land in question.
10. The proper course should have been to direct the plaintiff to file an amended plaint to claim possession on payment of necessary court-fee payable if any as per judgment rendered by their Lordships of the Supreme Court of Pakistan cited by the learned counsel for the petitioners. Hence I hold that the two learned Courts below have exercised their jurisdiction illegally and with A material irregularity by dismissing the suit on the ground of formal defect. Perusal of the two judgments further discloses that the Courts below have not taken into consideration the whole evidence recorded in the suit. Learned trial Court has not considered the effect of the statement of D.W.1 on a frivolous ground that the witness has appeared as D.W. Similarly, the documentary evidence produced by the respondents has also not been taken into consideration. The question of jurisdiction as well as the exact Haqiat of vendor-plaintiff at the time of sale in favour of the respondents has also not been determined nor a specific issue to this effect has been framed.
11. Similarly, the question of jurisdiction of Civil Court has also not been examined nor it has been examined as to whether the sale made in favour of the minors? Learned trial Court has also failed to advert to this aspect of the matter as to whether the vendor who is a party to sale transaction himself, can come to the Court to seek declaration of title on the ground that the sale made by him is violative of the Land Reforms Regulation, 1972. Similarly, the learned First Appellate Court has also not taken into consideration the whole evidence recorded in the case while recording findings of fact on the issues involved in the case nor has adverted to the aspects noted above which were not adverted to by the learned trial Court as well. Learned District Judge has also relied upon the report of the Finger Print Expert as evidence without summoning the expert as a witness and without allowing the parties to cross-examine and to further allow them an opportunity to lead evidence, if they so liked. For these reasons, I do not consider it proper to express any opinion on the merits of the contentions raised by both the learned counsel for the parties on the material issues involved in the case except the question of form of the suit. I am of the view that the suit has not been tried properly and all the aspects which required determination have not been dealt with.
12. The judgments rendered by the two learned Courts below suffer from defect of misreading/non- reading of evidence and reliance upon inadmissible evidence, hence the same should be remanded to the learned trial Court for decision afresh after putting legal and factual points referred to above in the shape of specific issues, if necessary, after allowing the parties to lead whatever further evidence they like to produce in support of their respective contentions and after discussing the whole evidence which has been produced on record and which may be produced by the parties in post remand proceedings. The defect in the form of suit should also be rectified by allowing the plaintiff to amend the plaint in accordance with law.
13. ' Resultantly, this Civil Revision is accepted, both the judgments and decree passed by the two learned Courts below are set aside and the suit is remanded to the learned trial Court for decision afresh in the light of the observations/directions made in this judgment. As it is an old matter, the suit shall be decided within six months from the date of receipt of the file. Parties are directed to appear before the learnad trial Court on 29-10-1992. No order as to costs.