1. ' WALI MUHAMMAD KHAN, J.---Muhammad Salim and others, heirs of Abdul Majeed deceased/plaintiff, call in question the judgment dated 22-9-1993 passed by a learned Single Judge of the Peshawar High Court, whereby Civil Revision No, 286/90 filed by the petitioners against the judgment of the appellate Court dated 27-5-1990 accepting the appeal of the respondents and by setting aside the judgment of the trial Court dismissing their suit for specific performance of the agreement, was dismissed.
2. ' We have heard Qazi Muhammad Salim, Senior Advocate, for the petitioners, and have perused the record of the case.
3. ' The trial Court vide judgment dated 7-11-1989 while giving its finding on issues Nos. 6 and 7 came to the conclusion that through the impugned agreement deed dated 2-10-1961 Exh. P.W.1/1 the deceased defendant No, 1 had agreed to transfer the suit shop to the plaintiff for a consideration of Rs,3,542 and passed decree for specific performance of the agreement deed in favour of Abdul Majeed, predecessor-in-interest of the petitioners against Mst. Sadiqa Begum predecessor-in- interest of the respondents. However, the learned Appellate Court and the High Court termed it as an agreement of mortgage. The learned counsel for the petitioners read out the impugned agreement and stressed that the mortgage of the shop had taken effect orally but according to the terms of the deed it had been agreed that on the acquisition of the title deed she will execute registered deed regarding the transfer of title and will incur the expenses herself and further that if any defect occurred in the title of the executant she will refund the amount of Rs,3,542. The deed apparently is not scribed by a regular deed-writer. He further contended that evidence regarding its being an agreement to sell has been produced which stood unrebutted as neither the executant of the deed nor her husband volunteered to depose on oath that the deed was an agreement of mortgage and subject themselves to cross-examination.
4. ' Leave is granted to consider the contentions raised by the learned counsel for the petitioners. Stay order already granted shall continue.