This Civil Revision Application is directed against the judgment dated 19-6-1995 and decree dated 29-6-1995 passed by the learned District Judge, Larkana in Civil Appeal No.44 of 1994, Haji Abdul Sattar v. Muhammad Farooque and others, setting aside the judgment and decree passed by the IInd Senior Civil Judge, Larkana decreeing F.C. Suit No.45 of 1990, Muhammad Farooque v. Haji Abdul Sattar and others, and remanding the case to lower Court for fresh decision on the issues already framed alongwith two additional issues framed in the appeal.
2. Briefly stated the facts which lead to this revision are that the petitioner named above filed F.C.
Suit No.45 of 1990 against the respondents named above for Specific Performance of Contract and the Permanent Injunction, alleging therein: that the respondent No.1 owned agricultural land bearing S. Nos.116, 127/1, 127/2, 130/ 1 and 130/2 measuring 7-0 acres situated in Deh Do-Aba Taluka Kumber, District Larkana, which he agreed to sell to the petitioner in the sum of Rs. 1,40,000 vide an agreement of sale, dated 29-3-1989, out of which Rs.95,000 were paid and the balance were agreed to be paid at the time registration of the sale-deed and that the possession of the said land was handed over to him. It is also alleged that the respondent No.1 demanded more price end ultimately refused to execute the registered sale-deed. Since the respondent No.1 threatened the petitioner to dispossess him from the land in dispute with the help of other respondents, hence the need arose to file the above suit.
3. That in denial of the claim of the plaintiff/petitioner, the respondent No.1/defendant No. l filed his written statement denying the execution of the alleged agreement of sale, receipt of Rs.95,000. He asserted that the alleged sale is forged and fabricated one and it does not bear his signatures. The plaintiff on 30-11-1989 forcibly and unauthorisedly trespassed and occupied the suit land without the consent of the defendant No. 1. He stated that on the said act of the petitioner/plaintiff, he knocked the doors of all the concerned officers/authorities, i.e. The concerned S.H.O., S.P., D.I.-G.
Police, Assistant Commissioner and S.D.M., Deputy Commissioner, Prime Minister etc., but since the petitioner commands high influence and having backing of influential persons, nothing was done into the matter. He also disclosed that he and his mother Mst. Mamni are joint owners of the land in dispute and since he is not authorised by his mother to sell his share, as such he could not enter into any agreement to sale, which fact alone proves the alleged agreement to sale, to be a forged and fabricated document.
4. That on the pleadings of the parties, the learned trial Court framed the following issues:---
(1) Whether defendant No. l has executed an agreement of sale, received earnest money and transferred its possession to the plaintiff?
(2) Whether action of the defendants for ejectment is legal, valid and according to law?
(3) Whether plaintiff is entitled to relief as sought by him?
(4) What should the decree be?
5. The plaintiff/petitioner named above examined himself as Exh.94 and produced original sale agreement as Exh.107 and land revenue receipts as Exhs.108/1 to 108/4. He also examined his witnesses Ghulam Umer as Exh.109, Muhammad Idrees as Exh.119, Hussain Bux as Exh.120 and Ghulamullah as Exh.121 and closed his side vide Exh.122. The defendant No.1/respondent No. l named above examined himself as Exh.125 and produced certified copies of Deh Form VII as Exhs.126 to 128, certified true copy of F.I.R. Of Crime No.42/91 lodged by him as Exh.129, original letters from President's Secretariat (Public), Aiwan-e-Sadr, Islamabad as Exhs.130 to 132, original land revenue receipts as Exhs.133/1 to 133/4, certified true copies of land revenue receipts as Exhs.134/1 to 134/10, original Zakat Receipt as Exh.l35, certified true copy of zakat receipt as Exh.136, original application dated 3-10-1992 made by him, bearing endorsements of different police officers as Exh.137, carbon copy of the telegram sent to President of Pakistan and others as Exh.138, certified copies of the letters from Prime Minister Secretariat, Islamabad as Exhs.139 and 140, postal and AD receipts (original) as Exhs.141/1 to 141/16, different cuttings from newspapers as Exhs.l43/1 to 143/3 and certified copy of police report dated 20-7-1992 under section 145, Cr.P.C.
6. On 1-8-1994 the learned trial Court heard the arguments of advocate for the plaintiff in absence of the advocate for the defendant No.1 and fixed the matter on 3-8-1994 when the judgment dated 3-8-1994 decreeing the suit as prayed was passed, which was followed by a decree dated 8-8- 1994. Against this judgment and decree, the defendant No. l/respondent No. l filed Civil Appeal No- 44/94 which was heard by the learned District Judge, Larkana, who has been pleased to set aside the impugned judgment/decree and after framing following additional issues, remanded the suit to the trial Court for fresh decision:---
(1) Whether the defendant No.1 (appellant) is the sole owner of the suit land, and if not, whether he has any authority to enter into any agreement on behalf of his mother Mst. Mamni?
(2) What is the effect of non joinder of Mst. Martini, the co-sharer of defendant No. l in the suit?
7. That having been aggrieved by the abovesaid judgment passed by learned District Judge, Larkana, the petitioner/plaintiff named above has preferred this Revision Application.
8. I have heard Mr. G.A. Shahani, Advocate for the petitioner and Mr. Mohanlal K. Makhijani, Advocate for respondent No. 1, while Mr. Isserdas, Advocate for Additional A.-G. For the other respondents stated that the matter is in-between the private parties, with which the Government (respondents Nos.2 to 5) have no concern.
9. Mr. G. A. Shahani learned Advocate for the petitioner contended that the impugned judgment is a result of misreading and non-reading of the evidence and that the learned District Judge has considered and appreciated the material, pleas and the findings of the trial Court on all the issues.
The Appellate Court has unnecessarily framed the additional issues. When the plaintiff has admitted the share of Mst. Mamni in the suit land in the trial Court. According to him, even otherwise on this ground the suit cannot be dismissed nor further evidence is required. He' has also attacked the observation and finding of the District Judge, Larkana regarding rejection of the request of the defendant No.1 for obtaining specimen signature of defendant No. l and to send the same to the handwriting expert for comparison with the signature on the alleged sale agreement.
He argued that if the defendant No. l was aggrieved by the order of rejection of his said request, he should have challenged it in the competent Court at the proper time, but he failed to do so, as such he is stopped from challenging the same. He also submitted that the Appellate Court, while passing the impugned judgment, has failed to consider or discuss the merits of the case, which includes the execution of the deed and it also failed to consider and appreciate the evidence of the plaintiff and his witnesses consisting attesting witnesses of the agreement of sale, scribe and Notary Public and the Haris of the land. He, in the end submitted that the judgment/decree passed by the trial Court did not require interference by the Appellate Court as such the judgment of the Appellate Court be set aside and that of the trial Court be restored. In support of his contentions, he relied upon (1) PLD 1976 Kar. 14, Syed Noor Muhammad Shah through Legal Representatives v. Fakir Muhammad and 10 others; (2) PLD 1950 Sindh 126, Ghulam Nabi v. Kishen Chand Shivaldas; (3) PLD 1982 Kar. 639, M/s. J. Tyler & Co. v. M/s. United Bank Limited; (4) PLD 1985 Pesh. 38, Gul Baz v. Abdur Razi; (5) PLD 1961 Lah. 35 Sardaran and others v. The Municipality, Lyallpur through Administrator;
(6) PLD 1971 Kar. 772 Abdul Wahid v. Yousaf.
10. Mr. Mohanlal, Advocate for the respondent No. l supported the judgment/decree passed by the learned District Judge, Larkana on facts and law. He has also taken me to the evidence of the plaintiff and his witnesses and pointed out material contradictions in their evidence. He submitted that the difference in the signature of the defendant No.1 (Abdul Sattar) on the alleged sale agreement if compared with his signatures on summons served upon him, Vakalatnamas, applications, affidavits sworn in support of different applications and objections, written statement and others is apparent, which proves the forgery and fabrication in the signature of Abdul Sattar on the alleged sale agreement. He has also taken me to the signatures of the attesting witnesses on the alleged sale agreement and that on the affidavits sworn in the trial Court at Exhs.5 and 6 in support of application under Order 39, Rules 1 and 2 read with section 151, C.P.C. Made on behalf of plaintiff at Exh.3, the difference is apparent. He also contended that the trial Court wrongly rejected the application for specimen signatures and sending it to the handwriting expert (Exh.145). In support of the contentions, he relied upon, (1) 1968 SCM.R 214, Sudhangshu Bimal Biswas v. Mustafa;
(2) 1989 CLC 2777, Abdul Manan and another v. Mir Nawaz Khan; (3) 1981 CLC 867, Muhammad Nawaz v. Rand R.I and 2 others; (4) PLD 1979 Lah. 37, Muhammad Nadir Khan v. District Magistrate, Vehari etc.; (5) 1981 CLC 462, Mst. Salma Abbasi and another v. Ahmed Suleman and 2 others; (6)
PLD 1987 Lah. 387, Muhammad Suleman v. Abdul Rashid and 13 others and (7) 1994 MLD 397, Sardar Zaheer Ahmad Khan, Advocate v. Mohtarma Benazir Bhutto and another.
11. I have considered the valuable arguments of the learned Advocates of the parties and have applied my mind to the authorities cited by them in support of their contentions, keeping in view the circumstances of the instant case. The comparison of the signatures of Abdul Sattar on the alleged sale agreement with the signatures on different documents available on the file of the trial Court, supports the contention of Mr. Mohanlal that some other person might have been produced before the Notary Public and the signatures of Abdul Sattar appears to have been forged. So also the signatures of the attesting witnesses Ghulam Umer and Muhammad Idrees available on the sale agreement appears quite different with their signatures on their affidavits, Exhs.5 and 6. There is much force in the contention that the trial Court has wrongly dismissed the application under section 151, C. P. C. (Exh.145) through which the request was made to obtain specimen signature of defendant No. l and send the same to handwriting expert for comparison with his alleged signature on the sale agreement. In case the prayer would have been allowed and the signatures of Abdul Sattar would have been compared, the task of the trial Court would have become more easy, but the trial Court failed to do so and thereby failed to exercise the jurisdiction vested in it. I, therefore, allow the said application and direct the trial Court to obtain the specimen signatures of Abdul Sattar (defendant No. l), plaintiff's witnesses Ghulam Umer and Muhammad Idrees and to send the same for comparison with their signatures available on the alleged sale agreement and on all other documents available in the file of the suit. The Appellate Court has got all the powers of the original Court in addition to its appellate powers as such there can be no dispute that the learned District Judge, Larkana had no powers to frame additional issues and to remand the case for fresh decision. The learned Advocate for the petitioner/plaintiff failed to point out any illegality or misreading of evidence by the Appellate Court, as such the impugned judgment/decree does not call for any interference to the extent of setting aside the judgment and decree of the trial Court and remanding the case for fresh decision, but in order to do complete justice, an issue on the point of forcible, illegal and unauthorised possession over the suit land by the petitioner/plaintiff also ought to have been framed by the Appellate Court, when the defendant No. l had specifically taken such plea in his written statement. Since the Appellate Court has failed to frame such issue, I, therefore, frame the A following issue for the determination by the trial Court:-- "Whether the plaintiff illegally, forcibly and unauthorisedly occupied the suit land? If so, what is its effect?"