SAYED NAJAM-UL-HASSAN KAZMI, J.- This judgment will decide C.R.No. 1024/76 and C.R.No. 1025/76, as the same arise out of consolidated judgment in two suits.
2. Abdul Rashid, respondent No.2, is owner of land measuring 2 kanals,' 8 marlas in square No.9 killa No.9/3, Chak No.l00-RB,-Tehsil Jaranwala, District Faisalabad. A suit for specific performance of an agreement to sell was filed by Said Ali, respondent No.1, against Abdul Rashid, wherein, it was pleaded, that Abdul Rashid had agreed to sell land in issue in his favour, vide agreement of sale dated 5.12.1970, in consideration of Rs. 1500/-.
3. Petitioner (Allah Rakha) also filed a suit for specific performance of an agreement of sale against Abdu! Rashid, wherein it was claimed, that Abdul Rashid had agreed to sell land in issue in his favour vide agreement of sale dated 2.11.1970, in consideration of Rs.1200/-. It was the case of Allah Rakha, petitioner, that land was under mortgage with the evacuees for whom, the same was got redeemed by the petitioner on deposit of Rs.170/- as mortgage amount, which was adjustable in the sale price. He also claimed to be in possession of land as lessee, on the basis of registered lease deed dated 27.6.1961. Both the intending buyers were subsequently impleaded $s parties, in the two suits, which were consolidated, consolidated issues were framed,-evidence recorded and finally the suit of Said Ali (respondent No.1), for specific performance of agreement of sale dated 5.
12.1970 was dismissed by the learned Civil Judge, on 5.11.1974. While the suit of petitioner (Allah Rakha) was decreed.
4. In appeal, the learned Additional District Judge took into consideration attested copy of mutation sheet, Roznamcha Waqiati and Khasra Girdawari, at appellate stage which did not form part of evidence and being influenced .In his reasonings by these, documents, the findings of the learned Trial Court were reversed. In consequence the suit of Said Ali (respondent No.1) was decreed while the suit filed by petitioner (Allah Rakha) was dismissed. This was done vide judgment dated 8.9.1976.
5. The two revision, are directed against the judgment passed in appeal, by the learned Additional District Judge, Loyalpur (now Faisalabad).
6. Learned counsel for the petitioner argued that Exh. Dl, agreement of sale in favour of the petitioner was independently proved and, therefore, the findings could not be reversed, on the basis of any subsequent mutation, entered at the instance of the vendor. He further submitted that the documents were admitted in evidence at appellate stage without affording the petitioners with opportunity of producing evidence in rebuttal and in this way; the petitioner was materially prejudiced. Lastly, it was submitted that the learned Additional District Judge was influenced by certain alleged discrepancies which were immaterial and inconsequential.
7. Learned counsel for the' respondents argued, that factum of mutation was not in issue and, therefore, the documents could be taken into consideration by the learned appellate Court and that in doing so no illegality was committed. He submitted that agreement Exh. Dl was never proved in accordance with law.
8. In the course of hearing of these two revisions the entire evidence, was re-examined. It was observed that the crucial issue was as to whether the agreement o' sale in favour of the petitioner, was collusive, or earlier in time than the agreement claimed by the respondent (Said Ali). While appearing as PW3, Said Ali, respondent-plaintiff did not utter a single word either in examination- in-chief or in cross-examination, to the effect that agreement of Allah Rakha was subsequently fabricated or was collusive and fictitious. On the contrary, he stated that he had not asked Allah Rakha about his claim either before the suit or before the agreement. On being confronted with this statement of PW3, learned counsel for the respondents did not oppose the remand of the case to enable the petitioners to lead evidence in rebuttal for the documents introduced in appeal, with an opportunity to the respondents, to lead further evidence to prove that the documents relied upon by the petitioners was anti-dated.
9. On perusal of the record, it is observed that Abdul Rashid, who is the owner of the land had given consenting statement in favour of both intending purchasers. He admitted the execution of agreement of sale, in favour of both these persons. This being so, it cannot be said that execution of the two documents is in issue. The issue, however, remains to the extent that as to which one of the agreement is prior in time. For resolving that controversy it is observed that statement of Abdul Rashid should have been recorded and parties should have been allowed an opportunity to cross- examine him. This was essential to dig out the truth and to reach at correct date of agreement. On the face of it, if the dates, as given in the two agreements are taken as the same are evidently shown then the petitioner's agreement is prior in time. But respondents had. Disputed the date, claimed by the petitioner for execution of agreement of sale with the vendor, therefore, it becomes necessary to determine if the agreement in favour of the petitioner did exist prior to agreement of respondents No.1. The statement of Abdul Rashid and his cross- examination by the two sides will positively render necessary assistance in enabling the Court to determine the issue effectively and conclusively.
10. It is also observed that the petitioners, claimed that in terms of the agreement with the vendor, they had paid mortgage money through a bank challan. Learned counsel for the respondents pointed out that this bank challan was not considered by the two Courts as the same had not been properly tendered in evidence. He, however, submitted that the challan reflects adversely to the plea of the petitioners. Whatever may be the effect of the documents, if the production of the documents is deemed necessary by both the sides, for determination of the issue and as appeard from the arguments of the learned counsel, the document is relevant in assisting the Court to reaching effective decision of the issue it would be necessary that the documents be allowed to come in evidence by summoning the same from the treasury. The statement of the official from the treasury department will indicate the date of deposit of these amounts and also name of the persons who had made the same.
11. There is considerable force in the arguments of the learned counsel for the petitioners that ii some additional evidence was to be allowed at appellate stage the documents should have been formally tendered in evidence and the petitioners, who after responding in appeal, should have been allowed to lead evidence in rebuttal. It is observed from the impugned judgment that the learned appellate Court took into consideration the mutation, the Roznamcha Waqiati and Khasra Girdawari at appellate stage and these documents mainly influenced the learned Additional District Judge, in forming his opinion as to the document Exh. Dl and in reversing the findings of the learned Trial Court notwithstanding the fact that documents were neither formally exhibited nor petitioners were allowed opportunity of leadings-evidence in rebuttal. Whether the reasonings which prevailed upon the learned Additional District Judge can sustain or not, I will*refrain from making any comments or observation lest the case of either party will be prejudiced, as I am inclined to remand the case for disposal of the appeal in accordance with law after allowing evidence in rebuttal. The petitioners had right to explain their position by producing evidence in rebuttal comprising of oral as well as documentary evidence. Without giving the right of rebuttal, the learned appellate Court could not consider any document extraneous to the record which was not formally tendered in evidence.
12. Since the learned Additional District Judge has reversed the judgment of the learned Trial Court by relying upon the documents not forming part of evidence, therefore, the findings recorded by him cannot sustain and are accordingly set aside.
13. For the reasons above, these two revisions are allowed, the impugned judgments are set aside and the cases are remanded to the learned Additional District Judge. In result, the two appeals filed by respondent No.1 shall be deemed to be pending. Learned Additional District Judge will summon Ismail as a Court witness and after recording his statement will allow both the parties with an opportunity of cross-examination. The official from the treasury will also be summoned for recording his statement to formally exhibit the bank challan. The respondent No.1 will also be allowed an opportunity>to lead evidence in rebuttal, who shall be at liberty to produce, oral as well as documentary evidence, in rebuttal, to the evidence of the petitioner. After recording additional evidence, the appeal will be decided in accordance with law and on their on merits. Final decision shall be rendered by the Additional District Judge within four months, with intimation to the Deputy Registrar (Judicial) of this Court. Parties to share their on costs.