' Land measuring 1243 Kanals, 11 Marlas situated in Chak No,92/M, Tehsil and District Lodhran was allotted to Muhammad Hussain respondent No,2 in the year 1961 under Tubewell Sinking Scheme.
The allottee entered into an agreement to sell in favour of Mst. Zakira Chattha, respondent No,
1. On 16-5-1967 for total consideration of Rs,21,500 out of which he received Rs,10,500 at the time of execution of the alleged agreement to sell while the balance amount of Rs,11,500 was to be received later on. In addition to the agreement to sell a general power of attorney was also executed in favour of respondent No,1 on the same date i,e, 16-5-1967. The balance amount was also paid by means of agreement, dated 27-7-1967 (Exh.P.3) and it was agreed that suit land will be transferred on the issue of Patta Malkiat by the Punjab Province in favour of Muhammad Hussain. The possession of the land was allegedly handed over to the vendee/respondent No, 1 .
Muhammad Hussain, allottee was granted proprietary rights of the land on 21-12-1985 (Exh.P.6). On which the plaintiff/vendee filed a suit for specific performance on 25-11-1987 as it revealed that respondent No,2 had executed a sale-deed in favour of the present petitioners on 30-6-1986 (Exh.P.7), thus, the suit was filed against the petitioners as well as Muhammad Hussain respondent No,2. The suit was contested by the petitioners. Out Of the pleadings of the parties, the following issues were framed:--
(1) Whether the defendant No,1 agreed to sell the suit land to the plaintiff vide agreement to sell, dated 16-5-1967 and 27-6-1967?
(2) If Issue No,1 is proved in affirmative then whether the plaintiff has performed his part of the contract and she is entitled to its specific performance?
(3) Whether the suit is not maintainable in its present form?
(4) Whether the plaintiff has no cause of action and locus standi to bring the suit?
(5) Whether the suit is barred by time?
(6) Whether the alleged agreement is hit by section 19 of Colonization of Government Lands Act? If so, its effect?
(7) Whether the alleged agreement to sell is void and against law and facts?
(8) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? If so, what is its correct valuation?
(9) Whether the suit is vexatious' and defendants are entitled to special costs? If so, to what extent?
(10) Whether the defendants Nos.2 to 4 are bona fide purchasers of the suit land for consideration and without notice? If so, its effect?
(11) Relief.
2. After recording the evidence, the suit of the respondent No,1 was decreed by the Civil Court vide judgment/decree, dated 1-10-1992. The appeal filed by the present petitioners was dismissed by the learned Additional District Judge, Lodhran vide judgment, dated 11-10-1994. Through the present revision petition both the judgments delivered by the learned Additional District Judge, dated 11-10- 1994 and of the learned Civil Judge, dated 1-10-1992 have been assailed.
3. The learned counsel for the petitioners has raised the following contentions in support of his petition:--
(a) That the learned trial Court should have given finding on each issue separately. Reliance has been placed on NLR 1983 (IC) SC 483 titled.
(b) The sale-deed executed in favour of the petitioners by the defendant No,1/respondent No,2, dated 30-6-1986 has not been specifically challenged in the suit and no issue was framed in respect thereof. Even if the decree for specific performance has been passed the sale-deed still remains intact. Reliance has been placed on 1991 SCMR 1103.
(c) The affirmative evidence of plaintiff/respondent No,1 was closed on 2-3-1992. On 30-7-1992, the statement of the plaintiff was recorded in affirmative as well as in rebuttal. The same could not be read in affirmative, therefore, the case has been decided without the statement of the plaintiff/respondent No,1 Reference has been placed on PLD 1992 Lah. 92 titled.
(d) The learned lower Courts have not critically examined the evidence produced by the parties on each issue. The material evidence oral as well as documentary has been misread by both the Courts below on all the issues.
(e) The alleged agreement to sell was invalid in view of section 19 of Colonization of Government Lands Act, 1912.
(f) The suit was hopelessly barred by time. The alleged agreement to sell was executed in the year 1967 and the suit was filed in the year 1987 i,e, after more than 20 years. Reference has been made to Article 113 of Limitation Act. The learned counsel has also argued that the power of attorney was cancelled by Muhammad Hussain, respondent No,2 which is sufficient denial and the suit should have been filed within three years after the refusal. Reference has been made on PLD 1993 SC 147, ' On the other side, the learned counsel for the respondents has opposed the petition and argued that the scope of civil revision against the concurrent finding is very limited and should not be ordinarily interfered with. Reliance has been placed on PLD 1983 SC 53 to argue that the revisional jurisdiction can only be exercised if the judgment is based on no evidence, inadmissible evidence or if great injustice has been done. It has been further argued that the revision petition cannot be accepted even if there is possibility of any other view can be formed from the circumstances of the case. Reliance has been placed on 1997 SCMR 1139 and 1998 SCMR 708. The -judgment can be set aside only on misreading or non-reading of evidence. It has been further argued that non-framing of issues or if not Properly framed the objection can be raised at the proper time. No objection was raised during the pendency of the trial at "proper time". Reference has been made on 1993 SCMR 2018. The learned counsel has further argued that section 19 of Colonization of Government Lands Act, 1912 is not applicable to the circumstances of the case. The agreement to sell is not barred and it is consistent view of the superior Courts. Reference has been made on (sic) 1997 SC 470 (sic), 1994 SCMR (sic), PLD 1981 (sic). It has been contended that objection of recording of evidence of plaintiff in rebuttal should also have been objected at proper time. The petitioners failed to raise any objection at relevant time. Reliance has been placed on PLD 1987 Lah.
666. It has been further contended by respondent No,1 that the petitioners cannot be termed as bona fide purchaser. In this respect he has referred to para. 9 of written statement filed by the present petitioners where they clearly admit their knowledge about the pendency of the litigation between respondents Nos.1 and 2. There is no denial to that admission. It has been further pointed out that Muhammad Hussain respondent No,2 has taken different stand in a statement in which he states that he himself got the sale executed in favour of the petitioner after receiving Rs,30 lacs, while Aaley Hassan general attorney has stated that he received the amount and executed the sale-deed (Exh.D-3) which bears the signatures of Aaley Hassan so the statements of the witnesses of the petitioners are contradictory. Regarding bona fide purchase, learned counsel for respondent No,1 argued that it is the finding of fact and cannot be interfered with in exercise of revisional jurisdiction. In reply to the contention raised that the sale-deed has not been challenged the learned counsel has again referred to the same authority 1984 SCMR 1139 wherein PLD 1975 Kar.
930 has been overruled specifically (sic) prayed for in the plaint in the same judgment it has also been decided that the transfer of land without notice is again concurrent finding of fact and could not claim as a bona fide purchaser. The name of respondent No,1 did appear in Khasra Girdawari placed on record. The suit for ejectment was also filed by the respondent No,1 and pendency of the litigation between respondents Nos.1 and 2 was in the knowledge of the petitioners, therefore, they cannot claim that they were bona fide purchasers without notice. Reference can be made to NLR 1988 (Appeal Cases) 334 (sic).
5. Regarding limitation the respondent No,1 has argued that agreement to sell was executed on 27- 7-1967. Although agreement to sell was of 1967, but the proprietary rights were obtained by respondent No,2 on 21-12-1985. According to the agreement after grant of proprietary rights the suit could have been filed within three years thereof. Reliance has been placed on PLD 1973 SC 295 and PLD 1983 SC 68.
6. It is further contended that decision of the Appellate Court should be on every point agitated and not on every issue. The judgment of the Appellate Court is under Order 41, Rule 31 of C.P.C. And it is not necessary to write judgment on each issue. Reliance has been placed on 1982 SCMR 542, PLD 1985 Lah. 458 and PLD 1993 Pesh.
181. Lastly, it has been argued that there is no misreading or misappreciation of evidence, therefore, the revision petition has no force.
7. I have considered the arguments advanced by the learned counsel for the parties and gone through the record as well as the law referred to.
8. Firstly, I would like to take point of limitation raised by the learned counsel for the petitioners.
According to the agreement of sale, dated 16-5-1987 and 27-7-1967 between respondents Nos.1 and 2 the proprietary rights were granted on 21-12-1985. The contract was to be completed after the grant of the proprietary rights. The same were granted on 21-12-1985. The suit was filed on 25- 11-1987 within a period of three years after the grant of proprietary rights. The agreement was between respondents Nos.1 and 2. The suit was decreed. The issue of limitation was also decided in favour of the decree-holder/respondent. Muhammad Hussain has not agitated the decree, dated 1-10:1992 of the trial Court by filing the appeal or through cross-objection, therefore, the objection of limitation is not available to the present petitioners as the same has been finally concluded.
Reliance can be placed on PLD 1973 SC 295 and PLD 1983 SC 68. The case-law referred to by the learned counsel for the petitioners as PLD 1993 SC 147 is not applicable to the circumstances of the present case as in the said case which was a suit for declaration filed after six years and decree was passed ex pane.
8. The next submission of the learned counsel is that oral and documentary evidence has not been discussed. In this respect reliance can be placed on 1989 SCMR 1414. The arguments of the learned counsel that the lower Appellate Court should have delivered the judgment on each issue separately is devoid of any force as this argument relates to the judgment of the trial Court. Order 41, Rule 31 of C.P.C. Deals with the judgment of the Appellate Court which provides that the Appellate Court should give finding on "every point" agitated. I have gone through the judgment of the learned lower Appellate Court and all the points agitated have been fully considered and answered with reasons. The other ground taken by the petitioners is that they were bona fide purchaser for value without notice. In the para. 9 of written statement filed by the present petitioners the litigation between respondents Nos.1 and No,2 is admitted, by them which is sufficient notice and proves the knowledge of the present petitioners of the agreement of sale between respondents Nos.1 and 2. The learned counsel for the petitioners has pointed out that in the statement of petitioner No,l when he appeared as P.W., he has explained that this knowledge was provided to him by his brother. I am afraid this explanation is an afterthought and appears to be dishonest improvement. In this regard the person being bona fide purchaser is also question of fact which has been finally concluded by both the Courts below concurrently and cannot be interfered with in the exercise of revisional jurisdiction. Lastly, on the scope of revisional jurisdiction, the case-law cited by both the learned counsel for the parties i,e, 1997 SCMR 1139 titled and 1998 SCMR 708, 1994 SCMR 1139 wherein PLD 1975 Kar. 930 are consistent on this point. The power of examination of evidence on record and then discarded the conclusion of the Courts below as they were found inconsistent with his own assessment of evidence. This process for upsetting a concurrent finding of fact in exercise of power under section 115, C.P.C. Is neither permissible nor warranted by law. The interference with a finding of fact by the Courts below in exercise of revisional jurisdiction under section 115, C.P.C. By High Court could only be justified if such finding is found to be suffering from misreading of evidence or non-consideration of unreported and material evidence or the finding is the result of perverse appreciation of evidence on record. A wrong erroneous conclusion on question of tact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C.
' Resultantly, I find no merit in the revision petition, the same is dismissed.
Revision .