' This appeal is directed against the judgment and decree dated 20-6-1970 and arises out of the following circumstances.
2. One Banna initially owned the land in dispute. He died on 12-7-1918. Vide Mutation No,22 attested on 19-2-1919, 1/2 of his property was transferred to his two sons namely, Ahmad Din, respondent No,1, and Allah Ditta, and the remaining half was transferred to his widow Mst. Sardaran. On the death of Allah Ditta, his share was also transferred to Ahmad Din. On 30-11-1950, Mst. Sardaran died and vide Mutation No,219 attested on 12-4-1951 1/3rd of her estate was transferred in favour of Mst.
Jiwan respondent No,2, daughter of Mst. Sardarana, while the remaining 2/3rd was transferred in favour of Ahmad Din.
3. On 31-7-1963, Ahmad Din filed a suit assailing the said mutation. Meanwhile Mst. Jiwan had sold land to Muhammad Siddique the appellant herein. The suit filed by respondent No, 1 was decreed on 12-12-1966. Mst. Jiwan and Muhammad Siddique appellant filed an appeal which was dismissed on 20-6-1970. The said judgments and decrees are the subject-matter of this second appeal. The appellant had died and his legal representatives were brought on the record. However, nobody has come forward, to prosecute this appeal. Notices were issued to the legal representatives of the appellant but they have been, received back unserved with a report that they are not available at the given address. Due to non-availability of their addresses, it is not possible to procure their attendance. Accordingly, the appeal is dismissed for non-prosecution.
4. However, the learned counsel, for the applicant insisted on the disposal of his application. To appreciate his grievance it will be necessary to note the relevant facts. On 12-10-1970, this appeal was dismissed to regular hearing and vide order dated 21-8-1972 the respondent was restrained from alienating the property in dispute. It is claimed by the applicant that vide registered agreement to sell dated 1-6-1973, Ahmad Din agreed to sell 9 Killas out of the disputed land for a consideration of Rs,9,200 out of which 9,000 was paid through a cheque and on payment of balance amount of Rs,200 mutation Nos. 585 and 586 were entered on 2-6-1973, but were not attested due to the restraint order of this Court. However, Ahmad Din sold 177 Kanals and 12 Marlas of land to Hakim Ali and Muhammad Hussain through registered sale-deed, dated 17-1-1985 and 19-1-1985, which included the land being claimed by the applicant. Mutations Nos.750, 751 and 752 were entered which were, however, cancelled on 19-9-1985. Thereafter, vide Mutations No,937 which was entered on 18-6-1990, Ahmad Din sold land to the Premier Cooperative Society and through Mutation No,938, entered on 16-9-1990, the said society sold the land to one Amanat Ali.
These Mutations were not attested because the injunctive order, dated 21-8-1972 of this Court was operative. The R.S.A. Was dismissed for non-prosecution on 16-3-1994, and thereafter Mutations Nos.937 and 938 were attested on 30-5-1994. The R.S.A. Was however, readmitted on 21-3-1995. The applicant approached the Deputy Commissioner for the review of the aforesaid mutations but his application was dismissed on 30-12-1998. He then approached this Court in Writ Petition No,5926 of 1999 which was disposed of vide order, dated 2-12-1999.
5. It may also be noted that the appellant filed a suit seeking to protect his possession under the aforesaid agreement to sell, dated 1-6-1973. It was dismissed vide judgment and decree, dated 6- 6-1991. His appeal was dismissed on 7-2-1996 against which he approached this Court in Civil Revision No,789 of 1996 which stands admitted to regular hearing and is pending.
6. I was informed by the learned counsel for the applicant that he also filed a suit for specific performance which was dismissed on 25-9-1995 and his appeal is pending before the learned District Court.
7. Through C.M.1/C of 1995, the application sought to become a party to the R.S.A., which was allowed vide order, dated 31-10-1995.
8. Through C.M. 384/C of 1996, the applicant seeks implementation of the order, dated 21-8-1972 and a direction to restore the status of Khata No,33 as on the said date. Through C.M. No,385/C of 1996 he seeks action in contempt against Muhammad Hayat and 6 others for disobedience of the order dated 21-8-1972 on the ground that R.S.A. Was restored on 21-3-1995 and the restraint order, dated 21-8-1972 became operative w.e.f, 21-8-1972.
9. In support of C.M. 384/C of 1996 the learned counsel for the applicant submits that it was only because of interim order of this Court that Mutations Nos.585 and 586 entered in his favour were not attested. These were prior in time then Mutations Nos.937 and 938. Therefore, after the appeal had been dismissed for non-prosecution Mutation Nos.585 and 586 should have been first attested.
10. I have considered the submissions made by the learned counsel for the applicant. In essence he seeks a direction for attestation of the mutations which were entered in his favour and according to the learned counsel on the basis of a perfected oral sale. In case such a relief is allowed through the C.M. It will amount to accepting his contention that oral sale in his favour stood perfected. It will require factual inquiry whether oral sale in his favour stood perfected as claimed. The controversy raised in this application is otherwise beyond the scope of the second appeal. The matter is already pending before this Court in C.R. No,789 of 1996 in which the said question will be examined.
The applicant also filed a suit for specific performance which has been dismissed and his appeal is pending. The relief he seeks through this miscellaneous application cannot therefore, be granted in the present proceedings. He will have to establish his right to the property before he could insist on attestation of the mutation in his favour.
11. As far as C.M. 385/C of 1996 is concerned, Mutations Nos.937 and 938 were attested on 30-5- 1994, when there was no subsisting restraint order. Therefore, there was no disobedience of the interim order, dated 21-8-1972.
12. For what has been stated above, while the R.S.A. Is dismissed for non-prosecution, C.M. No,384/C of 1996 and 385/C of 1996 are dismissed as having no merit.