MIAN MUHAMMAD AJMAL, J.-- This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 assails the validity of the judgment of the Lahore High Court, Lahore dated 25.10.2000, whereby Regular Second Appeal No. 203/1983 of the petitioners, was dismissed.
2. Brief history of the case is that on 8.4.1975, Muhammad Sadiq, respondent No. 1 (since dead) filed a suit for specific performance of the agreement to sell the disputed land dated 7.10.1974 against Munshi, the predecessor-in-interest of the petitioners and Zafar Ali, respondent No. 2. It was alleged by the plaintiff that agreement to sell was executed by consideration of Rs. 10,000/-, out of which, Rs. 5,000/- were paid to Zafar Ali, respondent No. 2 at the time of agreement to shall, It was further alleged that the vendee undertook to complete the sale up to April, 1975 but in violation of the above agreement, he on 12.2.1975, sold the land to his real uncle, Munshi, the predecessor-in- interest of the petitioners. The suit was conceded by Zafar Ali, respondent, who in his written statement, admitted the execution of the agreement to sell and receipt of Rs. 5,000/- as earnest money. He however, stated that after the receipt of the earnest money, the said amount was forcibly taken away by Munshi, the predecessorin-interest of the petitioners, who compelled him to execute the sale-deed in his favour. Munshi, the predecessor of the petitioner, in his written statement asserted that the agreement to sell was collusive between the plaintiff/respondent and Zafar Ali, respondent. He further pleaded that Munshi, the predecessor of the petitioners was marginal witness of Exh. P-1, the agreement to sell, hence, he was estopped to purchase the disputed land.
The . Trial Court vide its judgment dated 11.6.1977 dismissed the suit. Appeal filed by the plaintiff/respondent was accepted and his suit was decreed. Feeling aggrieved, the petitioners filed RSA No. 204/1983 before the Lahore High Court, Lahore, which has been dismissed by it vide its judgment dated 25.10.2000, impugned herein.
3. We have heard the learned counsel for the parties and have gone through the evidence on record. According to Muhammad Shafi PW1, the scribe of Exh. P-1, he did not personally know Zafar Ali, the vendor and he also stated that he cannot say whether the said document was fraudulently got scribed from him. Likewise, Ch. Muhammad Ali Advocate PW2, the Oath Commissioner, stated that he neither knew Zafar Ali, the vendor nor did he get his thumb impression on the affidavit.
However, he stated that he personally knew Munshi but he could not identify Munshi who was present in the Court. Barkat Ali PW3 was produced to prove the said document but he was not associated in any manner with its execution, therefore, his evidence is not relevant. Muhammad Sadiq, plaintiff himself appeared as PW 4 and stated that Munshi was in the knowledge of the agreement in his favour but he, over and above the said agreement, allegedly purchased the disputed land. As against this, Munshi Allah Ditta DW1, scribe of sale-deed Exh. D-2 appeared, who stated that he did not know the parties. Manzoor Ahmad DW2 stated that his father purchased the land for Rs. 6,000/- and they are in its possession. In cross-examination, he Stated that his father had not thumb impressed the agreement and admitted that his father was uncle of Zafar Ali, the vendor. After reading of the evidence of the parties, learned counsel for both the parties stated that the evidence on record is not sufficient to conclusively resolve the dispute between them and they both agreed that all the judgments of the Courts below be set aside and the case be remanded to the Trial Court with the permission to the parties to produce further evidence in support of their pleas.
4. After hearing the learned counsel for the parties and going through the evidence on record, we are also of the opinion that the evidence on record is deficient and both the parties have not been able to prove/disprove their case. We, accordingly, convert this petition into appeal, allow the same, set aside the judgments of all the Courts below and remand The case to the Trial Court to decide it afresh after allowing the parties an opportunity to amend their pleadings, if they so desire, and to lead further evidence in support of their respective pleas and decide the same in accordance with law. No order as to costs.