' On 3-2-1982 the respondents Nos.1 to 3 filed a suit against the appellant No,2. In the plaint it was stated that the appellant No,2 and his brother respondent No,4. Had agreed to sell the suit-land described in the head note of the plaint to the respondents Nos.1 to 3 (hereinafter to be referred as plaintiffs). The consideration was settled as Rs,1,81,000. A sum of Rs,36,000 was paid as earnest money and agreement was executed on 27-7-1980 and possession was delivered. Thereafter, Rs,30,000 were received by appellant No,2 on 30-9-1981 against receipt and balance amount was to be paid by 31-3-1981 when a sale-deed was to be registered that the plaintiffs approached the appellant No,2 and his brother calling upon them to perform their part of agreement but they did not turn up before the Sub-Registrar, Bhakkar, who issued a certificate to the effect, that thereafter the plaintiffs convened a Jirga when appellant No,2 and his brother were paid a sum of Rs,1,00,000 out of the balance amount of the consideration on 10-10-1981; that both the brothers received the amount in equal share and promised to complete sales within two days; that on 12-10-1981 on the demand of the appellant No,2 and his brother a sum of Rs,5,000 was paid through cheque to the brother of appellant No,2. This cheque was encashed and amount was divided f :qually by two brothers. However, thereafter the two brothers refused to perform their part of agreement; that the brother Abdul Majeed respondent No,4 referred the dispute to Ch. Abdul Haleem, Advocate, Arbitrator on 30-1-1982 who gave the award to the extent of share of Abdul Majeed. Thereafter, it was narrated in the plaint that appellant No,2 was called upon to receive Rs,5,000 and the execute sale-deed of his share but he has refused. On 31-3-1982 the appellant No,2 filed a written statement stating that he has sold away the land to appellant No,1 for a consideration of Rs,2,50,000 by means of Mutation No,27. It was also stated that earlier twice the plaintiffs foiled suits which were dismissed on 22-9-1981 and 21-12-1981. On merits it was stated that both the brothers had sold away the land to appellant No,1. It was denied that they agreed to sell the land to the plaintiffs and that they had received any amount or executed any agreements. An amended plaint was filed on 14-6-1982 where Abdul Majeed respondent No,4 and Muhammad Aslam appellant No,1 were impleaded as parties. Not a word is stated in this plaint regarding the sale made by appellant No,2 and respondent No,4 in favour of appellant No,
1. In response to the said plaint the appellant No,1 filed a written statement on 24-11-1982. He has stated that he has purchased the land from two brothers vide Mutation No,27 attested on 3-3-1982 for a consideration of Rs,2,50,000. He denied the other allegations in the plaint and stated that he is bona fide purchaser; that he was not aware of any agreement or the alleged arbitration proceedings. Following issues were framed by the learned trial Court:-
(1) Whether the defendants Nos.1 and 2 had entered into an agreement to sell with the plaintiffs in respect of land in suit? If so, its effect? OPD
(2) Whether the plaintiffs have got no cause of action? OPD
(3) Whether court-fee is deficient, if so, to what extent and its effect? OPD
(4) Whether the suit is time-barred? OPD
(5) Whether the suit is barred by res judicata? OPD
(6) Whether the defendants are entitled to special costs, if so, to what extent? OPD
(7) Relief.
' Evidence of the parties was recorded. The learned trial Court decreed the suit subject to payment of Rs,57,500 vide judgment and decree, dated 31-1-1993. A first appeal filed by the appellants as also said Abdul Majeed respondent No,4 was heard by a learned Additional District Judge-II, Bhakkar, who dismissed the same on 1-2-2000.
2. Learned counsel for the appellants contends that the suit was bad for partial performance and that decree has been passed in violation of section 17 of the Specific Relief Act, 1877. Also contends that evidence on record has been misread while holding that the appellant No,2 and respondent No 3 had agreed to sell the land to the plaintiffs. Learned counsel for the plaintiffs on the other hand argues that it stands proved rather admitted on record that the agreement was entered into between his clients on the one hand and appellant No,2 and respondent No,3 on the other. Further contends that the appellant No,1 is transferee pendente lite and is bound by said agreement.
Regarding the first said contention of the learned counsel for the appellants, it is stated that the question was raised only before the learned Court of first appeal and not before the learned trial Court.
3. I have gone through the trial Court records, with the assistance of the learned counsel for the parties. I have examined the impugned judgments in the light of the said evidence on record I find that trial Court although has mentioned all the pieces of oral as well as documentary evidence in his judgment. However, barring D.W.6, the expert, there is not discussion at all of the statements made by the witnesses vis-a-vis the documents on record. I have already reproduced the contents of the plaint above. According to this plaint the entire price stood paid to the appellant No,2 and respondent No,4. However, after mentioning the witnesses, some reference to the summary of examination in chief of the witnesses and of course discussion on the evidence of the expert, learned trial Court abruptly states that plaintiffs shall pay sale price of Rs,57,500 to the appellants.
It is not at all discernible from the judgment of the learned trial Court as to how it has reached the said conclusion. Now according to the plaint only a sum of Rs,5,000 was remained to be paid to respondent No,2 and to similar effect is the statement of Khuda Baldish P.W.9 who is the brother of respondents Nos.1 and 2 and father of minor respondent No,3. The judgment of the trial Court does not disclose at all as to how the trial Court has reached the said conclusion. The judgment clearly gives impression that barring the expert D.W.6 none of the statements made by the witnesses from either side were even read by the learned trial Court. Needless to state that all the P. Ws. Were cross-examined at length. For the order I propose to pass I will be restraining myself from making my own comments on the said evidence.
4. Learned Court of first appeal has also followed the suit faithfully. None of the two impugned judgments thus can be said to be speaking judgments containing reasons for the conclusion arrived at by the learned Courts below.
5. I also find that there is specific plea in the written statement of appellant No,1 that he is bona fide purchaser. It is true that the mutation was attested in his favour at a point of time after the institution of the suit but is it also matter of record that Abdul Majeed one of the vendor was impleaded in the suit and brought on record vide amended plaint, dated 14-6-1982. Needless to state that a suit against the added party was to be deemed to have been instituted only when it is impleaded. Thus, so far as Abdul Majeed is concerned, the transaction had taken place before he was impleaded as party to the suit. The matter of partial performance has also been dealt with in an absolutely sketchy manner by the learned Additional District Judge in his impugned judgment.
Needless to state that question raised before the learned Court of first appeal, was a question of law and could have been raised in the first appeal and also in the present appeal, and had it to be decided in the light of evidence on record after properly reading and appraising the same. There is no reading and appraisement of the evidence on record at all by any of the learned Courts below.
6. In this view of the matter there is no option but to remand back this case to the learned trial Court. Following additional issues shall be framed:--
(i) Whether the suit is for partial performance and as such bad in law?
(ii) Whether Muhammad Aslam defendant No,3 is a bona fide purchaser for value and without notice?
(iii) What is effect of the arbitration proceedings inter se the plaintiffs and Abdul Majeed defendant No,2?
7. The parties shall appear before the learned Senior Civil Judge, Bhakkar, on 30-4-2002. The trial Court record shall immediately be remitted back to the learned Senior Civil Judge. The learned Senior Civil Judge shall record such evidence as parties desire to produce on the issue additionally framed by giving opportunity, to both the parties for said purpose. Thereafter, the learned Senior Civil Judge shall decide the suit after reading the entire evidence on record appraising the same and thereafter to decide the suit on its merits in accordance with law. The learned Senior Civil Judge shall undertake the said exercise and conclude the proceedings before the year 2002 is out.
8. This regular second appeal is accordingly allowed in the above terms and consequently impugned judgments and decrees of both the learned Courts below are set aside.
' No order as to costs.