' This single judgment shall also decide R.S.A. Nos.14 of 1986 and 15 of 1986 as the question of law and fact is involved in all the cases.
2. Three different sets of defendants have preferred those appeals when are directed against the concurrent judgments and decrees passed by the learned Civil Judge on 26-7-1980 and affirmed by the First Appellate Court on 19-10-1985.
3. For facility of reference, it would be expedient to classify the parties with regard to their interests in the suit. Respondents Nos.1 to 9 (Hafiz Muhammad Amin and others) are the successors-in- interest of the original plaintiff Haji Bashir Ahmed. Respondents Nos.10 to 22 represent the original defendants Nos.1 to 6 namely -Mst. Zubaida, Mst. Roshan Ara, Mst. Jehan Ara, Mst-Iqbal Bibi, Mst.
Murad Bibi and Mst. Wahido Bibi. Respondents Nos.23 to 29 represent the original defendants Nos.7 to 10. The three sets of defendants who were subsequently impleaded in the suit are Muhammad Yousaf and 17 others (appellants in R.S.A. No.13 of 1986), Bashir Ahmed son of Allah Bux (appellant in R.S.A. No.14 of 1986) and Sharif-ul-Hassan (appellant in R.S.A. No.15 of 1986).
4.Haji Bashir Ahmed the predecessor in-interest of respondents Nos.1 to 9 brought a suit for specific performance of agreement to sell dated 14-10-1966, registered on. 20-1-1967 in respect of land measuring 624 Kanals, 19 Marlas fully described in the plaint against 'Mst. Zubaida and others.
According to the plaintiff, the original defendants Nos.1 to 6 had agreed to sell the suit-land for a sale consideration of Rs,30,000 out of which they had received Rs,27,000 against receipt. It was averred that the balance of Rs,3,000 was also subsequently paid to the vendors against receipt. As per the plaint the sale-deed was to be executed after the ban was removed by the District Collector. The ban was removed by the Collector on 4-12-1969, where after Mutation No.329 was entered on 28-12-1969 in favour of the plaintiff. The original defendants Nos.7 to 10 despite knowledge of the agreement to sell referred to above purchased land measuring 75 Kanals, 8 Marlas vide registered sale-deed, dated 31-3-1970, which according to the plaintiff was violative of his rights under prior agreement to sell. Muhammad Yosaf etc. Allegedly purchased land from the same vendors and were impleaded as defendants on their application. Similarly, Sharif-ul-Hassan claimed to have purchased land through registered sale-deed, dated 7-5-1971, 26-5-1971 and 14- 9-1971 and joined the array of defendants. Similarly Bashir Ahmed son of Allah Bux became a party upon the claim of having purchased land through Mutation No.408, dated 28-2-1971. Besides the decree for specific performance the plaintiff also prayed for declaration that the subsequent alienation by the same vendors were illegal and inoperative against the rights of the plaintiff.
5. The different sets of defendants submitted their separate written statements. The substantial defence raised by the defendants was a denial of the agreement to sell by the original defendants Nos.1 to 6 in favour of the plaintiff. It was contended that the vendors did not agree to sell the land nor received any consideration from Haji Bashir Ahmed the original plaintiff. It was also contended that the suit was barred by time and that all the different sets of vendee defendants were bona fide purchasers for value without notice. It was also contended that the plaintiff has waived his right by his word and conduct.
6. From the pleadings of the parties, following issues were framed:-- ' Issues
(1) Whether defendants Nos.1 to 4, 14 and Mst. Murad Bibi and Muhammad Bibi predecessor-in interest of defendants 1 to 9, 10 to 14 entered into an agreement of sale with plaintiff on 28-12-1964?
(2) If so, whether Rs,30,000 were fixed as sale price in the agreement and Rs,27,000 paid by plaintiff to defendants Nos.1 to 4, 14 and Mst. Murad Bibi, Mst. Wahido Bibi now deceased? If so its effect?
(3) Whether defendants 1 to 4 and 14 and Murad Bibi and Wahido Bibi . Now deceased received the remaining consideration of Rs, 30,000 on 15-10-1966 from plaintiff vide deed dated 14-10-1966? If so, its effect?
(4) If Issues Nos.1 to 3 are proved in affirmative then whether defendants Nos.1 to 3, 6, 8 and 12 are bound by the agreement in question?
(5) Whether the agreement in question is bogus fictitious, forged? If so, its effect?
(6) Whether Mutation No.329 in favour of plaintiff was result of fraud and collusion? If so, its effect?
(7) Whether defendants 15 to 18 are bona fide purchasers for 75 Kanals, 8 Marlas out of the suit- land from Mst. Wahido Bibi? Hence they paid Rs,19,000 in good faith as sale price? If so, its effect?
(8) Whether the sale in favour of defendants 15 to 18 is illegal, void and ineffective against the plaintiff in view of the execution of impugned agreement, dated 28-12-1964 and 14-10-1966?
(9) Whether defendants 'Nos.15 to 18 purchased the suit property from Mst. Wahido Bibi after having knowledge of notice of the agreement of sale in favour of the plaintiff? If so, its effect?
(10) Whether the suit is within time?
(10-A) Whether defendants 18 to 30 are bona fide purchasers for value without notice?
(10-B) Whether the plaintiffs have waived their rights due to their act and conduct are estopped from bringing suit?
(11) Relief.
7. It appears from the record that the evidence had been recorded by the trial Court before the impleadment of the subsequent vendees as defendants to the suit. This evidence comprised of the following; P.W.1 Abdullah Yousaf Bhatti, Advocate, P.W.2 Muhammad Sabir, P.W.3 Ghulam Abbas Shah. P.W.4 Abdul Hameed, P.W.5 Elahi Bux, P.W.6 Manzoor Ahmed. This evidence was concluded on 6-2-1973. After the different sets of defendants were impleaded, additional issues were framed and evidence on the case was once again recorded on behalf of the parties. Thereafter, the plaintiff in support of his contention produced P.W.1 Abdullah Yousaf Bhatti, Advocate, P.W.2 Muhammad Sabir Petition Writer P.W.3 Umer Hayat, P.W.4 Syed Agha Ali, P.W.5 Aziz Ahmed P.W.6 M. Akbar and P.W.7 Muhammad Riaz. In documentary evidence Exh.P.1 proceedings of the commission, Exh.P.2 agreement to sell dated 14-10-1966, Exh.P.3. Receipt of Rs,27,000 Exh.P.4. Mutation No.329, Exh.P.5 copy of register Haqdaran Zamin of Khata 43/30 and Exh.P.6 Roznamcha Waqiati was produced.
8. On the other hand, defendants produced D.W.1 Syed Nazar Hussain Shah, D.W.2 Noor Muhammad D.,W.3 Haji Muhammad Bux, D.W.4 Sher. Ahmed, D.W.5 Ahmed son of Fazal Karim, Mustafa Nawaz, (renumbered as D.W.5) and Jan Muhammad D.W.6. In documentary evidence the respondents produced Exh.D.1 copy of the sale-deed from Mst. Wahido Khatoon in favour of Mian Allah Nawaz Khan etc. Exh.D.2 sale-deed dated 24-4-1967 from Mst. Siraj Bibi in favour of Muhammad Ismail, Mutation No.352 Exh.D.3. Mutation 1'40.401 Exh.D.4 and Exh.D.W.1/1 to Exh.D.W.1/15, Exh.D.W .5/1 to Exh . D . W .5/4 and Exh. D.W. /6/1. This evidence shall be-referred to when the context so admits. The learned trial Court after considering the said evidence, decided Issues Nos.1, 2, 3 and 4 together as all these issues were interlinked. It found that the oral agreement of 28-12-1964 was established by the plaintiff through his evidence. The payment of sale consideration was also found to have been proved. It was also held that the plaintiff had succeeded to prove the execution of agreement to sell dated 14-10-1966 which was registered on 20-1-1967. The suit was found to be within time. After holding that the subsequent vendees have failed to prove that they were bona fide purchasers without notice, the trial Court decreed the suit in favour of respondents Nos.1 to 9 vide judgment and decree, dated 26-7-1980.
10. Three appeals were preferred by three different sets of defendants. Civil Appeal No.155 of 1984 was filed by the vendee Bashir Ahmed son of .Bux (appellant in R.S.A. No.14 of 1986). Civil Appeal No.156 ,of 1994 was filed by Sharif-ul-Hasan (appellant in R.S.A. No.15 of 1986). The Civil Appeal No.157 of 1984 was filed by Muhammad Yousaf and others (appellants herein).
' It is noticed that before the trial Court a compromise was effected between the plaintiffs and respondents Nos.23 to 29 (original defendants Nos.7 to 10) whereby the plaintiffs gave up their claim in respect of the said defendants. Obviously, this set of .Defendants did not prefer any appeal. More importantly, the vendors now represented by respondents Nos.10 to 22 did not file appeal against the decree of the trial Court. Muhammad Ismail respondent No.32 who was a vendee for 100 Kanals of land from the same vendors also did not file any appeal. Against them the decree of the trial Court became final.
11 . The learned Appellate Court reappraised the entire evidence on the record and attended to the contentions of the parties in detail. The learned appellate Courtfully concurred with the findings of the trial Court in respect of the oral transaction of sale, the proof of the receipts of payment of sale consideration and the execution and registration of the agreement to sell. It also found that the subsequent vendees did not conduct sufficient inquiry before purchasing land from the same vendors, as the agreement to sell in favour of the plaintiffs was a duly registered document. The claim of the subsequent vendees was not accepted as the sales in their favour were hit by the principle of lis pendens. All the three appeals were consequently dismissed on 19-10-1985.
12. Ch. Naseer Ahmed, Advocate and Mr. Muhammad Jaffar Hashmi, Advocate appeared on behalf of the appellants and vehemently assailed the findings of the lower Courts. It was contended that initially the appellants in all the "three appeals were not arrayed as defendants. Evidence recorded in the case before the appellants were impleaded as defendants could not have been used for deciding the case. The precise contention was that the evidence recorded before 22-4-1979 could not have been lawfully considered and any findings based upon the statement of witnesses recorded earlier was incorrect. He stressed that the trial Court had mainly relied upon the evidence of Abdul Hameed Illahi Bux and Manzoor Ahmed whose statements - was recorded prior to the joining of the proceedings by the appellants.
13. It was next contended that appellants Yousaf etc. Were the vendees from four persons namely Mst. Iqbal Begum, Siraj Bibi, Taj Bibi and Mumtaz Begum. Only one of them namely Iqbal Begum was alleged to be the vendor of the plaintiffs. According to the learned Counsel, the sale from the vendors other than Mst. Iqbal Begum was not liable to be cancelled and shall remain intact even if the plaintiffs' suit was to the succeed.
14. The learned Counsel criticised the appreciation of evidence by the lower Courts by making reference to the discrepancies amongst the statements of the plaintiff's witnesses. The statement of the Local Commissioner Muhammad Abdullah Yousaf Bhatti, Advocate was challenged as being not confidence-inspiring and being improbable and unbelievable. It was further contended that according to the statement of Sabir P.W.2, it was Mubarik Mian who was responsible for getting the agreement to sell thumb-marked by the Pardah Nasheen lady vendors. As the said Mubarik Mian was not produced in evidence, adverse presumption should be drawn from this circumstance against the case of the plaintiffs. When the said Mubarik Mian was examined on commission, he did not support the case of the plaintiffs. It was next contended that the mutation of inheritance of Murad Bibi Exh. D. W. 1/15 mentions that Mst. Murad Bibi died on 4-10-1966. In such circumstances it was not possible for Mst. Murad Bibi to have thumb-marked any agreement or receipt thereafter.
The decrees were also challenged on the ground that the suit was time-barred from the date of receipt Mark "A".
15. It was lastly contended that in case of transactions featuring Pardah Nasheen ladies great caution is to be shown. The burden of proof in such cases is very heavy upon the person acting in support of such transaction. Reliance has been placed upon Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 642) and Malik Riaz Ahmed and others v. Mian Inayat Ullah and others (1992 SCM R 1488). It was contended that in any event the appellants were bona fide purchasers for value without notice and their title cannot be legally challenged.
16. On the other hand, Mr. M.M. Bhatti, Advocate for respondents Nos,1 to 9 contended that both the lower Courts have arrived at a concurrent finding of fact after detailed examination of all the evidence on the record. He controverted the contention of the appellants that the evidence recorded prior to the impleadment of the appellants could not be read in evidence. According to him the evidence produced on record previously was initially to resolve the controversy between the parties to agreement to sell and that the appellants were strangers to such controversy.
Continuing in this vein, the learned Counsel submitted that only grounds allegedly available to the appellants was their averment regarding bona fide purchasers. According to him there is absolutely nothing on the record to show that the appellants had made any genuine inquiry before they purchased the land in suit. He relied upon Maulana Riazul Hassan v. Muhammad Ayub Khan and another (1991 SCM R 2513) to canvass the point that the failure of the appellants ,to inquire about registered agreement to self disproved their case of being bona fide purchasers. He finally submitted that no case whatsoever has been made out for interference in the concurrent findings of fact and during the entire course of examination of the evidence no misreading or non-reading of material evidence has been pointed out.
17. Arguments have been heard. Record perused.
18. The first contention of the learned Counsel for the appellants has no merit. The evidence recorded by the trial Court upon the issues which were framed by it before the joining of subsequent defendants was part of the judicial record. The initial controversy was between the parties to the agreement to sell. While it was being contended by the plaintiffs that the vendors (respondents Nos.10 to 22) had executed the agreement to sell and received the total sale consideration, the same was denied by the vendors of the agreement. The evidence recorded at that Stage and subjected to cross-examination was fully relevant and continued to be so, in view of the provision of Article 47 of the Qanun-e-Shahadat Order, 1984. Article 47 is reproduced as under:-- legacy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- --once given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence, or is kept out of the way. By the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: ' Provided that ' the proceeding was between the same parties or their representatives-in interest; ' the adverse party in the first proceeding. Had the right and opportunity to cross-examine the questions in issue , were substantially the same in the first as in the second proceeding.
19. Thus the evidence given by the witnesses can be utilized in a later stage of the same judicial proceedings, particularly when the witnesses who had deposed earlier could not be produced at the later stage. There was nothing illegal for the trial Court to have placed reliance upon the statements of such witnesses. The next contention that the sale in favour of Muhammad Yousaf and others was made by Mst. Lqbal Begum and three others and as it was only Mst. Iqbal Begum who was alleged to have entered into an agreement to sell with the plaintiffs, the sale by the remaining vendors of the appellants should remain intact cannot be accepted. There is nothing on the record by which ii can be inferred that the share of Mst. Lqbal Bibi was severable from the share of the others or if so, what was the extent of her share.
20. The contention that Mubarik Mian was not produced in evidence is also not supported by material on the record. The statement of Mubarik Mian was recorded upon commission. Although, he denied his signatures on the agreement yet the learned trial Court compared the signatures of Mubarik Mian made on 15-10-1966 and found them to be identical with his specific signatures. The signatures of Mubarik Mian were further compared with his signatures on the registered sale-deed, dated 6-4-1971 in favour of Sharif-ul-Hassan appellant in R.S. A. No.15 of 1986 and found them to be identical. It is thus idle for the appellants to attempt to deprive any adverse inference from the assumed non-appearance of Mubarik Mian as a witness.
21. As regards, the mention in Exh.D . W.1/15 of the date of death of Mst. Murad Bibi as being 4-10- 1966 suffice it to say that in this respect a reference was made to a certificate issues by Adviser of Finance dated 15-9-1970. This certificate was not produced and there is no legal justification for mentioning the date of death of Murad Bibi upon the mutation attested on 20-10-1970 i,e, after four years of the alleged death of Murad Bibi. More entry in a mutation without any other corroborative evidence is not sufficient to prove such entry. The entire evidence on the record has been examined with the assistance of the learned Counsel. Both the learned lower Courts have not only evaluated the evidence dispassionately, they , have also rendered cogent reasons for drawing the legal inference from the material on the record. Neither any misreading or non-reading of evidence is indicated nor any irregularity in the exercise of jurisdiction or procedure has been found.
22. In the exercise of revisional jurisdiction this Court is extremely reluctant in interfering in well- considered judgments of the lower for a when findings have been arrived at after a pains taking conclusion of judicial proceedings. It is added that specific relief, its grant or refusal, is within the discretion of trial Court and has been affirmed in appeal. There is no basis for interference in this appeal particularly when the exercise of discretion is neither fanciful nor arbitrary.
23. Resultantly, there is no merit in this regular second appeal which is hereby dismissed. Parties to bear their own costs.