The respondent filed a suit for specific performance of agreement to sell dated 14-4-1990 allegedly executed by the petitioners Nos. 1 and 2 in favour of the respondents. He also prayed for declaration to the effect that Mutations of Sale Nos.3032 and 3962 made by petitioners Nos. 1 and 2 in favour of petitioner No.3 were illegal and ineffective upon his rights.
2. The suit was contested by all the three petitioners through a joint written statement. Petitioner Nos.1 and 2 denied the execution of the agreement to sell and admitted the sales in favour of petitioner No.3. Petitioner No.3 pleaded to be a bona fide purchaser for valuable consideration without notice.
3. From the pleadings of the parties following issues were framed:-- Issues: (1)Whether the plaintiff has got no cause of action to file the instant suit? OPD (2)Whether the alleged agreement of sale dated 14-4-1990 is result of fraud and, forgery? OPD.
(3)Whether the defendant No.3 (wrongly written as defendant No.2) is bona fide purchaser for value? OPD. "'
(4)Whether the instant suit is vague and ambiguous? OPD.
(5)Whether instant suit is deficient in court-fee? OPD.
(6)Whether the instant suit is mala fide and as such the defendants are entitled to recover special costs under section 35-A of C.P.C.? OPD.
(7)Whether defendants Nos.1 and 2 agreed to sell the suit-land to the plaintiff in lieu of Rs.29,062.50 vide an agreement of sale dated 14-4-1990 and received Rs.21,000 as advance money? OPP.
(8)Whether the Mutation No.3032, dated 15-12-1990 and sale Mutation No.3062, dated 11-2-1991 are illegal, without authority, void, ineffective and inoperative qua the rights of the plaintiff? OPP (9)Whether the plaintiff is entitled to get a decree for specific performance of contract as prayed for? OPP (10)Relief.
4. The plaintiff appeared as his own witness as P.W.1 while he produced Syed Abdul Khaliq Shah Petition Writer as P.W.2, Muhammad Nazir P.W.3, and Ghulam Qadir as P.W.4. In documentary evidence, he tendered agreement to sell Exh.P.1, receipt Exh.P.2, Mutation No.3032, Exh.P.3, Mutation No.3062, Exh.P.4, and copies of Register Haqdaran Zamin Exh.P.5 and Exh.P.6.
On the other hand, the petitioners/defendants produced Tanvir Ahmed, Cashier Sub-Treasury Office and D.W.1, Umid Ali D.W.2 and Allah Ditta D.W.3. Defendant No.1 namely Allah Ditta appeared as his own witness as D.W.4 and Basharat Rasool as D.W.5. In documentary evidence, extract from the register of Stamp Vendor for the year 1990 was placed on the record as Exh. D.1, register for the year 1991 Exh.D.2, copy of Register Haqdaran Zamin for the year 1990/1991 Exh.D.3 and copy of Khasra Gardawari Exh.D.4.
5. The learned Court lumped together Issues Nos.7, 8 and 9 and recorded a joint finding thereupon.
Relying upon statements of P.W.2 (Scribe), P.W.3 and P.W.4, marginal witnesses of the agreement to sell and also upon Exh.P.1 and Exh.P.2 (agreement to sell and receipt) the learned trial Court came to the conclusion that the agreement to sell stood proved in favour of the respondent. The learned trial Court did not seriously apply its mind to Issues Nos. 1, 2 and 3 and disposed of the said three issues on the basis of its findings on Issues Nos.7, 8 and 9. Issues Nos.4, 5 and 6 were disposed of for lack of evidence. Resultantly the suit of the respondent was decreed vide judgment and decree dated. 30-11-1992 against the payment of remaining amount of Rs.8,062.50.
6. The petitioners preferred an appeal which was dismissed on 21-5-1995. The learned Appellate Court examined the evidence on the record rather superficially and also did not properly appreciate the legal contentions raised before it. The objection of the petitioners that Issue No.3 concerns petitioner No.3 in respect of his claim of being bona fide purchaser was entitled to a separate and conscious disposition was not considered. Both the learned lower Courts considered the joint findings upon Issues Nos.7 to 9 to be sufficient to return finding against petitioner No.3.
7. Arguments of the learned counsel for the parties have been heard and record perused.
8. It is apparent on the record that there were two separate aspects of the case which needed to be dealt with separately. The first related to the alleged agreement to sell and sufficiency of its proof. The second related to the rights of petitioner No.3, which he had acquired under Mutations Nos.3032 and 3062 which according to him were as bona fide purchaser for value and without notice. While framing issues from the pleadings of the parties, the learned trial Court was conscious of the controversy between the parties. Issue No.3 had been specifically framed as to, whether petitioner No. 3 was a bona fide purchaser for value. Issue No.8 which is to the effect that whether Mutation No.3032 or 3065 were illegal etc. Was a mere corollary of Issue No.3.
9. In this view of the matter, it was a demand of administration of justice that the Issues Nos. 3 and 8 were decided with particular attention and not as dealt with by both the learned lower Courts:
10. A perusal of the order of the learned trial Court shows that the learned trial Court felt contented with making the following observations upon these two issues:-- "The defendant No.3 being subsequent vendee was obliged to adduce cogent and plausible proof of his bona fide purchase without notice of the disputed sale in order to avail the benefit of section 27(b) of Specific Relief Act, 1877 but the needful was not done by him. "
11. Ironically, this observation of the learned trial Court finds place in the middle of discussion on the main issue regarding the execution of the sale agreement merely as a passing reference rather than a conclusive determination of the rights of the parties.
12. As both the learned lower Courts have erred in not rendering a specific finding on Issue No. 3, the judgment and decrees of both the learned lower Courts are liable to be set aside on this ground alone.
13. A perusal of evidence further indicates that the learned trial Court has misread the statements recorded by P.Ws.1 to 4 on a number of material issues. The learned counsel for the petitioner has referred to the statement of P. W.1 wherein, he stated that he was in possession of Percha Malkiat seeing which Abdul Khaliq scribe, entered the numbers. On the other hand, Abdul Khaliq as P.W.2 stated that no Percha Malkiat was produced before him. Reference was also made to the statement of P.W.1, wherein, he stated that the petition writer (scribe) did not make any entry of Exh.P.1 in his register nor did he put his seal thereupon. P.Ws.3 and 4 stated to the contrary that the scribe after having written the document Exh.P.1 had entered the same in his register and had also put his seal thereupon. On the point of payment also, there is contradiction between the statement of P.Ws.3 and 4.
14. In revisional jurisdiction, the Courts are loath to interfere in the concurrent findings of fact which are arrived at by the lower fora. The rationale for its restraint is however, is conscious presumption that both the learned lower Courts would have correctly scrutinized and appreciated the evidence recorded before it. In order that the First Appellate Court is clothed with the status of final Court of fact, it is essential that the judgment which it renders is reflective of the proper controversy between the parties and that it has arrived at a conscious decision after examining all the pros and cons of the case.
15. After reviewing the evidence, it is, found that the judgments rendered by both the learned lower Courts fall far below from this accepted norm of administration of justice.
16. Resultantly, this civil revision is, accepted, the judgment and decree dated 21-5-1995 of the learned Appellate Court and the judgment and decree dated 30-11-1992 of the learned trial Court are set aside and the case is remanded to the learned trial Court, with the direction to give specific findings upon each issue after considering evidence on the record and to decide the matter afresh.
17. As this is an old case the learned trial Court shall decide the suit within six months, from the receipt of this judgment. Parties to bear their own costs.