' Petitioners are legal heirs of Ghulam Khan who in turn is son of Karam Khan. Karam Khan died leaving behind children from two marriages. Since Ghulam Khan i,e,, predecessor-in-interest of the petitioners, was deprived of his share in inheritance, therefore, he filed a suit to challenge mutation of inheritance, sanctioned on 11-12-1989 in favour of his step-brothers and sisters, etc. The suit was decreed in terms of compromise between the parties and Ghulam Khan got his share of estate.
This share of estate (suit property) became subject-matter of another litigation ensuing between said Ghulam Khan and Haji Nawab Khan (respondent in the present civil revision). Said Haji Nawab Khan respondent filed a suit for specific performance on the basis of an agreement dated 17-10- 1991 (Exh.P.1) pleaded to have been executed during pendency of suit between Ghulam Khan and his step-brothers and sisters. It was further claimed by respondent that Ghulam Khan made this agreement in favour of the respondent to transfer in his favour the suit property after obtaining a decree thereto for the following considerations :
(i) Incurrence of costs of the suit from the date of agreement by the respondents; and
(ii) transfers of land comprising Square Nos.36 and 37 located in village Sabqui, Tehsil Shorkot District, Jhang by the respondent in favour of Ghulam Khan.
2. It was further pleaded that after obtaining the decree Ghulam Khan wriggled out of his contractual obligations, hence the suit.
3. Ghulam Khan filed a contesting written statement. In the preliminary objections Ghulam Khan termed said agreement (Exh.P.1) as fraudulent and forged and denied its execution but admitted that he had thumb-marked a blank stamp paper to execute a special power of attorney in favour of respondent Haji Nawab Khan. It was also alleged in the preliminary objections that since Ghulam Khan had not, at the time of agreement become owner of the suit property, therefore, no valid agreement could be made. And that he was an old man of infirm health and did not appear at any place to make said agreement in favour of the respondent.
4. On merits, the main paras. Of the plaint i,e, paras. Nos.3 and 4 regarding execution of the agreement and incurrence of costs of the suit by the respondent were generally denied stating that no expenses were borne by the respondent.
5. Issues were framed by the learned trial Court. Evidence was recorded. The learned trial Court thereupon by judgment and decree dated 31-7-1993 decreed the suit of the respondent. In the meanwhile Ghulam Khan died and his legal heirs were impleaded instead, in future litigation.
Appeal filed by the petitioners against the decree was also dismissed by the learned A.D.J., Jhang on 5-7-1997, hence the present revision-petition.
6. Learned counsel for the petitioners reiterated the contents of the written statement and the grounds raised in the memo. Of appeal. It was specifically contended that one of the marginal witnesses i,e, Sadullah (D.W.3) supported the version of Ghulam Khan defendant that a blank stamp paper was thumb-marked by Ghulam Khan and the same was also signed by the said witness for respondent to make a special power of attorney thereupon to pursue the pending litigation between Ghulam Khan and his step-brothers and sisters to obtain the land in favour of Ghulam Khan. Learned counsel for the petitioners further specifically raised the following legal issues:--
(i) Exh.P.1 was uncertain for failing to specify a particular consideration, nature of transaction and the suit property;
(ii) Exh.P.1 was unenforceable in terms of sections 21 and 22 of the Specific Relief Act, because the circumstance of old-age and infirmity of Ghulam Khan gave an unfair advantage to respondent over said Ghulam Khan and it was because of this unfair advantage and dominance that respondent was able to forge an agreement, for which there was no occasion;
(iii) Neither agreement Exh. P.1 nor any of the witnesses specified the amount of expenses incurred by the respondent; and
(iv) Exh.P.1 was champertous in nature for having been based upon uncertain litigation costs, wherefor, it was extortionate in nature and suit for specific performance thereupon should have been denied as has been held in the ease of "Khawaja and another v. Nur Alam and others (PLD 1953 Lah. 277 (283) and in the case of "Babu Ram v. Ram Charan Lal and another" (AIR 1934 Allahabad 1023).
7. Contrarily, learned counsel for the respondent supported the impugned judgements and decrees.
8. I have considered the arguments of learned counsel for the parties and have also examined the record. Exh. P. 1; agreement to sell, on which the suit was based, was purported to have been made between the parties on 17-10-1991 during the pendency of litigation between Ghulam Khan (predecessor-in-interest of the petitioners) for obtainingsuit-land and his brothers and sisters, by challenging the mutation of inheritance in their favour. The terms of Exh.P.1 as shown to have been recorded were that the suit-land upon decree shall be transferred in favour of the respondent by Ghulam Khan in consideration of exchange of land in Squares Nos.36 and 37 owned by the respondent in his village to Ghulam Khan deceased-defendant and for bearing costs of litigation of the suit. The suit for specific performance was filed by the respondent after decree on the basis of compromise was passed in favour of Ghulam Khan deceased-defendant by the Court. It was pleaded in the plaint that all the expenses and costs of litigation were borne by the respondent and that he was willing to perform the remaining part of the agreement by transferring his land to Ghulam Khan deceased-defendant in lieu of the suit-land which should be directed to be transferred to the respondent. In the written statement Ghulam Khan categorically denied making or thumb-marking the agreement to sell and termed it as forged and fraudulent. He, however, admitted to have thumb-marked blank stamp paper in favour of the respondent to subscribe a special power of attorney thereupon for pursuing the pending litigation between the brothers and sisters to obtain the suit-land. The learned Courts below after thorough and proper evaluation of the evidence held that Ghulam Khan deceased-defendant failed to disprove execution of Exh.P.1 in favour of the respondent. It was also held that having admitted thumb-marking the blank paper, the onus was heavy upon Ghulam Khan to prove that thumb-impression was embossed upon the blank paper for a purpose different for which it was purportedly used by the respondent. The learned Courts below concurrently concluded that Ghulam Khan deceased-defendant has not been able to discharge the onus. Considering the argument of learned counsel for the petitioner that it was only for making a special power of attorney that deceased Ghulam Khan put his thumb-impression on Exh.P.1, it is noted that the learned counsel for the petitioners has not offered any explanation whatsoever as to the reason for executing a special power of attorney in favour of the respondent by said Ghulam Khan. It is also noted that Ghulam Khan and respondent are not related to each other at all. It is inconceivable that for contesting the case of his lifetime, Ghulam Khan deceased-defendant would allow a stranger to become his special attorney. Furthermore, the Courts below have concurrently held this question of fact in favour of the respondent that Exh.P.1 was duly and properly executed by Ghulam Khan deceased-defendant-in favour of the respondent upon due consideration. There is no misreading or non-reading of evidence on this question. This Court, therefore, has no jurisdiction to interfere in the findings of fact duly and properly rendered by the Courts below, in exercise of its revisional powers under section 115, C.P.C.
9. I also note that the principal consideration contained in Exh.P.1 was the exchange of land between the parties and incurrence of litigation costs was apparently the advance for entering into the agreement to sell. Contention of Ghulam Khan deceased that he was too ill and too infirm to execute an agreement to sell in favour of the respondent is without merit. If Ghulam Khan deceased could thumb-mark, by his own admission, a blank paper in favour of a respondent to make a special power of attorney, he could not deny that he was incapable of making an agreement in favour of any party including the respondent. I am, therefore, not convinced that there is substance in the contention that the agreement was forged or fraudulent or that it was without consideration. I also do not find any merit in the argument that Ghulam Khan deceased- defendant, at the time of alleged agreement had not become the owner of the property. The law is well-settled that upon opening of inheritance, rights and interests in the estate of the deceased automatically devolve upon the heirs. Denial of the right of one heir by others do not mean that if such heir was legitimately entitled to his share inheritance, he gets deprived upon denial or incorporation of illegal mutation of inheritance. Sanctioning of mutation of inheritance does not deprive the person of the title because inheritance mutation is not a document of title and does not settle the question of ownership between the parties. Furthermore, upon denial of execution of the agreement Exh.P.1 by Ghulam Khan deceased-defendant the legal pleas raised by the learned counsel for the petitioners qua unconscionability, unfairness and champertous character of the agreement, become irrelevant. Had Ghulam Khan deceased admitted the agreement and then raised the plea of its unenforceability on the basis of the legal grounds urged by the learned counsel for the petitioners, the same could have. Been considered. Examination of written statement of Ghulam Khan deceased-defendant also shows that none of these grounds were alternatively pleaded in the written statement to challenge the enforceability or legality of the agreement. Written statement contains outright denial of the execution, wherefor, petitioners cannot be allowed to departure from their own pleadings. And that they cannot be allowed to plead a ground which they have neither raised in the written statement nor in their contentions before the learned Courts below:
10. In view thereof, I do not find any material in this civil revision, which is dismissed with costs.