Through the judgment and decrees dated 3-2-1985, suit for possession filed by the petitioners was allowed and that for specific performance of an agreement, filed by the, respondent against the petitioners, was dismissed. The respondent only preferred one appeal, which has been accepted by the learned Appellate Court on 16-4-1996, by reversing the findings of the learned trial Court, mainly on Issue No.8-A, hence this revision petition.
2. Briefly stated the facts of the case are that the predecessor-in-interest of the petitioners 6 to 11 namely Ismail, instituted a suit for possession with regard to the suit land measuring one Kanal out of the joint land owned by him with others (fully described in the plaint), on the basis of his title. The respondent resisted this suit and claimed that through an agreement to sell dated 2-5-1977, Ismail had agreed to sell 1 Kanal, 6 Marlas, the suit-land, and he had also been put in possession thereof, where he has raised construction. Besides the above, the respondent also filed a suit for specific performance for the enforcement of the agreement to sell mentioned above, in which, it was reiterated that the agreement to sell was executed between the parties for a consideration of Rs.10,400, out of which, at the time of execution of the agreement, Ismail received Rs.8,000 and the balance of Rs.2,400 was payable on the finalization of the transaction.
3. Both the suits were consolidated, issues were accordingly framed; for the purpose of present petition, Issue No.8-A is relevant, which reads as follows:-- ISSUE No.8-A Whether Ismail plaintiff No.6 has agreed to sell the suit-land to the defendant? If so, to what effect?
OPP Parties were put to trial and the learned Civil Judge, by giving his findings in favour of the petitioner:, dismissed the suit of the respondent and allowed that of the petitioners for possession.
However, on a single appeal, filed by the respondent, the judgment and decrees of the learned trial Court have been set aside. Finding on the above issue has been reversed and the suit of the respondent has been allowed.
4. Learned counsel for the petitioners contends that the learned Court of Appeal has misread the evidence on the record. It is stated that there are two marginal witnesses of the alleged agreement, namely Mohammad Tufail and Abdur Rashid; Abdur Rashid has appeared as P.W.1 in the cases and has categorically stated that the thumb --impressions of Ismail on the alleged agreement, were not affixed in his presence, rather he had thumb-marked the document, when it was blank, at the shop of the respondents; as far as the other marginal witness namely Muhammad Tufail, he has admitted that he did not know Muhammad Ismail before that date and per chance, was available at the place, where the agreement to sell was executed. Learned counsel has further pointed out the discrepancies in the statements of Muhammad Saeed, the alleged scribe of the agreement to sell, who appeared as D.W.2. It is stated that from the collective reading of evidence of the D.W.1 and D.W.2, it stands established that the document was never executed in the presence of both the witnesses. For the positive report of the Finger Print Expert, it is argued that such report has not been proved in accordance with law; the report is stated to be signed by three officers of the Bureau, but the experts, who had examined the thumb-impressions and signed the report, were not examined, rather an unconcerned person; who is only a Sub-- Inspector in the department, was produced, which is not sufficient to prove the report; further that urn the contrary, the petitioners have established the ownership of the suit property and that the respondent has illegally and forcibly taken the possession thereof.
5. I have heard the learned counsel for the parties. Muhammad Ismail, admittedly is the co-owner of the suit property, therefore, if the agreement to sell is not proved by the respondent, he on, the basis of his title, is entitled for the possession; the crucial issue thus, undoubtedly, is Issue No.8-A, The onus of proving this issue is on the respondent, who in order to prove the document, has examined Muhammad Tufail as D.W.1. Muhammad Tufail in his statement, in clear and categorical terms, conceded that he did not know Ismail prior thereto. However, he admits belonging to the same village to which, the respondent/plaintiff belongs. He stated that he met Ismail, Ch. Anwar, Rashid and Saeed in the bungalow in the suit-land and the aforesaid, were sitting in the courtyard of the bungalow. He further specified that all the persons were sitting under a tree, when the agreement to sell was executed; D.W.2 Muhammad Saeed, who claims to be the scribe of the document, has contradicted the above deposition by stating that there was no bungalow on the site. There are further contradictions in the statements of the two witnesses about the manner in which, the document was drafted and was allegedly thumb-marked by all those, who are shown to have executed and witnessed the same. There is another aspect of the matter that the stamp paper on which, the agreement to sell is executed, has been purchased from Narowal, while the property in question is situated in Shakargarh. Both the places are at the distance of about 40 miles. The stamp paper is not shown to have been directly purchased by Ismail himself, but through another person. The respondent has neither examined the stamp vendor, and sought production of his register, nor the person named at the back of the stamp paper, who on behalf of Ismail had purchased the said paper. D. W .1 Muhammad Tufail in his statement, deposed that Ismail went and brought the stamp paper. It is unconceivable that a person, who lives in Shakargarh and had the facility of purchasing the stamp paper-from that place, would go 40 miles away to buy the same. Moreover, in Shakargarh, there are number of deed writers, as has been proved on tire record, but the present agreement to sell is allegedly executed by D.W.2 Saeed, Who is an ex-Patwari. The reason for asking m to do the drafting is, that on that date, it was Sunday and the other deed writers were not available. From the Calendar of the: year 1977, the learned trial Court has taken a judicial notice that it was neither a Sunday nor National or a local holiday, resultantly, justification for not getting the document drafted by licensed deed writer, who could have incorporated the agreement in his ,official register as well, has totally been knocked out.
6. As for the report of the expert witness, suffice it to say that when confronted, learned counsel for the respondent has candidly conceded that the witness, who has appeared was not the author of the report nor he had examined the document or given his opinion thereto. Resultantly, such report does not stand proved in accordance with law and is of no legal value. It may also be pertinent to state here that when Ismail appeared in the witness-- box, he has not been confronted with the agreement to sell, if the thumb-impressions on the agreement, belong to him or not.
7. From all what has been stated above, the reasons given by the learned trial Court on the basis of evidence on the record are well-found and are weighty than the Court on Appeal. The Court of Appeal, without considering the aforesaid factors, in a sketchy and for unfounded reasons, by drawing illegal assumption about the fact that because the petitioner has failed to prove the forcible possession of the respondent, and the report of the expert establishes his thumb- impression, has reversed the finding on that issue. Therefore, the judgment and decree being the result of non-application of mind, cannot be sustained and would be, viewed to have been passed with material irregularity and erroneous exercise of jurisdiction.
8. It may be pertinent to mention here that the learned counsel for the respondent has objected about the maintainability of this revision petition on the ground that because of the consolidation of the suits, two decrees have been passed by the Court of appeal and resultantly, the single revision petition is not competent. I am afraid, this argument has no force, because the respondent himself had assailed the judgment and decrees of the trial Court in two suits, through a single appeal. I am not shown, if while accepting the appeal, the learned Appellate Court had drawn two decree-sheets, therefore, necessarily, the petitioners were not required to file either two revision petitions, or the decree-sheet, which is not shown to be in existence. Even otherwise, in the revision under section 115, C.P.C., it is the "case decided" by the subordinate Court, which is to be assailed, unalike the decree in appeal, and if the decision is set aside, automatically the decree based thereupon, goes away. Therefore, the objection has no substance and is hereby repelled.