TANV1R BASHIR ANSARI, J,- The respondent filed a suit for specific performance of agreement to sell dated 1j4.4.1990 allegedly executed by the petitioners > Nos. 1 and 2 in favour of the respondents. He also prayed for declaration to the effect that mutation of sale Nos. 3032 and 3062 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. Petitioners 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 u/S. 35-A of CPO? OPD
(7) Whether defendants Nos. 1 and 2 agreed to sell the suit land to the plaintiff in lieu of Rs.29062.50 vide an agreement of sale dated 14.4.1990 and received Rs.21,000/- as advanced money? OPP
(8) Whether the mutation No.3032, 15.12.1990 and sale mutation No. Dated 3062, dated 11.2.1991 are illegal, without authority, void, ineffective and in-operative qua the rights of the plaintiff? OPP
(9) Whether the plaintiff is entitled to get a decree for specific performance of contract s prayed for? OPP.
(10) Relief.
4. The plaintiff appeared as his on witness are PW-1 while he produced Syed Abdul Khaliq Shah petitioner Writer as PW-2, Muhammad Nazir PW-3, and Ghulam Qadir as PW-4, In documentary evidence,, he tendered agreement to sell Ex. P.l., receipt Ex. P.2, mutation No. 3032, Ex. P.3, mutation No.. 3062, Ex. P.4, and copies of Register Haqdaran Zamin Ex. P.5 and Ex. P.6.
On the other hand, the petitioners/defendants produced Tanvir Ahmed Cashier Sub-Treasury Office and DW.1, Umid Ali DW.2 and Allah Ditta DW.3. Defendant No. 1 namely Allah Ditta appeared as his on witness as DW.4 and Basharat Rasool as DW.5. In documentary evidence, extract for the register of Stamp Vendor for the year 1990 was placed on the record as Ex. D.1, register for the year 1991 Ex. D.2, copy of Register Haqdaran Zamin for the year 1990/1991 Ex. D.3 and copy of Khasra GardWari Ex. D.4.
5. The learned Trial Court lumped together issues Nos. 7, 8 and 9 and recorded a joint finding thereupon. Relying upon statement of PW.2 (Scribe) PW.3 and PW-4 marginal witnesses of the agreement to sell and also upon Ex. P.l and Ex. 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.80,62.50.
6. This-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 join 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 the 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 Nos. 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 issue Nos. 3 and 8 were decided with particular attention and not as deal with by both the learned lower Courts.
10. A perusal of the order of the leaned Trial Cour shows that the learned Trial Court felt contended with making the following observations upon these two issues:- "The defendant No. 3 being subsequence vendee was obliged to adduce cogent anc plausible proof of his bona fide purchase without notice of the disputed sale in order tc 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 Tria 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 e conclusive determination of the rights of the parties.
12. As both the learned lower Courts have erred ir not rendering a specific findings 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 PW.1 to PW.4 on a number of material issues. The learned counsel for the petitioner has referred to the statement of PW.1 wherein, he stated that he was ir possession of Percha Malkiat seeing which Abdul Khalic scribe entered the numbers. On the other hand, Abdu Khaliq as PW.2 stated that no Percha Milkiat was produce before him. Reference was also made to the statement of PW.1 , wherein, he stated that . The petitioner writer (scribe) did not make any entry ol Ex. P.l in his register nor did he put his seal thereupon, PW.3 and PW.4 stated to the contrary that the scribe ter having written the document Ex. P.l had erjtered e same in his register and had also put his seal ereupon. On the point of payment also, there is mtradiction between' the statement of PW.3 and A/.4.
14. In revisional jurisdiction, the Courts are loathe interfere in the concurrent findings of fact which are rived at by the lower fora. The rationale for its straint is however, 'is conscious presumption that both e learned lower Courts would have correctly :rutinised and . Appreciated the evidence recorded Tore it. In order that the first Appellate Court is othed with the status of final Court of fact, it is isential that the judgment which it renders is reflective the proper controversy between the parties and that has arrived at a conscious decision after examining all e pros and cons of the case.
15. After reviewing the evidence, it is found that e judgments rendered by both the learned lower Durts fall far below this accepted norm of iministration of justice.
16. Resultantly, this Civil Revision is accepted, the dgment and decree dated 21.5.1995 of the learned Dpellate Court and the judgment and decree dated D. 1 1.1992 of the learned Trial Court is set aside and e case is remanded to the learned Trial Court with the rection to give specific findings upon each issue after jnsidering evidence on the record and to decide the atter afresh.
17. As this is an old case the learned Trial Court iall decide the suit within six months, from the receipt this judgment. Parties to bear their on costs.