MIAN KHAN Versus REHMAT KHAN
AMIN-UD-D1N KHAN, J.--- Through this appeal, appellant-defendant has impugned the judgment and decree dated 19.06.2001 passed by learned Additional District Judge, Gujrat, whereby the appeal filed by him was dismissed, and the judgment and decree dated 15.11 2000 passed by learned Senior Civil Judge, Gujrat, whereby the suit for specific performance filed by respondent No.1-plaintiff was decreed.
2. The facts, in brief, of this case are that the plaintiff-respondent No.1 on 06.10.1991 filed a suit for specific performance with regard to the suit land fully mentioned in Para 1 of the plaint on the basis of a sale deed dated 26.09.1991 against respondents Nos.2 and 3, the original owner of land, appellant and respondents Nos.4 and 5. That respondents Nos.4 and 5 filed a suit for permanent injunction, therefore the sale deed could not be registered and subsequently appellant vide mutation No.4717 of oral sale dated 01.10.1991 got transferred the property in his favour. The same was also challenged in the suit. Filing written statement by defendants Nos.3 to 5 suit was contested and it was pleaded that there was previous agreement of sale with regard to the suit property with defendant No.5. The defendants Nos.1 and 2 filed consenting written statement. Issues were framed by the trial court and the parties were invited to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the close of trial, vide judgment and decree dated 15.11.2000 suit was decreed. Feeling aggrieved thereby, an appeal was filed by the present appellant before learned first appellate court, which was dismissed vide judgment and decree dated 19.06.2001. Hence, this regular second appeal.
3. Learned counsel for the appellant mainly emphasized upon Para 2 of written statement that the proper issue was not framed with regard to the pleading of appellant-defendant No.5; that the appellant has been prejudiced because of non-framing of proper issue, therefore prays for setting aside the impugned judgments and decrees passed by both the courts below.
4. On the other hand, learned counsel for the plaintiff-respondent No.1 argues that the plaintiff has fully proved his case, as there are concurrent findings of facts and law recorded by two courts below. Further states that actually the sale deed was written and the owners were going to get the same registered but defendants Nos.3 to 5 filed a suit and got a stay order; that in the existence of stay order fraudulently the appellant-defendant No.5 got the suit land transferred in his favour through an oral mutation, therefore the plaintiff was forced to file the suit in hand. Learned counsel states that the original owners have filed consenting written statement and Nadir Khan special attorney of original owners i.e. defendants Nos.1 and 2 appeared and admitted the stance of plaintiff. Further while relying upon the statement of DW-1/appellant, learned counsel argues that even he has stated in his statement that his agreement was prior to 20.10.1991, which shows that even it was after the agreement of plaintiff-respondent No.1 which is prior to 26.09.1991 and the sale deed was written on 26.09.1991. Learned counsel lastly prays for dismissal of this appeal.
5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
6. So far as the argument of learned counsel for the appellant that proper issue has not been framed on the pleading of Para 2 of written statement, is concerned. I have noticed that issue No.3 covers the pleading mentioned in the said Para 2. Even otherwise, now it is settled law that a case pleaded by a party is in its mind and framing or non-framing of any specific issue is not relevant, unless the party proves special prejudice to it by non-framing a specific issue. I have noticed that the objection of non-framing of issue was not raised before the trial court as well as before learned lower appellate court, which has first time been raised before this Court, therefore the same objection is not maintainable in the light of above discussion. There are concurrent findings of facts and law recorded by two courts below. The plaintiff has fully proved his case pleaded by him and the original owners have not filed any appeal or denied from the agreement. The subsequent purchaser i.e. the appellant procured a stay order from the civil court and the sale deed written in favour of respondent No.1-plaintiff could not be executed and after that he got the suit land transferred in his favour through an oral mutation and suit filed by defendants Nos.3 to 5 was withdrawn, which is also a visible substance to note that all the proceedings of filing of suit and oral mutation in favour of appellant were intentional efforts to injure the rights of plaintiff-respondent No.1. In this view of the matter, no case for interference while exercising the jurisdiction under section 100 of the C.P.C. has been made out. Resultantly, I see no force in this appeal. It is hereby dismissed.
ZC/M-187/L Appeal dismissed.