ABDUL KHALIQ vs RASHID AHMAD

ORDER

' Heard

2. This judgment will dispose of instant revision (C.R. No,1589 of 1995) and Civil Revision No,1590 of 1995, as common questions of law and facts are involved therein.

3. Succinctly stated, facts of the case, as borne out of record, are, that the parties entered into an agreement of sale in respect of property; comprising land and super-structure in Killa Nos.10/1 and 10/4 square No,71, described in detail in head-note of the plaints for a total consideration of Rs,7 lac.

An earnest money to the tune of Rs,3,34.000 was paid to the petitioner. An agreement to sell and a receipt were duly executed in acknowledgement of this transaction. Land comprising Khewat No,33, mortgaged with Agricultural Development Bank was there-after redeemed vide mutation No,432.

4. The parties, then, agreed to complete the transaction through mutation. In wake thereof, the petitioner got entered Report N6.476 on 1-3-1998 in Roznamcha Waqiati, received a sum of Rs,75,000 as price of superstructure of Ihata, remaining sale price of Rs,3,66,000 on 6-3-1988; appeared and made statement before Revenue Officer, with regard to transaction of sale, admitted receipt of entire consideration, acknowledged delivery of possession and mutation of sale was duly sanctioned on 16-3-1988.

5. In this way and background, the petitioner is stated to have sold his entire holding, including his residential Ihata; received total consideration, delivered the possession, divested himself of all his rights and interests therein arid even shifted from the Chak. Subsequently, however, omission of Killa No,5 of Square No,70 (Area measuring (2K - 16M) Khewat No,33 and Killa No,8/2 of Square No,71, in mutation sheet, due to sheer clerical mistake necessitated the filing of the suit for declaration and perpetual injunction as consequential relief by the respondent. As a counter-blast, the petitioner, also resorted to a suit. As such, divergent claims of ownership, in respect of property farming the subject-matter of 'lis" were advanced by the parties in their respective suits, proceedings whereof were consolidated.

6. Matters in controversy, arising out of divergent pleadings of parties, were reflected by following issues:- (1). Whether the plaintiff has no cause of action or locus standi to file this suit? OPD.

(2) Whether the suit is not maintainable in its present form? OPD.

(3) Whether the suit has been incorrectly valued for the purposes of Court fee and jurisdiction if so, what is the correct valuation? OPD.

(4) Whether the suit is hit by the provisions of res judicata? OPD.

(5) Whether the defendant has sold the suit property and has received the entire consideration amount as shown in the plaintiff? OPP

(6) Whether the plaintiff is entitled to get the relief as prayed for? OPP.

(7) Whether the plaintiff in the Suit No,297/1 of 1990 has no cause of action to bring the suit? OPP.

(8) Whether the Suit No,297/1 of 1990 is barred for non-joinder of necessary party? OPP.

(9) Whether the plaintiff is estopped by his act and conduct to file this suit? OPP.

(10) Whether the defendant is entitled to get the special costs under section 35/A, C.P.C. And to what extent? OPD.

(11) Relief.

7. After recording evidence of parties, wished to be adduced, and affording due chance of being heard to them, learned trial Court adjudged the matter in favour of the petitioner/defendant, vide judgment dated 26-7-1994.

8. Reversing findings on issues No,1, 2 and 5, appeals against the same were allowed and accepted on 19-6-1995 by Mian Jalal-ud-Din Akbar, learned Additional District Judge, Faisalabad.

Correctness, legality, propriety and validity of such judgments and decrees have been assailed in these revision petitions.

9. It was observed by learned Civil Judge that, although, Rashid Ahmad, respondent/plaintiff had succeeded in proving his version excluding claim over residential Ihata; yet his suit was destined to fail as no declaration in respect of title could be granted on the basis of an agreement to sell.

Accordingly, learned trial Court was constrained to decide issues Nos.1 and 2 against the respondent/plaintiff, who, thus was non-suited on this score alone. Learned Appellate Court, however, found not only accrual of cause of action in favour of respondent/plaintiff, but also, held that the suit was tenable in the form, in which, it had been brought.

10. Factors, aspects, points and grounds urged in these petitions have been re-iterated to lambast the verdict of learned Appellate Court. Also it has been impressed that Faux-pas was committed in holding the suit, for declaration, on the strength of agreement to sell, to be maintainable. Learned Counsel for the petitioner has endeavoured to argue that only suit for Specific Performance of Contract could be resorted to by the respondent on the basis of his claim, if any. It has been further canvassed that learned Appellate Court has palpably fallen in ignoratio elenchi to record such findings in variance to well-reasoned conclusion of learned trial Court on the proposition.

11. Conversely, impugned findings, judgments and decrees, sought to be impeached and set at naught, have been acclaimed to be correct in all respects. Also it has been remarked that learned trial Court had non-suited the respondent on misconception of law and fallacious notion.

12. It is manifest and rather proved to the hilt from the data and material on record, that after agreement to sell, the parties agreed to complete the transaction by means of mutation. Pursuant thereto Report No,476, dated 1-3-1988 in Roznamcha Waqiati was got entered/recorded with Halqa Patwari. Remaining sale price of Rs,3,66,000 besides a sum of Rs,75,000 sale price of superstructure and Ihata was duly received by the petitioner, who, executed Exh.P.7, P.8 and P.9 on 6-3-1988 in this context; appeared before Tehsildar to acknowledge the same in presence of his son Allah Rakha and admitted delivery of possession of property. It was on account of these factors and aspects that mutation No,433 Exh.P1 was duly sanctioned as nothing was left to be performed and the respondent/purchaser had become full owner in possession thereof for all intents and purposes. In that context suit in the declaratory form to seek rectification of mistake, discovered subsequently, was not only maintainable but also apt and rightly held/adjudged so by learned Appellate Court.

13. In the absence of any appeal/commotion by the petitioner to challenge findings of learned trial Court upon issue No,5, regarding sale of land except residential Ihata in favour of the respondent as indicated above, it does not lie in the mouth of the petitioner to harp the same tune or take somersault any way. Seemingly his exercise is nothing but to flog dead horse or to catch at a straw.

Concurrent findings of learned Appellate Court, with regard to completion of sale with delivery of possession thereof in respect of entire holding and property belonging to petitioner in favour of respondent, equipped him with title of property and he could legitimately sue and seek declaration in respect thereof.

14. Be that as it may, section 115, Civil Procedure Code applies to cases involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which, do not, in any way, effect the jurisdiction of the Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of act or law, unless the decision involves a matter of jurisdiction. An erroneous conclusion of law or fact is liable to be corrected in appeal, but, revision will not be competent on such a ground, unless in arriving at such conclusion an error of law, has been committed.

15. Neither any such aspect has been put forth or highlighted or even hinted at nor is available so as to attract or entail provisions of section 115, Civil Procedure Code, which, thus, can neither, come into play nor pressed into service. Logical findings of learned Appellate Court, neither appear to suffer from any infirmity nor exceptionable any way. Same are neither perfunctory on any count nor hit by perversity or arbitrariness, and are rather perfectly in consonance with law and unassailable on any score.

16. Needless to observe that in wake thereof admission for regular hearing of these revisions will, not only, push the parties into long tunnel of anguish, but also, quagmire and vortex of litigation.

17. Viewed from any angle, revision petitions merit outright dismissal and are hereby dismissed in limine.