1989 PLP 61 (MLD)

(6) Whether the Hon'ble Court has no jurisdiction to try this suit? (7) Whether Nizamuddin is necessary party? (8) Whether the plaintiff is entitled to relief sought for? (9) Whether defendant No. 2 is bona fide purchaser for value without notice of alleged agreement of sale? (10) Whether the defendant No. 2 is co‑sharer and the alleged agreement is not enforceable against him? (11) Whether the suit is bad for non Joinder of necessary parties? (12) What should the decree be?"

3. In support of the above suit, the respondent No.1 has examined P.W. Muhammad Yaqoob, D.S.P. Finger Print Bureau; P.W. Fazullah his attorney; P.W. Muhammad Khan; P.W. Mahmood; P.W. Jahan Khan and P.W. Sujawal, whereas the applicant examined himself and other DWs. Muhammad Aslam, Muhammad Ali, Ishraquddin and Usman.

4. It further appears that at the hearing of the case issues Nos. 1, 2, 7, 9, 10 and 11 were not pressed. The other issues were decided in favour of respondent No.1. The applicant and respondent No. 2 being aggrieved by the above judgment filed the aforesaid Civil Appeal No. 6 of 1980, which was dismissed by the learned Additional District Judge, Nawabshah by his above Judgment/decree dated 10‑1 -1981. The applicant has, therefore, filed the present revision.

5. In support of the above revision application Mr. Usman Ghani Rashid, learned counsel for the applicant, has urged as follows:‑‑ (i) That since respondent No. 2 was one of the legal heirs of Abdul Aziz, he could not have sold 6 acres of land as his share was little over one acre. (ii) That the sale agreement was in violation of M.L.R. 64/115.

6. As regards the above first submission, it may be observed that though Issue No.1 relates to the question whether Abdul Aziz was the sole heir of deceased Ghulam Nabi but the same was not pressed nor the above issue was pressed before the learned Additional District Judge, Nawabshah in the appeal. In my view in this revision it is not open to me to re‑open the above issue. The very fact that the applicant and respondent No. 2 had not pressed the above issue indicates that the parties were contended without pressing the same.

7. Adverting to the second submission regarding violation of M L D. 64/115, it may be observed that there was no such issue pressed before the learned trial Court but during the argument, the same was raised before the learned Additional District Judge who has observed in his judgment that the above issue was not raised before the trial Court. He has further observed that respondent No. 2 has sold his entire holding. In my view, in the absence of raising of any specific issue before the trial Court and in the absence of any issue on the above point, the question whether the sale agreement in question had violated the above M.L.R., could not have been decided without having evidence or the question of total holding of the respondent No. 2 at the tine of execution of the sale agreement.

8. On merits I am in agreement with the two Courts below that there is sufficient evidence on record to prove the execution of the sale agreement in favour of respondent No.

2. On the factum that he was put into possession, he produced revenue receipts. This aspect is proved from the Revenue record in addition to ocular evidence. The plea taken by respondent No. 2 before the trial Court was that he had not put his thumb‑impression on the sale agreement which plea was found false on the basis of the evidence of P.W. Muhammad Yaqoob, D.S.P. Finger Print Bureau.

9. It was also contended by Mr. Usman Ghani Rashid that the applicant is, the bona fide purchaser under registered sale‑deed. The above plea is devoid of l any force. As pointed out by the learned Additional District Judge, the suit was filed in February, 1972, whereas the alleged sale deed was executed on 11‑4‑1973 i.e. after about one year and 2 months from the date of the filing of the above suit.

10. The revision application has no merits. The same is dismissed but there will be no order as to costs. M.Y.H./N‑140/K Petition dismissed.