1989 PLP 4125 (MLD)

This Regular Second Appeal under section 100 of the Code of Civil Procedure had been filed by Akbar Ali appellant‑plaintiff against Ghulam Nabi and 2 others respondents‑defendants to impugn judgments and decrees dated 26 5‑1980 and 17‑10‑1978 respectively passed by the learned Additional District Judge, Faisalabad and the learned Civil Judge, Toba Tek Singh. The facts briefly stated are that Akbar Ali the appellant instituted a suit for a declaration against the respondents in the Court of learned Civil Judge. Toba Tek Singh that he was the owner of the land in dispute situate in Chak No. 285/G.B. Tehsil Toba Tek Singh, District Faisalabad and that Mutation No. 868 sanctioned on 23‑5‑1974 regarding sale allegedly made by him for a sum of Rs. 2,00,000 in favour of the respondent was illegal, against facts, based on fraud, misrepresentation and is fictitious, collusive and without consideration and, therefore, liable to be annulled with the consequential relief that the respondents‑defendants be restrained from interfering in the ownership of the appellant regarding the said land. This suit was resisted by the respondents and on the divergent pleadings of the parties following three issues were framed:‑‑ (1) Whether the suit is maintainable in its present form? OPP. (2) Whether the plaintiff is entitled to the decaration prayed for? OPP. (3) Relief. The learned Civil Judge, Toba Tek Singh by his judgment dated 17‑10‑1978 dismissed the suit of the appellant. He held that no finding is called for on issue No. 1 as the issue has not been pressed. However, on issue No. 2 he recorded a finding adverse to the appellant‑plaintiff. Feeling aggrieved of the judgment and decree of the learned trial Court the deceased appellant preferred an appeal before the learned Addl. District Judge, Faisalabad who concurred with the findings of the trial Court and dismissed the appeal with costs by this judgment dated 26‑5‑1980. Still dissatisfied the deceased appellant filed the present appeal in this Court against the aforementioned judgments and decrees of the Courts below. During the pendency of the appeal the appellant died and his legal representatives (1 son and 4 daughters) have been brought on record. Respondent No. 1 had also died during the pendency of appeal and his legal representatives were also brought on record. During the proceedings of hearing of the appeal the appellant filed C.M. No. 2493‑C/87 under section 163 of the Qanun‑e‑Shahadat, 1984 with a request to call upon the respondents to deny the plaintiffs‑appellants claim on oath with the further request that if Muhammad Akram one of the defendants takes oath on Holy Quran to the effect that consideration (sale price) of Rs. 2,00,000 as alleged by them was paid to Akbar Ali except Rs. 40,000 which was deposited by the defendants on their own in the Bank Account of the appellant then the decree may be passed in their favour and in this manner the litigation be shortened and the matter decided completely and effectually. This request was reiterated by the appellants on 18‑2‑1989 whereupon the respondents were also asked to appear and reply to the offer made by the appellants. Today the offer was accepted by respondent No. 3 who is present in person. Consequently the statements of Saif Ali a legal representative of the deceased appellant and also attorney of the remaining legal representatives and that of Muhammad Akram respondent No. 3 have been recorded on special oath on Holy Quran. In response the offer made by the appellants that in case Muhammad Akram respondent No.3 takes special oath and declares that defendants had made payment of the sum of Rs. 200,000 as sale price to the A deceased appellant then this appeal and the suit may be dismissed and the decree passed in favour of the defendants by the lower Courts be kept intact and maintained was accepted by respondent No. 3 who took the special oath on Holy Quran and solemnly declared that the sum of Rs. 2,00,000 was paid by him to the deceased appellant Akbar Ali the father of Saif Ali. In view of the foregoing position this appeal is dismissed and the judgments and decrees dated 26‑5‑1980 and 17‑10‑1978 respectively passed by the leaned Civil Additional District Judge, Faisalabad and the learned Civil Judge, Toba Tek Singh arc upheld. There will, however, be no order as to costs in this appeal. Appeal dismissed.