Law:

Section:

(a) Civil Procedure Code (V of 1908)--- ----S.100---Constitution of Pakistan (1973), Art. 185(3)---Second appeal-­-Leave to appeal was granted by the Supreme Court to consider the contention of the appellant that while deciding the second appeal, the High Court could not have interfered without examining and assessing the evidence, both oral and documentary and if so, what was the effect of omission to examine the record by the High Court. Alloo v. Sher Khan and others PLD 1985 SC 382 and Muhammad Ramzan v. Mst. Janatan and 4 others 1983 CLC 1899 ref. (b) Specific Relief Act (I of 1877)--- ----S.42---Contract Act (IX of 1872), S.10---Civil Procedure Code (V of 1908), S.2(2)---Constitution of Pakistan (1973), Art.185---Suit for declaration to the effect that purchaser of the property was benami owner and in fact the real owner was the appellant---Suit was decreed ex parte and the decree attained finality---Ostensible owner, taking the ex parte decree a fresh sale, brought a suit for possession of the land through pre-emption---Similar suit had been filed by the respondent and both the suits were consolidated and one of the issues was to the effect as to whether ex parte declaratory decree amounted to a sale and, therefore, the suit for pre-emption was competent---Trial Court had answered the said issue in the affirmative ---Effect---Ex parte decree, in favour of the appellant did not amount to a sale in his favour; by its declaratory decree the Court had only determined the true nature of the transaction of sale and had found that the appellant was the real owner---Effect of ex parte .decree was that right from the beginning, the appellant became the owner---Ordinary ingredients of a contract of sale viz. proposal, acceptance and consideration were missing in the ex parte decree---No document of title having been executed in favour of the appellant in pursuance of the ex parte decree, mere mutation in the Revenue Record to implement the declaration, would not amount to sale in favour of the appellant, as mutation was never a document of title and only recorded a fact or an event---Contention based on collusion with regard to ex parte decree would not help the…

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