2006 PLP 2161 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

This civil revision assails the judgments and decrees dated 30-10-1998 and 13-8-2001 passed by the learned Civil Judge and learned Additional District Judge Kasur, respectively, decreeing the suit of the respondent and dismissing the petitioner's appeal thereagainst.

2. A short factual background of the case is that respondent filed a suit for specific performance of an oral agreement to sell between the parties, relating to land measuring 13 Kanals and 13 Marlas owned by the petitioner, for a consideration of Rs.1,04,

000. Respondent asserted in his plaint that on 15-5-1993 in presence of witnesses and respectable, the petitioner received an amount of Rs.74,000 from him and delivered possession of his above mentioned land, under the agreement to A sell. Remaining sale price of Rs.30,000 was to be adjusted against the mortgage already created by the petitioner. It has also been claimed that since both the petitioner and the respondent are real brothers, agreement to sell was not reduced to writing. According to averments of the plaint, petitioner undertook to get the sale-deed executed and registered after getting documents from the Patwari but subsequently he refused to abide by the agreement, which necessitated filing of the suit.

3. Petitioner being a defendant in the suit contested it, controverted the assertions in the plaint by filing his written statement, which necessitated framing of issues and recording of evidence.

4. The learned Civil Judge who was seized of the suit of the respondent, on the basis of his appraisal of evidence vide his judgment and decree dated 30-10-1998 decreed the suit in favour of the respondent holding that entire price had already been paid to the petitioner. The petitioner aggrieved of the decision dated 30-10-1998 filed an appeal before the Additional District Judge, Kasur, but remained unsuccessful, as his appeal was dismissed on 13-8-2001. He has now come up in the revisional jurisdiction of this Court for setting aside, both the concurrent judgments and decrees of the Courts below, impugned herein.

5. The learned counsel for the petitioner submits that though oral agreement to sell furnishes a lawful basis for maintaining the suit for specific performance yet person asserting such agreement is required under law to give a strict proof of the agreement between the parties, which according to him, lacked in the case in hand. He further submits that payment of sale price and transfer of possession under the asserted agreement was not proved on the file, without which, the suit of the petitioner could not have been decreed. He further elaborates his arguments by saying that the respondent claimed that oral agreement to sell was transacted between the parties in the presence of their relations but elder brother of the parties appeared in the witness-box as D.W.1 and deposed that no agreement to sell ever came into being as asserted by the respondent. It has also been contended on behalf of the petitioner that evidence produced by the respondent is self-contradictory and these contradictions being material; go to negate the asserted oral agreement.

6. Conversely, the learned counsel for the respondent supporting the concurrent judgments and decrees of the two Courts below, refuted the submissions of the petitioner and urged that in view of the relationship between the parties the transaction was not brought into black and white which is also in his estimation, not needed under law. He claims that concurrent findings are immune from scrutiny by this Court in revisional jurisdiction and hence, prayed for dismissal of revision petition.

7. I have anxiously considered the respective submissions of the learned counsel for the parties and have minutely examined the record facts common to both the parties which are not disputed, are that both these brothers inherited 35 Kanals and 18 Marlas of land from their father Khuda Bakhsh, out of which petitioner on 27-3-1983, 8 Kanals and then on 5-8-1989 further 8 Kanals of land total 16 Kanals of land, sold to the respondent vide two registered sale-deeds. The petitioner also mortgaged with possession 20 Kanals and 2 Marlas of his land to respondent on 24-6-1987 for a consideration of Rs.30,

000. Out of this mortgaged land, 6 Kanals and 9 Marlas of land was sold to the respondent and petitioner was left with 13 Kanals and 13 Marlas of land which is subject of instant litigation. No doubt, oral agreement is enforceable at law but a strict proof is needed for this purpose, especially, when it is specifically denied. A reference can be made to the cases of Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 and Bashir Ahmad v. Muhammad Yousaf (deceased) represented by Muhammad Shafiq 1993 SCMR 183, in this behalf. Respondent in order to prove it, B has produced two witnesses, one is Shahbaz P.W.3 and the other is P.W.5, Fateh Muhammad. Both these witnesses are discrepant with regard to price settled between the parties. P.W.3 stated that price was Rs.1,00,000 whereas, P.W.5 stated that the petitioner agreed to sell the land for Rs.1,04,

000. Statement of these witnesses are not in corroboration with the statement of respondent as P.W.4. Appellate Court has tried to patch the contradiction between the depositions of P.Ws. by saying that P.W.3 subsequent stated that respondent paid Rs.74,000 in cash and adjusted Rs.30,000 towards mortgage money and in this manner price comes to Rs.1,04,

000. This explanation, in no manner wipes out of his statement, the above noted contradiction P.W.3 admitted that he is a maternal uncle of Fateh Muhammad, a witness of the respondent, (P.W.5) with whom the petitioner has criminal litigation pending before different Courts. Likewise P.W.5 admitted in his cross-examination that he is at daggers drawn with the petitioner and also admitted that criminal litigation between the petitioner and him is pending in criminal Courts. Both the P.Ws. Nos.3 and 5 are inimical towards the petitioner for which reason, they have interest in falsely deposing against him.

8. The respondent has himself asserted in his plaint that previously the petitioner transferred, his land in three parts, in his favour through registered sale-deeds, which have been proved by him through statement of P.W.1 and P.W.2. It is also the case of the respondent that before two sales out of these three sale-deeds, the petitioner was given Rs.30,000 against a writing and respondent got his land mortgaged as security for repayment of this amount. It appears from this conduct of the respondent that he did not give even a lesser amount to the petitioner, without writing. In presence of such assertion of the respondent himself, I am not ready to accept that entire sale price of Rs.1,04,000 was paid by the respondent without any writing. There is no explanation of any kind on the file as to why some receipt, agreement to sell, or a sale-deed, was not got executed as respondent had earlier never paid any amount to the petitioner, without any such writing, on account of his relationship as a brother. Petitioner had claimed during proceedings that mortgage created for Rs.30,000 stands already redeemed and circumstances of the case, also lend support to this stand of the petitioner because this mortgage was claimed to have been created on 24-6-1987, whereafter the petitioner at least twice sold the land to the respondent, but the mortgage money was not adjusted by the respondent as to why, this fact remains a mystery. In normal course of events respondent being purchaser of land C must have adjusted the mortgage money towards the sale price paid by him subsequent to the mortgage as it has been claimed to have been done in the instant alleged transaction.

8. Respondent had asserted that petitioner delivered possession of land to him at the time of the alleged agreement to sell. Land subject of suit is part of joint Khata and is shown in Revenue Record Jamabandi for the year 1990-91 (Exh.P.3) and Khasra Girdawari (Exh.P.4) produced by the respondent, in his possession as a co-sharer/tenant at will of the petitioner. D The record does not indicate that possession of respondent is under the claimed agreement. Both, the transfer of possession of the land and passing on of the consideration under the agreement to sell, thus are not proved on the record.

9. Both the Courts below were simply impressed by production of 5 witnesses by the respondent but they did not comprehend the facts that the statements of P.Ws. Nos.l and 2 related to undisputed sales between the parties and they were not witnesses of the dispute in hand. P.W.4 is respondent himself whereas P.Ws.3 and 5 had given discrepant statements and were involved with the petitioner in criminal litigation but these parts of their statements escaped their notice and or, were deliberately not read. Be that as it may, both the judgments and decrees passed by the learned Civil Judge and learned Additional District Judge are tainted with illegality of misreading of evidence and suffer from the defect of material irregularity, those run counter to the evidence on the file, as such, are not E sustainable at law, in spite of being concurrent, as held in the cases of Noor Begum v. Barkat Ali 1986 SCMR 1160; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Mst. Kaniz Fatima through Legal heirs v. Muhammad Salam and 27 others 2001 SCMR 1493; PLD 1985 SC 41; 1999 MLD 198; 1986 SCMR

270. Respondent could not prove through impartial and independent evidence, beyond any doubt that the petitioner entered into an oral agreement to sell his land hence, his suit could not have been decreed. Resultantly, this revision petition is accepted, judgments and decrees dated 30-10-1998 and 13-8-2001 passed by the Civil Judge and Additional District Judge, Kasur, are hereby set aside and suit of the respondent is dismissed with costs, throughout. M.I./J-7/L??????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.