2001 PLP 1194 (CLC)

M. Aftab Iqbal for Appellants. Ahmad Waheed Khan for Respondents. Date of hearing: 15th December, 2000. On 16‑6‑1979, respondents Nos.l and 2 filed a suit against the respondents Nos.3 and 4 and Muhammad Ibrahim, the predecessor‑in- interest of the appellants. In the plaint it was stated that the respondents Nos. 3 and 4 had agreed to sell the suit‑land to respondents Nos. l and 2 for a consideration of Rs.23,600. and had received Rs.500 as earnest money and had executed a receipt and agreement on 1‑1‑1976. It was agreed that the transaction would be completed on 25‑7‑1976; that the respondents Nos.3 and 4 proceeded to sell the land to the said Ibrahim vide registered sale‑deed, dated 4‑3‑1976. According to the plaint the said Ibrahim was aware of the said agreement. The appellants in their written statement claimed to be bona fide purchaser without notice being in ignorance of the sale agreement; that respondents Nos.3 and 4, however, in their written statement allegedly filed by them on 3‑6‑1979 proceeded to deny specifically para. 2 of the plaint wherein the details of the alleged agreement were stated and proceeded to make a statement in para. 3 of the said statement that respondents Nos. I and 2 had filed an application before the Sub‑Registrar Wazirabad at the time of registration of sale‑deed on 4‑3‑1976 praying that the sale in favour of Ibrahim be not attested. In reply to para. 4, they proceeded to admit the agreement by stating that they had only taken Rs.500 from respondents Nos. l and

2. The following issues were framed: (1) Whether the plaintiffs have no locus standi to bring this suit? OPD. (2) Whether the suit is not maintainable in the present form? OPD. (3) Whether the suit is barred by time? OPD. (4) Whether the plaintiffs are estopped by their conduct to bring this suit? OPD. (5) Whether the suit is bad for misjoinder of parties, if so with what effect? OPD. (6) Whether the defendants Nos. l and 2 executed agreement to sell, dated 1‑1‑1976 in favour of the plaintiffs and received Rs.500 as earnest money? OPD. (8) Whether the plaintiffs are entitled to the decree for specific performance of agreement to sell in question, dated 1‑1‑1976, if so, on what terms? OPP. (9) Relief. Evidence of the parties was recorded. Issues Nos. 1 to 6 were found in favour of respondents Nos. l and

2. However, issue No.7 was answered in favour of appellants, and consequently issue No.8 was decided against respondents Nos. l and

2. The suit was dismissed on 23‑2‑1986. A first appeal filed by respondents Nos. l and 2 was heard by an Additional District Judge, Gujranwala; who allowed the same and decreed the suit on 1‑3‑1987.

2. Learned counsel for the appellants contends that one of the appellants and entered the witness‑box and denied the knowledge of the agreement by Ibrahim. According to the learned counsel this was sufficient to discharge onus of issue No.7. Learned counsel further argues that there was literally no evidence on record that Ibrahim was aware of the agreement or that respondents Nos. l and 2 had filed the application relied upon by the learned Additional District Judge, before the Sub‑Registrar. Learned counsel for the respondents on the other hand has tried to support the impugned judgment and decree of the learned Additional District Judge. 3.. I have gone through the record of the learned lower Courts. This was a case whereby respondents Nos. l and 2 were seeking enforcement of the alleged contract not only against the original executor but also against the successor of the appellants. The matter was, therefore, covered under section 27(b) of the Specific Relief Act, 1877. Unlike rigours of section 41 of the Transfer of Property Act, 1882, the burden of subsequent purchaser under‑the said section 27(b) is very light and may be discharged by statement on oath of denial of knowledge. Whereafter the onus to prove in positive terms attributing knowledge of agreement to the subsequent vendee shift to the plaintiff seeking performance of the contract.

4. Applying said test to the evidence on record, in the present case, I do agree with the learned counsel for the appellants that they had managed to shift onus to respondents Nos. l and

2. This is also an admitted position on record that there is no evidence on record in support of the plea that Ibrahim was aware of existence of the agreement alleged by respondents Nos. l and 2 in their plaint. The learned Additional District Judge has proceeded to rely on the contents of the written statement allegedly filed by respondents Nos.3 and

4. I have already referred to the said document in some detail while analysing the history of the case. I find no nexus between the said written statement and the plaint. It, was nowhere stated in the plaint that respondents Nos. l and 2 had filed some application. I have already stated above, that according to the said written statement; dated 3‑6‑1979, the respondents. Nos.3 and 4 had denied the agreement; then they had proceeded to make statement regarding tiling of the application before the Sub‑Registrar and learned counsel for the appellants very rightly wonders as to in respect to which allegation the said' narration was made. Learned counsel for the respondents is unable to state as to what necessitated the mentioning of the said fact in the said written statement. Be that as it may, learned Additional District Judge found it proper to go by the said averments in the written statement. Now while doing so the learned Additional District Judge simply forgot that under the law of the land pleadings do not constitute evidence of their contents. On the other hand, the facts pleaded, unless admitted by the other party have to be proved. It is a matter of record that none of the persons i.e. respondents Nos 1, and 4 who are stated to have filed the said written statement appeared in the witness‑box to support the contents thereof. Without cross‑examination of the said person, the written statement could note have been read into evidence and even if the written statement could be referred to as apiece of evidence it cannot be relied upon as an evidence of the fact stated in it. Learned counsel for the appellants has relied upon the case of Abdul Majid v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391 in support of the said proposition. I find that the Supreme Court of Pakistan had reaffirmed the rule laid down in the case of Khair‑un‑Nisa v. Muhammad Ishaque and others PLD 1972 SC 25, and has observed that "It is trite law that pleadings are not evidence by themselves and that a statement of a defendant in written statement could. not be used as evidence when amounting to admission of plaintiff's pleas, without the examination of the concerned party in its support." The learned counsel for the appellants is thus, very much right in claiming that there was no evidence whatsoever on the record in support of the finding recorded by the learned Additional District Judge. while reversing the finding of the trial Court on issue No.7. I am also in agreement with the proposition propounded by learned counsel that even if the written statement could be read as evidence of its contents then at the most the same constitute an admission on the part of a party under whom, the appellant claims. According to Article 31 of the Qanun‑e‑Shahadat Order, 1984, the statement made by said party was to constitute admission only if same was during the subsistence of interest. In the case in hand, the said respondents Nos.3 and 4 had parted with interest in favour of Ibrahim a long time before the filing of the said written statement and the said statement made in the written statement do not constitute an admission within the meaning of law so as to be binding on the appellant.

5. This R.S.A. is accordingly allowed. The judgment and decree, dated 1‑3‑1987 of learned Additional District Judge is set aside and that of the learned trial Court, dated 23‑2‑1986 dismissing the suit of the respondents Nos. l and 2 is restored, with costs throughout. H.B.T./M‑492/L Appeal allowed.