2022 PLP 1745 (MLD)

SHAHID BILAL HASSAN, J.

Tersely the respondent instituted a suit for specific performance on the basis of an oral agreement and cancellation of Mutation No.643 dated 09.05.1993 against the petitioner and respondents Nos.2 to 6 by maintaining that he purchased the land measuring 08-Marlas from Faqir Muhammad, etc. through an oral agreement for a consideration of Rs.5600/- in 1975, so the subsequent mutation dated 09.05.1993 in favour of the petitioner was liable to be cancelled and a decree for specific performance may be passed in his favour. The present petitioner resisted the suit and also instituted a separate suit for possession of the disputed Ihata on the ground that Faqir Muhammad and others sold out the disputed Ihata to him vide Mutation No.643 dated 09.05.1993 and he (petitioner) rented out the same to the respondent No.1 on monthly rent of Rs.500/-. Both the suits were consolidated and out of the divergent pleadings of the parties, the learned trial Court framed consolidated issues. Evidence of the parties, in pro and contra, was recorded. The learned trial Court vide impugned judgment and decree dated 21.02.2007 dismissed suit of the petitioner for possession and decreed suit of the respondent No.1 for specific performance. The said decree was assailed in appeal by the petitioner but the same was dismissed vide impugned judgment and decree dated 17.06.2008; hence, the instant civil revision.

2. Heard.

3. In respect of oral agreement, the parameters have been settled by the Hon'ble Supreme Court in an esteemed judgment reported as Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300) that:- ' ........ We also hold that although it is not the requirement of law that an agreement or contact of sale of immovable property should only be in writing, however, in a case where party comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the party to prove that there was consensus ad idem between both the parties for a concluded oral agreement. An oral agreement by which the parties intended to be bound is valid and enforceable, however, it requires for it prove clearest and most satisfactory evidence.' The said esteemed judgment was followed by this Court in Karamdad v. Manzoor Ahmad and 2 others (2015 CLC 157-Lahore) and it was further observed that:- '

6. The perusal of plaint reveals that respondent/plaintiff did not disclose the name of witnesses before whom the alleged oral sale was struck between the parties. Even no period has been mentioned by the respondent/plaintiff in his plaint for completion of oral agreement to sell. No doubt, an oral agreement to sell is permissible in law, but it has to be proved through credible and un-impeachable evidence.'

4. Now, when the facts of the instant case are considered on the touchstone of the two judgments ibid it appears that the petitioner has failed to prove the alleged oral agreement to sell because he failed to plead and prove the time, date and place of alleged transaction of oral agreement inter se the petitioner and the respondents Nos.2 to 6 and even he did not plead the names of witnesses in whose presence such bargain of oral agreement was struck in between him and the respondents Nos.2 to

6. When a case is instituted on the basis of oral agreement, minute detail of each and every event has to be pleaded and proved, which is lacking in this case. It is a settled principle of law that a party has to first plead facts and pleas in pleadings and then to prove the same through evidence. A party cannot be allowed under the law to improve its case beyond what was originally set up in the pleadings. The principle of "secundum allegata et probata", that a fact has to be alleged by a party before it is allowed to be proved is fully attracted in this case, which has full backing of provisions of Order VI, Rule 2 and Order VIII, Rule 2, Code of Civil Procedure, 1908. When the petitioner has not pleaded the names of the witnesses in whose presence the alleged oral transaction took place, the witnesses produced by him in evidence would not be helpful to the petitioner's case because their evidence would be nothing but an improvement, as any evidence led by a party beyond the pleadings is liable to be ignored. Reliance is placed on judgments reported as Muhammad Wali Khan and another v. Gul Sarwar and another (PLD 2010 SC 965) and Haider Ali Bhimji v. VIth Additional District Judge, Karachi (South) and another (2012 SCMR 254). Moreover, no receipt with regards to payment of the sale consideration has been brought on record and mere an assertion has been put that entire sale consideration was paid, which does not appeal to prudent mind. Furthermore, description of the property in question has not been narrated properly in the plaint, which otherwise ought to have been inserted in a vivid and categorical manner especially in case of an oral agreement. In addition to the above, the alleged oral agreement to sell was reached at between the respondent No.1 and the respondents Nos.2 to 6 as back as in the year 1975 and the suit was instituted in the year 2002, which is badly barred by limitation, because Article 113 of the Limitation Act, 1908 provides three years' limitation from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused.

5. As against this, the petitioner has a mutation in his favour which has been entered, sanctioned and incorporated in the revenue record after due process, thus, he is entitled to the decree for possession because he is lawful owner of the disputed property.

6. Pursuant to the above discussion it is observed that the learned Courts below have failed to adjudicate upon the matter in hand by appreciating law on the subject; thus, the Courts below have misread evidence of the parties and when the position is as such, this Court is vested with authority to undo the concurrent findings as has been held in Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) and Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001).

7. For the foregoing reasons, material illegality and irregularity has been committed and the learned Courts below have failed to exercise vested jurisdiction in an apt and judicious manner; therefore, while placing reliance on the judgments supra the civil revision in hand is allowed, impugned judgments and decrees are set aside, consequent whereof suit of the petitioner for recovery of possession is decreed whereas the suit for specific performance on the basis of an oral agreement instituted by the respondent No.1 stands dismissed. No order as to the costs. SA/T-17/L Revision allowed.