2011 SCMR 1009 (PLP)

NASIR-UL-MULK, J.

The dispute between the parties is over a piece of land, measuring 13 acres, situated in Taluka Digri, District Mirpurkhas. There is no controversy that the land was originally owned by one, Muhammad Iqbal, from whom it was purchased by the respondent, Syed Muhammad Shah, in the year 1973. He delivered it to the appellant, Mubashir Ahmad, in the year 1974, who claims that it was pursuant to an oral agreement to sell entered into between the parties in April, 1974. That the sale consideration was fixed as Rs.14,000, out of which Rs.1,000 was paid as earnest money. That another instalment of Rs.3,200 was paid in the same year and Rs.9,400 through a bank draft dated 9-9-1974 and therefore only Rs.400 remained to be paid. The respondent, however, asserts that the land was given to the appellant on lease and that an amount of Rs.10,000 was received by him as rent in lumpsum for eight years. To enforce his claim, the appellant filed a suit for specific performance on 7-4-1982 and in the following year, the respondent filed a suit for possession and mesne profits for the period beyond the eight years during which the appellant remained in possession without payment of rent. The trial Court consolidated the two suits and on 12-7-1988 decreed the appellant's suit for specific performance and dismissed that of the respondent's. The respondent's appeals were dismissed by the Additional District Judge, Mirpurkhas on 29-2-1992. He filed Revision Applications before the Sindh High Court. Both Revision Applications were allowed on 24-3-2006; the suit of the appellant was dismissed and that of the respondent was decreed, granting him both reliefs, possession and mesne profits. As regards the latter, the trial Court was directed to frame a preliminary decree and proceed to determine the mesne profits to be granted to the respondent. In view of different evaluations of the two suits, the appellant has filed Civil Appeal No. 771 of 2006, arising from Civil Revision Application No.53 of 1992 dismissing his suit for specific performance and Civil Petition No. 296 of 2006 against the decree for possession and mesne profits.

2. Mr. Abdul Rashid Awan, Advocate Supreme Court, appearing for the appellant/petitioner and Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court, representing the respondent.

3. The learned counsel for the respondent raised a preliminary objection that Appeal No. 771 of 2006 is not competent as the value of the suit of Rs.14,000; filed by the appellant, was less than Rs.50,000 and thus the same can only be heard as petition for leave to appeal. Though the learned counsel for the appellant/petitioner tried to meet this objection; but since the respondent was represented, we decided to hear the cases on merit.

4. Certain facts are not disputed by the respondent. Admittedly, the land in question was handed over by the respondent to the petitioner. He further admitted having received Rs.10,000, albeit as rent, and not as sale price. There is, however, no documentary evidence of either transaction, the agreement to sell or lease. The petitioner averred that the property was delivered to him in pursuance to an oral agreement to sell. The respondent also does not claim that any lease agreement was executed between the parties. Since the delivery of possession and payment of substantial amount of Rs.10,000 in the year 1974 stands established, the only controversy that remains to be resolved is whether the transaction was for sale or lease of the land.

5. The burden to prove that the transaction was an agreement to sell was on the petitioner. This burden is indeed heavy, as great caution, is to be taken before accepting evidence of oral agreement to transfer title in immovable property. Having said that, in view of certain material admitted facts, we are not faced with much difficulty in resolving the dispute before us. In support of his claim, the petitioner testified himself and produced two witnesses of the oral agreement, Mumtaz Ahmed (P.W.2) and Amira (P.W.3). The petitioner stated that out of total sale consideration of Rs.14,000, he had paid Rs.13,600, last installment of Rs.9,400 paid through bank draft, and that only Rs.400 remained outstanding. The respondent admitted having received of Rs.10,400 (Rs.1,000 as earnest money + Rs.9,400 by cheque). The petitioner's witness, Mumtaz Ahmed (P.W.2), had disclosed that the property in question was purchased by the respondent from one Muhammad Iqbal in the year 1973 fora suns of Rs.11,

000. The respondent, in cross-examination, admitted that he had purchased the land in the year 1973/1974 and did not deny that he had paid Rs.11,000 as sale price. Even if the receipt of Rs.10,400 by the respondent from the petitioner is accepted, it is implausible that the petitioner would pay rent of Rs.10,000 for land valuing Rs.11,

000. The respondent again admitted in cross-examination that the petitioner had constructed a house on the land where he is still residing. All this goes to show that the oral evidence produced by the petitioner to establish the agreement to sell receives corroboration from other circumstances of the case.

6. Another relevant factor is the failure of the respondent to establish that the land was leased out to the petitioner. The petitioner's suit for specific performance was consolidated with the one filed by the respondent for recovery of possession and mesne profits. Apart from personally appearing in the witness-box, he did not produce any evidence, orally or documentary to establish his claim that the property was given as leasehold to the petitioner.

7. The High Court had in its revisional jurisdiction set aside the concurrent findings of the two Courts. In doing so the Court was persuaded by two factors. Firstly, the conduct of the petitioner for filing the suit for specific performance in the year 1982 of agreement to sell, entered in the year 1973, and secondly, in view of the contradictions in the evidence of the petitioner, the delivery of bank draft by the petitioner to the respondent had not been established. The first ground was raised before the trial as well as the appellate Courts. The Courts took note of the fact that the petitioner was enjoying peaceful possession of the property since the year 1974. That he was compelled to file a civil suit after he received notice from the Assistant Commissioner, issued on the application of the respondent, seeking the petitioner's eviction from the suit-land. It was thus held, and rightly so, that the time limitation for tiling of the suit for specific performance would run from the date on which the respondent had refused to perform his part of the contract. As regards the second ground, it runs contrary to the clear evidence to the contrary. There has never been any dispute that the respondent had received a cheque of Rs.9,400, which he candidly admitted in his cross-examination. Thus, any contradiction in the petitioner's evidence as toll the place of receipt of the cheque by the respondent would be entirely immaterial. Furthermore, the High Court, while reversing the findings of the two Courts, had not discussed the evidence which was thoroughly examined by the trial and the appellate Courts. The judgment of the High .Court is thus not sustainable, not' only on the ground that the same is founded on an erroneous premise but its interference with concurrent findings was beyond the scope of revisional jurisdiction.

8. In the light of the foregoing discussion, Civil Appeal No. 771 of 2006 and Civil Petition No. 296 of 2006, after its conversion into appeal, are allowed. The impugned judgment of the High Court is set aside and that of the trial Court is restored. S.A.K./M-22/SC Appeals accepted.