1994 PLP 1275 (MLD)

This revision petition from the judgment and decree of the lower appellate Court dated 6-3-1993, confirming those of the trial Court dated 15-4-1992 filed by the plaintiff arose out of a suit for specific performance of an agreement to sell respecting a piece of agricultural land. Following facts shall unfold the nature of the controversial points requiring decision in this petition. Land measuring 120 Kanals of Lot No.42 in Chak No.30/DB, Mianwali was in the ownership of the Province of Punjab. It was allotted, under an Abad-Kari Scheme to Lai Din on 12-11-1949. Nature of the grant, whether it was occupancy or non-occupancy tenancy rights, was not ascertainable from the present record. On 30-12-1969, Lai Din was alleged to have agreed for the sale of the above lot of the land to Nawab Din plaintiff for the sale price of Rs.17,

000. Agreement to sell was reduced in writing. It recited payment of full consideration at the time of execution of the agreement to sell. Simultaneously, a promissory note and a receipt were also shown to have been executed by Lai Din in favour of the plaintiff to support receipt of Rs.17,000, though its nature vas described as loan. Same set of marginal witnesses attested the execution of the above three documents. Agreement to sell was Exh.P.1, promissory note was Exh.P.2, and the attached receipt was Exh. P.3. Upon deposit of purchase price for the lot in dispute, Lai Din acquired ownership rights, in it. Date of acquisition of proprietary rights and execution of conveyance deed was not available on the present record. However, it was an agreed premise that proprietary rights in the land in dispute were conferred upon Lai Din before the institution of the present suit. Since Lai Din was not agreeable to sell the land in dispute to the plaintiff, he brought a suit for specific performance of the agreement to sell in his favour for completing the sale of land. Suit was instituted on 15-6-1985. Lai Din was the sole defendant in the suit. He contested it and denied agreement to sell by him and receipt of consideration under it. Bar of limitation to the maintainability of the suit was also set up in written statement. Suit was tried upon issues given in the impugned judgments which for sake of brevity need not be reproduced. Upon taking evidence from the parties and its critical analysis, the trial Court found that agreement to sell which was sheet-anchor of the suit was not proved; the agreement to sell was invalid and the suit was barred by limitation. Consequently, it dismissed the suit. In appeal by the plaintiff, by affirming findings on issues Nos. 1 and 5 the decree dismissing suit was maintained by Additional District Judge. Hence, this revision petition before this Court. Central point for decision in the civil revision rested upon proof of execution of an agreement to sell and on it hinged the fate of the case. To prove execution of agreement to sell and payment of sale price under it, the plaintiff gave evidence of the stamp-vendor who sold the stamp-paper on which the agreement was scribed. Two marginal witnesses of agreement to sell, namely, Barkat Ali. and Sardar Khan and himself appeared as a party witness. These witnesses also deposed on execution of promissory note and the receipt Exhs. P2, P.3. Copy of registered power of attorney marked Exh.P.4 executed by Lai Din in favour of plaintiff on 26-6-1970 was also put in evidence. In the' context of the above evidence brought on record, it was to be seen, whether it sufficiently proved execution of Exhs. P.1 to P.3 by Lai Din. Bargain for the sale of the land was concluded a day prior to the execution of Exhs. P.1 to P.3 in the parties' village. On the following day, parties came to Mianwali and were shown to have executed Exhs.P.1 to P.3. Witnesses present at the time of bargain for the sale of land were not produced in evidence: Scribe of Exhs. P.1 to P.3 was also not produced to prove their writing by him. Though Barkat Ali and Sardar Khan gave evidence to prove execution of Exhs. P.1 to P.3 but their testimony was mutually much discrepant and materially contradictory of the statement of plaintiff as P.W.1 and also the contents of Exhs.P.1 to P.3. One glaring example of material contradiction was about the passing of sale consideration. Plaintiff himself deposed that Rs.17,000 were paid by him to Lai Din in .presence of witnesses at the time of execution of Exh. P.1 but both its marginal witnesses gave a clear lie to him and falsified him on this point. They deposed that no payment of sale price was made in their presence. There were other discrepancies in their evidence. Those could not be described minor discrepancies. Lower Courts made a pointed reference to them in their judgments. Their assessment of the credibility of oral evidence and reading of record was immaculately correct. On their own showing, the P.Ws. were incredible. In my opinion, a minute reference to each and every bit of discrepancy for raising issue of incredibility was unnecessary. Broadly speaking, parole evidence fell far short of the required standard to hold execution of Exhs. P.1 to P.3 proved. Lai Din died in course of trial of the suit. Written statement was submitted by him. He had denied execution of agreement to sell his land by him. He also controverted receipt of any consideration under the alleged agreement for the sale of his land. In face of clear denial by him, it was bounden duty of the plaintiff to affirmatively prove the existence of sale agreement in his favour. In my opinion, he failed to discharge the heavy burden of proof lying upon him. Evidence led by him was slim and meagre. Upon scanning it, the lower Courts did not rely on it and in my view rightly so. Further, there was no sound proof of payment of sale-price on record. Plaintiff was a close relation of Lal Din deceased. He was his nephew. In the circumstance, execution of a promissory note and a receipt in addition to Exh. P.1. was incomprehensible. Also, there was no proof of the payment of purchase-price of the lot by the plaintiff. As regards transfer of possession of the land to the plaintiff, since the issue is already before the High Court in connection with proceedings initiated under section 145 of Code of Criminal Procedure, I shall not hazard a considered opinion on it leaving it as an open issue for decision by the High Court in those proceedings. Additionally, the parties were also locked in litigation but the record of it was not produced to disclose its kind and effect. Since agreement to sell the land in dispute by Lal Din in favour of plaintiff was not established and finding on it was sufficient for decision of the present civil revision, it was unnecessary to comment on bar of limitation and application of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 regarding validity of sale-agreement qua its enforcement. Upon the aforesaid view of the matter, civil revision is dismissed in limine Records be returned AA./N-236/L Revision dismissed