2008 PLP 268 (CLC)

SYED ASGHAR HAIDER, J.

The petitioner/plaintiff filed a suit for specific performance/declaration against the defendant/respondent on the basis of an oral agreement dated 14-8-1997 pleading that he paid consideration in the sum of Rs.21,000 (Rupees twenty one thousand only) in the presence of Bashir Ahmad son of Nazir Ahmad, Muhammad Iqbal son of Jalal Din, Muhammad Suleman son of Muhammad Shafi, Muhammad Yasin son of Saeed Ahmad. Pursuant thereto possession of the disputed property was handed over to him. The defendant contested the claim of the petitioner, filed written statement, of divergent pleadings of the parties issues were framed, Issues Nos.3 and 5-A are imperative for the adjudication of the present dispute, therefore, they are reproduced:

(3) Whether the defendant never entered into sale transaction with the plaintiff? OPD (5-A) If issue No.5 is decided in the affirmative, whether the plaintiff is entitled for specific performance of the contract as prayed for? OPP The trial Court decreed the suit, aggrieved thereof an appeal was filed by the defendant, which was allowed and the impugned judgment and decree was set aside and the suit dismissed. Hence the present petition by the petitioner/plaintiff.

2. The learned counsel for the plaintiff/petitioner contended that the judgment of the trial Court and lower appellate Court are at variance. The judgment of the trial Court is well reasoned and in consonance with the evidence tendered by the parties. The judgment and decree have been unlawfully and illegally reversed by the lower appellate Court; the plaintiff produced cogent evidence P.Ws.1, 2, 3 and 4 but their evidence was not properly appreciated by the lower appellate Court likewise the documentary evidence was also not appraised, therefore, the impugned judgment be set aside.

3. Contrarily the learned counsel for the respondent straightway adverted to the contents of para.2 of the plaint wherein it was stated that the oral agreement was executed on 14-8-1997 for the value of Rs.21,000 (Rupees twenty-one thousand only) in the presence of Bashir Ahmad son of Nazir Ahmad,' Muhammad Iqbal son of Jalal Din, Muhammad Suleman son of Muhammad Shafi, Muhammad Yasin son of Saeed Ahmad while the plaintiff/petitioner produced the following witnesses:

P.W.1 Abdul Majeed (plaintiff/petitioner) P.W.2 Muhammad Yasin son of Sajjad Ali P.W.3 Bashir Ahmad son of Nazir Ahmad and P.W.4 Mirza Mushtaq Baig, Advocate. Therefore, vital evidence of Muhammad Iqbal and Muhammad Suleman was withheld, further impersonation also took place as Muhammad Yasin son of Sajjad Ali was produced as a witness to the transaction instead of Muhammad Yasin son of Sneed Ahmad, which was the part of alleged transaction. This anomaly was duly noted by the lower Appellate Court and, therefore, the findings were reversed.

4. I have heard the learned counsel for the parties and examined the impugned judgment as well as the judgment of trial Court.

5. An oral transaction has to be evaluated weighed and carefully looked into to determine its validity/authenticity or otherwise. It therefore, is imperative upon the plaintiff to produce the best possible evidence in this context. The contents of the plaint reflect that the following persons witnessed the transaction:

(i) Bashir Ahmad son of Nazir Ahmad, (ii) Muhammad Iqbal son of Jalal Din, (iii) Muhammad Suleman son of Muhammad Shafi (iv) Muhammad Yasin son of Saeed Ahmad But is very strange that only one witness to the transaction Bashir Ahmad was produced as P.W.3. The other two independent witnesses mentioned in the plaint viz. Muhammad Iqbal and Muhammad Suleman were withheld. This casts doubt on the authenticity of the transaction -and raises serious doubts about it. The transaction becomes more suspicious and doubtful as Muhammad Yasin son of Sajjad Ali was produced as P.W.2 instead of Muhammad Yasin son of Saeed Ahmad who witnessed the transaction, this witness, therefore, is irrelevant and has no nexus with the transaction. Therefore, his testimony is of no legal value but was wrongly adverted to and relied by the trial Court. The anomaly referred to was duly noted by the lower appellate Court, and, therefore, the findings were reversed. There also is no independent evidence to establish the oral transaction of passing of any consideration. In these circumstances the impugned judgment is unexceptionable, resultantly this petition has no merits and is dismissed. S.A.K./A-233/L Revision dismissed.