1998 PLP 1397 (CLC)

‑‑‑‑S. 12‑‑‑Specific performance of agreement of sale‑‑‑Plaintiffs had based their claim for purchase of suit land on the basis of certain copies of receipts allegedly executed by Manager of defendant who had since died‑‑‑Plaintiffs, in their evidence, had admitted that they had neither entered into any agreement for sale of the suit land with the defendant (deceased) nor had paid him any consideration money‑‑‑Even in alleged receipts an endorsement was given that transaction, if any, would be subject to the approval of the deceased‑defendant‑‑ Revenue Record, on the contrary, indicated that plaintiffs were in possession of suit land as tenants and a suit for ejectment and produce of the suit land was also filed against plaintiffs by accused defendant before Revenue Court‑‑‑Suit for specific performance of alleged agreement, was rightly dismissed by Courts below. Ghulam Naqshband for Petitioner. Muhammad Alam Khan for Respondents. Date of hearing: 19th January, 1998. The petitioners instituted a suit against Nawabzada Khalid Khan deceased‑defendant seeking specific performance of an agreement of sale in respect of a certain agricultural land measuring 8 Kanals at Rs.20,000, which the deceased‑defendant had been allegedly paid but he did not execute a registered sale‑deed or got attested any mutation in favour of the plaintiffs for the suit land. Nawabzada Khalid Khan (who is now dead and represented by the legal heirs) resisted the suit by denying the case of the plaintiffs in toto. The learned trial Judge after settling all such issues arising between the parties out of the pleadings recorded evidence pro and contra, but did not agree with the correctness of the suit of the petitioners and dismissed it, vide judgment and decree, dated 27‑4‑1992 which was subsequently affirmed in appeal before the District Judge, Mardan who dismissed appeal of the plaintiffs on 2‑12‑1992. Hence this civil revision petition under section 115, C.P.C., by the petitioners.

2. I have heard the learned Advocates on both sides. The petitioners base their claim for purchase of the suit land on the basis of certain receipts copies Exh.P.W.2/1 to Exh.P.W.2/8 allegedly executed by a manager of the deceased defendant Nawabzada Khalid Khan. The plaintiffs in their evidence have frankly admitted that they have neither entered into any agreement for sale of the suit land with the defendant or paid him any consideration money. Even in the said receipts there is an endorsement that the transaction, if any, shall be subject to the approval of the deceased‑defendant. The Revenue Record on the contrary indicates that the petitioners are in possession of the land as tenants and a suit for ejectment and produce of the suit land was also filed against the plaintiffs by the said Nawabzada Khalid Khan before the Revenue Court. The learned Courts below in this background of the evidence rightly dismissed the suit. It could not be stated that the Courts below have acted in the exercise of jurisdiction illegally or with material irregularity.

3. It. may also be mentioned here that petitioners filed civil miscellaneous Petition No.609 under Order 23, C.P.C. for permission to withdraw from the present suit lodged before the Trial Court in order to bring a fresh suit about ownership of the petitioners in respect of an area of 32 Kanals of land comprised in Khasra No.3395/1. The learned counsel while arguing this case stated that his clients have become owners of the property through allotment of the resumed land under Martial Law Regulation, but could not support his arguments through any document showing that the land in dispute had been resumed and allotted in the names of the petitioners by the competent Authority. He has rather made out a new case, as initially the plaintiffs instituted a suit and claimed ownership over an area of 8 Kanals of land through purchase. The request for withdrawal of the suit by the petitioners under Order 23, Rule 2, C.P.C. is thus, declined. At the end this civil revision petition is dismissed with costs alongwith civil miscellaneous application. H.B.T./34/P Petition dismissed.