1988 PLP 1190 (SCMR)

‑‑‑S.115‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Revisional jurisdiction‑‑ Concurrent finding of subordinate Courts‑‑Interference with‑‑Agreement to sell‑‑Oral terms of agreement between parties in dispute‑‑Concurrent finding of subordinate Courts not interfered with by High Court in its revisional jurisdiction‑‑Petition being devoid of merit, dismissed. Malik Saeed Hasan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner. M.A. Qureshi, Advocate‑on‑Record for Respondent. Date of hearing: 20th April, 1988. SAAD SAOOD JAN, J.‑‑The suit of respondents for possession of a plot, measuring about 14 marlas, situate near Railway Bazar, Narowal, was decreed by the trial Court and its judgment was affirmed by the Additional District Judge. The High Court declined to interfere with the judgments and decree of the subordinate Courts in revisional jurisdiction. The petitioner seeks leave to appeal from the order of the High Court. 2, Admittedly, there was an agreement between the parties for the sale of the plot. The agreement was an oral one. The case of the petitioner was that the price of the plot was fixed at the rate of Rs.400 per marla and that he paid Rs.400 as earnest money to the attorney of the respondent namely, Muhammad Siddique. He also alleged that after receiving the earnest money Muhammad Siddique put him in possession of the plot. On the other hand, the respondent averred that the price agreed was to be worked out at the rate of Rs.500 per marla and that the petitioner only paid Rs.200 by way of earnest money. He also denied that the petitioner was put in the possession of the plot under the oral agreement; on the other hand, he stated that the petitioner had forcibly occupied the plot.

3. The learned Additional District Judge and the trial Court held that the earnest money paid was only Rs.200 and the consideration was to be paid at the rate of Rs.500 per marla. They also found that it was the petitioner who had failed to perform his part of the contract. The High Court declined to interfere with the concurrent finding of the subordinate Courts.

4. The High Court thought that as there was an agreement to sell between the parties and the petitioner was in possession of the plot, it was reasonable to infer that he had taken possession of the plot under the agreement. Nevertheless, he was not entitled to the benefit of the doctrine of part performance for the reasons that the agreement was an oral one and that the parties were not agreed upon the terms of the agreement, particularly with regard to the price of the plot. Consequently, it dismissed the revision petition. The petitioner seeks leave to appeal from this Court.

5. After hearing the learned counsel for the petitioner we are not satisfied even on the point that the petitioner had taken possession of the plot under the agreement of sale. The case of the petitioner was that he had been put in possession by Muhammad Siddique, special attorney of the respondent. There is no reliable evidence on the record to show that Muhammad Siddique was an attorney of the respondent. The findings on all other issues are against the petitioner. That being so, we find no merit in this petition which is hereby dismissed.