1987 PLP 19 (SCMR)

Bashir Ahmed Ansari, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners. Maulvi Sirajul Haq, Advocate Supreme Court instructed by M.A. Siddiqui, Advocate‑on‑Record (absent) for Respondents. Date of hearing: 15th October, 1986. S.A. NUSRAT, J.‑‑The petitioners filed a suit for specific performance of an oral agreement, dated 25‑12‑1962 whereby Sher Zaman (since deceased) is stated to have conveyed the suit property to them for a sum of Rs.2,

000. Sher Zaman first got a mutation recorded, on 20‑2‑1965, but he later resiled there from and got the mutation cancelled. The respondents Nos. 2 to 4 are subsequent purchasers of a portion of disputed land and so also the respondents Nos. 5 and 6 in respect of another portion.

2. The suit was resisted by the respondents Nos. 5 and 6; respondent No. 1 conceded the case and others were proceeded ex-parte. The suit was decreed by the learned trial Court in toto. However, on appeal by the respondents Nos. 5 and 6 the judgment and decree was set aside to the extent of the purchase of land by the said respondents as bona fide purchasers for valuable consideration. It was held by the learned first appellate Court that payment of sale consideration was not proved and the agreement was not enforceable. The petitioners challenged the decision of the first appellate Court by filing a revision application which was dismissed as per impugned judgment by the learned High Court.

3. The learned counsel for the petitioners relied heavily on the first mutation entry and it was contended that the subsequent cancellation of the entry only amounted to resiling from the contract. Nonetheless, according to the learned counsel, the factum of an agreement having been taken place was clear and even if the price was not proved to have been paid, the oral agreement was liable to be enforced and a decree for specific performance should have been passed.

4. Looking to the pleadings in the plaint, however, it appears that the case set up is one of complete sale as in para. 1 it was stated that the plaintiff paid the sale consideration of Rs.2,000 which was acknowledged by the vendor, on 25‑12‑1964. An oral agreement of sale was pleaded and witnesses were examined in support of such case. The evidence was disbelieved by the learned first Appellate Court and the High Court and a finding has been recorded that the petitioner had failed to prove the payment of the sale consideration. The case set up by the petitioner was that he had paid the full sale consideration which was received by the vendees. This, the petitioner was unable to prove.

5. We have gone through the two appellate judgments which go to show that the disputed issues have been decided on the basis of evidence. The findings recorded in the case are one of facts which do not give rise to any question of law. The petition is accordingly dismissed. M.I. Petition dismissed.