1988 PLP 1009 (SCMR)

NASIM HASAN SHAH, J. The facts, which form the background of this appeal, may shortly be stated thus: The dispute relates to a piece of land measuring 53 Kanals 2 Marlas situated in Toba Tek Singh, District Lyallpur. This was sold by respondent No.4 (Kahroo son of Labhoo) in favour of Munshi, predecessor-in-interest of respondents Nos.l to 3 for a consideration of Rs.16,000 through oral transaction as-affirmed in the report dated 26-3-1965 (Ex.P/1) incorporated in the Roznamcha Waqiati of the even date. The report, it may be mentioned, was made by respondent No.4 before the Revenue Officer concerned wherein he acknowledged that he had sold the land in favour of Munshi, received the consideration and had delivered the possession to him. It is also an admitted position that a part of the land in dispute was already in Munshi's possession as mortgagee. But notwithstanding the above Kahroo son of Labhoo (respondent No.4) again sold away the land in question through a subsequent sale-deed dated 18-9-1967 in favour of the appellant for a consideration of Rs.15,

000. It may, however, be noted that making this subsequent sale, Kahroo lodged another report on 13-6-1965 (Ex.D/1) whereby he purported to rescind his earlier report dated 26-3-1965 (Exh . P / 1) . In this report, it was said that since the consideration amount had not been paid by Munshi (predecessor of respondents Nos.1 to 3 herein) the sale was being, therefore, cancelled. Feeling aggrieved by this action of Kahroo (respondent No.4 herein), Munshi filed a civil suit for a declaration and permanent injunction to the effect that on the basis of the oral transaction mentioned above he was the complete owner of the property in question and prayed that the defendant be restrained from interfering with his possession. This suit, however, was dismissed by the learned trial Court. In the course of his judgment the learned trial Court observed that "it is admitted by defendant-vendor (Kaharoo son of Labhoo) that the agreement did take place" but that, according to him, the plaintiff (Munshi) had failed to prove the payment of sale consideration. He went on to observe that the subsequent report dated 13-6-1965 of Kahroo (Exh. D .1) made it clear that the plaintiff Munshi (now deceased) did not fulfill the conditions of the sale agreement and that is why the mutation could not be sanctioned in his favour. The learned trial Court's conclusion was that the subsequent report dated 13-6-1965 nullified the report dated 26-3-1965 and that the sale on the basis of which the report dated 26-3-1965 was made with the patwari became a nullity, as the conditions were not fulfilled. The above judgment and decree passed by the learned trial Court was, however, set aside in appeal by the learned Additional District Judge vide his judgment dated 31-1-1975. In the course of his judgment, the learned Additional District Judge observed-. "That the receipt of the consideration had been explicitly acknowledged by respondent No.1 and he had totally divested himself of the suit land by saying that the possession was with the vendee and vendor had no connection whatsoever with the suit land any more. It goes without saying that sale of rural land in Punjab could be validly effected by oral arrangement. In the instant case, the contract became executed, the moment report (EX.P.1) was recorded and the sale was complete for all intents and purposes. Thereafter, it was hardly available to respondent No.1 to lodge a report rescinding the previous one. Even if it be assumed that he had not been paid the consideration in full, the factum of sale was not rendered void on that account and the remedy available to the vendor was to sue for the outstanding price. I am fortified in this view by P L D 1971 Supreme Court 366" The subsequent vendee namely the appellant herein challenged the said judgment and decree of the learned Additional District Judge by filing a second appeal before the Lahore High Court. The appeal, however, failed and the view taken by the learned Additional District Judge was affirmed by a learned Single Judge of the High Court. The learned Judge observed:-- "As mentioned above, Munshi was in occupation of part of the land being its mortgagee and it is also not denied that at the time when the sale took place agricultural land could be sold under the law by oral transaction. The vendor clearly admitted in the report entered in the Roznamcha Waqiati by the competent Revenue Officer that the property had been sold away in lieu of consideration duly received by him and possession of the same had also been delivered to the vendor. The report was a mere confirmation of sale in favour of Munshi and such sale otherwise being in accordance with law, therefore, there was no need of executing any registered salt deed." The learned Judge also noted that according to the law, a contract of sale like the present one cannot be revoked unilaterally and it required the concurrence of both parties. He went on to observe:-- "In the present case, the property was sold by agreement between the two parties and if there was any defect therein it could be rescinded only by mutual consent and not otherwise The sale as found by the learned Additional District Judge became effective with effect from 26-3-1965 when the factum as such was admitted by the vendor himself by lodging the report. He divested himself of his interest in the land in question by delivering its possession and did not remain its owner after that and as such he was not competent to dispose of the land again or enter into an agreement for its sale". The appellant herein moved this Court for leave to appeal and lease was granted to him on 20-11-1979. The leave granting order reads as follows:-- "It is argued that the learned trial Court in this case had recorded a positive finding that the earlier sale to Munshi (Plaintiff) (now represented by his legal representatives) (respondents) was without consideration or to be more precise that the payment of the consideration to Munshi had not been proved. It is submitted that this finding of fact was not specifically or even impliedly upset either by the learned Additional District Judge or the High Court. In that view of the matter it was argued, no decree recognising the aforesaid sale could have been passed in favour of the plaintiff. The point whether on the facts and in the circumstances of the case as pleaded above the High Court was justified in dismissing the appeal of the defendant/ petitioner requires consideration." The learned counsel for the parties have been heard. A close look at the orders passed by the learned Additional District Judge and the High Court does not, however, sustain the argument raised before this Court that the finding of fact regarding non-payment of consideration by Munshi recorded by the learned trial Court had not been set aside by the learned Additional District Judge or the High Court. On the other hand, the learned Additional District Judge had observed in para. 5 of the judgment that the receipt of the consideration had been explicitly acknowledged by Kahroo son of Labhoo (who was respondent No.1 in the appeal proceedings) and that he-had totally divested himself of the suit land. This finding was affirmed by the High Court wherein the learned Judge hearing the appeal clearly observed in his impugned judgment that:-- "The vendor clearly admitted in the report entered in the Roznamcha Waqiati by the competent Revenue Officer that the property had been sold away in lieu of consideration duly received by him and possession of the same had also been delivered to the vendor". We cannot, therefore, accept the argument that the finding of the learned trial Court that Munshi had failed to prove payment of the sale consideration has not been set aside by the learned Additional District Judge and the High Court. Moreover the perusal of the statement of Kahroo son of Labhoo, who appeared as D.W.5 before the trial Court in cross-examination shows that he had admitted that he had received Rs.8,000 out of the sale consideration. To us the learned trial Court appears to have based his judgment mostly on the consideration that the vendor, namely, Kahroo son of Labhoo was justified in law to rescind the transaction of sale (which he did on 13-6-1965 - vide Ex. D / 1) on the ground that the vendee (munshi) did not fulfill the conditions of the sale agreement. Indeed while disposing of Issue No.1 which was to the effect "whether the plaintiffs had purchased the suit land for a consideration of Rs.16,000 on 26-3-1965 under an oral transaction of sale?" the conclusion of the learned trial Judge was that the sale on the basis of which the earlier report dated 26-3-1965 was made became a nullity as the conditions of the sale were not fulfilled. However, the learned trial Judge overlooked the definition of "Sale" given in Section 54 of the Transfer of Property Act, which lays down. "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid part-promised" In this case, Kahroo son of Labhoo, the-vendor, appearing as D.W.5 has admitted that part of the consideration had, at least, been paid. The upshot is that no ground for interference with the judgments of the learned Additional District Judge and the High Court has been made out. This appeal fails and is dismissed with costs. M.Y.H. /P-38/S Appeal dismissed.