2011 CLC 525 (PLP)

ATTAULLAH KHAN J.

The plaintiff/petitioner, Akhya Jan through this revision petition filed under section 115, C.P.C. has called in question the concurrent judgments and decrees of the two Courts below dated 16-3-2004 and 25-11-2004 respectively, whereby his suit for specific performance of contract on the basis of an oral agreement deed was dismissed.

2. Briefly stated facts of the case are that Akhya Jan plaintiff had sued the defendants Mst. Hameeda Begum and others to the effect that they had sold the suit property measuring 3 kanals, 17 marlas and 4 sarsaies for consideration of Rs. 87,556 to him on the basis of an oral agreement out of which Rs. 7000 was paid in advance, as a result of which possession of the disputed property was handed over to him, but when the inheritance mutation was attested in their favour, they transferred the suit property to Hashim Khan, defendant No.6, by way of sale vide. Mutation No.1671 attested on 21-11-1994. Hence the instant suit by the plaintiff for transfer of ownership of the disputed property fully described in the plaint.

3. The defendants contested the suit by filing written statement. The divergent pleadings of the parties gave birth to the framing of the following issues: (1) Whether the plaintiff has got a cause of action? (2) Whether the suit is within time? (3) Whether the suit is competent in its present form? (4) Whether the plaintiff is estopped to sue? (5) Whether the suit of the plaintiff is false and frivolous and the defendants are entitled to compensatory costs? (6) Whether the plaintiff has got locus standi? (7) Whether the plaintiff has become the owner in possession of the suit land on the basis of sale and the subsequent disposal of the suit property vide mutations Nos. 1671, 1784, 1786, 1872, 1929, 1925 and 2402 is illegal and ineffective upon the rights of the plaintiff? (8) Whether the plaintiff is entitled to the decree as prayed for? (9) Relief?

4. After hearing arguments and assessing me materials brought on record, suit of the plaintiff was dismissed whereagainst his appeal also met the same fate vide judgments and decrees mentioned above.

5. Feeling aggrieved from the concurrent findings on facts recorded by the Courts below, the plaintiff has challenged it through the instant petition.

6. Learned counsel for the petitioner argued that the learned trial Court has not properly appreciated the evidence on record and based its conclusion on surmises and conjecturers. According to him the case has been proved by the petitioner by producing revenue record and one witness who was present at the time of deal.

7. On the other hand, learned counsel for the defendants/ respondents argued that the petitioner has alleged an oral sale which needed to be proved but no evidence has been produced by him in support thereof, therefore, the suit was correctly dismissed by the learned Courts below through the impugned judgments and decrees.

8. I have thoroughly gone through the record and anxiously considered the arguments of the learned counsel for the parties.

9. The plaintiff besides himself in support of his case has produced one witness who was present at the time of agreement between the parties. The other witnesses produced by the plaintiff is regarding the Revenue Record. So the material evidence before this Court is the statement of the plaintiff as P.W.6 and evidence of Rasool Ghulam as P.W.7 who had confirmed the agreement between the parties.

10. According to the evidence of the plaintiff, he entered into oral agreement with defendants Nos. 1 to 5 wherein it was agreed that the suit-land was to be transferred to the plaintiff/petitioner for a consideration of Rs. 87,556, out of which he paid Rs. 7,

000. According to him, the defendants concerned refused to honour the agreement. Similar is the statement given by his witness Rasool Ghulam P.W.7 who has stated that in his presence the impugned sale was effected between the parties. He has further stated that out of the total sale consideration, an amount of Rs. 7,000 was paid by the petitioner to the defendants.

11. In cross-examination, this witness has admitted it correct that the defendants have filed civil suit against him. This admission renders the evidence of this witness as doubtful, because he has become interested witness and because the civil suit is pending with the defendants.

12. Even otherwise, his statement cannot be believed because this witness has recorded his statement in favour of the petitioner in another suit.

13. The overall effect of the evidence of the petitioner is that no receipt has been produced regarding the part payment. Moreover, the oral agreement to sell has not been reduced into writing. The Revenue Record also does not favour the petitioner. The petitioner has also failed to produce two witnesses of the sale transaction with the defendants which is the necessary requirement of law. The petitioner has also failed to show as to on what date he made part payment out of the total sale consideration to the defendants concerned.

14. This is a dispute between the parties regarding the enforcement of an oral sale agreement which is the burden of the plaintiff/petitioner to prove it through cogent and convincing evidence. No such evidence has been produced, therefore in my opinion, it was correctly dismissed by both the Courts below.

15. As far as the levy of cost under section 35-A, C.P.C. is concerned, it is unwarranted because every person has a right to sue another for enforcement of an oral agreement. His failure would not entitle the other party for cost. Very cogent and convincing reasons are required to be given for levy of cost under section 35-A, C.P.C. which are not available in this case.

16. The result of my above discussion is that this revision petition is partially accepted to the extent of levy of cost under section 35-A, C.P.C. which is accordingly set aside; while the impugned judgments and decrees of the learned two Courts below regarding the specific performance of contract are maintained and his petition thereagainst stands dismissed, leaving the parties to bear their own costs. S.A.K./7/P Revision partly accepted.