2003 PLP 292 (MLD)

The petitioner through this revision petition has assailed the orders of the learned trial Court partly to the extent of refusal of specific performance and dismissal of his appeal to this extent by the First Appellate Court.

2. The facts in brief are that Nasar Ullah Khan, the present petitioner was the plaintiff before the trial Court and had filed a suit for possession of the property detailed in para. No. l of the plaint with the averments that on 4‑3‑1988 on account of agreement Exh.P.l the defendant was advanced an amount of Rs.22,000 for the purpose of payment of instalments of the Tractor to the Bank and it was agreed that in the event of non‑payment of the amount within the specified period the plaintiff/petitioner will be entitled to have the property transferred in his name. The respondent/defendant contested this suit with the averments that no agreement was entered into in between the parties and no amount was, advanced to him. The petitioner/plaintiff had prepared a forged document. It was alleged that in fact the plaintiff received an amount of Rs.20,000 for the purpose of getting him employed in some department. On the pleadings of the parties, the learned trial Court framed the following issues:‑‑ (1) Whether the defendant‑executed agreement dated 4‑3‑1988 in favour of the plaintiff? If so, whether the plaintiff is entitled for a decree of specific performance. of contract, If so, on what terms and conditions? OPP (2) Whether the plaintiff is entitled for recovery of Rs.22,000 from the defendant? OPP (3) Whether the Court lacks jurisdiction to try the suit? OPD (4) Whether the defendant is entitled to special costs? OPD (5) Relief. The trial Court after recording the evidence of the parties, comprising of the statements of P.W.1 Naseer Ahmad, P.W.2 Khalid Mehmood and P.W.3 the plaintiff himself and in rebuttal the defendant himself appeared as D.W.1 and produced Mumtaz Ahmad as D.W.2, the trial Court on 13‑3‑1995 held that the petitioner/plaintiff was entitled to the recovery of Rs.22,000 and decreed the suit to that extent and dismissed the suit to the extent of entitlement to, the specific performance of the agreement. The petitioner filed an appeal before the First Appellate Court. The defendant/respondent also filed cross‑objections and the learned First Appellate Court on 17‑9‑1996 dismissed the appeal filed by the petitioner and dismissed the cross‑objections filed by the respondent. The petitioner feeling himself aggrieved filed the present civil revision.

3. Both the learned counsel for the parties have been heard and record perused. The case of both the parties hinges on the agreement Exh.P.I dated 4‑3‑1988. The' petitioner, Nasrullah Khan, while appearing as P.W.2 and by producing both the marginal witnesses, Naseer Ahmad and Khalid Mehmood as P.Ws.l and 2, has proved the execution of agreement ERh.P.I, by the defendant/respondent in his favour. The stand taken by the respondent/defendant firstly that of non -execution of this agreement stands unestablished on record. The second stance taken by the respondent/defendant that the advancement of amount of Rs.20,000 was for getting him employed somewhere was not established on record. After the execution of the agreement, Exh.P.l, stands established on record, the question arises whether the petitioner is only entitled to the repayment of Rs.22,000 advanced by him to the respondent or whether he is entitled to the specific performance of the agreement by way of transfer of the property, detailed in this agreement, in his favour through Court. The agreement was executed on 4‑3‑1988 even till today no proof has beets made available that the respondent has made payment of this amount to the petitioner. The conduct of the respondent clearly indicates that it was an agreement of transfer of the property in favour of the petitioner. The execution of the agreement dated 4‑3‑1988 as above stated having been proved, the, petitioner is entitled to a decree for specific performance of this agreement by way of transfer of land in his favour and the learned trial Court wrongly passed a decree for payment of the amount and refused to pass decree for specific performance and the First Appellate Court wrongly dismissed his appeal.

4. In view of what has been said above, the present petition is allowed. The impugned judgment and decree of the trial Court is modified that the suit of the plaintiff for specific performance of this agreement by way of transfer of land detailed in the plaint, is decreed in his favour. No order as to costs. H.B.T./N‑246/L Revision allowed.