P L D 1997 Lahore 153 (PLP)

This Regular Second Appeal arises out of a suit for possession through specific performance of the contract dated 28-6-1965, filed by Haji Muhammad Younus and others, respondents herein, on 29-6-1968 in. the Court of Civil Judge, Sialkot. It was claimed that Anjuman-e-Islamia, Sialkot appellant herein had agreed to sell the suit property in favour of the respondents at the rate of Rs.475 per Maria and received Rs.10,000 as earnest money. The time fixed in the agreement for execution of the sale-deed was three months. On 5-R-1965 within the abovereferred period Ch. Muhammad Younus, respondent No .l sent a notice (Exh.D3) to the appellant Anjuman for demarcating the property so that the registered sale-deed could be executed. The Anjuman received the letter and its President sent a reply to the respondents on 3-9-1965 (Exh.D5) stating therein that the property had been demarcated and that they should have the sale deed registered. Muhammad Younus, respondent wrote letter dated 7-9-1965 (Exh.D4) to the Anjuman stating therein that the property had not been demarcated, that the needful should be done within two days otherwise he would leave tut Africa and then gave tire sale-deed registcred ou his return. Thereafter, notice dated, 11-11-1.966 (Exh.DLl was sent by Ch. Muhammad Sharif, on behalf of the respondents to the Anjumara and then another notice was sent by the respondents on 1-6-1968 (Exh.Dl and trading no proper reply the suit was filed on 1-7-1968. The appellant resisted the suit and filed written statement in the Court which gave rise to,the foliowtng issues:-- (1)Whether the plaintiff had completed their part of contract and therefore he is entitled to its specific performance, if so, on what terms? OPP (2) Relief. After recording oral as well as documentary evidence of the parties the, trial Court decreed the suit in favour of the respondents vide judgment and decree dated 18-2-1975. The appellant challenged the judgment and decree of the trial Court by way of an appeal which, was dismissed by the learned Additional District Judge vide his judgment and decree dated 26-4-1988. 2. '1 "he appellant's learned counsel urged that neither the plaintiff nor any other person yin his behalf appeared in the witness-box to prove the case set up in the plaint. Hence, the trial Court erred in law in .decreeing the suit ln favour of the respondents. He relied on Allah Ditta v. Mst. Bhagan and others AIR 1930 Lah. 401, Haji Abdullah Khan and others v. Nisar Muhammad Mean and others PLD 1959 (W.P.) Peshawar

81. He submitted that the respondents had failed to prove that they were ready and willing to fulfil their part of the contract and did not even make such an averment in the plaint. On their behalf, only Abdul Hameed appeared as P.W.1, who merely produced copies of 4 notices. However, on behalf of the appellant Allah Ditta D.W.I and Ghulam Haidex D.W.2 appeared to substantiate the case set up in the written statement. In this connection he relied on Mst. Khatoon Begurn v. Mst. Barkat-un-Nisa Begunt and 6 others PLD 1987 Kar. 132 and Mian Muhammad Saleem and others v. Mst. rtameeda tseguzn and others 1987 SCMR

624. He urged that on respondents' own showing the disputed property was not ascertainable, hence, no decree for specific performance could be passed in their favour; that the plaintiffs had to succeed on the strength of their own case and could not rely on the weakness of the defendants' case; that to pass a decree for specific performance of the contract was entirely within the discretion of the Court which should not have been exercised in favour of the respondents in the circumstances of the case. _ ,

3. On the other hand, learned counsel for the respondent urged that the facts admitted by the parties need not be proved; that the execution of agreement Exh.PI and receipt of earnest money was admitted by the appellant; that the plaintiffs/respondents were required to prove facts which were directly in their knowledge; that the fact whether the demarcation was got done or not was exclusively within the knowledge of the appellant and the respondents could only verify the position on spot inspection; that Ghulam Haider D.W.2 admitted Anjuman's litigation with the Municipal Committee; that due to the said litigation the appellant failed to execute the sale-deed. Hence, respondents' failure to appear in the witness-box was not fatal to their case. In this connection he relies on the cases titled "The Bombay Agarwal Co., Akola, Plaintiff Appellant v. Ramchand Diwanchand and another, Defendants-Respondents AIR 1953 Nagpur

154. Mohabbat v. Abdullah etc. PLD 1970 Lahore

303. The appellant was ready and willing to fulfil his part of the contract and had sent notices to the appellant within the period fixed for execution of the sale-deed and also afterwards; that the appellant himself failed to perform his part of the contract after receiving a huge amount of Rs.10,000 in the year 1965 as earnest money; that the plaintiffs' suit for specific performance of contract is not liable to be dismissed merely for non-averment of readiness to perform his part of the contract as held in the case of Hakim Ghulam Rasool v. Sh. Ghulam Hussain etc. PLD 1968 Lahore 501 and that the concurrent findings of fact recorded at the trial are not liable to be interfered with by this Court under section 100 of the C.P.C. merely because the findings are erroneous. In this connection he relies on Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38 and Pathana v. Mst. Wasai and another PLD 1965 SC

134. In reply the appellant's learned counsel urged that the appellant had called upon the respondents to get sale-deed registered and not to waste time but they did not avail of the opportunity. He further submitted that the trial Court had appointed a local commissioner to inspect the site who submitted report on 14-7-1972, that after excluding the land covered by streets the remaining,land to be sold was 9 Kanals and 6 Marlas. He points out that in the suit the respondents had claimed sale of 8 Kanals and 15 Marlas and were not ready to purchase the entire land. He added that after inspecting the spot certain facts regarding demarcation had come to the knowledge of the respondents who must have entered the witness-box to depose to the same.

4. The only issue to be resolved in the present case is whether the plaintiffs had completed their part of the contract and were entitled to specific performance of the contract, if so on what terms. The execution of the contract between the parties is admitted and remaining part of the respondents/plaintiffs was limited to payment of balance sale price for the land after excluding the area covered under the Municipal Scheme. The extent of the area covered under the scheme was directly known to the appellant or the Municipal Committee. Now, we have to see whether the respondents can be held guilty of failure to perform their part of the contract on the facts proved on the record.

5. The respondents produced Abdul Hameed P.W.1 in support of their case and brought on the record copies of letters/notices marked as Exhs.Dl to D

4. None of the respondents personally appeared in the Court as a witness: The question arises whether their failure to appear as witnesses, in the circumstances of the case, is sufficient to non-suit them.

6. It is true that ordinarily a party must enter the witness-box in order to!, make a statement in support of his pleadings and depose to the facts exclusively within his knowledge. A party has to undergo the test of cross-examination as well for ascertaining the truth or otherwise of his claim failing which an adverse presumption can be drawn qua him under section 124 of the Evidence Act (now' Article 129 of the Qanun-e- Shahadat Order, 1984). However, it is also settled law that facts admitted need not be proved. Similarly if there is sufficient material on the. record to prove the fact in issue then mere failure of a party to enter the witness-box to prove the same fact is not fatal to his case. This view, finds support from the judgment in the case of Muhabbat v. Abdullah and 9 others PLD 1970 more

303. The said case pertained to a dispute about the inheritance of Bajeed alias Bajeeda deceased, One Abdullah filed a suit alleging therein that he and defendants Nos.4 to 10 were the sole heirs of the deceased who had not left any widow or children and that Mst. Mehro, Mohabbat and Mst. Allo were not'his widow, son and daughter respectively. He asserted that Mst. Mehro was never married to Bajeeda deceased. The suit was resisted by Mst. Mehro, Muhabbat and Mst. Allan alias Allo, who claimed that they were'`` widow, son and daughter of the deceased respectively. Upon the pleadings of the parties the trial Court framed the following issues:-- (1) Whether the defendant No. l is the ligitimate son and defendant No.2 daughter and defendant No.3, widow of Bajeeda deceased? O.D. (2)To what share the plaintiff is entitled in the inheritance of Bajeeda? O.P. (3) Relief. The onus of issue No. l was placed on the defendant. However, Mst. Mehro did not enter the witness-box due to her old age and blindness and only Mst. Allan , appeared as a witness and stated that she was daughter of Bajeeda deceased. The trial Court recorded a finding of fact that Mst. Mehro had lived with him as a keep (if she had lived with him at all) and if she gave birth to Mst. Allan and Mohabbat, they were both illegitimate issues. The Division Bench of this Court reversed the said finding and held: "The mere fact that Mst. Mehio did not appear as D.XTd. because of her old age or blindness or because the importance of her examination was not brought home to her does not necessarily speak against her. Such a presumption can be raised under section 114 of the Evidence Act if a party having personal knowledge of the facts of the case does not appear in the witness-box. This presumption may not be raised by the Court in the circumstances a particular case and in view of the evidence already on the record". A perusal of the material on the record shows that certain important facts of the case are admitted by both the parties. In this connection I may refer to the averments contained in para. l of the plaint which reads as under:-- "That the defendant (through its President Kh. Hakam Din) agreed after ,a deducting the area under the sanctioned scheme of the Municipal Committee, Siafkut, the remaining area out of the land measuring 12 Kanals and 15 Marlas, Mtewat No. 133, Khatuni No.95, 196 bearing Khasra Nos.343/327/110 to 327. entered in Jamabandi of 1958-59 and situated in Mouza Mahai kakkat, Tehsil and District Sialkot to the plaintiffs at the rate of 475 per Maria and received the earnest money amounting to Rs.10,000 (Ten thousand rupees) from the. plaintiffs. The defendant through its said President executed the agreement dated 29-6-1965 its favour of the plaintiffs. The appellant Anjuman in its written statement admitted para. i to be correct. The said admission proved the following facts: (1) The appellant Anjuman through its President Kh. Hakam Din had entered into an agreement with the respondents to sell land out of Khewat No. 133, Khatauni No.95/196, Khasra Nos.343/327/110 to 327 as' shown in Jamabandi for the year 1958-59 measuring 12 Kanals 15 Marlas situated in Mouza Mahal; Kakkar, Tehsil and District Sialkot. (2) The area covered under the sanctioned scheme of the Municipal Committee, Sialkot had to be deducted from the above-referred land. (3) The sale price of the land was fixed at the rate of Rs.475 per Marla. (4) The respondents had paid a sum of Rs.10,000 to the appellant as earnest, money. Similarly reply dated 21-9-1965, sent by the appellant and notice dated 11-11-1966 (Exh.D2) sent by the respondents through Ch. Muhammad Sharif Alan, Advocate were admitted by the appellant. In the reply dated 21-9-1965 the area to be sold was stated to be 9 Kanals and 6 Marlas and it was added that the respondents may purchase 9 Kanals and 6 Marlas or the entire area and that the appellant will have no objection in the tatter. The respondents had claimed that they had sent notices Exh.Dl, dated 1-6-1968, Exh.D2, dated 11-11-1966, Exh.D3, dated 5-8-1965 and Exh.D4, dated 4-7-1965 to the appellants. In this connection they produced Abdul Hameed as P.W.1, Head Clerk of the appellant "Anjuman", who produced the original record in the Court and made the following statement:-- "Out of the record desired of me, I produce four' original notices received by the defendant from the plaintiff which for the purpose of identification are marked as ' A, B, C and D'. I have no other record available with me in the office of the defendant. Since Abdul Hautid, p.w _ . had brought the record from the office of the appellant `Anjuman' and was not cross examined by the appellant, the statement made by him that the said notices were received by the defendant from the plaintiff (respondents), would be deemed to have been admitted. The respondent's learned counsel before the trial Court obtained correctness of the documents produced by Abdul Hamid, P.W.1 and the trial court exhibited the same in evidence as Exhs. DI, D2, D3 and D

4. The contents of the said documents exhibit keenness and anxiety on the part of the respondent-, to have the sale-deed registered after ascertaining the total area of the land to be sold and excluding the area covered by the scheme of the Municipal Committee. The appellant in its reply dated 3--3-1995 (Exh.O5) had generally stated that the laud had been demarcated but the total area of the land to be sold was not mentioned. The respondents' insistence to have the area properly demarcated and then stave the sale-deed registered was fully justified for two main reasons firstly for exact calculation of sale price and secondly to avoid litigation inter se the parties and with third parties. The disputed property is situated in an urban area where every inch of land is valuable. The respondents had to calculate the sale price out the basis. of exact measurement of area to be purchased by them. However, the appellant never mentioned the exact demarcation and measurement of the area to enable the respondents to work out the sale price of the land and have it registered in their names. Moreover any error in demarcation urns likely to give rise to litigation between the parties or with third parties. The respondents could not be called upon to purchase the entire area or an area of 9 Kanals and 6 Marlas (as mentioned in tnt' appellant's reply dated 21-9-1995) without exact demarcation.

8. As per the agreement Exh. P1 dated 28-6-1965, the area tailing under the Municipal Committee had to be excluded and the remaining area was to be sold to the respondents. In this controversy the parties directly connected were the appellant Anjuman and the Municipal Committee, Sialkot. The respondents had no personal knowledge qua the exact area which was covered by the Municipal Scheme which had to be excluded from the sale-deer The facts in this connection being ,in the knowledge of the appellant ought to have been mentioned in its replies or notices clearly and mere general assertion that demarcation had taken place was not 'sufficient. The appellants claim regarding the alleged' demarcation at the spot is falsified by two important facts; firstly the appellant had filed a suit against the Municipal Committee, Sialkot challenging the validity of the scheme which was dismissed. The appellant filed an appeal against the judgment and decree of the trial Court before the District Judge which was also dismissed. It appears that thereafter the Anjuman did trot agitate the matter further but some other private land owners challenged the. validity of the scheme through a number of appeals including RSA No, 365/61 which were dismissed by this Court on 18-2-1984. The said judgment was reported as Municipal Committee, Sialkot v. Muhamntad Shari 1985 CLC 50, It appears that in view of litigation with private land owners, the Municipal Committee could not execute the scheme arid construct roads, streets etc after demarcation. This can be gathered from the statement of Ghulam Raider D.W.2. tire appellant's attorney, who stated that the Committee had not constructed lanes in the scheme. He also stated that the area coming under the scheme was .l Kanals and I Maria "approximately". Therefore, it is clear that even till 14-11-1973 when the appellant's attorney made statement in the Court he was not sure as to how much area was actually covered under the scheme. He gave an approximate figure of 4 Kanals and 1 Marla. If the land treasuring 4 Kanals and I Maria is excluded from the total area of 12 Kanals and 15 Marlas then the remaining area comes to 8 Kanals and 14 marlas and not 9 Kanals and 6 Marlas mentioned in para. 3 of the appellants' reply dated 21-9-1965. This discrepancy makes it abundantly clear that the area to be sold was trot measured with exactitude and the respondents were within their rights to claim that the appellant must come out with precise demarcation of the area as they were not supposed to buy litigation under the garb of sale-decd. Abdul Hameed, D.W.' also admitted: "It is correct that the plaintiff has been asking us for the demarcation of the stated area throughout, of the land in dispute'". This admission coupled with the contents of the documents Exhs.DI to D4 establish that the respondents were all along ready and willing to fulfil their part of the contract, but the appellant failed to fulfil its part of specifying the area tinder the Scheme so as to exclude it from the sale-deed. As mentioned above, this wars essential because the respondents had to be ready with the price to be calculated at the rate of Rs.475 per Marla.

9. The appellant asserted in the written statement that the agreement had lapsed after three months due to default on the part of the respondents. However, this is not correct legally or factually. The contract pertained to sale 13 of immovable property and tithe was not of essence of contract between the parties. In the case of Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39 it was held that the time was acct of essence of contract in agreement relating to immovable property. The relevant part reads as under: "It is well-settled principle of law that in contracts relating to immovable property, time is not f the essence of the contact .... ... In the said precedent the title fixed for completion of the sale-deed was one month froth the receipt of the earnest money (dated 9th of March, 1353). The owner/seller had to convert his property into Sakni anti obtain requisite permission before registration of the sale-deed. (However, instead of getting the permission for conversion, the seller sent notice to the buyers' Advocate on 8-6-1954, alleging that art earlier letter had been case can 12th of MaY. 1954, asking him to complete tire.'. Contract within the three stipulated them (three days) And on his failure to o the needful the contract trail come to :its end. On this aspect of the matter the Hon'ble Supreme Court was pleased to hold as under:-- . ... ... ..The claim of the appellant, even if it were accepted that he had given three days' notice to the respondent for completion of the contract failing which it would come to an end, cannot at all be considered to be reasonable time. Since it was the appellant's obligation to get the plot converted into Sakni plot, he should have done that before calling upon the respondent to complete his part of the contract ... ... ... ... ... ... ... ...Nonetheless, conclusion is inescapable that. it was because of failure of the appellant to honour his commitment that the contract could not be completed in spite of the respondents' persistent demands made in this behalf." In the present case, the position also appears to be similar. In the agreement between the parties after giving the particulars of the land (Khewat number and Khasra numbers etc.) and specifying the total area as 12 Kanals and 15 Marlas, the area to be sold was mentioned as the remaining land after excluding the land covered ~by , the Municipal Scheme. This is evident from the words, . It was the appellant's duty to have the demarcation done at the site and then to inform the respondents about the exact measurements and total area of the land so that they could come forward with the balance amount to have the sale-deed registered. The appellant Anjuman failed to do the needful and cannot be permitted to penalise the respondents for its default. The arguments that the contract between the parties could not be acted upon for uncertainty regarding identity of the disputed land, apart from being factually incorrect, smacks of mala fides on the part of the , appellant. The land was clearly identifiable with reference to its Khewat, Khatauni and Khasra numbers but only one condition of excluding some land falling under the scheme was to be fulfilled. In the said controversy the direct parties were the appellant and the Municipal Committee, Sialkot. It does not lie in the mouth of the appellant to urge that due to its own failure to have the area properly demarcated, the contract became unenforceable due to the alleged uncertainty in respect of the land to be sold. Now the controversy between the appellant and the Municipal Committee has been settled and the scheme prepared by the Municipal Committee was held to be valid in the reported case of Municipal Committee, Sialkot, referred to above. Hence the dictum of the Hon'ble Supreme Court in the case of Mian Muhammad Saleem v. Hamida Begum etc. 1987 SCMR 624 is not applicable to the facts of the present case.

10. Both the Courts below appear to have rightly recorded concurrent findings of fact on Issue No. l in favour of the plaintiffs/respondents. There is nothing to show that the concurrent findings of fact recorded by the two Courts below are arbitrary, do not reasonably flow from the facts admitted by the ,parties or proved on the record, are vitiated by misreading or non-reading of evidence, are based on inadmissible evidence or otherwise suffer from any serious procedural defect or legal infirmity. The mere fact that another view of the same evidence is possible is hardly a valid consideration for interference in the impugned judgments and decrees of the Courts under the provisions'of section 100of the C.P.C.

11. I am unable to accept the argument raised by the appellant's learned counsel that the respondents are not entitled to the relief of specific performance of the contract. The equities of the case rather weigh in favour of the respondents who had parted with a huge amount of Rs.10,000 in the year 1965 when money had greater value. The appellant utilised the said amount but so far the respondents merely had the bitter taste of litigation. The appellant Anjuman appears to have prolonged the matter because it was having litigation with the Municipal Committee and wanted that the controversy regarding acquisition of land by the Municipal Committee be settled first. For this reason, the appellant was not in a position to inform the respondents as to how much area was to be sold to them. The appellant Anjuman cannot be allowed to wriggle out of the contract merely because value of the disputed land has appreciated in the meanwhile. The, respondents have struggled for over 30 years to get their legitimate rights. Hence, they are fully entitled to discretionary relief of specific performance of contract.

12. For the foregoing discussion, I do not find any merit in this appeal which is dismissed with costs throughout. A.A,/A-1051. Appeal dismissed.