2016 PLP 92 (YLRN)

Art. 127

Suit for specific performance

Oral agreement

Burden of proof

Illiterate woman

No written agreement was on record

Heavy onus would lie on the person who had put forward a claim on the basis of oral agreement

Both the executants of alleged oral agreement were illiterate women

Nothing was on record with regard to independent advice available to them at the time of their making the alleged agreement

Burden to prove good faith of transaction, thumb impression or signature of executant and independent advice was on the plaintiff/ beneficiary

If vendee had made the entire payment at the time of making alleged oral agreement to sell then why sale deed or mutation was not attested

Relations of both the parties were strained

No circumstances existed to the effect that defendants had agreed to transfer their land to the plaintiff

Nothing was on record that plaintiff had paid sale consideration to the defendants

Plaintiff had failed to point out any mis-reading or non-reading of evidence in the impugned judgments and decrees passed by the courts below

Revision was dismissed in limine. [Paras.8, 9, 11, 12, 13 and 14 of the judgment] Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Bashir Ahmad v. Muhammad Yousaf through Legal heirs 1993 SCMR 183; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Sultan Ahmad (deceased) through L.Rs. v. Muhammad Yousuf 2011 SCMR 621; Khan Muhammad v. Muhammad Din through L.Rs. 2010 SCMR 1351; Muhamamd Sharif v. Chief Secretary and another 2011 SCMR 21; Mian Ghayassuddin and others v. Mst. Hidayatun Nisa and others 2011 SCMR 803; Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai PLD 2005 SC 658; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Province of Sindh and 4 others v. Waseem Construction Co. 1991 CLC 66; Waris Ali v. Surraya Bibi 2004 YLR 1148; Muhammad Afzal v. Muhammad Zaman and others PLD 2012 Lah. 125; Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR 12; Ghulam Muhammad through his Legal Hiers v. Ehsan-ul-Haq and others 2003 MLD 417; Muhammad Luqman Arshad v. Ghulam Muhammad 2004 YLR 1436 and Mst. Naseem Akhtar v. Muhamamd Tariq Naveed 2003 MLD 535 rel.

S. 115

Revisional jurisdiction of High Court

Scope

High Court could not interfere with the concurrent findings recorded by the courts below in absence of any mis-reading or non-reading of evidence or a jurisdictional error. [Para. 13 of the judgment] ORDER MAHMOOD AHMAD BHATTI, J.

This revision petition is directed against the judgments and decrees dated 11.10.2013 and 19.06.2015 passed by the learned Civil Judge Sillanwali and an Additional District Judge Sillanwali, District Sargodha, respectively, whereby suit for possession through specific performance instituted by the petitioner was dismissed and an appeal preferred thereagainst by the petitioner was dismissed as well.

2. The facts, in brief, are that the petitioner instituted a suit for possession through specific performance, maintaining that Mst. Kaneez Bibi and Mst. Haleema Bibi, who are his sister-in law/Sali and mother-in law, respectively entered into an agreement with him in respect of land measuring 10 Kanals, comprising Khewat Nos.13 and 134 and Khatuni Nos.41, 366 to 3709, situated in Chak No.124 Janubi, Tehsil Sillanwali, District Sargodha for a consideration of Rs.7,00,000/-. Allegedly, the agreement was oral and the entire payment was made to the defendants/ respondents at the time of making oral agreement on 16.03.2009.

3. The defendants entered appearance and filed written statement, controverting the assertions made by the petitioner/plaintiff. They strongly refuted the claim of the plaintiff regarding the oral agreement to sell dated 16.03.2009. It was pointed out by them that when the plaintiff dilly-dallied in handing over their share in the produce, they were constrained to file a petition under section 135 of the W.P. Land Revenue Act, 1967 seeking partition of the joint land, which was allowed by the Revenue Officer. This plea was taken by them to expose the stand taken by the plaintiff/petitioner regarding his possession of the suit land under the purported agreement to sell.

4. Given the divergent pleadings of the parties, the learned trial Court framed the following issues: ISSUES:

1. Whether the plaintiff is entitled to the decree for specific performance on the basis of oral agreement to sell as prayed for? OPP

2. Whether the plaintiff has no cause of action and locus standi? OPD

3. Whether the plaintiff has not come to the Court with clean hands? ODP

4. Whether the suit is false, fictitious, frivolous and defendants are entitled to recover special costs? ODP

5. Relief.

5. Following the framing of the above-mentioned issues, both the parties led pro and contra evidence in support of their respective pleas. Having examined the evidence and evaluating it in the light of the law of the land, the learned trial Court proceeded to dismiss the suit of the petitioner vide judgment and decree dated 11.10.2013. Feeling aggrieved, the petitioner preferred an appeal, which was also dismissed by the learned appellate Court vide judgment and decree dated 19.06.2015. Hence this revision petition.

6. In support of this petition, learned counsel for the petitioner has submitted that both the learned Courts below misapprehended the facts, misconstrued the documents and misapplied the law. The findings recorded by them are erroneous. Wrong conclusions were drawn by them from the evidence produced by the parties, resulting in gross miscarriage of justice. It is further argued by him that the parties to the suit are closely related. That is why the petitioner did not deem it appropriate to call upon the defendants/respondents to execute an agreement to sell in writing in his favour. Therefore, according to him, this fact was not to be held against the petitioner. It is also urged by him that the possession of the petitioner over the suit land stood proved from the extracts of Jamabandi and Khasra Girdawari. He has wondered how it was observed by both the Courts that the avarice of the petitioner led him to perpetrate fraud upon the rustic ladies.

7. Arguments heard. Record perused.

8. From a perusal of the pleadings and the evidence produced by the plaintiff, it is crystal clear that there was no agreement in writing. No doubt, the law permits the making of oral agreements, as has been held by the Hon'ble Supreme Court of Pakistan in the cases reported as "Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others" (1994 SCMR 2189), "Bashir Ahmad v. Muhammad Yousaf through Legal Heir" (1993 SCMR 183), "Mst. Rasheeda Begum and others v. Muhammad Yousuaf and others" (2002 SCMR 1089) and "Muhammad Rustam and another v. Mst. Makhan Jan and others" (2013 SCMR 299), but heavy onus lies on the person who puts forward a claim on the basis of an oral agreement. It has been admitted by Muhammad Khan (P.W.1), the petitioner, in his cross-examination that he did not make any report to the Patwari Halqa regarding the bargain he struck with the defendants/respondents. It bears repeating that one of the respondents is his sister-in-law, while the second respondent is his mother-in-law. There is no evidence that an independent advice was available to them at the time of their making the alleged agreement. As stated above, given the relationship between the petitioner and the ladies respondents, the burden of proving the good faith of the transaction in question was on him, as is laid down by the legislature in Article 127 of the Qanun-e Shahadat Order, 1984. The propositions of law that onus to prove the transaction, thumb impression or signature of the executant and that independent advice must be available to an illiterate woman is always on the plaintiff/beneficiary are well-settled. In this behalf, reference may be made to the judgments reported as "Amjad Ikram v. Mst. Asiya Kausar and 2 others" (2015 SCMR 1), "Sultan Ahmad (decd) through L.Rs. v. Muhammad Yousuf" (2011 SCMR 621), "Khan Muhammad v. Muhammad Din through LRs" (2010 SCMR 1351), "Muhammad Sharif v. Chief Secretary and another" (2011 SCMR 21), "Mian Ghayassuddin and others v. Mst. Hidayatun Nisa and others" (2011 SCMR 803), "Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai" (PLD 2005 SC 658), "Sultan Muhammad and another v. Muhammad Qasim and others" (2010 SCMR 1630), "Janat Bibi v. Sikandar Ali and others" (PLD 1990 SC 642), "Province of Sindh and 4 others v. Waseem Construction Co." (1991 CLC 66), "Waris Ali v. Surraya Bibi" (2004 YLR 1148), "Muhammad Afzal v. Muhammad Zaman and others" (PLD 2012 Lah.125), "Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others" (2006 SCMR 12), "Ghulam Muhammad through his Legal Heirs v. Ehsan-ul-Haq and others" (2003 MLD 417) and "Muhammad Luqman Arshad v. Ghulam Muhammad" (2004 YLR 1436 (Lah)).

9. If the petitioner had made the entire payment at one go at the time of making the alleged oral agreement to sell, what prevented, precluded and obstructed him to have a sale deed executed in his favour or at least have a mutation attested in his name? The conduct of the petitioner runs counter to the common course of events. The contentions such as raised by the petitioner/plaintiff have been repelled by this Court in a Division Bench judgment reported as "Mst. Naseem Akhtar v. Muhammd Tariq Naveed" (2003 MLD 535). "it has also been noticed that despite the allegation that the entire sale consideration was paid, the Sale Deed was not executed by late Zahoor Ahmed Khan in favour of the appellant. The explanation offered in this behalf is that the funds for stamp duty and registration charges were not available with the appellant. Such explanation is difficult to accept ......."

11. It is in evidence that the relations of the petitioner with his wife, Panah Bibi, daughter of Mst. Haleema Bibi, respondent/ defendant No.2 were strained. Admittedly, she had got a decree for maintenance against the plaintiff. It does not appeal to reason that in this state of affairs, the defendants would have agreed to make a transfer of their land to the petitioner.

12. There is no proof that the plaintiff did deliver the alleged sale consideration to the defendants/respondents. It is also not clear as to where from he arranged the money. No witness for the plaintiff, including the plaintiff himself has uttered a single word that he withdrew a huge amount of Rs.700000/- from some bank or raised money by borrowing it from some friend. These facts strike at the root of the claim of the petitioner and are too glaring and conspicuous to be covered up or overlooked. The very fact that the respondents ladies filed a petition under section 135 of the W.P. Land Revenue Act, 1967 seeking to make a division of the joint land and to separate their possession from that of the plaintiff goes to show that they were not happy with the petitioner. In point of fact, it was claimed by them that they were constrained to resort to this remedy in the wake of the petitioner's stopping their share in the produce.

13. The learned counsel for the petitioner has not been able to show any misreading or non-reading of evidence on the part of the learned Courts below. He has not pointed out any material irregularity to have been committed by them that might have affected the outcome of the controversy in issue. It is well-established law that in the absence of any misreading or non reading of evidence or a jurisdictional error, this Court is not to interfere with the concurrent findings recorded by the learned Courts below, particularly when they are in consonance with the evidence produced by the parties.

8. For what has been stated above, there is no merit it this revision petition, which accordingly is dismissed in limine. ZC/M-290/L Revision dismissed.