2003 PLP 354 (MLD)

MUHAMMAD SAIR ALI, J.‑‑‑Appellant through this appeal has challenged judgment and decree dated 9‑1‑1994 of the learned Senior Civil Judge, Sargodha dismissing appellant/plaintiff's suit for specific performance of an oral agreement to sell dated 6‑3‑1990, declaration, cancellation of documents and perpetual injunction.

2. Appellant filed Suit No.247/993 on 19‑4‑1990 against respondents Nos. l to 6 for specific performance of oral agreement of sale dated 6‑3‑1990, declaration and permanent injunction regarding part of the suit Property i.e. Shop No. 153 measuring 245 square feet situated in Block No.4, Katchery Bazar, located in Khasras Nos.57 and 58, Sargodha. In the plaint he claimed that the suit property was an undivided shop in possession of respondent No. l i.e. Sher Muhammad but the same was jointly owned by the appellant and respondent No.

1. Appellant filed a suit against respondent No. l for partition of the suit shop and for recovery of mesne profits. The suit was decreed in appellant's favour on 10‑7‑1992. Respondent Nos. l's appeal there against was dismissed. The said shop was partitioned and possession of half of the disputed shop was delivered to each party on 30‑7‑1989 in execution proceedings. Appellant also pleaded that parties remained involved in litigation on the suit property and the matter was resolved through conciliation of Mian Faqir Muhammad, Malik Muhammad Ashraf, Muhammad Hussain Butt and Mian Ghulam Rasool. These conciliators ultimately arranged the purported oral agreement of sale between the appellant and respondent No.l on 6‑3‑1990 at the sale price of Rs.5,60,000 out of which Rs.60,000 was paid by the appellant as deposit for earnest money to remain with one .of the conciliators i.e. Mian Faqir Muhammad uptil the execution of the sale‑deed to be made within two (2) months and cases pending against each other were also to be withdrawn by the parties. Appellant as plaintiff further alleged that respondent No.l resiled from his commitment to reduce the oral agreement to sell dated 6‑3‑1990 into writing and sold the said property to Irshad Ahmad (respondent etc.) through a registered sale‑deed.

3. The suit was contested by the respondents. Respondent No.l denied the existence of any oral agreement of sale between the appellant and himself on 6‑3‑1990 as well as any negotiations through conciliators i.e. P.W.1 to P.W.4. He also denied receipt of earnest money of Rs.60,000.

4. On the pleadings of the parties, the following issues were framed:‑‑ (1)??????? Whether there is any privity of contract of oral sale between the plaintiff and the defendant No. l against a consideration of Rs.5,60,000?OPP (2)??????? If Issue No. l is proved in affirmative, whether the plaintiff is entitled to a decree for declaration to the effect that the agreement to sell dated 3‑4‑1990 executed by the defendant No. l in favour of defendant No.2 and registered sale‑deed dated 18‑6‑1990 executed by the defendant No. l in favour of the defendants Nos.3 to 6 are against law and facts, illegal, ineffective qua the rights of the plaintiff and are liable to be cancelled? OPP (3)??????? If Issue No.2 is proved in affirmative, then whether the plaintiff is entitled to the decree of permanent injunction thereby restraining the defendant No. 1 from alienating the suit property? OPP (4)??????? If Issues Nos. l and 2 are proved in affirmative, whether the plaintiff is entitled to the decree for specific performance of the oral contract or sale qua all the defendants? OPP (5)??????? Whether the plaintiff has no locus standi as well as no cause of action and that the suit is false, frivolous, baseless and is liable to be dismissed with special costs? OPD (6)??????? Relief.

5. Both the parties adduced oral as well as documentary evidence in support of their respective cases. Appellant produced Faqir Muhammad (P.W.1), Malik Muhammad Ashraf (P.W.2), Haji Muhammad Hussain Butt (P.W.3) and Ghulam Rasool (P.W.4) and he himself appeared as P.W.5 and produced Exh.P.l and Exh.P.2 as documentary evidence.

6. In rebuttal, the respondents produced Muhammad Suleman (D.W.1), Azmat Khan (D.W.2), Naeemul Hassan (D.W.3), Muhammad Zulfiqar (D.W.4), Irshad Ahmad (one of the respondents) as (D.W.5), Aftab Ahmad (D.W.6) and Muhammad Ali (D.W.7). Sher Muhammad respondent No.l appeared as D.W.8. The respondents also produced eighteen documents i.e. Exh.D.l to Exh.D.18 in their defence.

7. The learned Senior Civil Judge Sargodha through judgment andl~ decree dated 9‑1‑1994 dismissed suit of plaintiff/appellant.

8. The learned counsel for the parties read and re‑read the evidence in support of the cases of their respective clients.

9. We have considered the submissions of the learned counsel for the parties as well as the record. The concise case of the appellant/plaintiff as pleaded in the plaint was that through intervention of Mian Faqir Muhammad (P.W.1), Malik Muhammad Ashraf (P.W.2), Muhammad Hussain Butt (P.W.3) and Mian Ghulam Rasool (P.W.4), an oral agreement was reached between the appellant and respondent No.l for sale of respondent No. l's share of shop to the appellant at a price of Rs.5,60,000 payable within two (2) months by the appellant. And that the appellant paid Rs.60,000 as earnest money on the same day i.e. 6r3‑1990 to Mian Faqir Muhammad (P.W.1) for payment to respondent No. 1 upon making the sale‑deed. And that written agreement to sell was to be made and executed between the parties on 7‑3‑1990 but could not be so made upon refusal of respondent No. 1.

10. Contrarily, respondents denying the case of the appellant, asserted in their joint. written statement that the entire story of agreement to sell was fabricated by the appellant/plaintiff in conspiracy with the abovesaid P.Ws. who belonged to the appellant's group. Negotiations, terms and making of alleged oral agreement to sell dated 6‑3‑1990 was categorically and specifically denied. Payment of any advance by the appellant to respondent No.l was also denied and it was further pleaded in the written statement that any money paid as alleged advance by appellant to Mian Faqir Muhammad (P.W.1) was a matter between the appellant/plaintiff and the said P.W.1 and the respondents had no concern therewith and that respondent No. l had not received any earnest money at all from the appellant. The learned Civil Judge through the impugned judgment and decree dated 9‑1‑1994 disbelieving appellant/plaintiff's contention and evidence, decided Issue No.1 against him by holding that no oral agreement to sell was ever made by respondent No.1 i.e. Sher Muhammad in favour of appellant and thus dismissed the suit.

11. Under these circumstances we re‑evaluated the evidence on record to find out as to whether any oral agreement on 6‑3‑1990 was made between the parties on the specific? terms as asserted by the appellant in the plaint and as to whether Rs.60,000 was received by Mian Faqir Muhammad (P.W.1) as earnest money on behalf of respondent No. 1.

12. Cumulative reading of the statements of P.W.1 to P.W.4 does prove the fact that P.W.1 to P.W.4 intervened as conciliators between the appellant/plaintiff and respondent No. l to settle their pending cases and disputes relating to the suit shop. Each and every P.W. deposed about the terms of sale of respondent No. 1's share of the shop to appellant at the sale price of Rs.5,60,000 to be paid within a period of three (3) months from the withdrawal of the cases between the parties and payment of advance of Rs.60,000 by the appellant to Muhammad Hussain Butt (P.W.3) who handed over the same to Ghulam Rasool (P.W.4) who in turn gave it to Mian Faqir Muhammad (P.W.1) as deposit in trust for payment to respondent No. l as earnest money. These P. Ws. clearly stated that these terms were settled by them as conciliators on 6‑3‑1990 in pursuance of "Sulah and Sodah" telephonically effectuated on 5‑3‑1990 by Malik Muhammad Ashraf i.e. P. W.2 between the said parties. They further deposed that the parties were bound to accept the said terms and that writing of the agreement to sell was postponed to 7‑3‑1990 but could not be obtained because of respondent No. 1's refusal thereto.

13. Although respondent No. l in the written statement had denied the factum of agreement to sell with the appellant through conciliatory efforts of P.Ws., yet appearing as D.W.8 he deposed in his examination?-in‑chief that he had sold the disputed property through registered deed to Irshad Ahmad etc. (respondents) and had ceased to be an owner and in his cross‑examination he conceded that upon conciliation of P.W.1 to P.W.4 he made a transaction with appellant prior to the execution of the sale‑deed in favour of Irshad Ahmad etc., but categorically denied that he received any earnest money from the appellant.

14. This obviously brings us to the question as to whether consideration in the form of Rs.60,000 as earnest money was received by the respondent No. 1 from the appellant to bring into existence a binding agreement to sell between the parties or not.

15. Mian Faqir 'Muhammad (P.W.1) in his examination‑in‑chief stated that appellant initially paid Rs.60,000 to Haji Muhammad Hussain (P.W.) and Ghulam Rasool (P.W.) who on Sher Muhammad's instructions paid the said earnest money to him. However, in his cross-?examination he admitted that final transaction ;was to be settled and reduced to writing later and that his position was that of a conciliator and he was not an attorney holder of Sher Muhammad i.e. respondent No.

1. And that he had not given any receipt for the earnest money to anyone as the same was deposited with him as a trust. P.W.2 i.e. Malik Muhammad Ashraf in his cross‑examination stated that they as conciliators had settled the amount of earnest money at Rs.60,000 and the same was to remain with Mian Faqir Muhammad (P.W.1) as ' Amanat' . He also stated that respondent No. l had refused to enter into a written agreement on 7‑3‑1990. P.W.3 i.e. Haji Muhammad Hussain Butt deposed in his examination‑in‑chief that Rs.60,000 settled as earnest money was paid by the appellant to him (P.W.3) but he gave it to Ghulam Rasool (P.W.) who in turn gave it to Mian Faqir Muhammad (P.W.1). He admitted in his cross‑examination that the terms of the transaction were not settled by the parties directly but the same were determined by P.W.2 including amount of earnest money. He categorically admitted that the earnest money was never went into the hands of Sher Muhammad i.e. respondent No.l. The above story was also repeated by P.W.4 i.e. Ghulam Rasool.

16. It is also noteworthy that all the abovesaid P.Ws. stated the period of performance as three (3) months from the withdrawal of cases, though the appellant in his plaint had pleaded the stipulated period as two (2) months w.e.f. 6‑3‑1990.

17. The above analysis of evidence leads us to the conclusion that in the conciliation proceedings, the conciliators (P.W.1 to P.W.4) on 6‑3‑1990 did settle the broad terms as to the sale price of the disputed shop and withdrawal of cases. The period of performance appears to have remained fluid. The amount of earnest money was also determined by the conciliators at Rs.60,000 which was paid by the appellant to the conciliators to remain in deposit with Mian Faqir Muhammad (P.W.1) in :rust for effectuating the final transaction which was agreed to be made in writing on 7‑3‑1990. It was the case of appellant himself as well as that of each P.W. that amount of Rs.60,000; purportedly the earnest money, was never received by respondent No. l who on 7‑3‑1990 refused to execute and enter into a sale agreement in writing for sale of the suit shop to the appellant. We are, therefore, of the opinion that final agreement to sell between the parties never came into existence and in absence of exchange of earnest money between the appellant and the respondent No. 1, the broad terms of transaction as settled by the conciliators did not mature into an enforceable agreement to sell to become basis of a suit for specific performance etc.

18. In view thereof we do not find any legal infirmity in the impugned judgment and decree dated 9‑1‑1994 passed by the learned Civil Judge, Sargodha dismissing appellant's suit. The impugned judgment and decree dated 9‑1‑1994 is upheld and this appeal as being without any merit is dismissed. Parties are left to bear their own costs. H.B.T./M‑1566/L?????? Appeal dismissed.