' This civil revision assails judgments and decrees dated 23-9-1998 and 19-3-2002 passed by the learned Civil Judge and learned Additional District Judge, Daska, District Sialkot, respectively.
2. Precisely, relevant facts are that petitioner filed a suit for specific performance of alleged agreement to sell dated 15-5-1995 regarding land measuring 1 Kanal, 3 Marlas, described in the plaint, owned by respondent No,1 which, according to the petitioner, was agreed to be sold for an amount of Rs,85,000. It was pleaded by the petitioner that at the time of execution of agreement to sell dated 15-5-1995 respondent No,1 received an amount of Rs,10,000 as earnest money and delivered possession of the land as part performance of the agreement. It was also asserted in the plaint that petitioner had been willing and ready to perform his part of contract under the agreement, by paying remaining amount of Rs,75,000 to the respondent but she illegally refused to execute sale-deed in his favour coercing him to file the suit. Respondent No,2 is attorney of respondent No,1 vide document dated 27-7-1995, whereas respondent No,3 is subsequently transferee from respondent No,1 through her attorney by some exchange. Respondents being defendants in the suit, contested it and denied assertions of the petitioner, pleading that no agreement to sell was ever executed between the parties - and that respondent No,1 did not receive any earnest money from the petitioner and did not thumb-mark the alleged agreement to sell. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. The learned trial Judge, who was seized of the matter, after doing the needful, vide his judgment and decree dated 23-9-1998 dismissed the suit of the petitioner.
3. Petitioner aggrieved of the decision of the trial Court filed an appeal before the learned Additional District Judge, but remained unsuccessful as his appeal was dismissed vide judgment and decree dated 19-3-2002. Thereafter, he filed the instant revision petition, which was admitted to regular hearing and has now been laid, for final determination:
4. Learned counsel for the petitioner submits that execution of agreement to sell dated 15-5-1995 by respondent No,1, receipt of earnest money of Rs,10,000 and transfer of possession as part performance of the agreement, was proved on the file, but instead, both the Courts below have erroneously dismissed the suit of the petitioner. It has also been contended on behalf of the petitioner that respondent No,1 being closely related to the petitioner, writing between them was not formally done and instead the agreement was inscribed on a plain paper just to keep the record straight, but the two Courts below have,fallen in error, in taking a contrary view. According to learned counsel, the Courts below were only needed to determine whether there was any agreement between the parties and if once it is proved that parties agreed, as asserted, nature of document and its writing on a plain paper loses significance. It has also been urged that the petitioner had been willing and ready to perform his part of contract but respondent No,1 illegally refused to perform her part of contract, which was sought to be done through Court. It is also claimed that petitioner was undisputedly in possession of the land in question, which was a proof of agreement between the parties.
5. Learned counsel appearing on behalf of the respondents refuted the assertions of the petitioner, supported judgments and decrees of the two Courts below and urged that petitioner could not prove either the agreement to sell or bargain of sale between the parties, hence was not entitled to decree, prayed. According to him, payment of earnest money is also not proved and contradictory statements of the P.Ws. Were not enough in support of the claim of the petitioner especially when they admitted that petitioner had been paying share of produce to respondent No, 1.
6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Respondent No,1 had specifically denied bargain with the petitioner, execution of the alleged agreement to sell, receipt of earnest money and transfer of possession under it. After this denial by respondent No,1, onus heavily shifted on the petitioner to prove positively not only the agreement but also the transaction between them.
Petitioner besides his own statement as P.W.1 produced two witnesses, Muhammad Ashraf as P.W.2 and Talib Hussain as P.W.3, who claimed themselves to be the marginal witnesses of the asserted agreement to sell dated 15-5-1995. Their depositions are at variance to each other and contradictory, as exhaustively thrashed by the Appellate Court. I have myself examined the evidence and the contradictions noted by the Appellate Court are apparent on the face of the record and I need not dilate upon, again in this judgment as learned counsel for the petitioner has not argued that any part of evidence has been misread or non-read by the Appellate Court.
7. Petitioner is maternal uncle of respondent No,1 and mother of respondent No,1 having died, her father married to sister-in-law of the petitioner. Though respondent No, I pleaded strained relations with the petitioner, yet in view of such a close relationship, petitioner, under law, was required to prove, as noted above, the transaction as well as, the agreement and above these things good conscience of the transaction. He was also required to show that respondent No,1 being a Parda observing lady was provided with some independent advice by her real relations like father, brothers or any adult sane member of the family. Petitioner has admitted during the course of evidence that at the time of payment of earnest money father of respondent No,1 also came there, who was not shown as a witness while scribing agreement on a white paper, as noted by the Appellate Court and has not signed or thumb-marked it. Ladies in our society are assumed to be weak as compared to men and thus, especially those ladies who are not exposed to public and are Parda observing, are protected by law. Transactions claimed against such ladies are to be shown to have contracted out of good conscience and after consulting its good and bad with some independent person. Law on this subject is settled and is being followed consistently by the Courts.
Reference can be made to few judgments in the cases of Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 204; Fayyaz-ud-Din v. Kutab-ud-Din AIR 1929 Lahore 309; Muhammad Isa Khan (deceased) represented by Khalida Adib Khanam and others v. Muhammad Hussain Khan and others PLD 1954 Peshawar 39; The National Electric Radio, Refrigeration Co.
(Pakistan) Ltd.. Karachi v. Messrs Schiliae Lauro, Naples (Italy) and 3 others PLD 1977 Karachi 264; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 SCMR 890; Muhammad Hashim and others v. Arshad Javed (Irshad Javaid) and another 1991 MLD 986; Mst.
Fazal Jan v. Roshan Din and 2 others PLD 1990 SC 661; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Manzoor Hussain v. Raja Shah and others 1992 CLC 602 and Baggu v. Mst. Rahman Bibi 1996 MLD 377. There is absolutely no evidence on the file showing, good conscience of the transaction which. Otherwise was needed, availability of some independent advice to respondent No,1, entering of respondent No,1 with free-will in, the alleged agreement and in absence of proof of these facts, his suit could not have been decreed. The facts that the agreement was written on just a plain paper, which was claimed to have been written by a layman but appeared to have been written by some expert. It carries very dim thumb-impression, whereas it was asserted to be printed with a new inkpad and should have bright looks in it. Possession under it was claimed to have been delivered to the petitioner, but his witnesses admitted that he had been paying share of produce to respondent No,1 and at the same time, there is no recital in Exh.P.1 regarding delivery of possession.
Scribe of document deposed that neither respondent No,1 appeared before him nor any money changed hands in his presence. This is no proof of negotiations of sale between the parties and petitioner did not opt to have thumb-impression on Exh.P.1. Compared through the trial Court and these factors go to show that Exh.P.1 is not a genuine document.
8. For what has been discussed above, it is obvious that both the Courts below have rightly decided the lis, in consonance with the evidence on the file, which has neither been misread nor non-read.
They have committed no illegality or irregularity in absence of which, no interference, at all, is called for in revisional jurisdiction of this Court, under law. This revision petition has no merit in it and is consequently dismissed with costs throughout. Revision dimissed.