MUHAMMAD MUZAMMAL KHAN, J.- This civil revision assails judgment and decree dated 14.9.1995 passed by the learned Additional District Judge, Gujrat whereby appeal filed by the respondents was accepted and suit of the petitioners for declaration was dismissed, by setting aside judgment and decree dated 7.3.1993.
2. Precisely, relevant facts are that the petitioners filed a suit for declaration with permanent injunction as consequential relief, claiming that land measuring 1-kanal and 5-marlas was owned by Allah Ditta, respondent No.2, who entered .Into an oral agreement to sell of this land, after receiving the entire sale consideration of Rs. 6000/-. It was also pleaded that respondent No. 2 settled that he will appoint respondent No. 3 as his attorney who will transfer land subject of agreement in favour of the petitioners. According to the petitioners on gaining knowledge of transfer of land in dispute through Mutation No. 5616 dated 29.6.1989 in favour of respondent No.1, they approached the owner and on his refusal to admit them as owners, the suit was filed. The petitioners claiming themselves to be in possession as owner of the land, also prayed a decree for permanent injunction restraining the respondents from interfering in their possession, thereover.
3. The respondents being defendants in the suit contested it by filing a- joint written statement, denying the agreement to sell and payment of any sale price thereunder. Controversial pleadings of the parties necessiting framing of issues and recording of evidence. The learned Trial Judge who was seized of the suit after doing the needful, on the basis of his appraisal of evidence, decreed the suit of the petitioners vide judgment and decree dated 7.3.1993.
4. The respondents aggrieved of the decision of the Trial Court dated 7.3.1993 filed an appeal before the learned Additional District Judge, where they succeeded as their appeal was accepted, suit of the petitioners was dismissed and judgment and decree of the Trial Court was reversed vide judgment and decree dated 14.9.1995. The petitioners thereafter filed instant revision petition, which was admitted to regular hearing and after completion of record, has now been placed for final determination. The respondents who were personally served, did not appear to defend this petition, hence, were proceeded against exp arte vide order dated 10.5.2004.
5. Learned counsel for the petitioner submitted that the Appellate Court acted erroneously in dismissing suit of the petitioners on the ground that their suit was not in proper form as they should have filed a suit for specific performance. According to him, the petitioners could have been required to amend their plaint, so as to include the prayer with regard to specific performance and on this score, their suit could not fail, It was also contended on behalf of the petitioners that the other ground which weighed with the Appellate Court was that suit of the petitioner was bad for non-joinder of necessary parties. Referring to the provisions of Order 1 Rule 9, C.P.C., it was argued that mere nonjoinder of parties, was not enough to non-suit the petitioners, as the list was to be decided inter-parties before the Court. He further elaborated his arguments by urging that the petitioners are in continuous possession of the land in question under a lawful agreement with the owner for about 23 years which is in itself a proof of the fact that they are holding land under a transaction between them and respondent No. 2. It was also argued that the Appellate Court acted with error in reversing the well-reasoned judgment of the Trial Court whereby their suit had been decreed.
6. I have minutely considered the arguments of the learned counsel for the petitioners and have examined the record, appended herewith. Undeniably, suit of the petitioners was based on an oral agreement to sell which though was enforceable through a suit but a strict proof thereof, was needed, in view of a consistent view of the Honourable Supreme Court, very graciously expressed in the case of Bashir Ahmad vs. Muhammad Yousaf (deceased) represented by Muhammad Shafique (1993 PSC 83). The Appellate Court while disagreeing with findings returned by the Trial Court, reappraised evidence produced by the petitioners in support of the claimed oral agreement to sell and concluded that the same is not proved. Findings with regard to form of suit and non- joinder of necessary parties were additional defects pointed out by the Appellate Court and were not the sole reasons for passing the judgment impugned.
7. Controversy regarding proof of agreement written or oral has been put to rest, by holding that a beneficiary of the alleged agreement to sell is not only required to prove the agreement but has also to prove through positive evidence, the bargain and the transaction reflected therein especially after its denial by the persons with whom it is claimed to have been entered. Reference in this behalf can conveniently be made to the judgments in the cases of Janat Bibi vs. Sikandar Ali and others (PLD 1990 SC 642), Hakim Khan vs Nazeer Ahmad Lughmani and 10 others (1992 SCM R 1832), Sana Ullah and another vs. Muhammad Manzoor and another (PLD 1996 SC 256) and Mst.
Rashida Begum and 3 others vs. Muhammad Yousaf and others (PLJ 2002 SC 706). The respondents had specifically denied the claimed oral agreement to sell and payment of any sale price thereunder. Now it was for the petitioners to prove not only the agreement but also the bargain and the transaction, in view of the above-referred judgments. They in order to discharge onus of proof coming on their shoulders, examined three witnesses including the statement of one of the petitioner, as their own witness. PW- 1 Muhammad Hussain is an interested witness being closely related to the petitioners, as admitted by him during the cross-examination that he is real nephew of the petitioners (sister's son), PW-2 Ahmad Khan admitted that he knew nothing about the land in question and is not aware about the entry in khasra girdawari. Similar is the statement of PW- 3 who was employee in Pakistan Railway with permanent abode at Gujrat. All the PWs admitted that no document in form or agreement to sell or receipt regarding payment of price was executed and at the same time they did not utter a single word with regard to bargain or the transaction struck between the parties. Though close relationship for oral agreement without any writing, was not a convincing reason yet there should have been some receipt regarding payment of sale price of Rs. 6000/ which was handsome money twenty-three years back. The alleged agreement or payment of money, was not reported to revenue field staff for change of entries in the Revenue Record wherein respondent No. 2 continued to be the owner in possession. The scan of the evidence on the file shows that findings of the Appellate Court regarding non-proof of the agreement are in consonance with the evidence on the file.
8. As regards the other additional reasons given by the Appellate Court for concluding that decree of the Civil Court was not justified, for instance that the suit in form of a declaration on the basis of an agreement to sell was not maintainable and that the same was bad for non-joinder of necessary parties. Those defects could have been remedied as asserted by the learned counsel for the petitioners, had there been any worth in case of the petitioners, on merits. No doubt, prayer with regard to specific performance could be included in the plaint, by its amendment and the necessary parties if felt out could be ordered to be impleaded under Order Rule 10, C.P.C, but this exercise would not cure the defect that the petitioners failed to prove any agreement regarding sale of land in dispute by respondent No. 2.
9. For the reasons noted above, I have no hesitation to hold that the appellate judgment and decree was passed according to the evidence on the record and does not suffer from any illegality or irregularity, amenable to reversional jurisdiction. This revision petition has no merit in it and is accordingly dismissed, with no order as to costs.