' UMAR ATA BANDIAL, J.---This judgment shall decide the Civil Revision Nos.657 and 508 of 2001 as these proceed against two appellate judgments dated 13-1-2001 passed by the learned Additional District Judge dismissing the petitioner's appeals. These appeals were filed against two judgments dated 26-5-1998 delivered by the learned trial Court in cross suits by the parties seeking relief in relation to title and or possession of immovable property based on their transaction of sale respectively alleged by the plaintiffs to have been executed in their favour by the owner thereof, Asmat Ullah.
2. The petitioner's suit for specific performance of an alleged agreement to sell dated 10-9-1979 invokes another alleged oral agreement dated 4-3-1980 by the petitioner's father. Asmat Ullah respondent to constitute a contract to sell the latter's house built upon three Marlas in Yasrib Colony, Faisalabad to the petitioner at a price of Rs,15,000; out of which Rs,2,000 was allegedly paid as earnest money. On the other hand, admittedly the respondent No,1 sold the same property to his other son, Saleemullah, respondent at a fictitious price of Rs,9,000 as recorded in the registered sale-deed dated 25-11-1979 executed by the respondent No,1 in favour of the respondent No,2. The respondent No,2 thereafter resold the said property, which ultimately fell in the hands of Muhammad Iqbal, respondent No,4, who filed a cross suit for possession thereof. .
3. Prior to filing his present suit for specific performance, the petitioner had filed a suit for declaration challenging the aforesaid sale-deed in favour of respondent No,2 on the ground that the respondent. No,1 had already entered into an agreement to sell with the petitioner through the aforesaid oral agreement dated 4-3-1980 read with the alleged prior agreement dated 10-9-1979.
That suit was dismissed on 16-3-1983 and the appeal thereagainst was also dismissed on 27-10- 1983. This is admitted by the petitioner in his statement as D.W.3 in the respondent's suit for possession. It is the petitioner's version as D.W.3 that the first agreement dated 10-9-1979 was for division of sale proceeds of the suit property by the respondent No,1 between his sons the petitioner and respondent No,2; and that the subsequent oral agreement allegedly arrived between the petitioner and the respondent No,1 on 4-3-1980 provided for the suit property to be sold to the petitioner at the price of Rs,15,000, pursuant to which earnest money of Rs,2,000 was paid by the petitioner.
4. Learned counsel for the petitioner has assailed the concurrent findings of the separate but parallel judgments of the learned lower Courts on the following grounds. He submits that since 1965 the uninterrupted possession of the suit property is with the petitioner/plaintiff notwithstanding that a series of sale-deeds about the said property had been executed by the respondent No,1 and his successorsin-interest, so that the current contesting respondents Nos.4 and 5 are the vendees under a third sale-deed dated 2-12-1986. Learned counsel for the petitioner has read Exh.P.l dated 10-9-1979 which is titled as an agreement but in fact the same is in the form of a compromise between the petitioner and respondent No,2 in relation to the suit property. This agreement does not set out any obligation of the respondent . No,1 to sell the suit property to the petitioner nor records a price therefor. . Learned counsel asserts that the alleged oral agreement made subsequently on 3-4-1980 has to be considered to find the completed agreement to sell between the parties. In this regard he relies upon the statement of P.W.2, who is a marginal witness to the aforesaid agreement, Exh.P.1. This witness has stated in his examination-in-chief that the defendants arrived at oral agreement with the plaintiff/petitioner for sale of the suit property against which the petitioner paid earnest money in the amount of Rs,2,000. This statement, however, does not claim that the alleged oral agreement was concluded in the presence of the said witness nor specifies the person who received the earnest money from the petitioner/plaintiff.
Learned counsel also read the statement of Asmatullah D.W.1, father of . The petitioner/plaintiff. The witness has vehemently denied both the execution and the contents of the alleged compromise agreement Exh.P.1. More importantly, his cross-examination does not contain any suggestion with respect to the oral agreement dated 3-8-1980 alleged by the petitioner/plaintiff. Whilst concluding his submissions learned counsel for the petitioner has relied upon judgment in Habib Khan v. Mst.
Bakhtmina and others 2004 SCM R 1668 that enumerates the grounds on which the concurrent finding of the learned lower Courts may be over turned by the High Court in. Exercise of its revisional jurisdiction. He submits that non-consideration of the foregoing material evidence of the oral agreement between the parties by the learned Courts below is liable to be interfered in the revisional jurisdiction.
5. In response the learned counsel for the respondents has reiterated the failure of the petitioner's prior suit for declaration based upon the compromise agreement Exh.P.1 dated 10-9-1979 and also his appeal thereagaisnt, as already mentioned above. Learned counsel thereafter read to the Court from the compromise agreement dated 10-9-1979 Exh.P.1 which has the following features.
Firstly, the owner of the property, respondent No,1, Asmat Ullah is not a party of the said compromise agreement. Rather this is an agreement between two sons of the owner in terms that depict their settlement as heirs of the owner about his property and. Estate. This instrument is not an agreement to sell in favour of the petitioner/plaintiff. Secondly the agreement records a mechanism for giving the option to either of the two brothers, who are parties thereto, to match the highest price received for the suit property. Again this clause does not amount to an agreement to sell. Learned counsel then read from the statement of the owner, Asmat Ullah, D.W.1, who has categorically denied his thumb-impression on the Exh.P.1. No evidence has been led by the petitioner to rebut that statement.
6. In the circumstances it is evident that Exh.P.1 is neither an agreement on its terms nor is a document that is admitted by the owner of the property to have been executed or endorsed by him. In the result Exh.P.1 cannot have any significance to advance the petitioner's claim for specific performance of an agreement to sell. Furthermore, the alleged oral agreement between the parties dated 4-3-1980 is not proved on record because 'no witness thereto has been produced in the Court. Earlier suit by the petitioner/plaintiff for declaration and cancellation of sale-deed dated 25- 11-1979 has allegedly been dismissed and appeal thereagainst by the petitioner/plaintiff also been dismissed, therefore, the petitioner's plea based on his alleged agreement to sell has failed and the impugned sale-deed in the suit has been upheld by the competent Courts of law which finding is binding upon the parties.
7. Accordingly, the cause of action claimed by the petitioner is utterly illusory and the relief prayed is without basis. Both the Courts below have given well-reasoned judgments that are soundly supported by the record. Nothing has been pointed out by the learned counsel for the petitioner to show any illegality or misreading of record to have been committed by the learned Courts below.
The two impugned judgments dated 13-1-2001 by the learned Appellate Court are therefore, affirmed and the revisio n petitions accordingly dismissed. No order as to costs.