' MUHAMMAD KHALID ALVI, J.---Through this single judgment, I propose to dispose of Civil Revision No,281 of 2001 and 282 and 2001 as common questions of law and facts are involved in both the cases.
2. This case is listed in the regular cause list. The name of Ch. Muhammad Ikram-ul-Haq, learned counsel for the respondent is reflected in the cause list. The case is called for the third time at 12-45 p.m. Neither the learned counsel nor any of the respondents nor any clerk entered appearance, therefore, having left with no option, I proceed to decide both these civil revisions after hearing the learned counsel for the petitioner.
3. Brief facts of the case are that the respondent Muhammad Suleman (now represented through L.Rs,) filed two suits for specific performance against the petitioner on 2-8-1993 on the basis of two separate agreements dated 7-10-1978 and 10-10-1978 with respect to properties measuring 80 Kanals and 40 Kanals respectively which were purchased by him for a consideration of Rs,30,000 and Rs,15,000 from the petitioner/defendant after full payment of the sale consideration. It was pleaded that the petitioner/defendant had acquired this property under "Chashma Barrage Scheme". The petitioner being son had been depositing all the State expenses/instalments, brought the land under cultivation by spending lacs of rupees and also constructed residential houses.
Both the suits were contested by the petitioner. After recording evidence of the parties, the learned trial Court vide judgment and decree dated 10-10-1995 dismissed both the suits. Respondents filed appeals, which were allowed vide judgment and decree dated 27-9-2000. These appellate decrees are being assailed through the instant civil revisions.
4. Learned counsel for the petitioner contends that the petitioner is not only mother of Muhammad Suleman respondent/ plaintiff but she also has two other sons and a daughter, therefore, there was no occasion for her to have transferred her entire holding to only one son depriving other sons and a daughter. It is next submitted that there are material discrepancies with respect to the factum of sale as stated by P.W.3 and P.W.4. It is next submitted that the learned appellate Court has totally ignored the fact that Suleman respondent/plaintiff was son of the petitioner while the petitioner being mother and that too, an illiterate, old, infirm and village lady had been deprived of her entire holding by using his fiduciary relationship with mother.
5. I have considered the arguments of the learned counsel for the petitioner and gone through the material available.
6. P.W.1 Wahad Hussain Shah petition writer stated in his cross-examination that the agreements were written by him on the asking of Suleman plaintiff while he personally did not know Mst. Badhai the petitioner. As against this, the plaintiff while appearing as P.W.4 stated in his cross-examination that Sher Muhammad, his brother had accompanied Mst. Badhai to the place of petition writer and he had asked the petition writer to prepare the agreements. It is also to be noted that P.W.3 Muhammad Ali stated with respect to the negotiation of sale that it was settled before him and the agreements in question were written 2/4 days thereafter and the negotiation of sale had taken place at Fateh Pur at the place of petition writer. As against this P.W.4 the plaintiff has stated that after the settlement of sale they have immediately proceeded to the place of petition writer and the agreements were executed on the next day. In the next breath he has contradicted himself by saying that after the settlement they have proceeded to their respective homes.
4. Keeping in view the above discrepancies, although not of a very great importance but still keeping in view the fiduciary relationship between the parties, the deprivation of the other children from their lawful right of inheritance, the age of the lady, her village background and illiteracy, the said discrepancies become of much importance. Even if the respondents Suleman had been depositing some instalments for acquiring proprietary rights in favour of his mother, it would not suffice to hold that he could be declared to be an owner on the available shaky evidence.
5. Even otherwise, under section 22 of the Specific Relief Act, even if an agreement to sell is proved to be lawful, still it is discretionary with the Court to direct specific performance or to refuse, keeping in view the circumstances of each case. As already noted above in the preceding para., the circumstances, the relationship of the parties, the other children of the petitioner, the nature of evidence; these were not fit cases for the grant of decree for specific performance. Resultantly for what has been stated above, both these civil revisions are allowed, the judgments and decrees passed by the learned appellate Court dated 27-9-2000 are set aside and the suits filed by the respondent/plaintiff Muhammad Suleman shall stand dismissed with no order as to costs.