' JAWWAD S. KHAWAJA, J.---The petitioners/plaintiffs impugn the appellate judgment and decree dated 17-9-1997, whereby the learned appellate Court set aside the decree of the learned trial Court dated 24-4-1995 and dismissed the suit filed by the petitioners seeking specific performance of an oral agreement asserted by them against the respondent/defendant, namely, Inayat Ali.
2. The facts of the case have been duly noted in the judgment of the learned trial Court and need not, therefore, be reproduced in extenso.
3. The suit of the petitioners/plaintiffs was resisted by the respondent Inayat Ali. His defence was that he had never entered into any agreement to sell in favour of the petitioners/plaintiffs. He denied having received any amount from the petitioners and alleged that the petitioners were in possession of the suit property as lessees and not pursuant to any agreement.
4. The learned trial Court framed as many as five issues of which Issue No.1 encapsulated the main controversy between the parties. Learned counsel for the parties confined their arguments to Issue No.1, which was framed in the following terms:-- "Whether the defendant had entered into an agreement for sale with the plaintiffs in respect of the suit-land, received a sum of Rs.10,000 as earnest money for the suit-land, handed over the possession to the plaintiffs and promised to execute registered sale-deed in favour of the plaintiffs after correction of the record? OPP"
5. Before considering the submissions of learned counsel for the parties, I need to note that Inayat Ali, his five brothers, two sisters and mother Begum Bibi had inherited property from their father Ata Muhammad, measuring, in all, 91 Kanals, 3 Marlas. It was the case of the petitioners/plaintiffs that the legal heirs of Ata Muhammad had agreed to sell the property to them. According to them, while some of the other legal heirs had executed written agreements, the respondent had agreed to the sale orally and had also agreed to execute a written conveyance on receipt of the entire consideration.
6. Both parties led evidence which was duly considered by the learned trial Court. The suit of the petitioners/plaintiffs was decreed by the learned trial Court. It was noted by the learned trial Court, firstly, that the witnesses produced by the petitioners/plaintiffs were reliable and they had proved the existence of the oral agreement. In circumstances, the onus of proof in respect of Issue No.1 shifted to the respondent/defendant. The respondent, it was held, had not been able to rebut the evidence produced by the petitioners/ plaintiffs.
7. I have found that the respondent has proved to be a most untruthful witness. He appeared as D.W. 1 in support of his defence. He, firstly, made an incorrect statement as to the inheritance mutation, whereby the estate of Ata Muhammad was devolved on his legal heirs. While he acknowledged that the names of his two brothers Mehar Din and Din Muhammad had been omitted from the inheritance mutation, he tried to explain this error by deposing that he had purchased their land and, therefore, the names of Mehar Din and Din Muhammad did not appear in the mutation. He deposed that the sale of their shares had been made through a mutation.
However, no mutation was produced. The statement itself is patently false because no mutation could have been effected by Mehar Din and Din Muhammad without them first being shown as owners through inheritance by means of a duly sanctioned mutation.
8. Next, in his examination-in-chief, Inayat Ali denied having received any consideration from the petitioners. In his cross-examination, he vacillated on this score, but then acknowledged that he had been receiving payments through bank drafts and had, in all, received a sum of Rs.92,500. He explained the receipt of this amount by stating that the petitioners had formed a company to whom he supplied Khal and Binola. He, however, admitted that there was no record of any such business dealings between him and the petitioners. Here it may be noted that Inayat Ali was partially cross-examined on 8-9-1991 and his remaining cross-examination took place on 29-3- 1992. His lack of probity is established from the contradictions in his testimony on the aforesaid two dates of hearing. Whereas previously he had deposed that the amount of Rs.92,500 had been received from the petitioners on account of supplying Khal and Binola to them, on 29-3-1992 he appears to have forgotten this, when he stated that he had never been in the business of Khal and Binola. He also stated that he did not know any trader of Khal and Binola in the Mandi. The falsity of Inayat Ali's denial that he had received consideration from the petitioners for sale of the suit-land, is clear from his testimony.
9. Another aspect of the case is the stance adopted by Inayat Ali that the petitioners were in possession of the suit-land as lessees. As noted above, in his written statement, the respondent/defendant had expressly averred that the property was given on lease to the petitioners. While appearing as D.W.1, Inayat Ali contradicted the said stance by deposing that the property. Had been given on lease to Fazal Haq (P.W.1). When he was confronted with the averment in the written statement, he tried to wriggle out of his predicament by stating that his lawyer had incorrectly recorded that the lease was given to the petitioners. The respondent is an educated person and also remained employed with the air force. Later on, in his testimony, he denied that Fazal Haq had any legal status in respect of the land or was a lessee of the same.
10. Inayat Ali's entire testimony is replete with blatant contradictions showing his lack of probity. At this point, it is worth-nothing that in his shifting and contradictory testimony he also deposed C that the matter of leasing the land to the petitioners had been settled through Fazal Haq and that the lease money had been paid by the petitioners/plaintiffs, who thereafter occupied the land as lessees.
11. At this point, it is also important to note that according to Inayat Ali's own testimony, the land was given on lease in 1977 for a period of one year. There is, however, no explanation as to how and why the petitioners remained in possession even after one year and that, too, without payment of any lease amount.
12. In addition to the above, the respondent also acknowledged that he was a marginal witness to the agreement and receipt (Exh.P.2) executed by his brother Din Muhammad in respect of the suit- land. To support his false defence, Inayat Ali stated that the stamp paper for Exh.P.2 was purchased for the purpose of executing a lease agreement which was to be executed by Din Muhammad in favour of Fazal Haq. He also testified that Din Muhammad was to give the entire inherited property on lease on behalf of all the legal heirs of Ata Muhammad. He then testified that the land, which had been inherited by Din Muhammad, had been purchased by him and other L.Rs. Of Ata Muhammad prior to the execution of Exh.P.2.
13. The entire testimony of Inayat Ali F shows that he had set up a false defence. The learned appellate Court, however, dismissed the suit of the petitioners/ plaintiffs on the short ground that there was no written agreement between the petitioners and Inayat Ali while there were agreements reduced into writing by some of the other legal heirs of Ata Muhammad in favour of the petitioners. It was also observed that the petitioners/plaintiffs were to prove their own case and could not be allowed to rely on lacunas in the defence set up by the respondent/defendant. In the circumstances, the learned appellate Court has proceeded on the erroneous premise that the onus of proof of Issue No.1 had not shifted onto the respondent and, therefore; he was not required to provide proof in rebuttal. The evidence, both oral and documentary, produced by the petitioners established the oral agreement and, thus, shifted the onus of proof onto the respondent/defendant. The learned appellate Court, therefore, committed legal error by holding that the lacunas in the evidence of the respondent were inconsequential.
14. In view of the foregoing discussion, I find that the learned appellate Court exercised its jurisdiction with material irregularity. In view of the evidence discussed above, it is clear that the respondent has completely failed to prove his defence and to rebut the testimony led by the petitioners/plaintiffs. The appellate judgment and decree, therefore, being unsustainable, are set aside. As a consequence, the judgment and decree of the learned trial Court dated 24-4-1995 stand restored.