MUHAMMAD JEHANGIR ARSHAD, J.---This civil revision is directed against the consolidated judgment of the learned trial Court/Civil Judge 1st Class, Haroonabad dated 15-4-2004 whereby the suit for specific performed filed by the petitioner was dismissed and the suit for declaration with possession filed by the respondents was decreed against the petitioner and two appeals filed by the petitioners against both the above judgments were also dismissed by the learned Additional District Judge, Haroonabad on 30-4-2004.
2. The facts discernible from the record briefly stated are that respondents Muhammad Sarwar and others admitted owner of the suit property filed a suit seeking declaration and possession of the property fully described in the head-note of the plaint, against the petitioner by pleading that the property in dispute was obtained by the petitioner as a licensee with the undertaking that same would be handed over to him whenever so required by the respondent.' On the other hand, the present petitioner filed a suit for specific performance on the basis of oral agreement to sell against the respondents claiming that an agreement of sale of the suit-land was struck between Ghulam Muhammad predecessor-in-interest of the respondents with the petitioner some twenty years before the institution of the suit i.e. 15-4-1998 at the rate of Rs.50 per Marla and said Ghulam Muhammad after obtaining Rs.1,200 also handed over possession of the same and petitioner after obtaining possession raised construction over there by spending huge amount and were thus, putting up their residence in the same and that thereafter, the petitioner paid an amount of Rs.7,000 to Muhammad Aslam one of the respondents by remitting the same from Saudia Arabia through cheque dated 23-6-1979 and Rs.9,000 through cheque dated 7-1-1979 as remaining balance price.
Both the parties filed their written statements in respective suits and the learned trial Court framed the following consolidated issues:-- Issues
(1) Whether the defendant Noor Nabi has purchased the disputed land measuring 1 Kanal, 4 Marlas from the father of the plaintiffs at the rate of Rs.50 per Marla about 20 years ago, hence he is entitled to the decree of specific performance of the contract as prayed for? OPD
(2) Whether the defendant had sent Rs. 15,000 from Saudi Arabia in the account of Muhammad Irshad plaintiff No.2? OPD
(3) Whether the defendant had incurred expenses on the construction of his residence on the disputed land? If so, of what value? OPD
(4) Whether the plaintiffs have no right to file this suit as disputed land has still not been transferred in their names after the demise of their predecessor? OPD
(5) Whether the parties have got no cause of action and locus standi to file their respective suits?
OP Parties.
(6) Whether Noor Nabi defendant is estopped by his own act/conduct to file suit for specific performance of contract? OPP
(7) Whether the suit of Noor Nabi defendant is counterblast to the plaintiff's suit for possession? OPP
(8) Whether the suit of both the parties are mollified, vexatious and frivolous, hence they are entitled to get special costs under section 35-A of C.P.C. From opposite party? OP Parties.
(9) Whether plaintiffs are owners of the disputed land and are entitled to get their possession as prayed for? OPP
(10) Relief.
The parties produced their evidence and on the conclusion of trial, the learned trial Court vide consolidated judgment, dated 15-4-2004 dismissed the suit of the petitioners but granted a decree for declaration and possession in favour of the respondents. The petitioners aggrieved of above mentioned judgment and decree of the learned trial Court filed two separate appeals but the same were also dismissed by the learned Additional District Judge, Haroonabad vide judgment, dated 11-11-2005, hence this civil revision.
2. On 23-11-2005 pre-admission notice was issued to the respondent who is now represented by Mian Saleem Akhtar, Advocate.
3. It has been argued by learned counsel for the petitioner that since it is established from the record that petitioner was in possession of the suit property having raised construction, hence there was a presumption in his favour that they obtained possession of the property and raised construction under the agreement, they were therefore, justified in filing the suit and same should have been decreed by the learned trial Court but the learned trial Court wrongly dismissed the same. The learned counsel has further argued that since it is admitted by the respondents that property in dispute was given to the petitioner as licensee therefore, in terms of sections 63 and 64 of the Easements Act the petitioner is entitled to compensation before his eviction from the suit property.
4. On the other hand, learned counsel for the respondents/owners has opposed this petition by contending that there are concurrent findings of two Courts below about non-existence of any agreement to sell between the parties and possession of the petitioner over the suit property is not more than that of a licensee and not under the agreement. Learned counsel for the respondents further submits that the petitioner has failed to bring any convincing evidence on record to prove that there was any agreement to sell between the parties with regard to the disputed property in favour of the petitioner and the only evidence available on record is that of statement of the petitioner himself and his brother namely Muhammad Ashraf D.W.2.
5. In the light of above mentioned arguments of learned counsel for the parties the evidence available on record has been perused.
6. It is an established principle of law that it is the party who alleges agreement to sell must prove it. In the instant case the petitioner has failed to produce any convincing evidence to prove that there was any agreement to sell between the parties. So far as possession of the petitioner is concerned, the same has been claimed by the respondent as one of licensee. The two Courts below have rightly held after appraising the evidence about non-existence of any agreement to sell in favour of the petitioner. In the absence of any such evidence, the possession of the petitioner may be either as a trespasser or under the license; in both the cases he cannot resist the suit for possession except for legal justification which is not established by the petitioner. So far as the argument of learned counsel for the petitioner that petitioner has protection of sections 63 and 64 of the Easements Act is concerned, I am afraid that in the absence of any such plea having been raised in the pleadings, no issue to this effect having been framed and no evidence having been led on this point, the petitioner can raise this plea at this stage. Even otherwise, the petitioner is estopped from taking this plea especially when he does not admit himself as licensee under the respondents. He can therefore, not be allowed to blow hot and cold in the same breath, rather the two pleas are mutually destructive of each other which the petitioner is not legally permissible to raise at this belated stage. The judgments of two Courts below being based on record call for no interference, hence, this petition has got no force and is accordingly dismissed in limine.