MIAN HAMID FAROOQ, ' Raza Muhammad etc., the appellants/defendants Nos.2 to 4, through the instituting of the present second appeal, have called in question judgment and decree dated 30-7-1988, whereby the learned District Judge dismissed their appeal and maintained the judgment and decree dated 10- 6-1985, passed by the learned trial Court, through which it decreed respondent No, 1 's suit for specific performance of contract.
2. Dost Muhammad, respondent No, 1/plaintiff, filed a suit for specific performance, against Mian Ramzan, respondent No,2/defendant No,1 and the appellants/defendants Nos.2 to 4, averring therein, that the appellants entered into an agreement to sell with Mian Ramzan regarding the suit property and they, after the receipt of the sale consideration, delivered the possession of the land in question to Mian Ramzan, who, while acknowledging the superior right of preemption to Dost Muhammad, agreed to transfer the said land orally to him for consideration of Rs,24,000. It was further pleaded by Dost Muhammad that it was agreed between him and Mian Ramzan that he would execute the sale-deed in favour of the plaintiff when he would get the mutation sanctioned in his favour and an agreement was also executed between the parties. According to the plaintiff, the appellants and respondent No,2 colluded, the appellants did not transfer the said land to respondent No,2, and, thus, necessitated the filing of the suit. The appellants resisted the suit by filing the written statement, while it appears from the record that respondent No,2 did not contest the suit and remained absent. The appellants controverted the allegations levelled in the plaint and claimed that they are the owners in possession of the land in question and that the respondents have no concern with the land in question. The learned trial Court framed the following issues. Issues:--
1. Whether the defendants Nos.2 to 4 are entitled to special costs? If so, to what extent? OPD 2 to 4
2. Whether the suit is incorrectly valued for the purposes of court-fee? OPD 2 to 4
3. Whether defendants Nos.2 to 4 entered into a contract of sale with defendant No,1 and received the sale consideration? OPP
4. Whether defendant No,1 in recognition of the superior right to pre-emption of the plaintiff transferred the land to him for Rs,24,000 along with possession? OPP
5. Whether the plaintiff is entitled to decree for specific enforcement of the contract and permanent injunction? OPP
6. Relief.
' The learned trial Court, after recording the evidence of the parties, proceeded to decree the suit, favouring Dost Muhammad, vide judgment and decree dated 10-6-1985. Appellants' first appeal was also dismissed by the learned District Judge, vide judgment and decree dated 30-7-1988, hence the present second appeal.
3. Respondent No,2 was proceeded ex parte by this Court, vide order dated 5-4-2002.
4. Learned counsel for the appellants submitted that both the Court have committed legal errors in rendering the impugned judgments, inasmuch as the same suffer from misreading and non- reading of evidence on record. He, while referring to the evidence on record, has submitted that the same has not been appreciated in its true. Perspective. Conversely, the learned counsel for the respondent No,1 has supported both the impugned judgments.
5. After hearing the learned counsel for the parties and upon the examination of the record, I find that the crucial issues are Issues Nos.3, 4 and 5, the onus of which was on the plaintiff. In order to prove these issues, the plaintiff produced Allah Wasaya, P.W.1, Ghulam Rasool, P.W.2 and he himself appeared as P.W.3, while one of the appellants appeared as D.W.1. Upon the examination of the evidence on record, I find that the plaintiff could not prove the existence and execution of the agreement to sell between him and the appellants. There was no privity of contract between the appellants and the plaintiff. Even according to the own showings of the plaintiff, the appellants agreed to sell the land in question to Mian Ramzan, who, in turn, agreed to sell the same land to him. When there was no agreement to sell between the appellants and the plaintiff, then question of decreeing the suit for specific performance against the appellants does not arise. When, admittedly, there was no direct agreement regarding the sale between the plaintiff and the appellants, the suit for specific performance was not maintainable against the appellants.
Additionally, from the evidence on record, respondent No,1/ plaintiff could not prove about the payment of the price/ consideration, either by respondent No,1 to the appellants or by the plaintiff to the respondent No,2. According to the record, it has not been proved that in fact sale was finalized in favour of Mian Ramzan. If there was only an agreement to sell, favouring him, then Mian Ramzan did not file any suit for specific performance against the appellants, rather he was one of the defendants in the suit. The statements of the plaintiff's witnesses, in the present set of circumstances, cannot be believed, more so, when they are full of contradictions and the fact that P. W.1 is the clerk of the counsel for the plaintiff. Additionally, Mian Ramzan was not even produced as one of the plaintiff's witnesses, as the entire case of the plaintiff hinges around the statement of Mian Ramzan.
6. In the above perspective, I have examined both the impugned judgments and find that they have been rendered in complete oblivion of the facts of the case, evidence on record, exceptionable and definitely call for interference by this Court, thus, I am inclined to set aside both the judgments.
8 (sic). Upshot of the above discussion is that the present appeal is allowed and both the judgments and decrees are set aside, with no order as to costs. Resultantly, respondent No,1 ' s suit for specific performance stands dismissed.