, MUHAMMAD AKHTAR SHABBIR, J. This Regular Second Appeal arises out of the facts of a civil suit for specific performance of contract dated 13.12.1996, whereby the deceased Mukhtar Hussain predecessor-ininterest of respondents Nos. 2 to 6 allegedly agreed to sell the disputed property in favour of respondent No. 1 for a - consideration of Rs. 5,25,000/- at the rate of Rs. 1,10,000/- per acre and received Rs. 25,0001- as token in the presence of the witnesses. The additional payment worth Rs. 2,00,000/- was to be made till 12.01.1997. The remaining amount had to be advanced till 01.06.1997 at the time of completion of the sale either through registration or mutation. As per the plaintiff/respondent No. 1.
The deceased Mukhtar Hussain predecessor-in-interest of respondents Nos. 2 to 6 with mala fide intention alienated the property in favour of defendant No. 2 the present appellant through mutation of sale No. 1795, dated 16.02.1997. The suit was contested by the present appellant through as well as deceased Mukhtar Hussain defendant by filing their written statements: During the pendency of the suit the vendor Mukhtar Hussain died and his legal heirs were brought on the record. From the factual controversy appearing on the pleadings of the parties , the learned Trial Court led to frame the following issues:--- ISSUES: (1) Whether defendant No. 1 executed on agreement to sell with the plaintiff on 13.12.1996 by means by which an agreement to sell pertaining on the suit property was settled between them against an agreed sale price of Rs. 5,25,000/- OPP.
(2) Whether plaintiff, paid an earnest money of Rs. 25,000/- to the defendant No. 1 on 13.12.1996?
OPP.
(3) Whether 12.01.1997 was settled as the date for payment of Rs. 2,00,000/- between plaintiff and defendant No. 1/OPP.
(4) Whether the impugned mutation No. 1795, dated 16.2.1997 is against facts and law liable to be set aside? OPP.
(5) Whether the plaintiff is entitled to the decree for possession through specific performance of contract as prayed for? OPP.
(6) Whether the defendant No. 2 is bona fide purchaser of the suit property against valuable consideration? OPD.
(7) Whether the plaintiff has got no cause of action/locus standi to institute this suit? OPD.
(8) Whether the plaintiff is estopped by his words and conduct to institute this suit? OPD.
(9) Whether the plaintiff has instituted this suit with mala fide intention just to blackmail the defendant as such the defendant is entitled to recover a special costs of Rs. 50,000/- under Section 35-A C.P.C.? OPD.
'0.0) Relief.
2. After recording, appreciating the evidence of the parties pro and contra, the learned Trial Court decreed the suit of the plaintiff/respondent No. 1 vide, judgment and decree dated 25.11.2002.
Feeling aggrieved the present appellant preferred an appeal, which came up for hearing before the learned Addl. District Judge, Chiniot, who vide impugned judgment and decree dated 12.11.2003 dismissed the same.
3. The learned counsel for the appellant contended that the vendee/defendant deceased Mukhtar Hussain had denied the execution of the receipt and sale of property in favour of plaintiff/respondent No. 1 and filed his written statement whereby he categorically denied the execution of the sale receipt as well as transaction of sale. Further contended that the plaintiff/respondent No. 1 has failed to establish the bargain of sale Ex.P/1 as well as the payment of the advance token money in accordance with Qanun-e-Shahadat Order, 1984. Further contended that one of the witnesses of the plaintiff/respondent No. 1 Mansab Dar is real brother of the plaintiff/respondent No. 1 whose testimony is not worth reliance being interested witness. Further contended that the service of summons issued by the Court on Abdul Rehman's husband of the appellant is maneuvered and it was not confronted to him. Further contended that service of the husband of the appellant would not be service of the appellant in the eye of law. It was further contended that the appellant is a 'bona fide purchaser', for value without notice and possession of the property . Was delivered to him by the vendor Mukhtar Hussain. Further contended that the terms and conditions of the contract of sale have not been established by the plaintiff by producing sufficient and convincing evidence. Further contended that none of the legal heirs of the deceased/vendee Mukhtar Hussain has appeared in the Court in favour oftheplaintiff/respondent No. 1. While on the other hand, learned counsel for the contesting respondent r No. 1 vehemently opposed the arguments of the learned counsel for the appellant contending that the receipt Ex.P.1 is proved on the record by the scribe of the receipt as well as one of the marginal witness. Learned counsel for respondent No. 1 supported the judgments of the Court below.
5. I have heard the learned counsel for the parties and perused the record.
6. The question that boils down for determining by this Court is whether the deceased defendant No. 1 Mukhtar Hussain had agreed to sell the suit property to the plaintiff through Ex.P/1. Under the Contract Act an agreement is an act in law whereby two or more persons declare their consent as to any act or thing to be .Done or forborne by some or one of these persons for the use of the others or other of them through the process of writing.
It is the essence of a contract that there should be an "aggregatio mentium", (the meeting of the minds of the contracting parties). Where the parties are in agreements as to the terms, it is not necessary that they should enter into a regular written contract. The existence of the contract can be inferred from their conduct. A contract is a consensual act, the parties being free to settle any terms they pleased. A contract creates legal obligations. A promise which is voluntary and by which the parties do not intend to create any legal obligation cannot amount to a contract. The mere fact that a person gave certain quotations in response to the tender, notice even granting that it was the lowest quotation, will not in any manner, create an obligation on the person, who issued the tender, notice and no contract comes into existence by that act.
7. The intention of the parties to a contract must be looked at to determine whether a contract has been executed or not. Where they did not intend to enter into a contract, there can be no contract.
Therefore, in spite of the fact that an agreement is embodied in a document the parties could show even by oral evidence that when the C.! R. document was signed they intended that it should not operate as an agreement and, therefore, there is no contract at all A contract for the sale of immovable property is a contract that a sale property shall take-place on terms settled between the parties: It is clear from the above proposition of law that the essential terms of the sale of immovable property are:--
(a) payment of the sale price of property or promise to pay the same by the purchaser to the seller; and
(b) the delivery of possession of the property sold by the seller to the purchaser.
If these two essential terms of sale of the immovable property are determinable in the agreement between the parties with certainty, it may constitute a valid agreement of sale between the parties as laid down in the case of Messrs Karachi Gas Company vs. Messrs Fancy Foundation (PLD 1984 Karachi 233).
8. In the case in hand, in addition to the statement of the plaintiff PW-2 Zaffar Abbas and PW-3 Mansab Dar .Appeared to establish the transaction of sale agreement. As per the plaintiff's version before the execution of the receipt Ex.P/1 the transaction of sale was struck of 4/5 days earlier.
There is no independent witness of the transaction except the plaintiff PW-1 Zahoor Hussain and PW-3 Mansab Dar real brother of the plaintiff, who is an interested witness. It is admitted by the plaintiff that no person was present at the time of bargain of the suit property from the place where the bargain was struck of. He stated that the bargain was made in the house of the defendant/vendee. While PW-3 Mansab Dar, who is real brother of the plaintiff has deposed that the bargain was struck of on the land in dispute. He also admitted that there was no independent witness present there at that time. On the day of bargain no amount was advanced to the defendant/vendee Mukhtar Hussain. The plaintiff has based C.L.R. his case on a receipt of payment of Rs. 25,000/- Ex.R1, which was also not signed by any independent marginal witness of the document. No term and condition of the sale agreement has been mentioned in the said receipt neither detail of the property is reflected in the said so-called document the receipt Ex.P/1. So much so at the end of that receipt the name of Mukhtar Hussain vendor is written but it is not signed by him nor any of the marginal witness. Surprisingly on the back page of this receipt the signatures of Mukhtar Hussain has been shown. The number of the identity card of Mukhtar Hussain is not mentioned and it is also admitted position that none at the time of execution of this receipt except the real brother and the scribe was present: So at all stages, at the time of making the bargain, at the time of execution/writing of Ex.P/1 and at the time of effecting service of the vendee, only Mansab Dar PW-3 was shown present. Surprisingly no other independent witness was available to the plaintiff/respondent No. 1 and under this agreement the possession of the property has also not been delivered to the plaintiff by the vendor and it is admitted by the plaintiff and his witnesses that the possession of the property was delivered by the vendor to Mst. Rashda Bibi with whom he has made an agreement to sell and in this regard a mutation of sale was sanctioned by the revenue authorities.
9. The vendor Mukhtar Hussain has contested the suit, filed his written statement denying the averments of the plaint as well as the sale agreement during his life time. From the oral evidence on record or from the document Ex.P/1, the intention of the vendor is not established that he agreed to sell the suit property in favour of the plaintiff. Rather it is only sort of receipt acknowledging a sum of Rs. 25,000/- as earnest money and not showing essential terms of sale consideration time for completion of sale, payment of balance of sale consideration or anything about deliver of possession of property, which creates serious doubts existing between parties abowt sale consideration. Burden of. proving sale transaction, payment of consideration has not been discharged by plaintiff seriously.
The description qua addresses of vendor and vendee as well as the total measurement of the suit property is not mentioned in the receipt Ex.P/1. The document relied by the plaintiff was not mentioning the most important term of contract of sale and lacking the essentials of 'a contract:-- -
(i) competent parties;
(ii) subject-matter; (i.e) legal consideration;
(iv) mutuality of agreement; and
(v) mutuality obligations.
So it cannot be said that the parties were 'ad idem' as to all the essential terms of sale. It is held in the case of Custodian of Enemy Property vs. Hushang M. Dastur (PLD 1977 Karachi 377) that the true test for deciding whether the parties -had reached a concluded contract: or not, is to ascertain whether the parties were of one mind on all the material terms at the item it is said to have been finalized between them and whether they intended that the matter was closed and concluded between them and in the light of the evidence which has come on record in this case, it cannot be said that parties were of one mind on the sale consideration of the property in dispute The receipt Ex.P/1 is silent with regard to the exact amount of consideration of the property and the sale consideration of the property is the essential term of the agreement and in the absence of essential terms of agreement of sale, no agreement/contract of sale could comes into existence.
Reference in this context can be made to the case of Shajar Ali Hati vs. Esmail Sobhani (1985 CLC 342).
10. Deep examination of the evidence produced by the plaintiff shows that PW-2 the alleged scribe of the document Ex.P/1 Zafar Abbas also admitted that the terms of the sale agreement have not been mentioned in this receipt. So much so the receipt Ex.P/1 has not been proved in accordance with Qanun-e-Shahadat Order even at the time of recording of the evidence of PW-2 said receipt was not shown to him and in this regard, he categorically stated in his statement that he saw only the photocopy of the 'receipt. He further stated that he did not know the plaintiff before the writing of Ex.P/1. Mansab Dar PW-3 has also admitted that he did not know Zafar Abbas PW-2 at the time of execution of the receipt Ex.P/1. He was cross-examined in this regard and he clearly stated that he did not know, where Zafar Abbas PW-2 was residing in those days. Mansab Dar PW-3 has also not read the writing of the receipt Ex.P/1 neither on the day of recording of his statement he saw the said document. He stated that he saw the said document one day earlier. The possession of the property with Mst. Rashda Bibi vendee is also admitted by the said witness. The oral contract of sale between the plaintiff and the vendor Mukhtar Hussain lacks the ingredients of a valid contract/agreement and the suit for specific performance on the basis of such agreement cannot be decreed. The plaintiff has miserably failed by producing 'sufficient and cogent' evidence to prove the transaction/bargain of sale, execution of Ex.P/1. The above discussed evidence available on the record and this factual and legal aspect of this case has not been considered by both the Courts below. A vendee whose transaction of sale of the property and possession for the same is admitted, cannot be deprived of the property'on the basis of the above referred sham transaction of sale. Therefore, the findings of the Courts below on Issue No. 1,2,3 & 5 are reversed and decided against the plaintiff.
11. As stated in the preceding paragraphs the Rapat Rozanamcha "Waqiati" 207 was entered by the Patwari on the statement of Mukhtar Hussain on 11.02.1997 and 40-kanals land was sold for consideration of Rs. 7,50,000/- by the vendor and after the said sale with the appellant by Mukhar Hussain how could he sell the land in favour of the respondent for a lessor price. There is no answer. Learned counsel for the respondents could not answer this argument. From the record it reveals that the sale in favour of the appellant was prior in time on 11.02.1997 and the sale - mutation in this regard was sanctioned on 14.02.1997 .While Ex.P/1 has been executed on 13.02.1997 so the plaintiff and his witnesses have admitted the sale agreement of the appellant with Mukhtar Hussain and delivery of the possession, therefore, it cannot be said that the sale in favour of the appellant was made by the vendor after the sale made in favour of the plaintiff. The important feature of the case is that hastily the receipt Ex.P/1 was maneuvered by the two brothers, the plaintiff and Mansab Dar PW-3 and the suit was filed on 15.02.1997 and on the same day the service, has been shown to have been effected on the husband of the appellant Abdul Rehman's which too with the connivance of the Process Server, who was taken on motorcycle by Mansab Dar despite the fact that the Process Server did not know him. The whole story of sale agreement by the plaintiff with the vendor seems to have been manoeuvered and concocted. The findings of the Courts below on Issues No. 4 & 6 are, therefore, reversed.
12. Defendant No. 2 Mst. Rashda Bibi claims to be bona fide purchaser of the suit property for a valuable consideration without notice. The vendor Mukhtar Hussain sold the property in favour of Mst. Rashda Bibi defendant and in this regard he approached the revenue Patwari on 11.02.1997 and got recorded a Rapat Roznamcha Waqiati Ex.D/2. The revenue Patwari entered the mutation on the said date and produced before the revenue officer who sanctioned the same on 14.02.1997.
Mukhtar Hussain vendor sold 40-Kanals land situated in Khewat No. 31/33 through the mutation of sale No. 1795 and at that time, no sale agreement was in the knowledge of the appellant Mst.
Rashda Bibi. The case of the plaintiff is that he made an agreement to sell with Mukhtar Hussain 9n 13.02.1997 and as soon as he came to know about the sale of land with Mst.
Rashda Bibi, he immediately filed the suit for specific performance on 15.02.1997 and on the same day the service of the process on Abdul- Rehman's the husband of Mst. Rashda Bibi had been effected. It is very strange that on the day of institution of the suit summons were issued against the appellant by the Court and the service on the same day was effected but as per the statement of PW-4 Sabir Hussain the Process Server, he was taken to the residence of Abdul Rehman's by Mansab Dar PW-3, who was not personally known to him on that day neither he had seen him thereafter. While effecting the service, no witness of the locality was joined by the Process Server. As per the report on the back side of the summons issued, the Process Server has reported that Mst.
Rashda Bibi was not available on that date and service of the summons was effected on her husband Abdul Rehman's DW-1 who had denied his signatures on the summons and the same have also not been got compared by the plaintiff neither any finding in this respect was given by the Court itself. The report.Of sale with Mst. Rashda Bibi by Mukhtar Hussain was recorded in the Roznamcha Waqiati of the Patwari two days earlier from the alleged sale agreement of the plaintiff with Mukhtar Hussain. The other is that the service of Abdul Rehman's husband of the appellant is not service of the appellant in the eye of law. Neither PW-1 plaintiff nor Mansab Dar PW-3 who was the witness of effecting the service on DW-1 Abdul Rehman's deposed a single word in this regard that the service on 15.02.1997 when the summons was issued by the clerk of the Court was effected in his presence. The sale in favour of Mst. Rashda Bibi by the vendor is admitted by the plaintiff as well as his witnesses and real brother Mansab Dar PW-3. He admitted that the sale transaction was made by Mukhtar Hussain and Mst. Rashda Bibi. He also admitted that before the transaction the sale agreement was_executed between Mukhtar Hussain and Mst. Rashda Bibi for a consideration of Rs. 7,50,000/- and it has also been admitted by him that the possession under the sale was delivered by Mukhtar Hussain to Mst Rashda Bibi vendee/appellant and he has also admitted that' at the time of writing of the stamp papers the possession of the land was delivered in favour of Mst. Rashda Bibi There was no evidence that the sale agreement between the plaintiff and Mukhtar Hussain vendor was ever brought to the knowledge of Mst. Rashda Bibi. No notice was issued to her by the plaintiff nor any oral evidence in this regard has been produced and brought on record. Mere statement of the plaintiff and his brother is not sufficient to prove that their agreement of sale was in the knowledge of Mst. Rashda Bibi appellant. The appellant has successfully established that she was bona fide purchaser of suit property in good faith without notice for a valuable consideration. No evidence was available on the record showing that the appellant had knowledge of the execution of the sale agreement in favour of the plaintiff so no entry of sale agreement in favour of the plaintiff was got entered in the Ramachandra Waqiati (Daily Register) or in any of the revenue record nor possession was delivered to him. Sufficient and convincing evidence was not available on the record which could establish the assertions of the plaintiff. It is settled proposition by the superior Court that if the subsequent transferee stating on oath that he had no knowledge of the earlier contract he would be deemed to have discharged his burden and in that even burden would shift to other party. Reference in this context can be made to the case of Sh. Nazir Ahmad vs. Haji Ghulam Hussain and others (1985 CLC 7). Oran agreement not specifying terms and conditions of agreement is not valid in the eye of law as laid down in the case of Qazi Muhammad Saqib Khan vs. Ghulam Abbas and 2 others (2003 MLD 131).
13. In a suit for specific performance the plaintiff has to assert that a contract exists between him and the defendant. The plaintiff has to plead the facts regarding the contract which he desires to be specifically performed where prerequisite of a contract are missing the plaintiff is not entitled for decree of specific performance. Reliance in this C.L.R. Context can placed to the case of Miss Gul-e-Rana vs. Muhammad Mansoor Khan 4 others (2000 CLC 1673). In the case of Abdul Aziz and another vs. Abdul Rehman's and others (1994 SCMR 111) it has been observed that grant of specific performance of an agreement being discretionary relief, can be refused even if execution of agreement was proved.
14. Both the Courts below have based their findings' on the statement of the plaintiff. The learned Trial Court in its judgment has observed that the plaintiff has stated on Holy Qur'an that late defendant No. 1 had entered in agreement to sell the disputed property with him and received an amount worth Rs. 25,000/- and defendant No. 2 and her husband were fully aware of that agreement. The plaintiff offered defendant No. 2 or her husband to rebut her allegation on oath on Holy Qur'an but the husband of defendant No. 2 did not accept the offer and requested the Court to dispose of the matter on merits.
15. The provision of Article 163 of Qanun-eShahadat Order based on a principle that no doubt decision of a case on oath is one of the established modes for disposal of the case but at the same time, the Courts are bound to handle such cases with great care because such case involve sensitiveness and to avoid haste and rationalize emotional outbursts. The superior Court also laid down a principle by interpreting Article 163 that when evidence is available and can be produced then resort to Article 163 cannot be made. Where both the parties have led evidence, the provision of this Article should not be applied. It has been held in the case of Muhammad Sharif vs. Bashir Ahmad (1987 CLC 2006) where one party puts an application for decision of case on oath but other party refuses, no adverse presumption from same could be drawn against the other party. In another case of Shakirullah vs. Hidayatullah and 3 others (1999 MLD 389) a Division Bench of the Peshawar High Court has observed that deciion of a C.L.R. case on basis of oath, no doubt was one of established modes for disposal of cases, but at the same time Courts were bound to handle such cases with great care because such cases involve sensitiveness. The Court has to avoid haste and to rationalize emotional outburst. Court has also to scrutinize the relevant record and to record necessary statements. In the case in hand no statement of offer and acceptance of the parties has been recorded. Only on the day of arguments the plaintiff stated on oath, which was refused by the other party, therefore, adverse presumption does not come against the appellant/defendant. In .Another case of Bashir Ahmed vs. Muhammad Luqman (1999 SCMR 378) the Hon'ble Supreme Court has observed that refusal of a party to take oath, in contemplation of Section 9 of the Oaths Act, 1873, cannot result in itself defeating the claim or defence of that party.
16. It has also been observed in case of Syed Khurshid Ahmed alias Wahid Hussain through General Attorney vs. Rao Muhammad Akram Khan (2000 CLC 825k that it is a view that High Court in second appeal ordinarily cannot interfere with concurrent findings of facts. This, however, is not an absolute rule as this Court cannot shut its eyes when there was an apparent misreading of evidence and manifestly illegal conclusions had been drawn by Courts below. Manifest injustice could not be permitted to be perpetrated simply for the reason that in second appeal High' Court should not have looked at the evidence which formed the basis for the findings recorded by the Court below. The Hon'ble Supreme Court in the case of Madan Gopal and 4 others vs. Maran Bepari and 3 others (PLD 1969 SC 617) and Nazar Muhammad and another vs. Mst. Shahzada Begum and another (PLD 1974 S.C. 22) has observed that finding of fact arrived at by Court below on evidence misread and misinterpreted, Court of second appeal is entitled to review evidence.
17. It is settled proposition of law that concurrent findings of fact recorded by the two Courts below would not be disturbed by the High Court in second appeal, but could always be disturbed and reversed on the ground that the decision was based on misreading of evidence and that it was a result of perverse application of evidence or that the conclusions were drawn after ignoring vital piece of evidence on record. .Reference in this context can be made to the case of Muhammad Shoaib Alam and others vs. Muhammad Iqbal (2000 SCMR 903). It has further been observed by the Hon'ble Supreme Court that if an issue of fact has not been properly determined by the lower Courts by reason of any substantial error or defect of drawing a wrong inference about the correct legal position which materially effected the decision on merits, the High Court in second appeal could correct such error in the interest of substantial justice. Reference in this context can be made to the case of Ashraf Ali (deceased) through his legal heirs and others vs. Maryam Bibi and 4 others (2004 SCMR 1536). In another case of Muhammad Sharif and others vs. Abdul Rehman's (2004 SCMR 1571) the Hon'ble Supreme Court observed that the High Court was justified in law to reappraise the evidence of the witnesses to arrive at a conclusion whether the appraise of their evidence by the Trial Court in its judgment dismissing the suit was correct. Supreme Court itself compared the findings recorded by High Court and the statements of the witnesses produced by defendants in the original record and the judgment passed by High.Court was affirmed.
18. For the foregoing reasons, this appeal is accepted and the judgments and decrees of the Courts below dated 25.11.2002 and 12.11.2003 are set aside and the suit filed by the plaintiff/respondent No. 1 is dismissed. There shall be no order as to costs. .