' MIAN HAMID FAROOQ, J.--- Mst. Rehmu, the petitioner, seeks leave to appeal against the judgment, dated 3-3-2003, whereby the learned Lahore High Court at Lahore dismissed her appeal (R.S.A.
No,102 of 1996).
2. Petitioner/plaintiff filed a suit for specific performance of an oral agreement to sell, statedly, entered between the petitioner and respondent No,1, against the respondents, in respect of land measuring 13 Kanals, 1 Marla, described in the plaint, inter alia, pleading that respondent No,1 agreed to sell the land in question to her for a sum of Rs,90,000, out of which, she (respondent No,1) received a sum of Rs,30,000, as earnest money, while rest of the amount was agreed to be paid at the time of attestation of mutation before the Revenue Officer and possession of the land was delivered to her (petitioner). It was stated in the plaint that on the same day husband of respondent No,1 also sold her holding to the petitioner, Mutations Nos.1096 and 1095 (Exh.P.2 and Exh.P.4) were entered on 11-8-1990, husband of respondent No,1 appeared before the Tehsildar and got the mutation attested but respondent No,1 absented and thus the mutation could not be attested. It was further asserted in the plaint that respondent No,1 transferred the disputed land to respondent No,2, for a consideration of Rs,80,000 vide Mutation No,1114 (Exh.P.3) which was attested on 12-3-1991. The suit was resisted by both the respondents through filing separate written statements. Respondent No,1 admitted the bargain between the parties, however, her defence was that no amount was paid to her as earnest money, the entire sum of Rs,90,000 was to be paid at the time of attestation of mutation and as the petitioner failed to pay the said amount, therefore, the bargain was annulled. Stance of respondent No,2 was that he purchased the land in dispute in good faith and the suit filed by the petitioner was collusive as petitioner was maternal-aunt of respondent No,l. The learned trial Court framed the necessary issues, recorded the evidence of the parties and while relying upon the statements of P.W.1, P.W.2 and P.W.3 decreed the suit favouring the petitioner, vide judgment,and decree dated 19-9-1995. The said decision was challenged by both the respondents through filing a joint appeal. The learned Additional District judge after finding that there was no evidence to prove payment of earnest money of Rs,30,000 and that the suit was not maintainable, allowed the appeal and dismissed petitioner's suit, vide judgment and decree dated 26-6-1996. Petitioner's second appeal (R.S.A. No,102 of 1996) failed, when it was dismissed by the learned Lahore High Court at Lahore vide judgment and decree, dated 3-3-2003, hence the present petition.
3. Learned counsel for the petitioner submitted that respondent No,1 in her written statement did not deny the existence of agreement to sell, therefore, the learned trial Court rightly decreed her suit, but both the Appellate Courts erred in law in dismissing the suit. He further submitted that both the Appellate Courts did not properly consider the evidence on record particularly the statement of P.W.3. As regards the claim of respondent No,2, his contention was that respondent No,2 purchased the land, while he was in the knowledge about mutation No,1096, which showed that respondent No,1 agreed to sell the questioned land to the petitioner, therefore, his claim of being a bona fide purchaser could not be entertained. Learned counsel for respondent No,2, on the other hand, submitted that it was concurrently held by both the Appellate Courts that a sum of Rs,30,000, as earnest money, was not paid to respondent No,1 and that the petitioner filed the suit on 24-3-1991 after attestation of the mutation in favour of respondent No,2 on 12-3-1991. His further contention is that the suit was filed after attestation of the sale mutation in favour of respondent No,2, but the petitioner did not challenge the said mutation in the suit.
4. We have heard the learned counsel for the petitioner and examined the available record. The learned single Judge in Chambers of the Lahore High Court thoroughly considered the statements of P.W.1 and P.W.2 and after properly appreciating the same rightly came to the conclusion that petitioner could not prove the payment of earnest money of Rs,30,000 and that she was ready and willing to perform her part of contract. Learned counsel is right in submitting that bargain/sale agreement was not denied by respondent No,1 and that might be the reason as to why no issue regarding execution/entering or otherwise of the agreement to sell was framed. We are constrained to observe here that the learned counsel has raised the said plea in complete oblivion of the fact that petitioner's suit was not dismissed on the ground that she failed to prove execution of the agreement to sell, but for other reasons. It was nowhere held by any of the Appellate Courts that the agreement to sell was not proved. The only crucial issue was Issue No,3, (whether the plaintiff paid any earnest money to defendant No,1 and the plaintiff is entitled to the decree for specific performance) which the petitioner failed to prove. We have examined the statements of P.W.2 and P.W.3 and find that P.W.2 deposed that a sum of Rs,20,000 was paid to respondent No,1 and he in his cross-examination stated that he is not aware about the bargain. Admittedly, the petitioner failed to produce trustworthy, cogent and independent evidence to prove payment of the earnest money of Rs,30,000 and that she was willing and ready to perform her part of the agreement. Furthermore the statement of P.W.3 regarding payment of earnest money was belied by the entry of Mutation No,1096 in which it has been stated by the Patwari that respondent No,1 had received the entire consideration of Rs,90,000. The learned High Court has specifically adverted to the statement of P.W.3 and found that as his statement contradicts the entry of mutation, therefore, the statement of the witness cannot be believed.
5. We have also examined Mutation No,1096 entered on 11-8-1990 (Exh.P.2) and find a note in Column No,11 recorded by petitioner to the effect that Amina Bibi stated that she has sold the land favouring Mst. Rehmu for a consideration of Rs,90,000 and that she received the said amount before him. This entry even negates the averments of the plaint, as this was not even the case of the petitioner built up in the plaint. Rather, it was pleaded in the plaint that total consideration amount was R.90,000, out of which a sum of Rs,30,000 was paid as earnest money at the time of entering mutation, while rest of the amount was agreed to be paid at the time of attestation of mutation. The learned High Court has also thoroughly considered Exh.P.2 and rightly concluded that not only the note in the mutation contradicts the statement of other witnesses but the case of the petitioner also becomes doubtful. The learned High Court after examining the record has also came to the conclusion that the petitioner failed to produce sufficient evidence to prove that she was ready and willing to perform her part of contract. It appears appropriate to reproduce a portion of para.l0 of the judgment, which reads as follows:--- "I am of the view that satisfactory evidence was not produced on the record to show that the appellant has been ready and willing to perform her part of the contract. P.W.2 and P.W.3 did not so specifically state. According to P.W.1, he along with others, had gone to the Tehsildar with the money and offered it to respondent No,1 but she demanded Rs,1,00,000 and refused to make statement before the Tehsildar while her husband made the statement before the Tehsildar, the mutation of sale by husband of respondent No,1 in favour of appellant was accordingly attested. A perusal of the statement of P.W.1 shows that respondent No,1 was also present on the said date.
Thus, had the appellant been ready and willing to perform her part of the contract, there was no reason not to attest Mutation No,1096."
6. In the above perspective, we have examined the impugned judgment and find that the learned High Court after legally appreciating the evidence on record and taking into consideration every aspect of the case rightly affirmed the findings of the First Appellate Court. Learned counsel could not point out any misreading or non-reading of evidence on record justifying interference by this Court in the judgment. We see no legal infirmity in the impugned judgment sufficient to reverse the concurrent findings arrived at by both the Appellate Courts. No case for leave to appeal is made out.
7. For what has been discussed above, the present petition lacking in merits stands dismissed and leave to appeal is refused.