' KHILJI ARIF HUSSAIN, J.--- The petitioners aggrieved by the impugned judgment dated 4-10-2006 passed by the learned Peshawar High Court, Peshawar, dismissing their Civil Revision No,26 of 2004, seek leave to appeal.
2. The petitioners/plaintiffs filed a suit seeking declaration to the effect that they were owners in possession of land measuring 34 Kanals and 13 Marlas, fully described in the plaint having purchased it from Muhammad Nawaz Khan, respondent/defendant No,1 for a sale consideration of Rs,80,000 and that the order of Revenue Officer dated 25-3-1981 rejecting the sale Mutation No,10163 and the subsequent alienation of the suit-land by respondent/defendant No,1 in favour of Muhammad Yousaf and Abdul Bari, respondents/defendants vide Mutation No,10203 dated 1-7-1981 was ineffective over the rights of the petitioners/plaintiffs. The petitioners/plaintiffs also prayed for specific performance of the sale agreement and in the alternative for recovery of Rs,80,000 allegedly paid to respondent/defendant No,1 as sale consideration of the suit-land. The respondents/defendants contested the suit and filed written statement.
3. After framing the issues and recording evidence, learned Senior Civil Judge, Lakki Marwat, passed a decree for Rs,10,000 in favour of the petitioners/plaintiffs but dismissed the suit relating to the land in question. Thereagainst the petitioners/plaintiffs filed appeal with regard to their claim on the suit-land while the respondents/defendants filed appeal challenging the propriety of the judgment to the extent of the decretal amount. Both the appeals and revisions were dismissed respectively by learned Additional District Judge, Lakki Marwat and learned Peshawar High Court, Peshawar, on 17-12-2003 and on 4-10-2006, giving rise to this petition.
4. Mr. Wasimuddin Khattak, learned counsel for the petitioners, argued that when the trial Court has decreed the suit for Rs,10,000/being the amount paid under the agreement of sale, learned trial, appellate and revisional Courts committed error of law and facts in refusing grant of relief of specific performance with regard to the suit-land to the petitioners/plaintiffs.
5. We have considered the arguments advanced by the learned counsel and perused the record. It appears from the record that the respondents/defendants in their written statement specifically denied that they had agreed to sell the land in question and averred that the entry in the Revenue Record was made by fraud, which was rightly cancelled by the Revenue Officer on 25-3-1981. In para 3 of the written statement, the respondent/defendant No,1 stated that he had taken loan of Rs,10,000/from the petitioner, for which promissory note was executed by him. The trial, appellate and revisional Courts on the basis of the evidence on record came to the conclusion that the petitioners could not be declared to be the owners of the land in question on the basis of sale mutation which was rejected/cancelled by the Revenue Officer and the said land was transferred to respondents/defendants Nos.2 and 3 through exchange Mutation No,10203 attested on 1-7-1981 and as such, equitable relief for a decree for specific performance of the sale agreement cannot be granted in favour of the petitioners but learned trial Court in view of the statement made by the petitioner's witness regarding a sum of Rs,10,000 received by the respondent and in the written statement respondent's admission that he had received said amount as a loan and not as a sale consideration, for which he had executed a promissory note, passed a decree for Rs,10,000 in favour of the petitioners.
6. The Court of equity is not bound to grant a decree for specific performance of an agreement, even though the agreement is proved, and the Court has to take into consideration the circumstances surrounding the transaction to decide whether equitable relief of specific performance should be granted or not, and while granting or refusing relief of specific performance to decide whether or not grant compensation, as may be assessed by the Court. No infirmity has been pointed out by the learned counsel in the concurrent findings of fact so as to persuade us to exercise jurisdiction under Article 185(3) of the Constitution.
7. In the circumstances, this petition has no merit, which is dismissed and .