MUHAMMAD NAWAZ through L.Rs, vs Haji MUHAMMAD BARAN KHAN through

' IJAZ AHMED CHAUDHRY, J.---This direct appeal has been filed by Muhammad Nawaz (deceased) through his legal heirs under Article .185(2) of the Constitution. Of the Islamic Republic of Pakistan 1973 against the judgment dated 23-2-2000 passed by the Lahore High Court, through which Regular First Appeal No,38 of 1985 filed against the judgment and decree dated 28-11-1984 passed by the learned Civil Judge 1st Class Multan, has been accepted and by setting aside the said judgment, the suit filed by the appellant has been dismissed.

2. Tersely, the facts relevant for the disposal of this appeal are that Muhammad Nawaz predecessor in interest of the appellants filed a suit for specific performance on an oral agreement to sell against Haji Muhammad Baran Khan, predecessor in interest of the respondents on 12-6- 1974 alleging therein that respondent/defendant Haji Muhammad Baran Khan was owner of land measuring 1468-kanals 12-marlas situated in Jhok Gamun Tehsil and District Multan who through an oral agreement exchanged land measuring 942 Kanais 13 Marlas with the land of appellant/plaintiff situated in Mouza Bazdarwala Tehsil Multan and the appellant/plaintiff was in possession of said land. At the end of the month of January, 1973 respondent/defendant offered appellant/plaintiff to purchase his remaining land measuring 525-kanals 19-marlas, subject matter of the suit in question, which was accepted by the appellant/plaintiff and the bargain was orally struck, at a total consideration of Rs,2,63,000. The mode of payment was agreed between both the parties that the appellant/plaintiff shall open a current account in the Union Bank located in the owned building of respondent/defendant near Fowara Chowk Multan. The appellant/plaintiff shall give authority to the defendant to draw the amount from the said account according to the rules of the bank and will also handover the cheque book, of the said account to the respondent/defendant. In order to complete the transaction in question the appellant opened account No, 514 in the Union Bank Limited Multan on 3-2-1973 by depositing an amount of Rs,50,000 and gave the authority to the respondent/defendant to draw the amount from the said account according to the Bank rules and handed over cheque book to him. Thereafter the plaintiff deposited amounts in the said account on different dates making total deposit of Rs,2,39,000 which according to the oral agreement respondent/defendant withdrew from aforementioned account No, 514 with his signatures. Before filing suit the appellant/plaintiff asked respondent/defendant to receive remaining consideration amount of Rs,24,000 and perform the part of oral agreement but on his refusal the appellant/plaintiff filed the suit in question.

3. The respondent/defendant contested the suit by filing written statement wherein he denied the factum of earlier exchange alleged by the appellant as also the factum of alleged agreement to sell. However, he admitted the opening of account No, 514 but stated that it was a "Benami" account opened in the name of the appellant as other similar Benami accounts were also being operated by the respondent in the name of some other persons in the Bank.

4. The controverted pleadings of the parties necessitated framing of the following issues:--

(1) Whether the defendant entered into an agreement to sell the disputed land for Rs,2,63,000?

OPP

(2) If Issue No,1 is proved in affirmative, whether the plaintiff has paid Rs,2,63,000 to the defendant?

OPP (2-A) Whether the defendant opened any "Benami" account in the name of the plaintiff in the Union Bank Ltd; and that the defendant deposited his own money, therein" OPD (2-B) Whether the suit is mala fide? OPD

(3) Whether the plaintiff is in possession of the disputed property? OPP

(4) Whether the suit is not properly valued? OPD

(5) Whether the plaintiff is entitled to recover Rs,2,39,000 from the defendant? OPP

(6) Relief

5. After recording evidence of the parties, learned Civil Judge through judgment dated 28-11-1984 decreed the suit in favour of the appellants. The respondents being aggrieved of the said judgment and decree filed Regular First Appeal No, 38 of 1985 before the Lahore High Court, Multan Bench, Multan which was accepted through impugned judgment and decree. Hence, this appeal.

6. Learned counsel for the appellants contends that the appellants have successfully proved the execution of oral agreement to sell between the appellant and Haji Muhammad Baran Khan respondent through the evidence available on record which fact has been substantiated by the delivery of possession to the appellants as part performance of the contract and continuity thereof over the suit land till date and in such a situation this Court in the case of Said Wali v. Yaqoot Khan and another (PLD 1983 SC 440) held that a civil suit can also be decided on the basis of material mentioned in the definition of "proved" in section 3(2) of the Evidence Act 1872, as such, the learned High Court, while basing his finding on surmises and conjectures, wrongly dismissed the suit of the appellants; that the opening of the account in the name of Muhammad Nawaz appellant is admitted one, withdrawal of amount from his account in the Habib Bank Limited, Factory Area, Multan and depositing the same in account No,514 with the Union Bank Limited, Multan on the relevant dates has also been proved by the comparison of Exh.P-2 with Exh.P-1/2 but the learned High Court did not at all advert to the aforesaid facts proved on record, as such, has committed an illegality by not taking them into consideration; that the withdrawal of the amount from the Bank is admitted fact as is apparent from the statement of Syed Laeeq Yousuf Bukhari, Manager, United Bank Limited, Abdali Road, Multan who entered appearance in the witness box as P.W.1 wherein he categorically stated that the account was opened in the name of Muhammad Nawaz appellant, appellant/plaintiff also handed over power of attorney (Exh.P.W.1/3) to the Bank in favour of respondent and that on application made by respondent/defendant on 19-4-1973 (Exh.P.W.1/4) an amount of Rs,1,90,900 was transferred in account No,CD-371 maintained by the respondent/defendant but the learned High, Court has totally ignored the said evidence; that Malik Qadir Bukhsh, P.W.3 and Matloob Ahmad Ansari, P.W.4 also fully supported the contents of the plaint; that the well-reasoned judgment of the learned trial Court could not have been set aside by the High Court without dealing each and every aspect of the case; that the learned High Court has also failed to take into account the factum of continuous possession of the appellant/plaintiff over land measuring 212 kanals out of total land measuring 525 kanals 19 marlas agreed to be sold by the respondent/defendant in favour of the appellant/plaintiff and that the oral agreement is permissible under the law as observed by this Court in the case of MRs, Mussart Shaukat v. Mr. Safia Khatoon and others (1994 SCMR 2189) and as such the High Court has committed a patent illegality while setting aside the well-reasoned judgment passed by the learned Civil Judge decreeing the suit of the appellant.

7. On the other hand, Mr. Gulzarin Kiyani, learned counsel for respondent No,2 although admitted that the oral agreement is permissible under the law, yet, to prove the said oral agreement there must be credible and unimpeachable character of evidence; that no date and time has been given by the appellant in the plaint of the agreement to sell and only it has been mentioned that it was agreed in the last days of month of January, 1973; that there are material contradictions in the statement of Muhammad Qadir Bukhsh P.W.3 and the stance of appellant in the plaint regarding the manner in which an amount of Rs,50,000 was paid at the time of execution of agreement to sell as in the plaint it has been asserted that an amount of Rs,50,000 were paid to the respondent/defendant at the time of agreement to sell; that no date of completion of agreement to sell has been given; that the schedule of payment has also not been mentioned in the plaint as settled at the time of so-called oral agreement to sell; that since the property is jointly owned by the parties, the appellant/plaintiff having already purchased some portion of the property, therefore, he was in possession of the property as a joint owner from where it cannot be deduced that he was possessing the property in dispute as no possession was ever delivered to the appellant at the time of alleged oral agreement to sell, as such, the appellant/plaintiff has badly failed to substantiate his claim; that even no explanation has been furnished by the appellant/plaintiff that when he had purchased land measuring 525 kanals through alleged agreement to sell why he had not taken possession of the entire land from the respondent/defendant; that Muhammad Nawaz appellant stated in Exh.D-3 that the respondent had opened a "Benami" account in his name and it is nowhere mentioned therein that the account has been opened in pursuance of any oral agreement to sell; that Syed Laeeq Yousuf Bukhari, Bank Manager, P.W.1 during his cross-examination admitted that all amounts were deposited by Haji Muhammad Baran Khan and the receipts have been produced by him in the Court and if the amount was being deposited by the appellant the possession of the receipts would have been with the appellant and even no receipt has been produced by the appellant; that in case of variance of judgments the judgment of Appellate Court must sustain as held by this Court in the case of Madan Gopal and others v. Maran, Bepari and others (PLD 1969 SC 617) and Muhammad Shafi and others v. Sultan Mehmood and others (2010 SCMR 827); that the appellant has badly failed to prove opening of the account in pursuance of the oral agreement through any independent evidence; that even the names of the marginal witnesses of the oral agreement to sell were not mentioned in the plaint, as such, it cannot be said that the witnesses produced by the appellant as marginal witnesses were actually the witnesses of the alleged oral agreement to sell. He has referred to the case of Mst. Sardar Bibi v. Muhammad Bakhsh and others (PLD 1954 Lahore 480). Learned counsel further contended that the appellant has totally failed to prove the execution of the alleged oral agreement to sell, as such, the instant appeal is liable to be dismissed with costs.

8. We have heard the arguments of the learned counsel for the parties and have perused the record.

9. A perusal of the plaint reveals that the appellant/plaintiff while asserting his claim regarding execution of alleged oral agreement in between the appellant and respondent neither mentioned the date of striking of the bargain nor the witnesses in whose presence the said oral agreement to sell was arrived at between the parties. The appellant/plaintiff has only mentioned in Para 2 of the plaint that respondent/defendant at the end of January, 1973 offered appellant/ plaintiff to purchase his remaining owned land measuring 525 kanals 19 marlas. It is also strange that no period was fixed for completion of the oral agreement and such a fact did not find mention in the plaint. The appellant/plaintiff produced the alleged marginal witnesses of the oral agreement to sell, namely, Muhammad Qadir Bakhsh P.W.3 and Matloob Ahmad Ansar P.W.4 but their names were not incorporated in the plaint by the appellant/plaintiff. Malik Muhammad Qadir Bakhsh (P.W.3) while appearing in the witness box stated that the bargain was struck in his presence and the appellant/plaintiff paid a sum of Rs,5,000 to the respondent/defendant in the month of January, 1973 through him. The respondent/defendant admitted at that time that the appellant/plaintiff has already paid him Rs,45,000 which are lying in the locker of the Bank and the said amount will also be considered in the bargain. The price of land per square was settled as Rs,1,00,000. It was also settled that the appellant/plaintiff will deposit the amount in the Union Bank Limited situated in the building owned by the respondent/defendant at Fowara Chowk, Multan after opening an account and then the respondent/ defendant will draw that amount and the mutation will be got sanctioned after payment of the consideration. The second marginal witness, namely, Matloob Ahmed Ansari entered appearance in the witness box as P.W.4 and stated that on 3rd March, 1973 Muhammad Nawaz, appellant/plaintiff came to his house situated in Multan City at 8-00 a.m. And stated that he has deposited an amount of Rs,1,50,000 in the Habib Bank, Factory Area Chowk Sheh Abas, Multan as he wanted to pay this amount as price of the land. The respondent/defendant asked that he is calling Mr. Bukhari, Manager of Union Bank, Chowk Fowara Branch, Multan which is located in the building of ,the respondent/defendant so that the Manager can receive the said amount by accompanying them to the Habib Bank Limited and deposited in his Branch. After reaching there the appellant/plaintiff asked Mr. Zaidi, Manager Habib Bank Limited to pay Rs,1,50,000, who stated that since the said Branch has newly been opened, therefore, he can only arrange for Rs,50,000. The appellant/plaintiff also said that he had to pay Rs,1,50,000 to the respondent/defendant in lieu of disputed land. The said Manager has promised to pay an amount of Rs,100,000 after eight/nine days. The said witness stated that he did not get the bargain settled in between appellant and respondent. When for the first time they went to take an amount of Rs,50,000 then he came to know that the bargain has been settled in between the parties.

Muhammad Nawaz appellant/plaintiff himself appeared in the witness box before the learned trial Court as P.W.6 and stated that the bargain regarding the disputed property was orally struck with respondent in the year 1973 for a consideration of Rs,2,63,000 according to the terms that he will open an account in his own name in the Union Bank situated in the building of respondents and shall keep on depositing the amount in the said account, whereafter he deposited a sum of Rs,2,39,000 in the said account at different times and the respondent was authorized to draw the amount from the said account No,514 in which he had first of all deposited a sum of Rs,50,000 and after a month he deposited another amount of Rs,50,000 and within 8/9 days he deposited further amount of Rs,1,00,000. A month thereafter he also deposited a sum of Rs,27,000 and Rs,10,000 in the said account during the said month. He also deposited Rs,2,000 thereafter.

10. It is cardinal principle of law that the unwritten agreement can only be proved through the evidence of unimpeachable character. In the instant case, there are material contradictions in between the statements of P.W.3, P.W.4 and P.W.6. The statement of P.W.4 does not inspire confidence as it is based on hearsay evidence as he narrated the facts told to him by the plaintiff.

So far as the statement of Malik Qadir Bukhsh P.W.3, alleged marginal witness of the oral agreement to sell is entirely in contradiction of the statement of the plaintiff himself as P.W.3 stated in examination-in-chief that the bargain regarding disputed property struck before him and a sum of Rs,5,000 were paid by the plaintiff to the defendant as earnest money through him whereas the respondent admitted before him that the money belonging to the plaintiff amounting to Rs,45,000 is already with him which has been placed in the locker of the Bank. The plaintiff in his examination in chief stated that the bargain was struck for a consideration of Rs,2,63,000 orally and it was settled that he will open an account in his name in the Union Bank situated in the building owned by the respondent/defendant. He also stated that after opening of the account he deposited a sum of Rs,50,000 after a month another Rs,50,000 and after 8/9 days a sum of Rs,1,00,000 and one month .Thereafter a sum of Rs,27,000 and Rs,10,000 in the said month. In such circumstances it appears that in the light of the aforesaid material contradictions in the statements of witnesses produced by the appellant/plaintiff the same cannot be relied upon as the details of deposit of amount in the bank account by the appellant/plaintiff are not in line with the statement of aforesaid two witnesses, namely P.W.3 and P.W.4, thus, the learned High Court has rightly held that the appellant/plaintiff has failed to prove execution of the oral agreement between the parties and the payment of amount at the time of oral agreement. Even the E stance of the appellant is further falsified by the statement of his own witness, namely, Syed Laeeq Yousaf Bukhari, Bank Manager (P.W.1) who, during cross-examination, admitted that all the amounts were deposited by Haji.

Muhammad Baran Khan and the receipts have been produced by him in the trial Court. Now the question arises that if the amounts were deposited by the appellant then the receipts thereof would have been with him and not in the possession of the respondent. In this view of the matter we are of the view that although the oral agreement is permissible under the law, yet, it must be proved through a credible and unimpeachable character of evidence and both the aforesaid qualities are not available in the evidence adduced by the appellant/plaintiff in the instant case.

Learned counsel for the respondents has rightly relied upon the case of Mst. Sardar Bibi (Supra) in which learned High Court has held that "In a case of this kind when both parties stand to gain or lose valuable property the oral evidence is always to be approached with caution and it is safer to rely on that evidence which is on accord with admitted circumstances and probabilities." We also hold that although it is not the requirement of law that an agreement or contract of sale of immovable property should only be in writing, however, in a case where party comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the party to prove that there was consensus ad idem G between both the parties for a concluded oral agreement. An oral agreement by which the parties intended to be bound is valid and enforceable, however, it requires for it prove clearest and most satisfactory evidence.

11. So far as the contention of the learned counsel for the appellant that the possession was delivered to the appellant at the time of execution of oral agreement is concerned, admittedly the appellant had purchased a portion of the total land and he was in possession of the said property, wherein appellant and the respondent were co-shareRs, The appellant also failed to produce any document showing that possession was delivered to H him in pursuance of the oral agreement to sell. Even the document (Exh.D-3) authorizing Haji Muhammad Baran Khan to withdraw the amount also did not find mention that the suit property was given by the respondent to the appellant in consequence of the oral agreement to sell.

12. After scanning the entire evidence on record we are of the considered view that the learned High Court has rightly set aside the findings of fact recorded by the learned Civil Judge by giving cogent reasons which are supported by the evidence on record as the appellant has totally failed to establish oral agreement to sell for the purchase of the suit land. We have also taken into consideration the judgment of the Appellate Court which is based on proper appraisal of evidence on record and the findings of the Appellate Court are to be preferred as it has been held by this Court in the case of Madan Gopal and others v. Maran Bepari and others (PLD 1969 SC 617) that "If the findings of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding." This view also finds support from the case of Muhammad Shafi and others v.

Sultan Mahmood and others (2010 SCMR 827). In such view of the matter we uphold the findings of fact recorded by the learned High Court to the effect that the appellant has failed to establish existence of oral agreement to sell arrived at between him and the respondent through any cogent and unimpeachable evidence.

13. The case-law cited by the learned counsel for the appellant is inapt to the facts and circumstances of the instant case, therefore is of no help to the appellant rather it supports the case of the respondents. In the case of MRs, Mussarat Shaukat v. MRs, Sara Khatoon and others (1994 SCMR 2189), relied upon by the learned counsel for the appellant, though it has been held that oral agreement is admissible under the law but in that case the evidence of unimpeachable character i,e, buyer of the property tendered original receipts of part payment of sale consideration in evidence, a disinterested and independent witness, who was a marginal witness of the receipt of part payment of agreement was produced inasmuch as certain amount of consideration was paid through cheque. Similarly, in the case of Said Wali v. Yaqoot Khan and another (PLD 1983 SC 440) relied upon by the learned counsel for the appellant it has been held that a civil suit can be decided on the basis of the material mentioned in the definition of "proved" but in the said case it has also been held that "the petitioner had failed to "prove" that the transactions in question were in reality sale."

14. In view of facts and circumstances of the instant case and the case-law referred to hereinabove, we find no material illegality or irregularity in the impugned judgment, therefore, the same does not J warrant interference by this Court. Resultantly, this appeal is dismissed leaving the parties to bear their own costs.