' FAROOQ ALI CHANNA , J.---By the judgment and decree dated 30-6-2010 passed in Civil Appeal No, 80 of 2006, Re-Islamuddin v. Moula Bux, the learned IIIrd Additional District Judge Mirpur Mathelo, set aside the Judgment and Decree dated 28-8-2006 passed in Civil Suit No, 38 of 2005, Re-Moula Bux v. Islamuddin, by the Senior Civil Judge Ubauro, the applicant being aggrieved and dissatisfied with judgment and decree dated 30-6-2010 of the appellate court, impugned the same in the instant revision.
1. Briefly, the facts, as stated in the plaint are that the plaintiff/ applicant (hereinafter referred to as "the applicant") filed Suit No, 38 of 2005, Re-Moula Bux v. Islamuddin against the defendant/respondent (hereinafter referred to as "the respondent") for Specific Performance of contract on the basis of sale agreement 25-2-2004 executed by the respondent in favour of applicant for the sale of agricultural land bearing survey No, 558 (2.31 acres), 565 (2.24 acres), 794 (0.05 acres), 804 (0.37 acres) and 842 (0.23 acres) total area (8.0 acres) situated in Deh Sonnet Taluka Ubauro, District Ghotki (hereinafter referred to as "suit land") against the sale consideration of Rs,12,00,000 which the applicant paid to the respondent at the time of execution of sale agreement and in lieu thereof the possession of the suit land was handed over to the applicant, however, on approach the respondent refused to get the Khata of the suit land mutated in favour of the applicant, therefore, the applicant filed the above suit.
2. Respondent and written statement, denying the execution of sale agreement and handing over the possession of suit land to the applicant.
3. On the pleadings of the parties, the trial court framed issues, recorded the evidence, decreed the suit in favour of applicant vide judgment and decree dated 28-8-2006, the respondent challenged the judgment and decree passed by the trial Court, in Civil Appeal No, 80 of 2006, which in first round was allowed by the appellate court vide judgment and decree dated 18-9-2008, the same was challenged by the applicant in Civil Revision No, 53 of 2008 before this court, which was disposed of vide judgment dated 31-3-2010, remanding the matter to the appellate court for deciding the appeal afresh on merits keeping in view the directions of this court. The relevant part of the judgment dated 31-3-2010 of this court reads as under:- "The learned appellate Court shall examine the agreement to sale in the light of evidence that has been led by the parties and shall come to a conclusion as to whether or not the description of the property is sufficiently certain in the light of such evidence. The appellate court shall also consider and decide the plaintiffs objection that such a ground was not, in any case, available to the defendant by reason of the same not having been taken in the written statement and there being no issue on such ground. The appellate court shall consider the foregoing points, as also the other grounds of the appeal taken by the defendant and objections thereto by the plaintiff, and shall dispose of the appeal within r. Period of 60 days from the date when a certified copy of this judgment is placed on its record".
4. The appellate court in pursuance of the observations of this court referred to above, after providing an opportunity of hearing to both the parties has decided the Civil Appeal No, 80 of 2006 afresh, allowing the appeal vide judgment dated 30-6-2010, which is impugned by the applicant in the instant revision.
5. The learned appellate court while allowing the appeal has come to the conclusion that the survey numbers of the agricultural land under sale were not disclosed in the sale agreement and the boundaries surrounded to the suit land were elaborated in order to pinpoint the location of suit land, however while filing the suit the applicant has mentioned the survey numbers of suit land under sale in the averments of the plaint so also in his evidence recorded before the trial Court. It is further observed by the appellate court that no doubt, the applicant had identified the location of suit land by giving its boundaries from all four sides in the alleged sale agreement, as well as in his evidence, but the basic question involved in the litigation is that as to whether the alleged sale agreement was executed by the respondent, who had categorically denied the execution of sale agreement. The applicant has failed to prove execution of sale agreement.
6. Learned counsel for the applicant has contended that the suit land can be identified from all the four sides boundaries as mentioned in the sale agreement i,e, Canal/Minor on Eastern side, Land of Sulleman Mochi on Western side, K.K.L Road on Southern side and the land of applicant Moula Bux on Northern side, as such the pleadings are not hit by section 21(c) of Specific Relief Act. The learned counsel has further contended that the appellate court has also given the findings in favour of the applicant to the extent of identification of location by the boundaries from all the four directions of the suit land, under sale in the sale agreement. The applicant in support of his case has examined two attesting witnesses of sale agreement which is the sole requirement under Article 79 of the Qanun-e-Shahadat, 1984 to .Prove the execution of document. However the appellate court has observed the alleged sale agreement to be managed one relying upon the evidence of one Khadim Hussain the stamp vendor, who in his evidence has denied categorically the sale of stamp paper bearing Serial No, 413, dated 25-2-2004 in favour of respondent Islamuddin. The learned counsel has further contended that the learned IIIrd Additional District Judge while relying upon the evidence of Khadim Hussain has ignored his affidavit produced before the trial Court as Exh.64, wherein he has admitted the sale of stamp paper bearing No, 413 dated 25-2-2004 to the respondent Islamuddin, as such the findings of appellate Court are erroneous, resulted from misreading of evidence brought on record during trial. Learned counsel in support of his arguments has relied upon the cases reported as United Bank of India Ltd. v.
Aziranessa Bewa alias Azizannessa PLD 1965 SC 274, Mst Sakina v. S.S.P and others 2003 YLR 673, Muhammad Shafi and others v. Sultan 2007 SCMR 1602 and Bashir Dawood v. Haji Suleman Goawala and Sons Ltd. 2010 CLC 191.
7. Conversely, the learned counsel for the respondent has supported the impugned judgment and has contended that the same has been passed after due consideration to all aspects of the case, including the evidence led by both the parties and the documents brought on the record. He has further contended that the applicant's case is not supported by his own witness Muhammad Saleem so also respondent's witness Khadim Hussain. He has further contended that the reason given by the applicant for not getting the property mutated at the time of final payment of the suit land was that after payment of Rs,12,00,000 as sale consideration, the applicant was not in a position financially to bear the mutation expenses, which reason does not appeal to a prudent mind as a person making the payment of Rs,12,00,000 at once was not able to arrange Rs,5000 to Rs,10,000 to bear expenses for mutation of property purchased by him after payment of a huge amount. Hence, the entire case seems to be managed one to usurp the landed property of respondent. He has further contended that possession of suit land was not handed over by the respondent to the applicant in lieu of sale agreement, but in the year 2005 the applicant occupied illegally the suit land, taking the advantage of absence of the respondent from the suit land who resides at Rahim Yar Khan Punjab Province and on coming to know about the illegal occupation of the applicant, the respondent lodged, such F.I.R. Bearing No, 63 of 2005 at Police Station Ubauro District Ghotki and criminal case is pending, before trial court. The learned counsel for the applicant has not controverted the above fact of lodging of the F.I.R. And pendency of case against the applicant.
8. I have perused the record, particularly the evidence of Khadim Hussain examined by the respondent before trial court at Exh. 81, wherein he has stated that the stamp paper Exh. 61 was not issued by him to Islamuddin as on 25-2-2004 there was no Serial No, 413 in the register maintained by him for the sale of stamp papers and on that date the last serial number was 339. He has further stated that as per the register the stamp paper bearing Serial No, 413 was sold on 25-2-2004 to one Muhammad Bux son of Kehar about two month after the date available on the stamp paper at Exh.61. The said witness has also deposed that on 25-2-2004 the respondent Islamuddin never purchased stamp paper from him, nor his signature was obtained on the stamp paper in his presence, however, the stamp paper at Exh. 61 bears his office stamp, but his signature on it is forged one. I have also gone through the contents of the affidavit of Khadim Hussain produced by the applicant before trial Court as Exh.64 executed on 14-5-2005 much prior to recording his evidence by the trial Court. During cross-examination when the witness Khadim Hussain was confronted with the affidavit Exh.64 he denied his signature on it and stated that the said affidavit bears the signature and official stamp of Rana Ali Gohar stamp vendor having office adjacent to his office, He has further stated that neither he wrote the affidavit Exh.64 with his own hand writing nor signed the same. Besides the evidence of above witness, the author/scriber of the sale agreement in question examined by the applicant himself at Exh. 68 has also not supported the version of the applicant to the extent of signing the sale agreement by respondent in his presence.
This witness has admitted the preparation of sale agreement by him so also testified his signature on it, however, he has stated specifically that respondent Islamuddin never came to him for attestation of both these documents Exh.61 (sale agreement) and Exh.62 (receipt of payment) and one Imdad Ali the clerk of advocate Aijaz came to him and handed over the particulars for preparing the sale agreement, he attested the same on the assurance of Aijaz Hussain Advocate.
Accordingly, two independent witnesses have not fully supported the version of applicant. The other attesting witnesses of the sale agreement are Muhammad Nawaz, he is son of applicant Moula Bux and being his legal heir is the ultimate beneficiary of the suit land hence, deemed to be directly interested witness and Waryam alias Faiz Muhammad, he is the real cousin and brother- in-law of applicant Moula Bux, as such he comes in the category of "interested witnesses". No doubt there is no bar on their becoming attesting witness, however their evidence must be considered with deep A care and conscious and must be corroborated by the independent witnesses; but except Shabir Ahmed Rehmani the oath commissioner, who attested the sale agreement examined at Exh.67, no other independent witness has corroborated the evidence of applicant and his two attesting witnesses. Besides, above the 'appellate court while disbelieving the execution of sale agreement has observed that the land under sale has been disclosed in the terminology of "Kanals" and "Murabas" which terminology in Sindh Province is unknown, whereas the agricultural land is measured/identified in terms of "acres" and "jirebs". The appellate Court has further observed that it is surprising as to how the suit land under sale situated in Sindh Province has been disclosed in "Kanals". In my view the observation of appellate court is justified as the applicant being agriculturist/Zamindar must be aware of terminology used for measurernent/identification of agricultural land in Sindh as "acres" and "jirebs" and not "Kanals" and "Murabas", as such the sale agreement bears the uncertain descriptions of suit land under salt .
9. The learned appellate court while discussing the second point as directed by this court with regard to objection of applicant that the respondent had not taken plea in his written statement to the effect that the descriptions of the suit land were not given in the sale agreement at trial stage inspite of having knowledge, can raise such plea at appellate stage, has observed that the respondent during trial has denied the execution of sale agreement with specific plea that neither he had entered into said transaction, nor executed the sale agreement in favour of applicant which amounts to denial of entire contents of sale agreement including the descriptions of land under sale.
10. In addition to, the observations of the appellate court regarding the genuineness and execution of sale agreement, it is an admitted fact that as per the sale agreement the applicant had purchased 64 Kanals of agricultural land situated in Deh Sonnet Taluka Ubauro boundaries, thereof, are given, in the preceding paras, without specifying the survey numbers of the agricultural suit land as such the sale agreement be termed as blank cheque in possession of the applicant authorizing him to claim any piece of land specifying survey numbers situated within the boundaries as given in the sale agreement. Further more since, no survey number of the suit land under sale was identified/mentioned in the sale agreement, therefore, the burden lies upon the applicant to prove that the survey numbers claimed in suit is the same property purchased through sale agreement, by leading cogent evidence and not at the cost of faults, lacunas and weaknesses in the pleadings of the respondent, which liability, the applicant has failed to discharge as neither the applicant nor his witnesses examined before trial court have identified the property claimed in suit to be the same property purchased under the sale agreement in question.
11. Such ambiguity/uncertainty in the description of suit land under sale is certainly fatal to the case of applicant. The required evidence is missing in this case hence, in terms of section 21(c) of the Specific Relief Act the sale agreement cannot be specifically enforced. In case involving the identical controversy and circumstances reported as Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lahore 623, it has been observed that:-- "From this application, at least one thing is manifested that even the respondent did not know for all these years as to which was the land that Siraj Din had agreed to sell. Section 21 (c) of the Specific Relief Act lays down that "a contract the terms of which the Court cannot find with reasonable certainty, cannot be specifically enforced" The uncertainty in the present case arises on account of the subject matter of the agreement. This uncertainty in the agreement could certainly be removed by the respondent producing extrinsic evidence. The respondent's suit must fail on this ground".
12. The above verdict when challenged before the honourable Supreme Court was further elaborated in a case reported as Mian Muhammad Saleem and others v. Mst. Hameeda Begum and others 1987 SCMR 624 as under:-- ' Apart from the fact that the learned counsel has not been able to demonstrate any error in the reasons given by the learned Judge which supported their finding that the suit land did not correspond with the description of the land given in the compromise agreement we ourselves have closely examined the Aks Shajra and also very carefully perused all the relevant evidence on this point. To us, after reading all the relevant evidence together the land covered by the terms of the compromise agreement looks to be not the land marked as D.W. 4/4 in the Aks Shajra, but the other piece of land marked therein as D.W. 4/5. But in any case, we are entirely satisfied that the finding of the learned Judges of the High Court to the effect that the identity of the land agreed to be sold cannot be ascertained with certainly from the terms of the compromise deed is clearly correct and that, therefore, in a case of this kind no decree for specific performance could be granted. The appeal (Civil Appeal No, 82 of 1981) must, accordingly, fail.
13. For the reasons discussed above and the dicta laid down by the honourable apex court, I am of the considered view that in absence of the survey numbers identifying the agricultural land under sale certainty in the sale agreement dated 25-2-2004 and failure on the part of applicant to examine the proper witnesses to identify the survey numbers mentioned in the plaint to be the same property sold to the applicant under sale agreement dated 25-2-2004 as such the learned appellate Court has correctly allowed the appeal based upon cogent reasons passed after considering the evidence and circumstances of the case. Needless to say that the High Court exercises a limited jurisdiction in revision under section 115 of the Civil Procedure Code which is meant primarily for correcting errors made by the subordinate courts in the exercise of their jurisdiction and not those which are made in their discretion unless the discretion is found to have been exercised fancifully or arbitrarily, the above conditions are lacking in the instant revision application as such the impugned judgment and decree dated 30-6-2010 does not suffers from infirmity or misreading of evidence, calling for interference of this court in its revisional jurisdiction.
The citations relied upon by the counsel for applicant with profound respect bear different facts and circumstances from the instant case. The revision application is dismissed with no order as to costs.