' MEHMOOD MAQBOOL BAJWA, J.---Suit for specific performance, on the base of oral agreement to sell statedly executed in December, 1997, was instituted against Syed Ghulam Mustafa Shah, respondent No.2 by respondent No.1 with the assertion that House No.948 Block-VIII situated in Mohalla Kalwarran _Mang City, was owned in equal share by Muhammad Siddique and Muhammad Anayat Shah, predecessor in interest of respondent No.2 who agreed to sell the same in favour of respondent No. 1 for a consideration of Rs.100,000 and received Rs.500 as earnest money. Muhammad Siddique, brother of said Anayat Shah, also agreed to alienate his share who got the property transferred in his name through registered sale-deed dated 14-9-1998. Grievance of respondent No.1-asserted in the plaint is that Muhammad Anayat Shah, father of respondent No.2, died prior to performance of his part of contract who was succeeded by respondent No.2 and two daughters i.e. Mst. Umm-e-Kalsoom and Mst. Naseem Akhtar. Sisters of the respondent No.2 also transferred the property to the extent of their share but the said respondent failed to honour part of contract of his father prompting him to institute the suit.
2. The present petitioner was irnpleaded as defendant No.2 in the suit to whom the respondent No.2 alienated his share through sale-deed attested on 26th of August, 1999.
3. Respondent No.1 not only claimed specific performance of the oral agreement but also sought cancellation of instrument of sale deed dated 26-8-1999.
4. The suit was contested by the present petitioner on legal as factual premises asserting that no agreement, whatsoever, was entered into between the respondent No.1 and father of respondent No.2. Submitted that said respondent alienated the property in favour of the petitioner with his free-will and consent and for consideration.
5. Divergent pleads of the parties resulted in casting of 8-issues including relief. After recording pro and contra evidence, the learned trial Court dismissed the suit of the respondent. No.1 on 31-1-2004 which judgment and decree was assailed by he said respondent by preferring appeal which was allowed on 11-1-2005, assailed by filing present revision petition.
6. The learned counsel for the petitioner contended that the respondent No.1 failed to prove the existence, terms and condition of agreement to sell which according to the said respondent was oral. Submitted that vague evidence was led by respondent No.1 regarding settlement of bargain through oral agreement which could not be established. In order to substantiate the argument, it was submitted that as per case of the respondent No.1, Muhammad Siddique, brother of Muhammad Anayat Shah (father of respondent No.2) agreed to sell the property and later on also alienated the same through registered deed but respondent No.1 just banked upon oral commitment of Muhammad Anayat Shah which does not appeal to the reason. Referring to contents of the plaint and evidence, it was argued that it is also the case of the respondent No.1 that Mst.Um-eKalsoom and Mst. Naseem Akhtar, sisters. Of respondent No.2, and daughter of Anayat Shah also transferred the property in favour of respondent No.1 in pursuance of the agreement statedly made by their father but no evidence, whatsoever, was led by the respondent No.1 to substantiate his contention that the said ladies transferred the property in pursuance of undertaking given by their father: Submitted that both the ladies though transferred the property but independent\of any bargain statedly entered into by their father.
' Argued that in order to prove the same fact the said respondent should have produced any of the lady vendor and non-production of the same will give adverse presumption against the said respondent.
' Continuing the arguments, learned counsel for the petitioner submitted that petitioner got no knowledge regarding alleged oral agreement who purchased the property from respondent 'No.2 through registered sale deed for consideration which fact stands established. Submitted that conclusion drawn by the learned Additional District Judge, Jhang is based on erroneous presumption who failed to appreciate the well-reasoned judgment handed down by the trial Court.
7. On the other hand, learned counsel for respondent No.1 submitted that respondent No.1 has proved the execution of agreement by producing Muhammad Siddique, brother of deceased Anayat Shah who also alienated his share who appeared as (P.W.2). Submitted that statement of Rehmat Ali Shah (P.W.3) who is also close relative of Muhammad Siddique and Muhammad Anayat Shah also substantiated the contention of respondent No.
1. Argued that evidence led by the respondent was sufficient to prove the execution of oral agreement and as such learned appellate court rightly set aside the findings of the trial Court.
8. Making reference to the contents of written statement as well as evidence led by petitioner, it was submitted that petitioner failed to prove that the existence of oral agreement to sell was not in his knowledge and as such learned appellate Court rightly non suited the present petitioner.
Relying upon the provision .Of section 27 A of The Specific Relief Act, 1877 and placing reliance upon MUHAMMAD BASHIR and others v. IFTIKHAR ALI and others (PLD 2004 SC 4G5), MUHAMMAD SAFDAR ANSARI and another v. ABDUL MAJEED (PLD 1988 Lahore 216) and MUHAMMAD BASHIR AND OTHERS v.
IFTIKHAR ALI AND OTHERS PLD 2004 SC 465; it was submitted that due to failure of the petitioner to produce evidence regarding absence of knowledge about the existence of agreement to sell, no exception can be taken to the conclusion drawn by the appellate Court.
9. Issues Nos. 6'. And 7 which are important to settle the controversy are to be dealt with. Claim of the respondent No.1 is based on oral agreement to sell. Though it was contended by the learned counsel for the petitioner that oral agreement to sell, if any, is not enforceable but the same interpretation is against the spirit of law. Intention of the legislature is that there shout be, concluded valid contract, may be in writing or oral. Oral agreement would be a valid and enforceable as a written agreement provided it fulfils all the requirements of a valid contract.
Reference may be made to BASHIR AHMAD v. MUHAMMAD YOUSAF through Legal Heir (1993 SCMR 183).
10. As referred earlier ' claim of the respondent No.1 is based on oral agreement to sell.. Question of enforceability of oral agreement to sell and yardstick to prove such type of agreement was dealt with by Hon'ble Supreme Court of Pakistan in CH. MUHAMMAD HUSSAIN AND ANOTHER v. HIDAYAT ALI AND 6 OTHERS (NLR 1981 SCJ 460) and was held at page 462 as follow:-- "As regards the oral evidence and its effect and credibility, the learned counsel is not correct in insisting that oral evidence should be tested for its own worth and should not be related to the contemporaneous human conduct of affairs concerning matters in issue. Voluminous oral evidence may have little weight where documents are ordinarily required to be prepared or are usually prepared and not satisfactory explanation for departure from the practice is forthcoming.
Courts were correct in assuming that in case of agricultural land and transactions read over a long period and involving huge amounts there should have been some evidence in the nature of writing receipt or acknowledgment to evidence the transactions. In giving effect to such a standard the courts were not laying down the absolute rule that there could be no oral contract or that an oral contract wherever existing could be upset on such conjectural grounds or that oral evidence carries no weight. The conduct of the parties, the subject-matter of the controversy, the nature of the relationship and experiences of the parties and their handling of the matter, all are relevant for determining the credibility of oral evidence on such matters".
11. Dealing with yardstick to establish the oral agreement to sell it was held in "KAMAL DIN v.
MUHAMMAD SHARIF (2006 YLR 1200 Lahore)" that the plaintiff did not mention any date, time and place of agreement to sell in plaint nor same was proved through evidence and as such no implicit reliance can be placed upon the evidence.
' With this background, concurrent findings of both the Courts below were set aside by this Court.
12. Keeping in view the above yardstick, pleadings as well as evidence led by the parties is to be scanned.
13. Perusal of Para-2 of the plaint just suggests that Anayat Ali, father of respondent No.2 agree to sell his share in favour of respondent No.1 in December, 1997 for a consideration of Rs.1 lac and received Rs.5000 as earnest money.
14. Respondent No.1 appeared as (P.W.1) to prove his case. Muhammad Siddique, vendor of remaining portion in separate transaction while appearing as (P.W.2) and Rehmat Ali as (P.W.3) maintained that deceased Muhammad Anayat Shah agreed to sell his share in favour of respondent No.1 in their presence in December, 1997 but ,neither respondent No.1 nor the witnesses uttered even a single word regarding date, time and place of agreement to sell. As referred earlier, contents of the plaint are also silent in this regard. Though Muhammad Siddique, brother of Muhammad Anayat Shah proposed vendor in cross-examination maintained that transaction was materialized at 9/10.00 a.m. But he in cross-examination was also unable to tell the date and venue of the transaction fatal to the case of respondent No.
1. It can be argued on behalf of the respondent No.1 that Muhammad Siddique (P.W.2) and Rehmat Shah (P.W.3) are the real brother and brother-in-law of deceased vendor, therefore, got no reason to make false statement but this fact by itself would not be sufficient to prove the execution of oral agreement which should have been established by producing convincing evidence with detail referred to. It is the case of respondent No.1 that Mst. Um-eKalsoom and Mst.Naseem Akhtar, daughter of deceased Anayat Ali Shah alienated the property in favour of respondent No.1 to the extent of their share as they were aware and conscious of undertaking given by their predecessor but the fact by itself would not be sufficient to prove the fact despite the alienation of share by Mst.Um-e-Kalsoom and Mst.Naseem Akhtar because no evidence was produced by the respondent No.1 to prove that both the ladies being conscious of undertaking given by their father entered into the transaction of sale. The same fact could have been conveniently established by production of any of such vendor but none was produced and as such reply given in cross- examination by Muhammad Siddique (P.W.2) that since both the ladies were conscious of the undertaking, therefore, alienated the property in favour of respondent No.1 would not be sufficient to prove the same. It is further to be noted that Anayat Shah died one month after- stated agreement which was executed in December, 1997 but respondent No.1 instituted suit on 23rd of September, 1999. Though the suit could have been instituted within three years from the date of stated agreement but it is not understandable why respondent No.1 waited for a period of more than one year to get specific performance of said agreement particularly when daughters of Anayat Shah also transferred the property in favour of respondent No.1 on 21-9-1998. Contents of sale-deed (Exh.P2) executed by the both ladies on 21-9-1989 nowhere suggest that sale-deed was executed by them in pursuance of agreement entered into by their father.
15. Matter can be looked from another angle as well. Though the respondent No. 1 and his witnesses maintained that Muhammad Anayat Shah agreed to sell the property in favour of respondent No.1 in presence of witnesses (P.W,2 and P.W.3) but no evidence, whatsoever, was led regarding acceptance of offer by respondent No.
1. Had there been any agreement in writing, it was required to be signed by the proposed vendee as held in Mst. GULSHAN HAMID v. Kh. ABDUL REHMAN and others' (2010 SCMR 334). While drawing analogy, even in the oral agreement to sell, the person seeking benefit of said agreement was obliged to establish that when he was offered by the proposed vendor, same was accepted by him. Mere payment of Rs.500 as earnest money by no stretch of imagination can be considered acceptance. In the circumstance, the agreement , if any, was a unilateral agreement and as such could not have been specifically enforced.
16. In view of the matter, respondent No.1 failed to prove the execution of oral agreement and as such findings of issue No.6 handed down by the learned appellate Court are based on erroneous assumption and conjectural presumption. The findings are based on non-reading of'evidence which are liable to be set aside. The learned appellate Court also non-suited the petitioner on issue No.7. No doubt, in the pleadings, no specific stance was taken by the petitioner claiming himself to be a bona fide purchaser but as agreement to sell could not be proved, therefore, sale-deed in favour of the petitioner even on the base of non-production of evidence regarding his status as bona fide purchaser having no notice by itself would not be sufficient to answer the issue in favour of respondent No.1 and against the petitioner.
17. Epitome of the above discussion is that the conclusion drawn by the learned additional District Judge, Jhang vide impugned and decree dated 11-1-2005 is legally not sustainable which is result of jurisdictional error and defect and as such while setting aside the said judgment and decree, judgment and decree drawn up on 31-1-2004 by trial Court is hereby restored.
18. There shall be no order as to costs.