' CH. MUHAMMAD MASOOD JAHANGIR, J.--- The facts germane for the disposal of instant civil revision are that Manzoor Ahmad respondent No,1/plaintiff filed a suit for specific performance on the basis of oral agreement dated 2-4-1992 regarding the suit property fully mentioned in the head note of the plaint with the assertion that the said property was sold to the petitioner/defendant by brother of the plaintiff secretly, whereupon, the latter showed his intention to file a suit for pre- emption and with the intervention of the respectables the defendant/petitioner promised to sell the suit property for a consideration of Rs,60,000 in presence of witnesses; that the defendant/petitioner had also assured that after receiving consideration amount from the plaintiff, the suit property would be transferred to him; that at the time of settlement of bargain of sale, the possession of the disputed property was delivered to him; that subsequently a document dated 15-5-2008 was reduced into writing between the parties and both the parties put their thumb- impressions and signed the same. Then on refusal to transfer the suit property, the suit for specific performance on the basis of oral agreement dated 2-4-1992 was filed. The said suit was contested by the petitioner/defendant by filing written statement with the assertion that no such bargain of sale regarding the disputed property was struck between the parties, no sale consideration was ever paid by the plaintiff to the defendant and the possession was never delivered to the plaintiff, who concocted a false story. The petitioner denied the execution of any document dated 15-5- 2008, which was never signed or thumb marked by him. The learned trial court framed the following issues:-- "1. Whether the plaintiff is estopped by his words and conduct to file this suit? OPD
2. Whether the plaintiff has not come to the court with clean hands? OPD
3. Whether the suit is not maintainable in its present form? OPD
4. Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction? OPD
5. Whether the plaintiff is entitled to the decree for specific performance as prayed for? OPP
6. Relief."
2. Both the parties produced stock of evidence in support of their respective claims and the learned trial court decreed the suit vide judgment and decree dated 2-10-2010. Feeling dissatisfied the petitioner filed an appeal before the learned lower appellate court, who also dismissed the same vide judgment and decree dated 23-11-2011, hence this civil revision.
3. Learned counsel for the petitioner has argued that the respondent/plaintiff based his claim on alleged oral agreement to sell; that the petitioner/plaintiff did not mention any detail regarding the alleged oral sale; that both the learned courts below without appreciating the evidence available on file decreed the suit filed by the respondent and that the judgments and decrees passed by both the learned courts below are not free from taint of misreading and non-reading of evidence.
He lastly prayed for the acceptance of the instant revision petition and setting aside of the impugned judgments and decrees passed by both the learned courts below.
4. Conversely, learned counsel for the respondents has refuted the arguments advanced by the learned counsel for the petitioner while supporting the impugned judgments and decrees passed by both the learned courts below.
5. Arguments heard. Record perused.
6. The perusal of plaint reveals that respondent/plaintiff did not disclose the name of witnesses before whom the alleged oral sale was struck between the parties. Even no period has been mentioned by the respondent/plaintiff in his plaint for completion of oral agreement to sell. No doubt, an oral agreement to sell is permissible in law, but it has to be proved through credible and un-impeachable evidence.
7. To discharge the onus of Issue No,5, the plaintiff/respondent himself appeared as PW2 and produced Muhammad Ramzan as PW1, Muhammad Sadiq as PW3 and Maali as PW4.
Plaintiff/respondent being PW2 did not depose in his examination-in-chief that any sale consideration was paid by him to the vendor/petitioner, rather he deposed that the disputed property had been sold by his brother to the petitioner/defendant and on gaining knowledge he along with Muhammad Sadiq and Maali approached the petitioner/defendant, who was agreed to transfer the disputed property against a consideration of Rs,60,000 and that the plaintiff/respondent accepted the said offer. The said oral transaction of sale had taken place on 2-4-1992 and possession of the property was handed over to the plaintiff. The plaintiff (PW2) further stated that the petitioner/defendant went abroad, who promised to transfer the disputed property to him after his return, that the defendant/petitioner returned back on 14-5-2008, when the plaintiff/ respondent approached him and ultimately it was settled between them to appoint an arbitrator in this regard and agreement (Exh.P1) regarding appointment of arbitrator was also executed by them; that the plaintiff was ready to pay the sale consideration and that the arbitrator did not announce the award as the petitioner did not approach him and his suit being based on true facts was liable to be decreed. Muhammad Sadiq appeared as PW3 and did not depose that he along with petitioner/ respondent had gone to the defendant/petitioner and the alleged bargain was struck in his favour, rather he deposed that plaintiff along with Ali son of Sultan and Maali son of Muhammad had gone to the defendant/petitioner. However, PW3 only claimed him to be a witness of agreement for appointment of arbitrator (Exh.P1), which was thumb marked by him.
Maali was produced as PW4, who also did not depose that Muhammad Sadiq was present when bargain of sale was struck between the parties, but it was stated by him that he, Manzoor plaintiff and one Ali had gone to the petitioner/defendant, who promised to transfer the suit land in favour of the plaintiff after the receipt of Rs,60,000 after return from England as the possession was already with the plaintiff party. He was also witness of agreement Exh. Pl.
8. From the minute perusal of the evidence of the PWs, they are found to be in contradiction with each other regarding the alleged witnesses of bargain of sale as the plaintiff (PW2) stated that he along with Maali and Muhammad Sadiq had approached the petitioner/ defendant when the said bargain was struck, whereas, PW4 Maali stated that he along with Manzoor plaintiff and Ali had gone to defendant/ petitioner when the alleged bargain of sale was arrived at between the parties.
It is further noticed that the plaintiff did not give the names of the witnesses of bargain of sale and he produced the evidence against the pleadings, which cannot be given any weight. Even otherwise, only one witness of the alleged bargain of sale was produced i.e, Maali (PW4), whereas, Muhammad Sadiq the second witness of the said bargain as claimed by the plaintiff (PW2) while appearing as PW3 did not pose him the witness of the alleged sale transaction and Ali introduced by Maali (PW4) was not produced during the trial. In any case, the plaintiff/ respondent failed to produce the proof to prove the alleged bargain of sale as provided by Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. It is also note able that PW3 and PW4 did not give any date and time of striking the alleged bargain of sale. The plaintiff also failed to prove that the possession of the suit property was handed over to the e plaintiff as a result of oral agreement to sell as PW4 during his examination-in-chief stated that possession of the suit property was already with the plaintiff party when the defendant/petitioner had agreed to transfer the suit property in the name of the plaintiff. It is also admitted position that no sale consideration was ever paid to the D petitioner/defendant. On the other hand, the defendant/petitioner, namely Karam Dad appeared as DW1 and produced Maanik (DW2) and Zafar Iqbal (DW3), who vehemently controverted the claim set up by the plaintiff/respondent. As such, the petitioner/plaintiff badly failed to prove his case, but both the learned courts below have committed material illegality and illegality while answering issue No,5 in favour of E the plaintiff/respondent and against the petitioner/defendant on erroneous premises of law and against the evidence on the record, which findings are reversed.
9. The copy of agreement (Exh.P1) for appointment of the arbitrator is also not helpful to the plaintiff as according to the said document the matter was referred to a arbitrator for determination of price of the disputed property. So it is affirmed from the evidence of the plaintiff/respondent that no sale consideration had been paid or determined by the parties at the time of alleged transaction of sale. If it was settled between the parties as Rs,60,000, then the reference to arbitrator regarding the fixation of sale price nullify the story as pleaded F by the petitioner/defendant. The plaintiff/respondent failed to plead the relevant details, the name of the witnesses and period fixed for completion of oral agreement to sell in the plaint, but in spite of that both the learned courts below on surmises and conjectures decreed the suit on the basis of weak type of evidence which is available on file with lot of contradictions.
10. While relying upon the cases reported as (2013 SCM R 1300), (2008 CLC 418), (1987 CLC 2307), (2010 CLC 734) and (2012 YLR 521), this court has no hesitation in the mind that the suit filed by the petitioner has wrongly been decreed by both the learned courts below through the impugned judgments, which being tainted with misreading and non-reading of evidence cannot be sustained in the eye of law.
11. Consequently, this civil revision is allowed, and the impugned judgments and decrees passed by the learned courts below are hereby set aside and the suit filed by the respondent/plaintiff is dismissed with costs.