' AMIN-UD-DIN KHAN, J.---Through this revision petition the petitioners have challenged the judgment and decree dated 11-7-2001, passed by the learned Additional District Judge, Bhalwal, whereby appeal filed by the petitioners was dismissed and the judgment and decree dated 14-11- 1998, passed by the learned Civil Judge, Bhalwal, whereby suit for specific performance of contract filed by the plaintiff/ respondent No,1 was decreed.
2. Brief facts of the case are that the plaintiff/respondent No,1 Mst. Nasim Bibi on 13-3-1997, filed a suit for specific performance of agreement to sell arrived at between the parties- approximately 7 years prior to the institution of the suit with regard to the land measuring 12-3/4 kanals, described in the head note of the plaint. The plaintiff/ respondent No,1 pleaded that petitioner No,1/defendant No,1 Mst, Bushra Bibi is her real sister and approximately 7 years ago she agreed to sell the suit property for a consideration of Rs,25,000 to her and received total consideration amount before the witnesses, but no name of the witness has been mentioned in the plaint. Written statement as filed and agreement was totally denied. The learned trial Court framed the issue, invited the parties to produce their evidence, both the parties produced their oral as well as documentary evidence and vide judgment and decree dated 14-11-1998, the learned trial Court decreed the suit. Appeal was preferred which was dismissed by the learned 1st Appellate Court vide judgment and decree dated 11-7-2001, hence this revision petition.
3. Learned counsel for the petitioners argues that the findings of both the Courts below are absolutely against law as well as evidence available on the file; that for filing a suit on the basis of oral agreement to sell plaintiff was required under the law to plead the agreement specifically, specific date and time of agreement as well as mentioning of name of the witnesses in the plaint was necessary as on the basis of an event for which no documentary evidence is available pleading of that with specification was necessary; that even the plaintiff has pleaded approximately 7 years and no name of the witness has been mentioned in the plaint; that the suit was liable to be dismissed but the learned Courts below failed to exercise jurisdiction vested in them by law; that for proving the agreement for specific performance of which the plaintiff came before the Court very strong, convincing and direct evidence was required; that even the statement of the plaintiff who appeared as P.W.1 is general in nature and the statements of P.Ws.2 and 3 are not only contradictory with each other but in contradiction with the statement of the plaintiff on material points. Learned counsel has referred the statement of the plaintiff wherein she stated that she handed over the money to his son Amjid, who further transferred the money, whereas P.W.3 states that in his presence the plaintiff/petitioner paid the money to the defendant; that said Amjid, who is son of the plaintiff, has not been produced as a witness; that it has been shown in the story of the plaintiff that whole consideration amount of Rs,25,000 was paid at the time of agreement; that there is no reason .That when full amount has been paid there was just an oral agreement; that there is no receipt of payment of money on record; and that even with regard to possession the entries of khasra girdawari are in favour of the petitioner.
4. On the other hand, learned counsel for respondent No,1 has argued that there are concurrent findings of facts; that the suit for specific performance can be filed on the basis of oral agreement.
Learned counsel relying on Mst. Bakho Mai and 3 others v. Sohrab and another (2006 YLR 1260) contends that minor contradictions in the statements of the witnesses which have been recorded after more than 7 years of filing of the suit are ignorable. Further while placing reliance on Rana Abdul Rasheed v. Lobal Hussain (2008 CLC 1) states that reappraisal of evidence is not permissible at revisional stage. Further relies on Hazara and others v. Muhammad Yar and others (2011 SCM R 758) to contend that concurrent findings cannot be set aside.
5. I have heard the learned counsel for the parties at length and have also gone through the record as well as the findings recorded by the two Courts below. I am clear in my mind that when a person comes to the Court to prove an oral assertion made in the plaint he is required under the law to specifically plead the same with full details so that he may prove the same through oral evidence.
Admittedly no document in this case is in existence. Furthermore, in a suit for specific performance more responsibility is on the shoulders of the plaintiff. No doubt a suit can be filed on the basis of oral agreement to sell but simultaneously as grant of decree in suit for specific performance in favour of the plaintiff is purely discretionary relief, the Courts grant decree only if they are satisfied without any doubt in their mind that there was an agreement arrived at between the parties and the plaintiff has proved the same without any shadow of doubt. In this case as I have noted that the plaintiff has pleaded that approximately 7 years ago the agreement was arrived at between the parties and full consideration, i.e, Rs,25,000, was paid to the alleged vendor, no receipt of payment is in existence, no name of the witness has been mentioned in the plaint despite the fact that it is pleaded that before the witnesses payment was made and agreement was arrived at between the parties. In such like agreements where no date, place and time of agreement is pleaded in case of oral agreement and no name of the witness has been mentioned in' the plaint decree in such like cases is exceptional. Furthermore, in this case the statements of the plaintiff and her witnesses are contradictory with regard to the basic point in issue, i.e, payment of consideration and with regard to agreement arrived at between the parties. Furthermore, with regard to payment there is contradictory evidence. In this view of the matter, both the Courts below fell in error while ignoring contradictory evidence available on the file, as such, the findings recorded by the Courts below are not sustainable under the law.
6. So far as concurrent findings of fact are concerned the case law relied upon by the learned counsel for the respondent is not applicable to the facts of this case as both the Courts below while recording concurrent findings have ignored the law declared by the august Supreme Court of Pakistan as well as this Court on the point in issue with regard to specific performance on the basis of oral agreement. In this case scrutiny of findings of the Courts below shows that the findings are against law.
7. So far as reappraisal of evidence and minor contradictions are concerned, it is not the case of reappraisal of evidence and the contradictions noted in the judgments are not of minor natures as in a suit for specific performance the payment is most important ingredient of the contract and upon this major point the evidence is sketchy and contradictory one, therefore, the case law relied upon by the learned counsel is not helpful to the respondent.
In view of what has been discussed above, this revision petition is accepted, judgments and decrees dated 14-11-1998 and 11-7-2001, passed by the Courts below are set aside and the suit filed by the plaintiff/respondent No,1 is hereby dismissed with costs throughout.