Atir Mahmood, J. Brief facts of the case are that predecessorin-interest of respondents namely Muhammad Sarwar Khan entered into an agreement to sell dated 27.11.1996 with the appellant regarding property measuring 3 kanal 12 marlas, fully described in para 1 of the plaint, @ Rs.40,000/- per mala. According to the plaintiff, a sum of Rs.200,000/- was paid to the alleged vendor/defendant as earnest money binding the parties for six months which was reduced in writing. It was agreed between the parties that if remaining amount was not paid by the plaintiff, the earnest money would stand forfeited and if defendant did not fulfill his part of agreement, he would pay double the earnest money. It is version of the plaintiff that he made a further payment of Rs.15,70,000/- and only a sum of Rs.1,130,000/- remained due. On account of nonperformance of agreement to sell by the defendant, the plaintiff filed a suit for specific performance of said agreement to sell on 07.06.1997. During the pendency of the said suit, the defendant appeared before the court on 05.11.1997 stating that if the plaintiff pays the outstanding amount of Rs.1,130,000/- to him till 08.12.1997, he would have no objection upon decree of the suit. On the statement of the defendant, the court decreed the suit on 08.11.1997 conditionally. However, since the payment could not be made by the plaintiff, the suit was ultimately withdrawn. It is alleged by the appellant-plaintiff that afterwards, a new oral agreement was reached between the parties regarding property measuring 5 marlas; that a general power of attorney was registered in favour of the appellant vide Sr. No.52, Book No.4, Volume No.33 dated 07.01.1998 by the defendant who revoked the same vide cancellation deed dated 09.01.1998 which constrained the appellant- plaintiff to file a suit for specific performance of agreement dated 27.11.1996 read with statement dated 08.12.1997 and agreement made on 08.01.1998 for transfer of land @ Rs.40,000/- per marla.
He also sought that cancellation deed dated 09.01.1998 be declared void.
2. The suit was contested by the respondents. Following issues were framed: "ISSUES
1. Whether it was agreed upon between the parties in agreement to sell that in case of default on the part of plaintiff the down payment was to be forfeited whereas double payment was to be paid to the plaintiff in case of non-fulfillment on the part of the defendant? OPP.
2. Whether the suit property was to be transferred in favour of the plaintiff, subject to payment of sale consideration proportionately? OPP.
3. Whether the defendant resiled from his contractual obligations under the initial contract and confirmed decree of civil court? OPP.
4. Whether the agreement dated 6.1.98 was also executed between the parties? OPP.
5. Whether the defendant has received Rs.25,70,000/- out of total sale consideration amounting to Rs.29,00,000/-? OPP.
6. Whether the attorney No.52 dated 7.1.1998 was revoked by the defendant without any lawful justification? OPP.
7. Whether the plaintiff is entitled to decree for specific performance of agreement dated 27.11.96 coupled with statement dated 8.12.97 and arrangement made on 6.1.98 or in alternative Rs.23,40,000/- declaration and permanent injunction as prayed for? OPP.
8. Whether the suit for specific performance and review petition filed by the plaintiff have already been dismissed, if so its effect on this litigation? OPD.
9. Relief."
After recording oral as well as documentary evidence adduced by the parties, learned trial court decreed the suit vide judgment and decree dated 08.12.2004. Hence this RFA.
3. Learned counsel for the appellant inter alia contends that the appellant has proved his case beyond any shadow of doubt but learned trial court has incorrectly held otherwise; that the earlier conditional decree dated 08.11.1997 is part of the agreement reached between the parties which fact was altogether ignored by learned trial court; that there is misreading and non-reading of evidence; that the appellant proved payment of consideration through Mark A? to the defendant who also admitted the same but learned trail court did not take into consideration this aspect of the case; that the impugned judgment and decree is against law and fact, therefore, this appeal be allowed, the impugned judgment and decree be set aside and the suit of the appellant be decreed as prayed for.
4. On the other hand, learned counsel for the respondent has controverted the arguments of learned counsel for the appellant and fully supported the impugned judgment and decree.
5. Arguments heard. Record perused.
6. Issues No.4 and 5 are pivotal in nature and constitute the points for determination by this Court to decide the lis in hand.
7. Scanning of record reflects that there is no denial to the extent of agreement to sell dated 27.11.1996 between the appellant and Muhammad Sarwar Khan, the predecessor-in-interest of the present respondents and that a suit for specific performance of the said agreement filed by the appellant was conditionally decreed on 08.11.1997 on the statement of predecessor of the respondents. The petitioner did not fulfill the condition of payment of Rs.1,130,000/- but filed an application for review of the order but withdrew the same on 06.01.1998. Ultimately, the said suit stood dismissed. According to the appellant, on the same date, i.e. 06.01.998, the parties entered into a new oral agreement dated 06.01.1998 and a power of attorney was also executed in favour of the appellant.
8. Section 62 of the Contract Act, 1872 reads as under: "62. Effect of novation, rescission and alteration of contract. - If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed."
The above provision of law makes it unambiguously clear that when the parties entered into a new agreement by way of novation, rescission or alteration substituting the earlier agreement, the original agreement is not required to be performed. Since the old agreement dated 27.11.1996 was substituted with a new oral agreement dated 06.01.1998, therefore, there remains no need to perform the original agreement to which extent his earlier suit was dismissed, as such, the appellant cannot be allowed to seek performance of earlier agreement to sell dated 27.11.1996 which stands substituted with a new oral agreement.
9. The defendant has denied the alleged subsequent agreement to sell as well as the power of attorney. In order to prove the subsequent agreement to sell, the appellant was required to prove it by production of cogent evidence. There is only statement of the plaintiff on the record which is insufficient to prove his case as neither any witness of fresh agreement nor any witness of payment of consideration could be brought into witness box by the appellant-plaintiff. Learned counsel for the appellant has stressed more upon Mark-A which is a copy of bank account statement. In our view, in absence of any witness of payment of consideration, mere bank account statement cannot prove the factum of consideration as it does not state for what purpose this payment was made and as to whether this is regarding payment of consideration amount in question or regarding some other transaction. In the circumstances, we are of the considered view that the appellant has badly failed to prove his case. The impugned judgment and decree is based on cogent reasons. Learned counsel for the appellant has not been able to point out any illegality therein calling for interference by this Court.
10. In view of what has been discussed above, this appeal fails which is accordingly dismissed.