CH. MUHAMMAD IQBAL, J:- Through this R.F.A, the appellants have challenged the validity of judgment & decree dated 23.12.2014 whereby the learned Civil Judge 1st Class, Bahawalpur dismissed the appellants' suit for specific performance of oral agreement to sell dated 22.11.1984 and decreed the respondent's suit for declaration and possession.
2. Brief facts of the case are that the appellants filed a suit for specific performance of oral agreement to sell dated 22.11.1984 against the respondent in respect of land measuring 22-Acre bearing Khata No.344/312 situated at Mauza Baqirpur, Tehsil & District Bahawalpur alleging therein that the bargain for the purchase of the said land was struck between Faiz Bakhsh, predecessor- in-interest of the appellants, and the respondent against a consideration of Rs.44,00,000/- which was paid whereupon the respondent handed over the possession of the suit land to Faiz Bakhsh; that at the time of agreement to sell, respondent asked the appellants' father that if whole of the suit land is transferred in his name then there is every likelihood that the said sale transaction might be pre-empted, therefore, she got transferred 4-Kanals of land bearing Khata No.152 Square No.161/8, Qilla No.16/4-0 through registered sale deed and in this respect mutation No.1490 dated 22.11.1984 was also sanctioned; that thereafter suits for pre-emption were filed against the sale of land measuring 4-Kanals, however, the same were dismissed as withdrawn whereafter the father of the appellants transferred the said land to them; that the father of the appellants requested the respondent to transfer the remaining land in his favour but she stated that a case regarding the suit land is pending adjudication before the High Court and on its decision, she would get transferred the land in his name; that in the year 2003, the father of the appellants died; that later on, the respondent agreed to transfer the remaining land measuring 211/2-Acres subject to payment of Rs.4,00,000/- whereupon the appellants paid the said amount to her but subsequently it came to their knowledge that the respondent has only transferred land measuring 53-Kanals and 18-Marlas.
The respondent / defendant contested the suit by filing written statement contending that the defendant is owner of land measuring 243-Kanals 06-Marlas in Khata No.479/473 in Mauza Baqirpur which was obtained by the plaintiffs from her for cultivation (Kharif 2013) on the basis of share in the produce; that the defendant neither executed any oral agreement to sell dated 22.11.1984 regarding land measuring 22-Acres nor received any consideration amount of Rs.44,00,000/-; that to avoid filing of suit for pre-emption the respondent ought to have transferred land measuring 4-Kanals from Khata No.344/312 and not from Khata No.152; that the husband of the respondent transferred 04-Kanals land in favour of the father of the plaintiffs on 12.03.1983 with bonafide intention; that alleged sale deed dated 22.04.2013 in respect of land measuring 53-Kanals 18-Marlas is a forged and fictitious document; that the defendant filed a suit for cancellation of the said sale deed. During the pendency of the said suit, Mst. Sajida Khatoon died whereupon her legal heirs were made party in the said suit. The legal heirs of the defendant filed another suit for declaration, possession and mesne profits. The appellants / plaintiffs filed written statement to the suit, filed by the defendants. From the divergent pleadings of the parties, learned trial Court framed the following consolidated issues:- "1- Whether the defendant agreed to sell her landed property measuring 22-acres to Faiz Muhammad deceased father of plaintiffs through oral agreement to sell dated 22-11 1984?OPP.
2- Whether the defendant has received Rs.44,00,000/- out of the total consideration amount through receipt dated 22-11 1984?OPP.
3- Whether the suit is within time?OPP.
4- If above issues are proved whether the plaintiffs are entitled to the decree as prayed for?
OPP.
5- Whether suit is not maintainable and liable to be dismissed in view of preliminary objections No.1 to 8 of the written statement?OPD.
6- Whether the defendants of this suit titled Ahmed Bukhsh, etc Vs. Sajida Khatoon, etc are entitled to possession of the disputed property as mentioned in their civil suit for declaration and possession titled Sajida Khatoon Vs. Ahmed Bukhsh?OPD 7- Whether the defendants are entitled to mesne profit at the rate of Rs.60,000/- per acre since Kharif Crop, 2013 till they get the possession of the disputed property? OPD.
8- Whether the plaintiffs of suit titled Sajida Khatoon Vs. Allah Bukhsh, etc are not owner of 22- acres land?OPP.
9- Whether the suit of the defendants of this suit is liable to be dismissed and the plaintiffs of this suit are entitled to special costs?OPD.
10- Relief."
Learned trial Court after recording the evidence of both the parties and hearing them dismissed the suit for specific performance titled "Ahmed Bakhsh etc. Vs. Mst. Sajida Khatoon etc." filed by the appellants while the suit for declaration and possession titled "Mst. Sajida Khatoon Vs. Ahmed Bakhsh etc." was decreed regarding the land measuring 57-Kanals 18-Marlas as mentioned in mutation No.1490 and registered deed dated 22.04.2013 with mesne profit at the rate of Rs.30,000/- per acre annually regarding the remaining land (except land measuring 57-Kanals 18-Marlas) from Kharif 2013 till the delivery of possession. Hence, this R.F.A.
3. Learned counsel for the appellants submits that the impugned judgment & decree is against the law and facts of the case as well as is based on mis-reading and non-reading of evidence; that the appellants have fully proved that Mst. Sajida Khatoon in the presence of the witnesses and her husband entered into an oral agreement to sell and received consideration of Rs.44,00,000/- in the year 1984 and delivered the possession of the suit property to the predecessor-in-interest of the appellants but the learned trial Court has erroneously non-suited the appellants through the impugned judgment & decree, as such, the same is liable to be set aside.
4. Learned counsel appearing on behalf of the respondent submits that in the plaint the appellants have neither mentioned the time and place of execution of oral agreement to sell nor the names of the witnesses in whose presence, the oral agreement was executed by Mst. Sajida Khatoon as well as the terms and conditions settled between the parties regarding the period of execution of the sale deed; that the appellants have miserably failed to prove their case as prescribed under the law; that the PWs including the appellants stated that consideration was given to Mst. Sajida Khatoon in the shape of currency notes valuing Rs.500/- and Rs.1,000/- in the year 1984 whereas before 1986, these currency notes were not issued by the State Bank of Pakistan / Government of Pakistan; that the learned trial Court has rightly dismissed the appellants' suit and decreed the suit of the respondents through the impugned judgment & decree and that the learned trial Court has not committed any illegality or irregularity while passing the impugned judgment & decree, as such, the same is not required for any interference.
5. Heard. Record perused.
6. Issues No.1 and 2 are pivotal issues and burden to prove these issues was upon the appellants / plaintiffs. In this respect, Ahmed Bakhsh appeared as PW-1 and deposed that about 30 years ago, Mst. Sajida Khatoon sold land measuring 22-Acres against a consideration of Rs.44,00,000/- to his father (Faiz Bakhsh) in the month of November; that at the time of execution of alleged oral agreement to sell, he alongwith his father, Malik Shah Muhammad S/o Rahim Bakhsh, Qurban Hussain S/o Qadir Bakhsh, Murad S/o Ghulam Nabi was present there while from the side of the defendant, Mst. Sajida Bibi, her husband, Master Sattar and one son of the defendant, who later on died, were present; that his father paid Rs.44,00,000/- to Mst. Sajida Khatoon in the presence of witnesses and at that time Patwari, Girdawar and Tehsildar were also present. Qurban Hussain appeared as PW-2 and deposed that 30 years ago, Mst. Sajida Khatoon sold her land to Faiz Bakhsh against a consideration of Rs.44,00,000/- in his presence and at the time of execution of oral agreement to sell besides him Sajida Khatoon, Master Sardar, Murad, Ahmed Bakhsh and Faiz Bakhsh were also present. Shah Muhammad appeared as PW-3 and deposed on the same lines. In cross-examination, PW-1 (Ahmed Bakhsh) disclosed the date of execution of alleged oral agreement to sell as 22.11.1984 and stated that consideration of Rs.44,00,000/- was given in the shape of currency notes of Rs.500/- and Rs.1,000/-. PW-2 and PW-3 have also deposed on the same lines in their cross-examination. From the perusal of evidence produced by the appellants / plaintiffs, we find that there are major contradictions in the statements of PWs. The contents of the plaint are totally different from the statements of the PWs, as such, the statements of the PWs are not inconsonance with the plaint.
The evidence produced by the appellants is out of pleadings and it cannot be considered or discussed, rather the same should be ignored while deciding the lis. Reliance is placed on the cases of Zulfiqar and others Vs. Shahdat Khan (PLD 2007 SC 582) & Muhammad Nawaz alias Nawaza and others Vs. Member Judicial Board of Revenue and others (2014 SCMR 914).
7. Further, in the plaint neither the appellants have disclosed the time and place of execution of alleged oral agreement to sell nor mentioned the names of the witnesses in whose presence the alleged agreement to sell was executed by the respondents / defendants in respect of land measuring 22-Acres inspite of the fact that all the PWs stated that the consideration was given in the presence of the witnesses and also disclosed their names. It was mandatory duty of the appellants to prove their case by producing solid, concrete and trustworthy evidence but they have failed to do so. Furthermore, the appellants did not disclose in their plaint that how much period was fixed for the execution of sale deed. Reliance is placed on the cases of Muhammad Nawaz Vs. Haji Muhammad Baran Khan and Others(2013 SCMR 1300), Muhammad Nawaz alias Nawaza and Others Vs. Member Judicial Board of Revenue and Others(2014 SCMR 914) and Messrs Essa Engineering Company Pvt. Ltd. and Another Vs. Pakistan Telecommunication Company Limited and Another (2014 SCMR 922).
Contrarily, the respondents / defendants produced DW-1 Syed Ghazanfar Hassan Gillani, Assistant Chief Manager, State Bank of Pakistan as DW-1 who stated that for the first time, the currency notes valuing Rs.500/- and Rs.1,000/- were issued by the State Bank of Pakistan on 01.04.1986 and before the said date, the currency notes of the said value were never ever issued and in this regard, he produced a certificate (Exh. D-3), certificate from the website of State Bank of Pakistan in respect of currency notes of Rs.500/- and Rs.1,000/- (Exh. D-4 and Exh. D-5); the details of issuance of the currency notes worth Rs.500/- and Rs.1,000/- as Exh. D-6 & Exh.D-7. Whereas, in rebuttal evidence, the appellants / plaintiffs did not produce any documentary evidence. It is settled principle of law that mere oral assertion is not sufficient to rebut the documentary evidence as well as the oral evidence cannot exclude the documentary evidence. A document can be rebutted by the document only. In this regard, reliance is placed on the cases of Saleem Akhtar Vs. Nisar Ahmad (PLD 2000 Lahore 385) & Abdul Ghani and others. Vs. Mst. Yasmeen Khan and others (2011 SCMR 837). Even otherwise, the witnesses of the appellants are not truthful and reliable as they have deposed that consideration was paid in currency notes of Rs.500/-, Rs.1,000/- whereas no such currency notes were issued by the State Bank of Pakistan in the year 1984, as such, their evidence cannot be believed and appellants have failed to prove the payment of the consideration.
The appellants stated that in the year 1984, Mst. Sajida Khatoon executed alleged oral agreement to sell and they paid the entire amount against the land measuring 22-Acres but no plausible impediment has been explained which prevented them to get registered a sale deed or sanctioning of a mutation etc. in their favour as prescribed under the law whereas the appellants remained silent for about more than 28 years and Nine months and during this period they have not made any sincere effort to give effect to the alleged transaction through registered sale deed or mutation, as such, the appellants have failed to prove their case by producing any solid, concrete and trustworthy evidence.
The appellants filed suit on the basis of alleged oral agreement to sell dated 22.11.1984 with the plea that alleged oral agreement to sell was partly performed and the respondents sold land measuring 4-Kanals through mutation No.1490 dated 22.11.1984 (Exh.P-9). Whereas, from the perusal of record, it reveals that the aforementioned mutation i.e. Exh.P-9 was entered and sanctioned on the basis of alleged sale deed bearing No.183, Behi No.1 Jild No.195 dated 12.03.1983.
In this way, the plea taken by the appellants is incorrect as the appellants are not speaking truth. It is a Maxim that "a person can tell lies but a document cannot. Reliance is placed on the cases reported as Riasat Ali & 9 Others Vs. Rahim Bakhsh & Others (1992 CLC 2193), Masood Pervez Sajid Vs. Mst. Nawasih Fatima & 2 Others (2005 MLD 579), Muhammad Yaqoob Vs. Hameeda Begum & 4 Others (2005 CLC 870) & Mst. Salma Bibi & Others Vs. Muhammad Aslam through L.Rs (2014 YLR 2481).
Even otherwise, under Article 113 of the Limitation Act, 1908, the appellants are required to file the suit for specific performance of contract within the prescribed period of three years whereas admittedly the appellants filed the instant suit after the lapse of approximately 28 years and nine months, as such, the same is miserably barred by time. In this view of the matter, the learned trial Court has rightly passed the judgment & decree after considering and discussing the oral as well as documentary evidence brought on the record by both the parties. The findings of the learned courts below are based upon correct appreciation of evidence available on the record which are neither perverse nor contrary to law.
8. Learned counsel for the appellants has not pointed out any illegality, material irregularity or jurisdictional defect in the impugned judgment & decree warranting interference by this Court.
9. In the view of above, this R.F.A. is hereby dismissed.