SHAHID KARIM, J.---This revision petition is directed against the judgment and decree dated 21.4.1996 passed by the District Judge, Lodhran on appeal whereby the judgment and decree dated 30.05.1995 passed by the Civil Judge, Lodhran was set aside.
2. The relevant facts are that the petitioner/plaintiff filed a suit for specific performance of an oral agreement to sell allegedly entered into in respect of the land which has been described in the head-note of the plaint for a consideration of Rs,35,000/-. It was alleged that the petitioner had received an amount of Rs,32,000/- as earnest money and the remaining amount of consideration of Rs,3,000/- was due from the respondent/defendant. The basis for the agreement to sell was the Rappat Roznamcha Waqiati No,455 dated 25.07.1994 which was recorded in pursuance of that Rappat, mutation No,2611 dated 25.7.1994 was also sanctioned. It was averred in the plaint that since the respondent had failed to perform his part of the agreement, therefore, it had given rise to the cause of action for the filing of the instant suit.
3. The following issues were framed by the trial court:-- 'Whether the defendant agreed orally to sell the suit land to the plaintiff for a consideration of Rs, 35,000? OPP.
' Whether a sum of Rs,32,000 was paid to the defendant as earnest money by the plaintiff? OPP.
' Whether Rappat Roznamcha Wakiati' No,455 dated 25.7.94 was got executed by the defendant in favour of the plaintiff? OPP. iv. Whether the possession of the suit property was delivered to the plaintiff in consequence of oral agreement to sell? OPP. v. Whether the plaintiff has got no cause of action and locus standi to bring this suit? OPD. vi. Whether the suit is false, frivolous and vexatious, as such liable to be dismissed? OPD. vii. Whether the plaintiff is entitled to a decree for specific performance of agreement to sell? OPP. viii. Relief.
4. The respondent filed the written statement and controverted the assertions made in the plaint. It was categorically denied that the parties had entered into any agreement to sell as well as the factum of the consideration was also denied. Moreover, the fact that possession had been delivered to the petitioner was also denied in the written statement. Rappat Roznamcha Waqiati No,455 which had formed the basis of the suit filed by the petitioner was also denied to have been recorded by the respondent.
5. It has been mentioned in the order of this Court dated 07.04.2014 that the respondent as well as the original counsel for the respondent have both died. The learned counsel for the petitioner was required to file a list of legal heirs of the deceased respondent but the learned counsel submits that despite his best efforts he could not contact the petitioner for seeking details regarding the legal heirs of the deceased respondent. In these circumstances, there is no alternative but to proceed with the hearing of this civil revision.
6. The land which is the subject matter of the suit is comprised in Khavit No,452 and measuring 5 Marlas as well as in Khavit No,462 measuring 2K-1M situated in Mauza Salsadar, Tehsil and Distt.
Lodhran.
7. I have gone through the judgment of the lower appellate Court and do not find any material irregularity to have crept in the said judgment. In this regard, I have been guided by the observations of the Supreme Court of Pakistan made in Amjad Ikram v. Asiya Kausar (2015 SCM R 1) and relating to the circumstance where the judgments of the courts below are at variance. The said observations are as follows:-- "...Even otherwise, in case of inconsistency between the learned trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary, as has been held by this Court in the judgments 'reported, as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 167) and Muhammad Nawaz through L.Rs, v. Haji Muhammad Baran Khan through L.Rs, and others (2013 SCMR 1300). "
8. The pivotal issue before the court below was the issue No,1 . In order to prove this issue, the petitioner/plaintiff produced Haji Buland Khan as P.W.3 who deposed with regard to the alleged agreement to sell for a consideration of Rs,35,000. The petitioner has submitted that this witness was not cross-examined regarding vital and material aspects of his statement with regard to the agreement to sell as well as the passing of the consideration. The trial court was also swayed by this fact. However, I have gone through the examination-in-chief as well as cross-examination conducted on the said PW.3 and do not find any basis for the submissions made by the learned counsel for the petitioner nor the findings returned in this regard by the trial court. The said witness was cross-examined on all the aspects and it cannot be submitted by any stretch of imagination that no cross-examination was conducted in respect of certain vital issues and, therefore, it would be deemed that the fact regarding the execution of the agreement to sell was admitted.
9. The lower appellate court, however, has reappraised the entire evidence and has returned a finding of fact with regard to the evidence produced by the petitioner in support of the purported agreement to sell which was admittedly oral in nature. The basis for the findings of the lower appellate court is that Rappat Roznamcha Waqiati Ex.P.1 which, in fact, was the source from which the petitioner derived his right to maintain the suit for specific performance was not signed by the respondent. It will be recalled that the basis for the suit of the petitioner was an oral agreement to sell and it was his case that Rappat Roznamcha Ex.P.1 was executed as a result of the said oral agreement to sell. If the said document Ex.P.1 is not signed by the respondent, then the said document will have to be taken out of consideration. Further, it has been rightly pointed out by the lower appellate court that the plaint does not disclose a date on which the purported agreement to sell was entered into between the parties. The trial court also did not consider the better statement of the petitioner which was recorded whereby he had admitted to the effect that it was only the petitioner who appeared before the Patwari which clearly brings forth the fact that the witnesses who have been produced were not present at the time of the recording of Rappat Roznamcha Ex.P.1. Further, Ex.D.1 which is Khasra Gardawri was produced in order to establish possession of the suit property but the said document shows it to be with Rasool Bukhsh and the said Khasra Gardawri does not show that the possession is with the petitioner. Therefore, this assertion of the learned counsel for the petitioner was also not proved and thus the trial court went wrong to take into consideration this important fact as well. Regarding payment of consideration, the only evidence that has been produced is the oral evidence of the witnesses and no documentary evidence has been produced in this regard. It has been rightly concluded by the lower appellate court that if the statements of the witnesses with regard to Rappat Roznamcha Ex.P.1 is not convincing and is to be disbelieved then this would cast shadow on the rest of the statements made by the said witnesses as regards consideration etc. Much emphasis was laid on the statement of Haji Buland Khan PW.3 who was a witness to the transaction, however, the said witness has not categorically stated that the amount of consideration was paid in his presence and his statement in this regard was at best evasive.
10. In view of the above, I do not find any material irregularity in the judgment and decree of the lower appellate court which is upheld and the instant revision petition is dismissed.