Atir Mahmood, J. Brief facts of the case are that on 13.05 .1991, respondent No.1 Mukhtiar Ahmad filed a suit for declaration along with specific performance of contract against predecessor-in-interest of petitioner No.1 namely Abdur Rashid (defendant No.1) and predecessor-in-interest of petitioners No.2 to 4 namely Ghulam Rasool s/o Sawaya (defendant No.2) with the assertions that defendant No.1 was allottee of the land fully detailed in the headnote of the plaint; that the land was allotted to defendant No.1 under Abadkari Scheme in 1961 when he was an army personnel; that due to his job responsibilities, defendant No.1 could not bring the suit land under cultivation; that in 1962, defendant No.1 entered into an oral agreement with the plaintif f that the plaintiff would cultivate the suit land and would also pay the installments from his own pocket and would get half of share of the produce and on getting proprietary rights, defendant No.1 would keep half land with him and transfer the remaining half to the plaintif f; that the plaintif f got possession of the suit land in 1963, paid land revenue and also deposited the installments in the government treasury due to which defendant No.1 got proprietary rights but afterwards, defendant No.1 resile d from the said agreement and transferred the whole suit land in favour of defendant No.2 vide mutation No.106 dated 27.04.1998 which was challenged in addition to praying for decree of specific performance of the agreement.
2. The suit was contested by the defendants by filing written statement. Out of divergent pleadings of the parties, issues were framed. Both the parties led their respective evidence which was duly recorded by learned Civil Judge, Bhakkar .
Thereafter , learned Civil Judge, Bhakkar dismissed the suit vide judgment and decree dated 28.07.1992. In the appeal preferred by the respondent side, the case was remanded vide order dated 17.07.1995. In post remand proceedings, the suit was again dismissed, however , in appeal, the suit was again remanded. Finally , learned Civil Judge, Bhakkar dismissed the suit vide judgment and decree dated 11.09.1999. Respondent No.1 feeling dissatisfied challenged judgment and decree dated 11.09.1999 passed by learned trial court which appeal was allowed by learned Additional District Judge, Bhakkar vide judgment and decree dated 18.06.2004. Petitioner No.1 along with proforma respondents filed application under Order IX Rule 13 read with Section 12(2), CPC which application was allowed and judgment and decree dated 18.06.2004 was set aside and the appeal titled "Mukhtiar Ahmad Vs. Abdur Rashid" was re-heard and decided vide judgment and decree dated 15.07.2006. The petitioners filed Civil Revision No.1739/2006 before this Court which was disposed of vide order dated 25.04.2007 while remanding the case to learned lower appellate court. In post-remand proceedings, learned Additional District Judge, Bhakkar vide judgment and decree dated 30.10.2008 dismissed appeal to the extent of legal heirs of Abdur Rashid and maintained judgment and decree of his predecessor . Hence this civil revision has been filed.
3. Learned counsel for the petitioners contends that the learned lower appellate court did not apply its judicious mind and also ignored the direction of this Court made vide order dated 25.04.2007 in Civil Revision No.1739/2006; that the learned appellate court, while holding that late Abdur Rashid had no locus to contest the appeal and that late Ghulam Rasool has not shown any grievance and LRs of Ghulam Rasool did not contest the appeal is factually incorrect. He argued that LRs of Ghulam Rasool challenged judgment and decree dated 15.07.2006 in Civil Revision No.1739/2006 which was allowed and the case was remanded to learned lower appellate court; that the impugned judgment is against law and fact; that the learned appellate court neither discussed the merits nor cared to see whether the alleged verbal agreement to sell relied upon by respondent No.1 was proved and whether the same was legally enforceable. Learned counsel for the petitioners asserts that the impugned judgme nt and decree is not sustainable in the eye of law, therefore, it be set aside by way of allowing this civil revision.
4. On the other hand, learned counsel for the respondents has vehemently opposed this civil revision by submitting that against the impugned judgment and decree dated 15.7.2006 passed by the learned Additional District Judge in the earlier round of litigation, the legal heirs of Ghulam Rasool did not file any revision petition and the matter attained finality to their extent. He emphasized that the judgment and decree dated 15.7.2006 passed by the learned Additional District Judge, Bhakkar was set-aside to the extent of legal heirs of Abdur Rashid, therefore, the present revision petition is not maintainable to the extent of legal heirs of Ghulam Rasool. He further argued that Abdur Rashid while alienating the property to Ghulam Rasool lost his right and had no locus standi to contest the appeal and no illegality had been committed by the learned appellate court. He relied upon the case law cited as Ghulam Nabi and another vs. Member, Board of Revenue, Punjab and others (1981 SCMR 998), Habibullah Jan and 3 others vs. Muhammad Hassan Khan and 6 others (PLD 1991 SC 93), Muhammad Nawaz vs. Mst. Ahmad Bibi and 3 others (1995 SCMR 266) and Ghulam Rasool through L.Rs. and others vs. Muhammad Hussain and others (PLD 2011 SC 119).
5. After hearing the arguments of learned counsel for the parties the points for consideration by this Court are as follows:-.
(i) As to whether the legal heirs of Abdur Rashid have any locus standi to file the revision petition.
(ii) As to whether the legal heirs of Ghulam Rasool could competently file this revision petition.
(iii) and as to whether the judgment of the learned appellate court is liable to be revers ed by upholding the judgment and decree passed by the learned trial court.
6. The first objection of the respondents/point for consideration relates to the locus standi of the legal heirs of Abdur Rashid.
In this regard, perusal of the plaint filed by the respondent Mukhtiar Ahmad is very relevant and according to which the respondent-plaintif f entered into an oral agreement to sell of the suit property with defendant No.1 Abdur Rashid in the year 1962 and thereafter in violation of the said alleged agreement alienated the same property to defendant No.2 namely Ghulam Rasool. If the respondent-plaintif f was not aggrieved or the defendant No.1 had no locus standi to defend the suit then why the respondent opted to implead him as a defendant, therefore, this contention of the respondents is without any basis. Further , admittedly the late Abdur Rashid was owner of the property , who admittedly alienated the same to defendant No.2 Ghulam Rasool and in case the suit is decreed in favour of the respondent the outcome of the same would be that Ghulam Rasool will cease to have any title in the property and as an outcome the transaction between Abdur Rashid and Ghulam Rasool would become nullity creating multiplicity of litigation between the two. In my considered opinion the legal heirs of Abdur Rashid have every locus standi to contest the appeal and they are to sink or sail together with the legal heirs of Ghulam Rasool s/o Sawaya, the deceased defendant No.2.
7. The second objection of the respondent that the legal heirs of Ghulam Rasool did not agitate the decree of the learned appellate court dated 15.7.2006 is also incorrect. A Civil Revision No. 1739 2006 was filed by the legal heirs of Abdur Rashid (defendant No.1) and the legal heirs of Ghulam Rasool (defendant No.2) which was decided by this Court in the following terms:- "The learned counsel for the petitioners contended that the impugned judgment dated 15.7.2006 is erroneous and based on complete mis-reading of record and evidence. The learned lower Appellate Court mis-took the petitioners No.1 to 5 as appellants and Mukhtar Ahmad and others as respondent, while actually it was otherwise, therefore, the impugned judgment is fraught with errors of fact.
2. Therefore, both learned counsel concur and agree that the impugned judgment and decree be set-aside, the proceedings be remanded to the lower Appellate Court, wherein both parties be permitted to raise all questions of law and fact, which thereafter be adjudicated and decided on merits.
Order accordingly.
The parties are directed to appear before the learned District Judge, Bhakkar on 30.5.2007, who will either proceed to hear the matter himself or entrust it to a Court of competent jurisdiction, which shall decide it on merits, addressing all question of law and facts raised by the parties, in the shortest possible time. "
(Emphasis provided)
From the bare perusal of the order mentioned here-in-above there remains no room to believe that the legal heirs of Ghulam Rasool s/o Sawaya did not challenge the vires of the judgment and decree passed by the learned appellate court. Learned appellate court, after remand order , passed the impugned judgment in the following manner: "10. The perusal of order of my learned Predecessor dated 19.4.2006 shows that the prese nt appeal was restored to the extent of rights of Abdul Rashid. Now it had been proved that Abdul Rashid had already extinguished his right in the suit property as he had transferred the suit property to Ghulam Rasool, whereas Ghulam Rasool contested the suit till court of appeal and had not challenged the order of Appellate Court before the Hon'ble Lahore High Court, Lahore and in this connection execution had also been comple ted Therefore, as Abdul Rashid had already lost right in the suit property with the transfer of his land in the name of Ghula m Rasool and now Ghulam Rasool is not contesting the appeal. So the order passed by my learned Predecessor was kept intact to the extent of Ghulam Rasool and the application was allowed to the extent of Abdul Rashid only, therefore, the appeal to the extent of Abdul Rashid has no merits and the same is hereby dismissed. The order passed by my learned Predecessor is maintained and kept intact."
(Emphasis provided)
Therefore, it is held that the impugned judgment and decree dated 30.10.2008 passed by the learned Additional District Judge, Bhakkar is absolutely nullity in the eye of law and as a matter of fact, the findings of the learned appellate court are erroneous.
8. On merits of the case, it is admitted fact that the respondent while filing his suit alleged an oral agreement to sell with regard to the suit property in the year 1962 but neither the name of any witness was mentioned therein the plaint nor date time and place of alleged oral agreement was mentioned. Further , the witnesses produced by the respondent remained silent regarding the date and time of the alleged oral agreement to sell. In cross-examinat ion, PW.1 stated that at the time of agreement Ghulam Rasool s/o Sawaya (defendant No.2 in the suit) was present in a room of the house of the plaintif f at Noon whereas when PW.2 Ghulam Rasool s/o Tanpur (not defendant No.2) appeared in the witness box, he in cross- examination stated that they were sitting underneath a tree in the Ihata ? of Mukhtiar (plaintif f). He also stated that at that time Sufi Rasheed, Ghulam Muhammad, Khushi Muhammad, Abdullah and 2/4 other persons were present whereas PW.1 did not mention the name of any other person present at the relevant time. These are material contradictions which cannot be brushed aside. Further , this PW.1 showed his absolute ignorance that how much amount was paid. He categorically stated that he was not present at the time of any bargain between the parties.
In view of the evidence led by the respondent-plaintif f, I have no doubt in my mind that the respondents failed to prove the factum of any oral agreement to sell with Abdur Rashid. Undoubtedly , the oral agreement to sell is permissible under the law but the party who alleges the execution of an oral agreement to sell is under a heavy obligation to prove the same through unimpeachable evidence. The guidance is sought from the judgment of the Hon?ble Supreme Court of Pakistan reported as Muhammad Nawaz through L.Rs vs. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300 ). The relevant portion is reproduced as under:-.
" We also hold that although it is not the requirement of law that an agreement or contract of sale of immovable property should only be in writing, however , in a case where party comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the party to prove that there was consensus ad idem between both the parties for a concluded oral agreemen t an oral agreement by which the parties intended to be bound is valid and enforceable, however , it requires for it prove clearest and most satisfactory evidence."
9. There is yet another aspect of the case that in the plaint the year of agreemen t to sell has been written as 1962 whereas when the respondent himself appeared in the witness box as PW.3 he stated the year of agreement as 1963 which is fatal for the case of the respondents. The case law relied upon by learned counsel for the respondents being distinguishable on facts is also not helpful to the respondents.
10. In view of the above discussion, this revision petition is allowed. The judgment and decree passed by the learned appellate court is set-aside and the judgment and decree passed by the learned trial court is upheld.