SULTAN TANVIR AHMAD, J.---- The instant civil revision has arisen out of the judgment and decree dated 06.03.2021 passed by the learned Additional District Judge, Jhang in Civil Appea l No.34/13 of 2020, maintaining the judgment and decree passed by learned Civil Judge, Jhang in Civil Suit No. 12/2020 whereby the suit of specific performance of oral agreement and permanent injunction was dismissed.
2. The brief facts forming matrix of the case appears to be that according to the petitioner , maternal aunt of respondents Nos. 1(i) to 1(iii) namely Mst. Bholi Bibi wife of Manny Shah entered into an oral agreement for sale of suit land in consideration of Rs.5000/-, in presence of the witnesses. As per the suit, possession was delivered to the petitioner and his father namely Allah Yar. The respondents entered appearance and filed their written statement, objecting maintainability , denying the agreement and allegations: It was pleaded by the respondents that the whole claim is fictitious and sought dismissal of the suit.
3. The learned civil court framed seven (07) issues out of the divergent pleadings:-
1. Whether the plaintif f validly entered into oral agreement to sell in the year 1966 with the predecessor in interest of the defendants in respect of the suit property in presence of witnesses (as fully described in para No.1 of the plaint)? OPP
2. Whether the plaintif f paid amount of Rs.5,000/- to the predecessor-in-interest of the defendants as consideration of the suit property and possession was also delivered under the alleged agreement to sell? OPP
3. If Issues Nos. 1 and 2, are proved in affirmative, whether the plaintif f is entitled to get decree for specific performance as prayed for? OPP
4. Whether the suit of the plaintif f is barred by law of limitation?
5. Whether the plaintif f has not come to the Court with clean hands thus not entitled to seek equitable relief from the Court? OPD
6. Whether the instant suit of the plaintif f is false and vexatious thus liable to be dismissed? OPD
7. Relief?
4. The parties led their evidence. The petitioner himself appeared as witness (PW-1) and also produced witnesses namely Allah Yar and Allah Baksh as PW-2 and PW-3 respectively . In documentary evidence, Khasra Gardawari was exhibited as Ex.P.1. Hashmat Ali and Ghulam Muhammad appeared as witnesses from the other side. The learned civil judge gave issue-wise findings and reached to the conclusion that the petitioner failed to prove his case and dismissed the suit. Aggrieved from the judgment, civil appeal was filed on 02.03.2020. The learned appellate court after minutely scanning evidence, remained dissatisfied with the appeal and dismissed the same on 06.03.02021. Aggrieved from the same, the present civil revision has been instituted.
5. It is argued by the learned counsel for the petitioner that being ignorant of the death of Bholi Bibi, petitioner made his efforts to locate her and now the respondents have refused to transfer the title of the suit land. As per argument of the learned counsel, the judgment of the appellate court has been passed without applying judicial mind and issue-wise findings should have been given. He placed reliance on the case Akhtar Ali Khan and another v. Settlement Commissioner , Peshawar and 4 others (1989 SCMR 506). The learned counsel also relied on Ex.P .1 reflecting the possession of the petitioner .
6. Arguments head and the record is perused.
7. Petitioner during his examination stated that he purchased the suit land 35/40 years ago and the possession was delivered to him During the cross examination petitioner/PW -1 maintained that he purchased the suit land for Rs.5000/- (Rupees Five Thousand Only) through the oral agreement. The date, time etc. of the agreement is not mentioned in the plaint and it was not stated during the examination as well. In the plaint (para 2) it is written that suit land was purchased by petitioner and his father . He failed to state in his examination-in-chief that his father was also part of the transaction. PW-3 could not support the claim of the petition er in any manners. He admitted that he has never seen Bholi Bibi. Admittedly , the remaining pat t of his statement is hearsay and contradicted the alleged amount of consideration. PW-2 failed to even state about complete particulars of agreement during his examination but merely said that five (05) Kanal land was purchased for Rs.5000 (Rupees Five Thousand Only).
He admitted during the cross examination that he could not even remember the face of Bholi Bibi, as a long time has passed.
8. An unwritten agreement though recognized by the law but the same is required to be proved by unimpeachable and credible evidence. In the present case, the stance of the petitioner could not be supported by the evidence.
The petitioner completely failed to produce confidence inspiring evidence which was inevitable to seek the specific performance C of oral agreement. Petitioner was obliged, being the beneficiary of the transaction, to prove the same. Such is not only settled law but has been consistently held by the Honorable Supreme Court of Pakistan and followed by all the courts in the Country . Paragraph No. 8 of the case titled Amjad lkram v. Mst Asia Kousar and 2 others (2015 SCMR 1 ) is highly relevant and its relevant extract is as follows: It is an equally settled principle of law that it is the duty and obligation of the beneficiary of a transaction or a document to prove the same. Reference in this behalf may be made from the judgments of this Court, reported as Akhtar Ali v. The University of the Punjab (1979 SCMR 549), Haji Muhammad Khan and others v. Islamic Republic of Pakistan and 2 others (1992 SCMR 2439 ) and Khan Muhammad v. Muhammad Din through L. Rs. (2010 SCMR 1351 ).
(Emphasis provided)
Further reliance can be placed on cases titled Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300 ), Tariq Javaid and 11 others v. Muhammad Sattar (2011 MLD 832), Karamdad v. Manzoor Ahmad and 2 others. (2015 CLC 157) and Noor Muhammad and others v. Mst. Rabia Bibi and others (2019 MLD 1286 ).
9. Failure to mention date and time in the plaint is not just creating further doubt in the stance of the petitioner and at the same time mentioning the date and time in the plaint was necessary to obtain relief on the basis of oral agreement. Reliance is placed on the cases titled Muhammad Waryam v. Rehmat Ali (2007 MLD 17), Sultan Khan v. Saddar -ud-Din (2018 CLC Note 37) and Bashir Ahmad and 21 others v. Shah Muhammad and another (2010 CLC 734 ).
10. The petitioner has filed the suit after half a century of the alleged oral sale. The contents of the plaint and the evidence of the petitioner are highly implausible and against the natural conduct of the parties. The petitioner failed to institute the suit in the life time of Bholi Bibi who allegedly sold the suit land. In paragraph No. 4 of the plaint, petitioner has attempted to create the cause of action of recent past without substantiating the same with any evidence. In examination in chief, petitioner stated that Bholi Bibi adopted delaying tactics in transferring the land who allegedly died in the year 1968. There was no reason for not instituting suit for specific performance at that point of time. The delay of about five (5) decades cannot be attributed to anyone else but the petitioner himself is to be blamed. Nothing is brought on recor d to show that the petitioner ever made any overt act to keep the alleged oral agreement alive. Even if time is not essence of the contract, petitioner had to act reasonably and within reasonable time. No explanation is given as to what prevented the petitioner from getting the suit land transferred in his name and contacting the Court within a reasonable time. The entire scenario presented by the petitioner's witnesses .in the witness-box is unnatural. The Honorable Supreme Court of Pakistan while deciding the case titled Mst. Kubra Amjad v. Mst. Yaseen Tariq and others (PLD 2019 SC 704) held that period of eight years is unreasonable time by all standards, in the circumstances of the case. The relevant part of the aforesaid judgment is as follows: Appellant/Plaintif f cannot be allowed to take benefit of her own indolence for performance of agreement to sell.
Period over eight years is neither "VER YSOON" nor reasonable time by all standards, none other than the appellant has to blame herself, sleeping over her rights and only came forward with suit for specific performance, when the Respondents filed ejectment proceedings. Appellant was not able to demonstrate that she ever since the date of purported agreement to sell dated 10.03.2001, made any overt act to keep the alleged agreement alive, nothing was brought on record to show that she issued any reminder and or notices during the life time of the deceased vendor or thereafter , nor she objected to the mutation and or transfer of the property in favour of the Respondents.
(Emphasis provided)
11. While following the aforesaid case, the learned Peshawar High Court in case titled Kabal Khan and 12 others v.
Rahmanzay and others (2020 MLD 1230 ) has decided as under:- The oral agreement to sell was required to be documented in the revenue record through mutation within a reasonable time. Limitation starts from the date of the refusal, but in absence of any refusal too it becomes the duty of beneficiary to make efforts to safeguard his rights and if no such efforts are made that after the lapse of three years he barred by the law of limitation to file suit for specific performance of the agreement. Herein the present case, on one hand, no date of refusal has been mentioned in the plaint to calculate the limitations, whereas, on the other , there is inordinate delay of about 33 years, hence, the limitation would not start from the refusal for the simple reason that it is equal responsibility of one asserting his rights to step in the court within the scope of limitation even where there is no refusal on the part of the other party or suit at least would have been filed after the death of Mst. Bacha Zarina died in 1985. Reliance is placed on Mst. Kabra Amjad v. Mst. Yasmeen Tariq and others (PLD 2019 Supreme Court 677).
12. Even judging the case by applying rule of prudence which is basic rule underlying the law of evidence and also rule of probability , this Court is not at all convinced that a transaction as alleged by the petitioner even took place.
No case of interference in the concurrent finding of two Courts below is made out.
13. The present civil revision is dismissed in limine with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.