Through this civil revision, the petitioner has challenged the judgment & decree dated 04.05.2010, passed by the learned Additional District Judge, Taunsa Sherif who accepted the appeal of the respondents, set aside the judgment & decree dated 21.05.2008, passed by the -learned Civil Judge, Taunsa Sherif and dismissed the suit for specific performance filed by the petitioner .
2. Brief facts of the case are that the petitioner/plaintif f filed a suit for specific performance in respect of land measuring 15 Kanal 16 Marla situated in Moza Chappri, Tehsil Taunsa Sherif, District Dera Ghazi Khan contending therein that he purchased the property from Rehmat Ullah, Respondent No. 1, through agreement to sell dated 13.10.1996. But in presence of above agreement the Defendant No. 1 Rehmat Ullah through mutation No. 93 dated 04.11.1996 transferred the suit property in favour of Defendant No. 2. The Defendant No. 2 filed contested written statement claiming to be a bonafide purchaser and through collusiveness of the plaintif f and Defendant No. 1, the instant suit had been filed just to frustrate the sale transaction in his favour . The learned trial Court framed issues, recorded pro and contra evidence of the parties and finally decreed the suit vide judgment & decree dated 21.05.2008. Being dissatisfied with above decision the respondents, Khuda Bukhsh etc., filed an appeal which was allowed by the learned appellate Court who by setting aside the judgment & decree dated 21.05.2008 of the learned trial Court, dismissed the suit of the petitioner vide judgment & decree dated 04.05.2010. Hence, this civil revision.
3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
4. The petitioner/plaintif f produced Riaz Ahmed (P.W.1) and Muhammad Ilyas (P.W.2) who are the marginal witnesses of the alleged agreement to sell whereas admittedly P.W.1 is real son of the petitioner/plaintif f and P.W.2 is his brother-in-law . The petitioner/ plaintif f failed to produce any independent and trustworthy witness of the alleged agreement to sell to prove the genuineness of the same. It A is well settled law that mere agreement to sell does not create any title until proved. Reliance in this regard can be placed on the cases reported as Mst.
Rasheeda Begum and others vs. Muha mmad Yousaf and others (2002 SCMR 1089 ) Hayat Muhammad and 8 others vs. T ajuddin and another ( 1994 SCMR 1 188).
5. The petitioner/plaintif f alleged that the Respondent No. 1 sold the suit land to him through alleged agreement to sell whereas the Respondent No. 2 claimed the ownership of the suit land on the basis of mutation No. 93 (copy of Register of Record of Rights produced as Exh.D.1) which has not been controverted by the petitioner/plaintif f through any concrete documentary evidence. It is settled principle of law that documentary evidence always takes preference over the oral deposition but no document is produced by the petitioner to controvert/shatter the sanctity of a written and registered document. In this regard, reliance is placed on the cases of Abdul Ghani & Others. us.
Mst. Yasmeen Khan & Others (2011 SCMR 837 ) and Saleem Akhtar vs. Nisar Ahmad (PLD 2000 Lahore 385 ).
6. Ghulam Ali, predecessor-in-interest of the petitioners/ plaintif fs, filed suit for specific performance on 14.12:1996 in respect of land measuring 15 Kanal 16 Marla situated in Khata No. 124, fully described in headnote of the plaint whereas in respect of the same land, Ghulam Ali filed two suits for possession through pre-emption; one on 10.12.1997 after admitting the sale in favour of the respondent Khuda Bukhsh etc. regarding land measuring 03 Kanal 19 Marla and other suit for pre-emption on 04.11.1997 to the extent of land measuring 06 Kanal 11 Marla.
The petitioner/plaintif f filed instant suit for specific performance on the basis of alleged agreement to sell dated 13.10.1996 whereas he filed the aforeme ntioned two suits for pre-emption on 04.11.1997 & 10.12.1997 i.e. after the alleged execution of the agreement to sell but he did not mention this fact in the aforesaid suits which shows that fraud has been committed by the petitioner/plaintif f by preparing an ante-dated agreement, Even otherwise, no description of property has been mentioned in the alleged agreement to sell.
7. The conduct of a litigating party has material significance and a party approaching the Court for grant of relief must come with clean hands based on the maxim "he who seeks equity must do equity". Discretionary relief could only be claimed by a person having a bona fide claim and come to the Court with clean hands for enforcement of a legal right obtained in a lawful manner . As mentioned above that the petitioner malafidely has not disclosed the filing of the instant suit which amounts to concealment of facts, as such, he has not come to the Court with clean hands, which is considered fatal for his case. Reliance is placed on Mst. Shahida & Another vs. Board of Intermediate & Secondary Education, Larkana through Chairman, at Larkana & 5 Others (PLD 2001 SC 26), Muhammad Sharif vs. Additional District Judse & Others (2007 SCMR 49), Sayed Abbas Taqi Mehdi vs. Mst.
Sayeda Sabahat Batool & Others (2010 SCMR 1840 ).
8. The grant of decree for specific performance comes within the discretionary power of the Court which can refuse to grant the relief on the principle of equities even the slitor has proved the case, as settled by the Hon'ble Supreme Court of Pakistan in its judgment' titled as Sheikh Akhtar Aziz vs. Mst. Shabnam Begum & Others (2019 SCMR 524) held as under: "16. Finally , there is no cavil with the proposition that relief of specific performance is discretionary in nature and despite proof of an agreement to sell, exercise of discretion can be withheld if the Court considers that grant of such relief would be unfair and inequitable."
The above principle has been reiterated in case titled as Muhammad Miskeen us. District Judge Attock & Others (2020 SCMR 406 ).
9. The learned trial Court failed to appreciate the legal and factual aspects of the case and decreed the suit of the petitioner whereas the learned appellate Court, after discussing the facts as well as evidence of the parties, through a well-reasoned judgment has dismissed the suit of the petitioner and has committed no illegality . It is well settled law that in the event of conflict of judgments, findings of appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence . Reliance is placed on the case reported as Muhammad Hafeez & Another vs. District Judge, Karachi East & Another ( 2008 SCMR 398 ).
10. Resultantly , this civil revision being devoid of any merit is hereby dismissed with no order as to costs.