Through this single judgment, I intend to decide instant Civil Revision No. 70913/2017 as well as Civil Revision No. 125321/7017 and Civil Revision No. 131702/2018, as all these cases have arisen out of the same judgment & decree.
2. Through this revision petition, the petitioner has challenged the consolidated judgment & decree dated 03.05.2016, passed by the learned Civil Judge, Sialkot whereby the suit for possession of shop through specific performance of contract and declaration for cancellation of Document No. 676 dated 24.02.2010 alongwith perpetual injunction filed by the petitioner was partly decreed and the suit for declaration alongwith cancellation of agreement to sell dated 29.12.2009 filed by the Respondents No. 1 & 2 was dismissed. The petitioner has also assailed the consolidated judgment & decree dated 19.6.2017, passed by the learned Additional District Judge, Sialkot who dismissed the appeals filed by the petitioner as well as the respondents.
3. Brief facts of the case are that the petitioner , Saeed Ullah, (hereinafter referred as petitioner/plaintif f) entered into an agreement to sell on 29.12.2009 with Muhammad Siddique, Respondent No. 3 with regard to shop measuring 33 Sq. Ft. situated in Budhi Bazar , Sialkot, fully described in paragraph No. 1 of the plaint against consideration of Rs. 23,00,000/- out of which the petitioner/plaintif f paid Rs. 15,00,000/- as earnest, money to him in the presence of the witnesses. Before this, through a rent agreement dated 1.7.2009, Respondent No. 3/defendant, Muhammad Siddique, had received Rs. 300,000/- as security/advance. It was also settled between the petitioner/plaintif f and Respondent No. 3/defendant that the remaining consideration of Rs. 500,000/- would be paid at the time of execution of sale deed. The Respondent No. 3/defendant, Muhammad Siddique , in violation of the agreement made with the petitioner/plaintif f, executed a sale deed bearing document No. 676 dated 24.02.2010 in favour of Respondents No. 2 & 3/defendants. On disclosure of the above transaction, the petitioner/plaintif f filed suit for specific performance and cancellation of sale deed No. 676 dated 24.2.2010 being illegal.
Muhammad Siddique/Respondents No. 3/defendant filed written statement admitting the agreement in favour of the petitioner as well as the execution of the sale-deed in favour of the Defendants No. 2 & 3, The Respondents No. 2 & 3/Defendants No. 2 & 3 filed the contesting written statement with the assertion that they had purchased the suit property against total paid consideration of Rs. 25,00,000/- and the alleged agreement to sell in favour of the petitioner/plaintif f is an ante-dated document prepared with inter se collusiveness of the petitioner/plaintif f and Respondent No. 3/ defendant. Beside above the Respondents No. 2 & 3/defendants, Bilal Zaib and Mst. Saima, also filed a suit for declaration for cancellation of agreement to sell dated 29.12.2009 allegedly executed by Respondent No. 3/Defendant No. 1 in favour of petitioner/plaintif f contending therein that the said agreement is a forged and ante-dated document which has been prepared by the petitioner/plaintif f with inter se collusiveness of respondent/Defendant No. 1.
The learned trial Court consolidated both the aforesaid suits, framed consolidated issues, recorded pro an contra evidence of the parties and vide judgment & decree dated 03.05.2016, partly decreed the suit of the petitioner/plaintif f granting him alternate relief .to recover the earnest money of Rs, 18, 00, 000/- alongwith compensation of Rs. 500, 000/- from the Respondent No. 3 and rest of the claim of the petitioner/plaintif f was denied whereas the suit of the Respondents/Defendants No. 2 & 3 was dismissed. Both the patties challenged the above judgment and decree in separate appeals which were dismissed by the learned appellate Court vide consolidated judgment & decree dated 19.06.2017. Hence, these civil revisions.
4. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
5. The real controversy between the parties is encompassed in Issues No. 1 to 3, which are reproduced as under:
1. Whether plaintif f namely Saeed Ahmed entered an agreement to sell No. 4804 doted 20.08.1984 and No 4246 dated 29.12.2009 with the Defendant No. 1 namely Muhammad Sadique with respect to the shop measuring 33 Square Feet against consideration of Rs. 23,00.000/- and paid Rs. 15,00,000/- as earnest money including Rs.
3,00,000/- which was already received as security on 1.7.2009 vide rent deed? If so, its ef fect? OPP .
2. Whether impugned, registered sale-deed No. 676 dated 24.02.2010 is against, facts and law null, void and ineffective to the rights of plaintif f namely Saeed Ahmed as such the same is liable to be cancelled? OPP .
3. If above issues are proved, whether Saeed Ahmed plaintif f is entitled to the decree as proved for? OPP .
In order to dissipate the onus of the above issues, Saeed Ahmad-plaintif f himself has appeared as P.W.1 and stated that he purchased the suit property from Muhammad Siddique, Respondent No. 3/ Defendant No. 1, through a written agreement dated 29.12.2009 against consideration of Rs. 23,00,000/- out of which Rs. 15,00,000/-were paid as earnest money and Rs. 300,000/- were already pending with respondent/defendant as security/advance amount. This fact, was admitted by Respondent No. 3/defendant, Muhammad Siddique, in his written statement.
He further stated that Muhammad Siddique defendant executed sale deed dated 24.2.2010 in favour of Bilal Zaid and his wife Mst. Saima only to cause loss to him. In cross examination, he admitte d that Sidique was the owner of the shop; that he plaintif f tenant of Siddique; that it is correct that Siddique transferred the shop in favour of his son and daughter in law. The petitioner/plaint iff produced Mushtaq Ahmad Chisthi (P.W.2) and Tahir (P.W.3) who also repeated the same facts. Muhammad Siddique. the owner of the suit property , was not produced as a witness.
When the petitioner/plaintif f himself admitted that Muhammad Siddique, respondent/defendant, transferred suit property in favour of Respondents/Defendants No. 2 & 3 through registered sale deed, then there is no need to further discuss the merits of the case. It is settled law that admitted facts need not to be proved. Reliance is placed on the cases of Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300 ) and Chief Engineer , Irrigation Department, N.W.F.P. Peshawar and 2 others v. Mazhar Hussain & 2 others (PLD 2004 SC 682). Muhammad Siddique in his written statement admitted that he received the earnest money from the petitioner/plaintif f. Keeping in view the aforesaid facts and circumstances of the case, the learned Courts below rightly granted alternate relief in favour of the petitioner/plaintif f for recovery of earnest money alongwith compensation from respondent/Defendant No. 1 Muhammad Siddique and dismissed the rest of the claim of the petitioner/plaintif f and also rightly dismissed the suit of the Respondents/Defendants No. 2 & 3 for cancellation of the said agreement to sell.
6. Even otherwise, the grant of decree for specific performance I comes within the discretionary power of the Court which can refuse to c grant the relief on the principle of equities even the suitor 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."
7. Learned counsel for the parties have not been able to point out any illegality or material irregularity , mis-reading and non-reading of evidence in the impugned judgments & decrees passed by the learned Courts below and have also not identified any jurisdictional defect. The concurrent findings of facts are against the parties which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469 ).
8. In view of above, all these civil revisions are hereby dismissed being devoid of any merit. No order as to costs.