MUHAMMAD SAJID MEHMOOD SETHI, J. Through instant appeal, appellant has challenged the legality and validity of judgment and decree dated 21.11.2017, passed by learned Additional District Judge, Daska, whereby appellant's appeal against judgment and decree dated 31.03.2017, passed by learned Civil Judge, Daska, partly decreeing suit filed by Zahoor-ud-Din (deceased), was dismissed, however, cross objections filed by successors of Zahoor-ud-Din (deceased) were allowed and judgment and decree passed by learned Civil Judge was modified accordingly by decreeing the suit in totality.
2. Brief facts of the case are that Zahoor-ud-Din (deceased) / predecessor of respondents No.1(a), b(i) to b(xi) & (c) to (i), filed a suit for declaration along with possession through specific performance of an oral agreement to sell regarding suit property, detail whereof is given in Para 1 of the plaint, against respondents No.2 to 11, alleging therein that Zahoor-ud-Din (deceased) purchased the suit property against consideration of Rs.60,000/- through Nasrullah, attorney of Mst. Iqbal Begum and Mst. Fatima Bibi, however, mutation could not be attested due to some pending civil litigation between Mst. Iqbal Begum (Sabran Bibi) and Nasrullah Khan and that Mst.
Sabran Bibi / defendant No.6, while impersonating herself as Mst. Iqbal Begum got sanctioned mutation No.244 dated 30.04.1994 in favour of appellant, thus, impugned mutation to said extent was liable to be declared illegal, unlawful and ineffective upon the rights of plaintiff. The suit was contested by respondents by filing written statements. Out of divergent pleadings of the parties, following issues were framed:- ISSUES:-
1. Whether the plaintiff has no cause of action to file the present suit? OPD 7 to 9.
2. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 7 to 9.
3. Whether the plaintiff has filed this false and baseless suit against the defendants No.7 to 9 and thus they are entitled to recover special costs? OPD 7 to 9.
4. Whether the suit is time barred? OPD 7 to 9.
5. Whether a suit pending between the parties regarding the disputed property and already been disposed, if so, its effect? OPD 7 to 9.
6. Whether the suit is collusive between the plaintiff and defendants No.1 to 6? OPD 7 to 9.
7. Whether the defendant No.7 Sabran Bibi disguised herself as defendant No.1 Mst. Iqbal Begum and got entered mutation No.244 regarding the disputed property in favour of defendant No.8 which is illegal, against facts, null and void thus ineffective upon the rights of the plaintiff? OPP.
8. Whether the defendant Fatima Bibi deceased had entered into an oral sale agreement and received the whole sale price Rs.60,000/- from the plaintiff through attorney? OPP.
9. If issue No.8 is proved whether the plaintiff is entitled to the decree of possession through specific performance of oral contract? OPP
10. Relief.
After recording evidence and hearing arguments of learned counsel for the parties, learned Trial Court dismissed the suit vide judgment and decree dated 15.10.2005. Feeling dissatisfied, Zahoor- ud-Din (deceased) filed appeal before learned Appellate Court, which was accepted and judgment and decree passed by learned Trial Court was set-aside, vide judgment and decree dated 12.01.2009. In post remand proceedings, the suit was again dismissed vide judgment and decree dated 26.09.2012 and in appeal, matter was again remanded to learned Trial Court for decision afresh vide judgment and decree dated 06.10.2016.
Plaintiff Zahoor-ud-Din himself appeared in the witness box as PW-3 and produced Khalid Mehmood, Clerk Identity Card Office, Sialkot as PW-1, Habib Ullah Khan, Clerk General Record Room D.C. Office, Sialkot as PW-2, Nasar Ullah Khan son of Taj Muhammad as PW-4, Hussain Khan son of Jamal Khan as PW-5, Din Muhammad son of Gilu Khan as PW-6, Abdul Ghani son of Muhammad Saddique as PW-7. In documentary evidence, he produced copy of I.D Card of Sardar Ali as Exh.P-1, copy of I.D. Card of Sabran Bibi as Exh.P-2, copy of register of I.D. Card as Exh.P-3, copy of report u/s 173 Cr.P.C. as Exh.P-4, surety bond of Sabran Bibi as Exh.P-5, agreement to sell as Exh.P-6, copy of general power of attorney as Mark-A, copy of list of legal heirs as Exh.P-7, copy of mutation No.198 dated 20.02.1992 as Exh.P-8, copy of Roznamcha Waqiati No.371 dated 21.09.1989 as Exh.P-9, copy of orders dated 13.12.1995 to 09.01.1996 as Exh.P-10, copy of mutation No.244 dated 26.04.1994 as Exh.P- 11, Nikah Nama of Sabran Bibi as Exh.P-12, voter list as Exh.P13, copy of Record of Rights for the year 1990-1991 as Exh.P-14 and death certificate of Iqbal Bibi as Exh.P-15.
Defendants produced Iqbal Begum widow of Sardar Ali / defendant No.6 as DW-1, Muhammad Ashfaq son of Ghulam Rasool as DW-2 and Ch. Riaz Ahmad Advocate as DW-3. They tendered report of Chaudhry Riaz Ahmad as Exh.C-1, notices issued by Local Commission as Exh.C-2 to Exh.C-6 and memo of appearance as Exh.C-7. Defendants also produced order dated 22.06.1994 as Exh.D-1, copy of written statement in suit titled "Iqbal Bibi v. Nasrullah Khan" as Exh.D-2, copy of inheritance mutation of Imam Din as Exh.D-3, copy of report u/s 173 Cr.P.C. as Exh.D-4, copy of appeal and judgment and decree dated 13.02.2002, passed by learned Additional District Judge, Daska as Exh.D-5, copy of plaint of suit titled "Mst. Iqbal Begum v. Sabran Bibi etc." as Exh.D-6, copy of mutation No.244 as Exh.D-7, copy of pedigree table as Exh.D-8, attested copy of death certificate of Mst. Iqbal Begum alias Sabran Bibi as Exh.D-9, copy of application for provision of copies of documents as Mark-D-1, copy of order dated 28.05.95, passed by Civil Judge, Daska, as Mark-D-2, copies of applications for provision of ownership rights in respect of temporary allotted land as Mark-D-3 & Mark-D-4 and copy of order passed by Assistant Commissioner, Daska, for allotment of ownership as Mark-D.
After concluding evidence and hearing arguments from both sides, learned Trial Court partly decreed the suit, vide judgment and decree dated 31.03.2017, whereby claim to the extent of specific performance of agreement to sell was declined, however, impugned mutation No.244 dated 30.04.1994 was held unsustainable. Feeling dissatisfied, appellant filed appeal and respondents filed cross objections before learned Additional District Judge, whereby vide consolidated judgment and decree dated 21.11.2017, appellant's appeal was dismissed, however the cross objections were accepted, consequently, judgment and decree passed by learned Trial Court was modified accordingly and suit was decreed as prayed for. Hence, instant appeal.
3. Learned counsel for appellant submits that plaintiffs failed to establish ownership of Mst. Iqbal Begum and Fatima Bibi, from whom he claimed to have purchased the suit land. He adds that as per statement recorded by local commission (Exh.C-1), Iqbal Begum had no knowledge about her as well as her father's ownership over the suit property. He maintains that material aspects of the matter have been overlooked by learned Appellate Court while passing the impugned judgment and decree and evidence produced by appellant has not been appreciated in its true perspective.
In the end, he submits that impugned appellate judgment and decree, being based upon misreading and non-reading of evidence brought on record, is unsustainable in the eye of law.
4. Conversely, learned counsel for respondents No.1(a), b(i) to b(xi) & (c) to (i), defends the impugned appellate judgment and decree and submits that learned counsel for appellant has failed to point out any illegality, legal infirmity or jurisdictional defect in the same, which is liable to be upheld.
5. Arguments heard. Available record perused.
6. The precise controversy is that Zahoor-ud-Din (deceased) prayed for decree of specific performance on the basis of oral agreement to sell allegedly executed with Nasrullah, attorney of Mst. Iqbal Begum and Mst. Fatima Bibi and challenged mutation No.244 sanctioned in favour of appellant on the ground that said mutation was got attested by Mst. Sabran Bibi by impersonating herself as Mst. Iqbal Bibi. Conversely, appellant has denied the oral agreement to sell in favour of said Zahoor-ud-Din (deceased) and supported the mutation ibid.
7. Both Iqbal Begum and Fatima Bibi during their life time and after their death, their successors, in their respective written statements, admitted that suit property was sold to Zahoor-ud-Din (deceased) by Nasrullah Khan, attorney of Iqbal Bibi and Fatima Bibi. The witnesses of respondents / plaintiffs, including Nasrullah PW-4, in their oral evidence reiterated the above stance. Even in the said scenario, in view of contesting written statement by defendant No.6, Mst. Iqbal Begum alias Sabran Bibi, widow of Sardar Khan, the plaintiffs were under heavy burden to prove the ownership of Iqbal Begum and Fatima Bibi to the extent of their shares in the suit property. Though it was asserted by plaintiffs that said ladies were owners of the suit property in view of Register Haqdaran-e-Zamin for the year 1990-1991, however, no such documentary proof was tendered in evidence and even produced before this Court.
8. Contrarily, DW-1 / Defendant No.6, namely Iqbal Begum alias Sabran Bibi Khan (DW-1) deposed that Iqbal Begum and Fatima Bibi daughters of Imam Din had no concern whatsoever with the suit property rather same was allotted to her, her husband Sardar s/o Chirag, Fatima Bibi (sister of Sardar) and Rashida Bibi (niece of Sardar) as migrants of Jammu & Kashmir. It is not disputed that said Iqbal Bibi alias Sabran Bibi was firstly married to Rehmat Ali, brother of Sardar and after the death of Rehmat Ali, she contracted second marriage with Sardar as this fact is also fortified by assertion of Mst. Iqbal Begum d/o Imam Din in para No.2 of plaint of her suit titled Mst. Iqbal Begum daughter of Imam Din v. Sabran Bibi widow of Sardar Khan & another. Muhammad Ishfaq, nephew of Iqbal Begum and Fatima Bibi (DW-2) also deposed that his aunts had no concern with the suit property as same was allotted to migrants of Jammu & Kashmir whereas said ladies were local Jutt. Birth Registration Certificate of Sardar Ali son of Chirag Din (Exh.P-1) also reflects place of birth as Jammu & Kashmir. Ch. Riaz Ahmad, Advocate (DW-3) was appointed as local commission to record statement of Iqbal Begum d/o Imam Din, which was recorded and available on record as Exh.C-1, wherein she deposed that she was not aware of her ownership regarding the suit property and she acquired knowledge in this regard about 10 to 12 years before.
In cross-examination, she stated that her father is local Jutt whereas her husband Sardar Khan is migrant from Jammu Kashmir. Her cross-examination is explicating her ignorance regarding particulars of ownership and transfer of the suit property in her name as well as his father's name.
She frankly admitted that at the time of transfer of suit property in her name, her brothers Muhammad Iqbal & Muhammad Latif and sisters Mst. Fatima Bibi, Rasool Bibi, Rashida Bibi and Sughran Bibi were also alive, however, stated that property was transferred to her name along with her sisters Fatima and Rashida Bibi. There is no plausible explanation and justification as to why other children of Imam Din were deprived of the property by their father. In this view of the matter, oral evidence of plaintiffs is not trustworthy and they have miserably failed to establish their version regarding purchase of suit property by Zahoor-ud-Din (deceased).
In the prevailing circumstances, when ownership of Mst. Iqbal Begum over the suit property to the extent of her share is not proved, the impugned mutation No.244 (Exh.P-11) on her part in favour of appellant is not sustainable.
9. No doubt, an oral agreement to sell is permissible in law, but it has to be proved through credible and un-impeachable evidence. Perusal of contents of the plaint shows that no date, time, place & mode of payment or names of witnesses of the alleged oral agreement to sell have been mentioned therein. These ingredients are sine qua non to prove oral sale without which decree of specific performance cannot be passed. A careful appraisal of statements of PWs reveals that certain improvements were made as PW-3 stated that agreement was executed in the Bethak of Nasrullah Khan and during cross-examination disclosed the time as 11:00 p.m., thereafter mentioned 11:00 a.m. PW-4 stated that he received sale consideration one day after execution of agreement to sell at the Dera of counsel for plaintiff. The plaintiff does not disclose anything regarding earnest money, however, PW-4 claimed receipt of earnest money at the time of execution of agreement to sell. I am afraid these improvements are fatal to succeed in a suit based on oral agreement to sell. Reference can be made to Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300), Moiz Abbas v.
Mrs. Latifa and others (2019 SCMR 74), Kamal Din v. Muhammad Sharif (2006 YLR 1200), Karamdad v. Manzoor Ahmad and 2 others (2015 CLC 157), Mst. Bushra Bibi and others v. Mst.
Nasim Bibi and others (2015 MLD 335) and Ch. Tariq Mehmood v. Khadim Hussain (Deceased) through L.Rs. and others (2019 CLC Note 46).
In the case of Moiz Abbas, supra, the Hon'ble Supreme Court has observed as under:-
8. We find that no date, time, place or names of witnesses of the alleged oral agreement have been mentioned in the reply to the legal notice, the written statement, or the suit filed by the respondent.
The learned counsel attempted to argue that the said gaps had been filled by the witnesses of the Respondents in their affidavits in evidence. We are not impressed by this argument. These improvements are clearly beyond the pleadings and constitute and attempt to improve the case of the Respondents as an afterthought. Such course of action is not permitted by law. These requirements are sine qua non to prove an oral agreement to sell which have been settled by this Court in numerous judgments time and again. These are clearly missing in this case. Suits involving sales based on oral agreements are more susceptible to improvements made by parties in the evidence and pleadings in order to succeed. It is imperative that all of these requirements spelt out by Courts with a view that only bona fide oral agreements lead to grant of decrees, need to be strictly enforced and Courts must insist that these be fulfilled at the earliest so as to ensure that an oral agreement is fully proved and the device of oral agreement is not abused by unscrupulous and devious litigants to get decrees by fraud, deceit, skillfully made improvements at different stages the trial.
9. There is another aspect of the matter which needs attention of this Court. It was a case of two versions: initially relief was sought on the basis of oral agreement to sell and later on, a written agreement to sell was introduced during trial proceedings. Under the well-established principle of law, this was not permissible as nobody could be allowed to approbate and reprobate in the same breath. A written agreement to sell (Exh.P-6) was tendered in evidence and in support, Deen Muhammad, marginal witness as PW-6 and Hussain Khan, scribe of said agreement as PW-5 were also examined. Learned Trial Court permitted to happen in oblivion of settled law that no party can lead evidence beyond the pleadings. Needless to say that parties are required to lead evidence in consonance with their pleadings and no evidence can be produced or looked into in support of a plea which has not been taken in the pleadings. The Court shall exclude and ignore the evidence led beyond pleadings from consideration. Moreover, if a party intends to prove or disprove a case and some material has to be brought on record as part of evidence, which is not covered by the pleadings, it shall first seek amendment of pleadings. Reference can be made to Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCMR 336), Sardar Muhammad Naseem Khan v.
Returning Officer, PP-12 and others (2015 SCMR 1698), Saddaruddin (since deceased) through LRs. V. Sultan Khan (since deceased) through LRs and others (2021 SCMR 642) and Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L.Rs. and another PLD 2022 Supreme Court 99).
10. As a sequel to above discussion, instant appeal is allowed and impugned judgment and decree dated 21.11.2017, passed by learned Additional District Judge, Daska, is set-aside. Consequently, judgment and decree dated 31.03.2017, passed by learned Civil Judge, Daska, is restored.