ABID HUSSAIN CHA TTHA, J. This Civil Revision assails the validity of the concurrent Judgments & Decrees dated 24.10.2016 and 19.04.2018 passed by the Civil Judge, Sahiwal and the Additional District Judge, Sahiwal, respectively , whereby , the suit for specific performance of the Petitioner was dismissed.
2. Precisely , Muhammad son of Fazal Elahi (the "Allottee" ) who was the predecessor-in-interest of Respondents No. 1 to 15 was allotted and conferred proprietary rights regarding land measuring 54-Kanals and 14-Marlas situated in Chak No. 31 / 14-L, Tehsil Chichawanti, District Sahiwal (the "Property") under Islamabad Oustees Scheme vide Order dated 10.03.1976 issued by the Colony Assistant / Collector under Section 10(3) of the Colonization of Government Lands (Punjab) Act, 1912 (the "Act" ). It devolved upon Respondents No. 1 to 15 (hereinafter collectively referred to as the "Respondents" ) after death of the Allottee in the year 2000 through subsequent mutations. Admittedly , the proprietary rights regarding the Property in favour of the Respondents have not yet been finalized and no Conveyance Deed has been executed in their favour by the Provincial Government.
3. It was emphatically alleged in the plaint that the Property at the time of allotme nt was Banjar Qadeem and the Petitioner was put in possession to make it cultivable in the year 1990 by the Allottee. It was stated that against this consideration, Respondent No. 2 promised that the Respondents will sell the Property to the Petitioner after registration of Conveyance Deed in their favour . At the same time, it was averred that in the year 2008, Respondent No. 2 himself contacted the Petitioner to sell the Property for the reason that all the Respondents were permanent residents of Rawalpindi and had no intention to cultivate the Property . As such, they intended to sell their rights in the Property to the Petitioner acknowledging that he had preferential right to buy it. As per their desire, the Petitioner entered into an oral agreement to sell regarding the Property in the presence of witnesses, namely , Zafar Iqbal, Abdul Jabbar and Ghulam Sabir against total sale consideration of Rs. 1,538,000/- (Rs. 225,000/- per Acre).
An amount of Rs. 400,000/- was paid on the spot to the Respondents who promised to transfer the Property after acquiring proprietary rights in the Property . The agreement was effected on 20.04.2008 on Sunday at the residence of Respondent No. 2 situated at Rawalpindi where all the Respondents were personally present who consented to the oral agreement to sell and received the earnest money . Thereafter , Respondents No. 2 & 4, namely , Muhammad Hanif and Muhammad Ijaz participated in the process of grant of proprietary rights and the Petitioner also extended due help. An amount of Rs. 400,000/- was also transferred to the Respondents via online transaction in the Bank Account of Respondent No. 5 (Muhammad Sajid) by the Petitioner on 02.01.2010. Respondent No. 2 also obtained Rs. 32,000/- on 16.06.200 9 and as such, the Petitioner claimed to have paid an amount of Rs.
832,000/- to the Respondents till the institution of suit. On 21.12.2009, the D. O, Revenue granted permission for sale regarding the Property in favour of the Respondents but they deliberately delayed the matter as they intended to sell the Property to someone else. The Petitioner repeatedly asked them to receive the balance amount of Rs.
706,000/- against transfer of the Property in his name but the Respondents refused to do so and threatened to take back possession of the Property which constrained him to institute the suit. The Petitioner claimed his willingness and readiness to perform the agreement.
4. In the written statement, the Respondents controverted the contents of the plaint and denied execution of the alleged oral sale transaction in terms of offer, acceptance and receipt of partial sale consideration. The Respondents categorically stated that the Property was cultivable at the time of allotment. The Petitioner had taken the Property as tenant for cultivation and as such, there was no question to hand over possession of the Property for making it cultivable. It was also specif ically alleged that he had paid certain amounts regarding the lease of the Property but later with mala fide intention, he became a defaulter regarding payment of due share of the lease. It was asserted that the Petitioner was never contacted regarding sale of the Property . Neither any oral agreement to sell was effected nor earnest money as alleged was ever received by the Respondents. Some of the women out of the Respondents are Pardanashin ladies who did not meet strangers. The residences of the Respondents are different and it was not possible to gather them at one place at a time. The assertions regarding date, time, venue and witnesses were categorically denied. It was also stated that the market value of the Property is about Rs.
800,000/- per Acre and the Petitioner instituted the suit on the basis of a concocted story in order to snatch the Property of the Respondents.
5. Out of divergent pleadings of the parties, the Trial Court framed the followings issues:- i. Whether the defendants agreed to sell the suit land through oral agreement of sale dated 20.04.2008 and received earnest money Rs. 400,000/-? OPP ii. Whether in pursuance of oral agreement of sale dated 20.04.2008, defendant received another amount of Rs.
400,000/- through defendant No. 5? OPP iii. Whether defendant No. 2 received Rs. 32,000/- on 1 1.06.2009 in pursuance of oral agreement of sale? OPP iv. Whether the plaintiff is entitled to the decree for specific performance of oral agreement of sale dated 20.04.2008 with the consequential relief of permanent and mandatory injunction on the basis of averments made in the plaint? OPP v. Whether the plaintiff has cause of action and locus-standi to file the suit? OPD vi. Whether the plaintiff has not come to court with clean hands to file the suit? OPD vii. Whether this court has no jurisdiction to entertain the suit under Section 36 of Colonization Act? OPD viii. Whether the suit land cannot be transferred without getting prior permission under Section 19 of Colonization Act, if so, its legal effects? OPD ix. Whether the plaintiff has filed instant suit just to harass the defendants and they are entitled to get special costs under Section 35-A of CPC from the plaintiff? OPD x. Relief.
6. Evidence of the parties was duly recor ded. Issues No. i to v, vii & viii were decided by the Trial Court conjointly on the ground that queries qua locus standi, cause of action and cognizance of Court are primarily inter-related to issues No. i to iv. The Trial Court dismissed the suit of the Petitioner vide Judgme nt & Decree dated 24.10.2016.
The Petitioner preferred an Appeal which was also dismissed by the Appellate Court vide Judgment & Decree dated 19.04.2018.
7. Learned counsel for the Petitioner submitted that the oral agreement was proved on the basis of evidence produced by the Petitioner but the Courts below misread and non-read the evidence on record to conclude otherwise. The names of witnesses, date, time and venue of the oral agreement was specifically pleaded in the plaint and deposed by the witnesses produced by the Petitioner . All the ingredients to establish the factum of oral agreement were evident from the record of the case but the Courts below have erred to conclude that the oral agreement was not executed between the parties. Further , the payment of part sale consideration was also proved.
Emphasis was made on one transaction of Rs. 400,000/- that was paid through an online transaction dated 04.01.2010 in the account of Respondent No. 5. It was argued that the suit was instituted on 27.01.201 1 within three years from the date of oral agreement i.e. 20.04.2008. The Petitioner is in possession of the Property . The Respondents did not take any step for dispossession of the Petitioner or for recovery of alleged non-payment of lease amount. It was vehemently argued that the impugned Judgment passed by the Appellate Court is deficient in terms of Order XLI, Rule 31 of the Code of Civil Procedure, 1908 (the "CPC" ), inasmuch as it did not discuss, appreciate and evaluate the evidence on record and state the reasons for its findin gs. As such, at a minimum, the impugned Judgment passed by the Appellate Court is liable to be set aside and the case should be remanded to the Appellate Court for its decision afresh being the final Court of fact. Finally , it was stated that findings of the Trial Court in terms of Section 19 of the Act qua the transaction to conclude that it was barred under the law before the registration of Conveyance Deed are based on misapplication of law .
8. In rebuttal, it was contended that the Petitioner had miserably failed to establish the alleged transaction via oral agreement and prove the payment of part sale consideration. The Khasra Gardawari on record vividly pointed out that possession of the Petitioner was in his capacity as tenant. Khasra Gardawari also depicted that the land allotted in the year 1976 was never Banjar Qadeem as alleged in the plaint, rather , it was cultivable which negated the basic contention of the Petitioner taken in the plaint. The Petitioner being Patwari could not be expected to enter into an oral transaction with the Respondents who are more than 15 in number and educated persons. In fact, the Petitioner having been voluntarily put in possession of the Property as lessee neither paid the lease amount nor vacated the Property and initiated concocted litigation to linger on his possession and enrichment from the Property at the expense of the Respondents who are all residents of Rawalpindi and are constrained on account of their preoccupation to take care of the Property . As such, the evidence on record had been appreciated in its proper perspective by the Courts below . The entire evidence stood recorded. The Appellate Court while rendering the impugned Judgment had fulfilled the requirements prescribed in terms of Rule 31 of Order XLI of the CPC and there is no reason to remand the case. The specific performance is even otherwise a discretionary relief.
Hence, the concurrent findings recorded by the Courts below are unexceptional.
9. Arguments heard. Record perused.
10. It is evident that the controversy revolves around the moot question as to whether the Respondents agreed to sell their proprietary rights in the Property through oral agreement to sell dated 20.04.2008 and received part sale consideration of Rs. 832,000/-.
11. Examination of evidence on record reveals major contradictions in the testimonies of witnesses of the Petitioner vis-a-vis the contents of the plaint. Foremost contradiction is with respect to the assertion that the Property was barren and the Petitioner made it cultivable. PW-5, Halqa Patwari, was an independent witness who produced Khasra Gardawari Register and candidly stated that one of the purpose of Khasra Gardawari is to record the nature and kind of crops cultivated on the land.
It is done twice in a year through spot inspection. The crop and the name of cultivator are entered in the Register .
He gave details of Khasra Gardawari starting from 1976 regarding the Property . It revealed that crops were being cultivated on the Property at the time of allotment. Initially , Khasra Gardawari was in the name of the Allottee starting from 1976 and thereafter , in the names of various other tenants. From 1992 onwards, name of the Petitioner was reflected as Mazara Tab-e-Marzi or Patadar . In fact, he candidly deposed that the Property was cultivable even much before the date of allotment.
12. The Petitioner appearing as PW-1 admitted in his cross examination that he was a Patwari by profession and was posted at a nearby Halqa. All the witnesses named by him were his friends who are always ready to go with him wherever he so desires. All the Respondents are permanently settled in Rawalpindi and none of them had ever lived in the Chak where the Property is situated. Only Respondent No. 2 visited him at his village and he did not know the Respondents except Respondents No. 3 & 4. He admitted that he was unaware of the names of female Respondents. When questioned, he stated that he did not consider it necessary to record the agreement in writing as he reposed trust in the Respondents. He also admitted that since 1990, he did not pay anything in terms of lease money . He also confirmed that Khasra Gardawari is not conducted regarding vacant and barren land.
13. PW-2 in his deposition stated that he only knew Manzoor Ahmad and Muhammad Zafar personally out of the fifteen Respondents. The alleged part sale consideration of Rs. 32,000/- and online transaction of Rs. 400,000/- were not made before him. He did not know how many years were consumed to make the Property cultivable. He confirmed that no lease money was paid by the Petitioner to the Respondents from 1992 to 2008. He also did not know regarding the Khasra Gardawari of the Property or that the name of the Petitioner appeared therein as Mazara.
14. PW-3 deposed that the sale was agreed @ Rs. 230,000/- per Acre in contrast to Rs. 225,000/- per Acre as alleged in the plaint. He also stated that he did not know if the Petitioner was Mazara of the Respondents or that Khasra Gardawari was in his name as Mazara . He was not aware regarding tentative price of the Property . He also deposed that he did not know any of the Respondents except Respondent No. 2 but now he knew all the Respondents. However , in the same breath, he admitted that he could not narrate the name of any of the Respondents except Muhammad Hanif.
15. Statement of PW-4, Bank Officer as well as statement of account exhibited were also examined. An amount of Rs. 400,000/- was reflected in the account of one of the Respondents (Muhammad Sajid) but it could not be confirmed that who made this online transaction and for what purpose. As such, the assertion that the same was paid as part sale consideration was not proved.
16. Conversely , the examination of the depositions of DW-1 and DW-2 revealed that they remained consistent regarding the pleadings in the written statement. They denied each and every suggestion regarding the transaction in terms of date, time and venue thereof. The receipt of part sale consideration was also completely denied. It was clarified that online transaction of Rs. 400,000/- was regarding lease money . The earnest money of Rs. 400,000/- and subsequent installment of Rs. 32,000/- were categorically denied to have been received. As such, the total amount of Rs. 832,000/- alleged to have been paid as part consideration of the Property was completely denied, meaning thereby , the transaction was disowned in its entirety . It was also stated that the Petitioner was a defaulter and at present, he is merely an illegal occupant.
17. The scanning of evidence on record leads to an irrefutable conclusion that the Petitioner could not prove the alleged oral agreement to sell. Stating the date, time and venue of the transaction and naming the witnesses in the plaint or deposing to this effect although is essential to allege an oral agreeme nt to sell yet it is by no means sufficient to prove its execution. There were major contradictions in the evidence of the Petitioner which establish that no transaction of sale took place between the parties. Offer and acceptance of sale regarding each Respondent was not proved as identity of each Respondent could not be established by the witnesses. This is especially so when there were a number of Respondents and specific consent was required to be established regarding each and every Respondent which is conspicuously missing in terms of evidence on record. The Petitioner and witnesses did not personally know each Respondent. Failure of the PW's to identify each alleged seller proves that there was no privy of contract between the Petitioner and each Respondent. For reference, see case titled, "Farzand Ali and another v. Khuda Bakhsh and others" (PLD 2015 Supreme Court 187). The payment of part sale consideration could not be proved. Time, place and witnesses were not pleaded in the plaint before whom alleged subsequent payments of Rs. 32,000/- and Rs. 400,000 /- were made. The witnesses confessed that the subsequent payments of consideration were not made before them. As such, alleged part payments were not proved. For reference, see cases titled, "Mst. Waris Jan and another v. Liaqat Ali and others" (PLD 2019 Lahore 333); and "Muhammad Yousaf v. Mehmood and 2 others" (2016 CLC 1258 ). The basic assertion of the Petitioner that Property was barren in 1990 was disproved through documentary evidence corroborated by testimony of independent witness (PW-5) produced by the Petitioner . It was also proved that PW-2 & PW-3 were interested witnesses being close friends of the Petitioner . The status of the Petitioner as Mazara was duly established qua his possession regarding the Property . Non-payment of lease money and default were also evident. PW-3 even wrongly deposed regarding alleged agreed sale consideration. Lack of knowledge of the witnesses (PW-1 to PW-3) about status of the Petitioner regarding the Property proved that their testimonies were not credit worthy . It is also strange that the suit was instituted by the Petitioner before grant of proprietary rights in favour of the Respondents which fortifies the version of the Respondents that the Petitioner was a defaulter and the suit was merely an instrument to prolong his possession over the Property without payment of lease money to the Respondents. Neither the agreement was reduced into writing nor a single receipt regarding three separate alleged payments was obtained, although the Petitioner being a Patwari by profession was completely educated pertaining to land transactions. Needless to emphasize that heavy burden to prove is cast upon the party alleging oral agreement to sell. As such, ingredients of sale in terms of offer, acceptance and payment of consideration between the Petitioner and each Respondent was not proved.
18. The contention raised before this Court regarding non compliance of Order XLI, Rule 31 of the CPC has also been considered. The Rule stipulates that the Judgment of the Appellate Court shall be in writing, shall state the points for determination, the decision thereon and the reasons for the decision. The Judgment passed by the Appellate Court fulfills the ingredients of the said Rule. The Appellate Court recorded the facts of the case, listed all the issues framed and the contentions raised before it by the respective counsels for the parties. The points of determination in terms of proof of execution of oral agreement and payment of sale consideration were particularly mentioned. The reasons recorded therein regarding Khasra Gardawari, non-execution of oral agreement and non- payment of part sale consideration in terms of discrepancies of the witnesses of the Petitioner formed the basis for dismissal of the Appeal. As the primary point of determination was regarding execution of the oral sale transaction and payment of part sale consideration, therefore, it cannot be said that the Judgment of the Appellate Court is deficient in this respect. The Appellate Court applied its independent mind regarding the main controversy . It was not required to deal with the grounds of Appeal abandoned during arguments or which were otherwise deemed unnecessary for disposal of the case or which were not urged at the hearing of the Appeal. It was also not necessary to decide each and every issue separately when the primary point of determination was limited to the validity of the agreement. The Judgmen t passed by the Appellate Court is clearly a speaking order and self- explanatory . The cases titled, "Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others" (2019 SCMR 1726 ); and "Khalid Aziz and others v. Province of Punjab and others" (2018 MLD 102) referred by learned counsel for the Petitioner in this behalf are not attracted being distinguishable from the facts and circumstances of the instant case. Needless to reiterate that each case is required to be decided on the basis of its own peculiar facts and circumstances. Remand of a case is normally ordered when it becomes necessary and inevitable on account of insuf ficient and inconclusive evidence on record which is not the case here. For reference, see case titled, "Anwar Ahmad v . Mst. Nafis Bano through Legal Heirs" ( 2005 SCMR 152 ).
19. Before parting, it would be appropriate to comment regarding the legal proposition to enter into an agreement to sell, whether oral or written, regarding sale of proprietary rights in a Government allotted land under the Act in terms of Section 19 thereof which mandates prior permission of the Government. In case titled, "Daulat Ali through Legal Heirs and 2 others v. Ahmad through Legal Heirs and 2 othe rs" (PLD 2000 Supreme Court 792), the Hon'ble Supreme Court of Pakistan while interpreting Section 19 of the Act importantly observed as follows:- "Indeed the document entered into betw een the parties was merely an agreement to sell, specific performance whereof was postponed till such time the allottee had acquired full ownership rights. Such a reservation was made in the document itself which reflected the awareness of the constraints, the recognition of its legal effect and an effort on the part of the parties to the contract to keep themselves well within confines of law and to act strictly in consonance with the requirements of the statute. We are of the considered view that such an agreement to sell cannot be held to be violative of either the express provisions of Section 19 of the Act, 1912 or of the public policy behind such statutory provision. There have been a number of cases in which even oral agreement of sale by vendor in favour of vendee was held to be not hit by the provisions of Section 19 of Act 1912. This Court has already settled the law on the subject in the cases reported as Hakim Ali v. Atta Muhammad 1981 SCMR 993, Muhammad Iqbal v. Muhammad Hussain PLD 1986 SC 70, Rehmat Bibi v. Jhando Bibi 1992 SCMR 1510 , Sher Muhammad Khan v . Ilam Din 1994 SCMR 470 and Abdul Ghani v . Fatima Bibi 1994 SCMR 1786 ."
Hence, to this extent, the findings of the Trial Court were incorrect. However , the same does not affect the decision of this case. For this reason, the Appellate Court did not opine about it.
20. Grant of specific performance is always a discretionary relief which can even be denied if the transaction is otherwise proved, though discretion of the Court is not arbitrary but must be based on sound and reasonable grounds, guided by judicial principles and capable of correction by a Court of Appeal. However , since the oral agreement in the instant case was otherwise not established, hence, the question of its enforcement through the process of law and exercise of discretion does not arise. No illegality , irregularity , misreading or non-reading of evidence or perversity of reasoning is evident in the impugned Judgments & Decrees passed by the Courts below .
Hence, the instant Civil Revision being devoid of any merit, is dismissed . No order as to costs.