MUHAMMAD SHAN GUL, J. Before attempting to write a judgment on the merits of the titled civil revision it is necessary to mention here that this civil revision was admitted for hearing on 21.10.2020 on the (what has now turned out to be false) pretext that the appeal against which this civil revision was filed was decided without deciding an application filed by the petitioners seeking permission to produce and lead additional evidence in terms of Order XLI, Rule 27 CPC. Today, when the case was taken up for hearing, learned counsel for the petitioners quite sheepishly volunteered that in actual fact the application in question had been decided by way of an order dated 15.8.2020 and had been allowed and, therefore, he may be allowed to not take up this point any further. The counsel was confronted with the question that but for this element there was nothing irregular, irrational or improper about the concurrent judgments passed by the courts below and also that the above admission did not reflect well on his conduct as a counsel because the petitioners had prima facie lied their way into convincing this Court to admit the civil revision in question and grant interim relief and, therefore, the conduct of the petitioners ought to be deprecated and that the counsel himself ought to be careful in future. Learned counsel for the petitioners sought pardon and, hence, exercising restraint, the civil revision in question is sought to be adjudicated on merits.
2. It was, however, also pointed out to him that he had not bothered to append the complete order sheet of the proceedings in appeal with the civil revision and had he done so it would have transpired that the application filed for producing additional evidence had been allowed on 15.8.2020 and that he did not do so only lent credence to the fact that the petitioners had deliberately not provided the order sheet so as to keep the Court in the dark about the fate of the application filed for producing additional evidence. And that the act of not appending the entire order sheet of the appeal with the civil revision was itself enough for the civil revision to be dismissed! The above has only been written to benefit young lawyers courting the profession about how exactly not to conduct the prosecution or defence of a civil revision. Above board professional conduct is expected as par for the course!
3. Through this judgment the titled civil revision is sought to be decided.
4. This civil revision has been filed against Judgment and decree dated 13.7.2018 passed by a civil judge as also judgment and decree dated 17.8.2020 passed by a learned Addl. District Judge by virtue of which the suit for declaration along with specific performance and permanent injunction filed by the petitioners has been dismissed.
5. The petitioners filed the titled suit claiming therein that the property in question situated at Laat No.4 and Laat No.2, Square Nos.12 and 13, measuring 157 kanals and 13 marlas, Chak No.119/9-L, Tehsil and District Sahiwal was purchased by their predecessor in interest, Ghulam Rasool, through an oral agreement to sell dated 10.8.1948 for a consideration of Rs.9000/- from the predecessor in interest of respondents No.6 to 10. It was alleged by them that the property in question was in fact purchased initially by the predecessor in interest of respondents No.6 to 10 through open auction conducted in the year 1946, however, the said property was resumed by then government vide order dated 27.7.1948 due to non-deposit of installments of auction amount. It was in this background, statedly, that property was offered for sale to the predecessor of petitioners with the clear understanding that he will pay the remaining price as also fine, interest etc. in respect of the suit property to the government for the restoration of the allotment in question and meanwhile the possession of the property was handed over to him.
6. It was also stated by the petitioners that their predecessor in interest got restored the allotment of the suit property from the Board of Revenue on 4.1.1962 by paying the remaining price of the same and only the deed of conveyance of the suit property remained to be issued. It was also alleged by the petitioners that vide written agreement to sell dated 12.3.1966 the sale of the suit property has also been admitted by the predecessor of respondents No.1 to 5 namely Muhammad Ramzan who is the son of the original auction purchaser i.e. Abdul Majeed. It was ultimately prayed by the petitioners that by virtue of the oral sale as well as written agreement they had become owners in possession of the suit property. In the alternative it was prayed that a decree for specific performance of agreement to sell dated 12.3.1966 be passed in favour of the petitioners.
7. On the other hand respondents contested the suit by way of filing written statements claiming therein that no oral agreement was ever executed between the predecessors in interest of the parties and that the petitioners were illegal occupants of the suit property who had got their names entered in the revenue record without any lawful justification. It was also alleged by them that no written agreement to sell dated 12.3.1966 was executed by them and the same is based on fraud, misrepresentation and hence void ab-initio. It is pertinent to mention here that during the proceedings of the suit, respondent No.7 got recorded his conceding statement on 16.5.2018 to the effect that his brother Muhammad Ramzan executed the agreement to sell in favour of the petitioners after receiving consideration and also delivered possession to them.
8. Heard. Record perused.
9. In the light of the pleadings of the parties the learned trial court framed ten issues and both parties produced evidence in support of their respective stances: "1). Whether the plaintiffs are entitled to the decree of declaration alongwith permanent injunction and alternatively for specific performance alongwith permanent injunction on the basis of alleged oral agreement to sell dated 10.08.1948 and alleged written agreement to sell dated 13.03.1966, on the grounds as mentioned in the plaint and as prayed for?OPP.
2). Whether the plaitniffs have cause of action to file this suit?OPP 3). Whether the plaintiffs are estopped by their word and conduct to file this suit, therefore, the suit of the plaintiffs is not maintainable in its present form?OPD 4). Whether this court has got no jurisdiction u/s 36 of Colonization Act, therefore, suit of the plaintiffs is liable to be dismissed?OPD 5). Whether the suit of the plaintiffs is time barred, therefore, the same is liable to be dismissed u/Order VII Rule 11 CPC?OPD 6). Whether the plaintiffs have not come to the court with clean hands, therefore, they are not entitled to any relief?OPD 7). Whether the plaintiffs have no locus standi to file this suit, therefore, the same is liable to be dismissed?OPD 8). Whether the plaintiffs have not valued the suit property for the purpose of court fee and jurisdiction and they have also not affixed the requisite court fee on the plaint, therefore, the suit of the plaintiffs is liable to be dismissed?OPD 9). Whether the suit of the plaintiffs is false, frivolous and baseless and they have field this suit just to harass and pressurize the defendants, therefore, the same is liable to be dismissed with special costs u/s 35-A of CPC?OPD 10). Relief."
10. The pivotal issue framed by the trial court with regard to the controversy in issue is issue No.1 onus to prove which was placed on the petitioners. The petitioners miserably failed to discharge the onus placed on them and failed to bring on record any evidence whatsoever with regard to the alleged oral agreement dated 10.08.1948. A perusal of plaint shows that no date, time or place of the alleged oral transaction has been narrated in it. Furthermore, no details about any witnesses have been given in the plaint or even during the course of oral evidence recorded before the trial court. It is a settled principle of law that an oral sale if alleged by the parties has to be proved through reliable and cogent oral as well as documentary evidence. It is also trite that for proving an oral sale a person has to prove the same through convincing and confidence inspiring evidence. Reliance is placed on "Muhammad Shafiq Ullah and others v. Allah Bakhsh (deceased) through LRs and others" (2021 SCMR 763) in which it was held that an oral contract by itself was difficult to establish since the terms of an oral contract were not self-evident. The plaint seeking enforcement of an oral contract must set forth the requisite ingredients including details about when the sale consideration or its balance was paid. In the case before this Court, the petitioners have failed to bring on the record any reliable and creditable evidence to show how oral sale of the suit property was executed between the parties as also about the mode of payment. The time and place of the alleged oral sale as well as the witnesses present at that time have also not been disclosed before the court, hence the trial court has rightly dismissed the suit. Furthermore in the case reported as "Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs and others" (2013 SCMR 1300) it has been held that "It is a cardinal principle of law that an unwritten agreement can only be proved through evidence of unimpeachable character."
In the instant case there are, however, material contradictions between the statements of PWs.
11. I am in a position to straightaway observe that for an oral agreement to sell to be proved there is a higher threshold to be crossed in terms of pleadings and evidence. A bare perusal of the plaint filed by the petitioner reveals that it is absolutely vague and does not allude or refer to any particular date, day or time when the alleged agreement to sell was effectuated. In fact, the plaint is as vague as it gets, therefore, lacks in material particulars and relevant specifics which could have allowed the petitioners to establish the veracity of the alleged oral agreement to sell.
These flaws and deficiencies in the plaint with reference to establishing the veracity and the genuineness of the alleged oral agreement to sell are fatal and crucial and enough to discard the case set up by the petitioners.
12. In "Saddaruddin (since deceased) through LRs v. Sultan Khan (since deceased) through LRs and others" (2021 SCMR 642), it has been held as follows:- "Plaintiff-appellant had neither detailed the material contents of the sale agreement in the plaint nor the fact that the said oral agreement was witnessed by any one or that the witnesses of the oral sale had died... In cases where the sale was pleaded through oral agreement, the terms and conditions which were orally agreed were to be stated in detail in the pleadings and were to be established through evidence. In such like cases, the plaintiff besides detailing subject matter of the sale, (had to mention) the consideration, detail of striking of the bargain, name of the witnesses in whose presence the said oral agreement to sale was arrived at between the parties and other necessary details for proving the sale agreement as if it would have been executed in writing.
13. The Hon'ble Supreme Court of Pakistan is, therefore, very clear on what postulates qualify as validly establishing an oral agreement to sell. In the present matter the plaint filed by the petitioner before the learned trial court miserably failed to match up to the test so provided by the Hon'ble Apex Court and on this count alone this civil revision merits to be dismissed.
14. In "Moiz Abbas v. Mrs. Latifa and others" (2019 SCMR 74), it has been held that, "we find that no date, time, place or names of witnesses of the alleged oral agreement to sell have been mentioned...... these requirements are sine qua non to prove an oral agreement to sell and these are clearly missing in this case. Suits involving sales based on oral agreements are more susceptible to improvements made in evidence in order to succeed it is, therefore, imperative that the requirements in the case of proving an oral agreement to sell need to be strictly enforced and the court must insist that these be fulfilled at the earliest so as to ensure that an oral agreement to sell is fully proved and that device of oral agreement is not an abuse so as to gain decrees based on fraud and deceit."
15. The trial Court while perusing Exh.P-2 also came to the conclusion that the since the suit land stood resumed in favour of the state from 27.07.1948 to 04.01.1962 the name of Muhammad Ramzan one of the sons of the predecessor in interest of respondents could not be incorporated in the Jama Bandi for the year 1955 -1956 in the Column of tenants. The Court recorded the same observation with regard to the incorporation of the names of the petitioners in Jama Bandi for the year 1961-1962 as reflected in Exh.P-3. This is reflective also of collusion between revenue officials and the petitioners.
16. Furthermore, the contentions of the petitioner with regard to execution of agreement to sell dated 12.03.1966 i.e. Exh.P-1 by Muhammad Ramzan on behalf of all legal heirs of Abdul Majeed also does not hold any ground as no general power of attorney was ever executed or even claimed to have been executed by the legal heirs of Abdul Majeed in favour of Muhammad Ramzan. Even otherwise, there is nothing available on record to even remotely mention any authority by virtue of which the power to execute Exh.P-1 could have been given to Muhammad Ramzan. Meaning thereby that he was incompetent to execute Exh.P-1, hence the same is not a legally valid document and a nullity in law.
17. In addition thereto, there are material discrepancies between the plaint and the oral evidence with regard to the payment of consideration amount of Rs.9000/-. In the plaint it has been categorically mentioned by the petitioners that the said amount of Rs.9000/- was paid by predecessor of the petitioners i.e Ghulam Rasool to the predecessor of the respondents Abdul Majeed at the time of entering into oral agreement to sell dated 10.08.1948. On the other hand, in their oral evidence PW-1 to PW-3 have deposed that the same amount was paid by their predecessor namely Ghulam Rasool and Allah ditta (Predecessor of petitioners No.6 to 8) to Muhammad Ramzan in the year 1966 at the time of execution of agreement to sell Exh.P-1. This material contradiction itself shows that the petitioners have failed to prove the payment of consideration amount of Rs.9000/- and hence the trial court has rightly dismissed the suit of the petitioners.
18. The competing parties in a trial are bound by their pleadings. An alleged fact which has not been agitated in the plaint cannot be brought in evidence and even if the same is brought in evidence through oral or documentary evidence, the courts are not bound to rely on it. In the case reported as "Faiz Ahmed v. Mst. Soni and 2 others" (2020 CLC 148) an Hon'ble Division Bench of the Sindh High Court has held that "parties are bound by their pleadings and the evidence produced beyond pleadings is not permissible under the law. A party has to plead facts in pleadings and then prove the same through evidence as no one can be allowed to prove their case beyond what is originally set-up in the pleadings. It follows that evidence or arguments with regard to a plea not taken in pleadings cannot be looked into and no one is allowed in judicial proceedings to adduce evidence in support of contentions not pleaded by him and the decision of the case cannot rest on such evidence based on contentions beyond pleadings". "Ch. Ahmed Nadeem v. Abdul Qayyu m and another" (PLD 2016 Isb. 98), "Muhammad Yasin and others v. Muhammad Latif and others" (2016 CLC 553), "Muhammad Wali Khan and another v.
Gul Sarwar Khan and another" (PLD 2010 SC 965) and "Hyder Ali Bhimji v. Vith Additional District Judge, Karachi (South) and another" (2012 SCMR 254) also lay down the same principle.
19. There was an additional issue No.5 framed by the trial court with regard to the suit of the petitioners being barred by time. Onus to prove this issue was placed on the defendants. A perusal of record reveals that the plaintiffs instituted the instant suit for declaration with an alternative plea of specific performance of agreement to sell on the basis of an oral agreement to sell dated 10.08.1948 and a written agreement to sell dated 12.03.1966. Record reveals that according to the evidence of PWs it is evident that admittedly predecessor in interest of plaintiffs, Ghulam Rasool did not file a suit for specific performance of agreement to sell during his life time and even till the institution of the suit in issue. It needs to be noted that suit in issue was instituted on 04.10.2010.
Hence, the suit was not filed by the plaintiff within the stipulated period of three (3) years after execution of agreement to sell dated 12.03.1966 and the same is badly barred by time.
20. The appellate court also noted that the attesting witnesses of the written agreement to sell or for that matter its scribe were not produced nor any marginal witnesses were produced to substantiate the same and hence the requirements of the Evidence Act, 1872 (since the alleged agreements pertained to a time period before 1984) were compromised. Likewise, the appellate court also rightly noted that the suit was barred by time since the plaintiffs were in the know about the reluctance of the respondents in adhering to the alleged agreement to sell since 2003, if not before, and, therefore, the suit ought to have been filed in the year 2006 and not 2010 and, therefore, the suit was hit by Article 113 of the First Schedule of Limitation Act, 1908.
21. Besides what has been noted above it is also true that the petitioners did not bother to attach the complete order sheet with this civil revision, perhaps, so as to not allow this Court the facility of gauging whether the application under Order XLI Rule 27 CPC had been taken up and decided or not and that, therefore, only on this ground this civil revision merited to be dismissed in accordance with the law laid down in "Muhammad Yousaf v. Fazal Ellahi and 35 others" (2017 MLD 1997), "Muhammad Ramzan v. Muhammad Bashir and another" (2018 CLC 814), "Abdul Hafeez v.
Shaukat Ali and others" (2014 MLD 555), "Saleem Khan and others v. Province of Punjab through District Collector and others" (2013 MLD 1618) and "Arshad Ahmad alias M. Arshad and others v.
Muhammad Yar and others" (PLD 2012 Lahore 483). Learned counsel for the petitioners, except for bald and meaningless rhetoric, could not offer any plausible argument to pierce this observation.
22. Learned counsel for the petitioners also tried to argue that even though the application for producing additional documents had been allowed by way of order dated 15.8.2020 there is no discussion in the impugned judgment of the appellate court about such documents.
Learned counsel for the respondents immediately retorted that the documents in question had neither been alluded to nor mentioned in the pleadings and, therefore, no evidence could be taken into account which is beyond pleadings and relied on "Moiz Abbas v. Mrs. Latifa and others"
(2019 SCMR 74) and "Saddaruddin (since deceased) through LRs v. Sultan Khan (since deceased) through LRs and others" (2021 SCMR 642) to reinforce his submission. Even otherwise, counsel for the petitioners was confronted by the Court about the importance of additional documents that he sought to produce and when asked about the relevancy of the documents in question or about whether these had any bearing on the matter in issue, the counsel for the petitioners cut a sorry figure and said that these documents did not have any direct bearing or logical nexus with either the oral agreement to sell or for that matter the alternative written agreement to sell since both were independent of the documents that he sought to so produce.
This, in any case, puts paid the argument raised as an afterthought by the counsel for the petitioners.
23. Learned counsel for the petitioners also tried to argue that a brother of respondent Ramzan had volunteered in the Court of his own volition and had recorded a conceding statement in favour of the petitioners but which statement was not taken into account. While this statement was not recorded by way of evidence and while no examination in chief or for that matter cross examination was undertaken upon the said statement it is also equally true that there was no Power of Attorney available in the matter which could have authorized Muhammad Ramzan to execute any agreement to sell on behalf of all legal heirs of Abdul Majeed. Hence, Muhammad Ramzan was incompetent to execute Exh.P/1 and hence the statement of his brother, relied upon by the counsel for the petitioners is equally meaningless and of no benefit.
24. For what has been discussed above this civil revision fails and is hereby dismissed.