MUHAMMAD SHAN GUL J. Through this judgment the titled civil revision is sought to be decided.
2. Facts in brief are that the petitioners before this Court instituted a suit for declaration against the respondents with respect to suit land measuring 16 kanal situated at mouza dairapur Tehsil Shujaabad District Multan praying that Niaz Ahmad Qureshi, deceased father of petitioners No.1 and 3 and husband of petitioner No.4 had a real sister i.e. late Mst. Zareena Begum now represented by her legal heirs, respondents No.1A and 1-B and who was an Assistant Education Officer at Lodhran where she became involved in a matter of embezzlement and who was in dire need of money to pay up the embezzled amount of money and for which purpose she approached the predecessor-in-interest of the petitioners and offered to exchange her property with him and asked him to sell his property for satisfying the embezzled amount. That the predecessor-in-interest of the petitioners sold property measuring 16 kanals and handed over the sale price of Rs.450,000/- to late respondent No.1 but later on late respondent No.1 did not get the land transferred in the name of her brother , reneged on her promise and did not transfer her land in the name of the petitioners and rather transferred the land in issue in favour of respondents No.2 and 3 (private respondents/buyers through muta tion 5685 dated 13.02.2010). The petitioners/plaintif fs prayed for cancellation of the said mutation as well.
3. The respondents appeared in the said suit and filed their written statements and negated the version of the petitioners by submitting that late Niaz Ahmad Qureshi sold his land to fulfill his own personal needs; that the story regarding embezzlement was found false during inquiry and was dropped and hence there was not need to pay any money and which payment had in any case never been made. They denied the alleged factum of exchange.
The subsequent buyers i.e. respondents No.2 and 3 before this court in their writte n statement submitted that they purchased the suit land from the predecessor-in-interest of respondents No.1A and 1-B and that they were bona- fide purchasers and prayed for dismissal of the said suit.
4. While the learned trial court seized of the suit allowed and decreed the suit vide judgment and decree dated 06.05.2015, two appeals against this judgment and decree filed by the respondents were allowed by way of consolidated judgment and decree dated 27.04.2018 and the judgment and decree passed by the trial court was set-aside and the suit of the petitioners was dismissed.
5. The trial court decreed the suit without shedding any light on why the exchange deed had not been reduced into writing; why in the presence of the fact that the deceased Mst. Zareena Begum owned property herself she had asked the predecessor-in-interest of the petitioners to sell his property and why could she not sell her own property to garner money; why no evidence had been led to establish the payment of embezzled amount by late Mst.
Zareena Begum who had allegedly paid up the embezzled amount and which was the reason and motive behind the alleged exchange; that how could an oral agreement of exchange be acknowledged as having been proved in the absence of mention of any particulars with respect to time, date and place of such agreement as also in the absence of names of witnesses of such agreement in the plaint; as to how evidence beyond pleadings could be relied upon and how even when the ingre dients of sale had been proved it had wrongly declared the mutation to be of no legal ef fect.
6. The trial court was stupendously impressed with the fact that the witnesses produced by the petitioners were consistent with respect to time and place of the agreement as also with respect to names of witnesses of the said agreement. However , conveniently yet erroneous ly, the trial court failed to take into account trite law declaring an oral agreement to have been proved only if particulars and nuances of such agreement are given in the plaint and not otherwise . Likewise, the trial court failed to take into account the acknowledged position of law that no evidence beyond pleadings was permissible and could not be relied upon. Both these errors made the decision of the trial court susceptible to appellate interference.
7. The case law relied upon by the trial court is absolutely irrelevant because the same only proceeds to hold that an oral agreement is enforceable. There is no cavil with this proposition but this proposition was never in issue.
What was in contest between the parties was whether in the absence of any particulars of an alleged oral agreement of exchange having been mentioned in the plaint could the same be considered to be proved only on account of certain interested witnesses confirming the same. More importantly the trial court did not consider the most pivotal question and which is that there is no proof of payment of money amounting to Rs.4,50,000/- by late Zareena Begum in the public exchequer and which pretext was set up as motive for the alleged oral exchange in question.
8. The appellate court, on the other hand, rightly noted that the petitioners did not mention the date, time and venue where the alleged oral agreement was executed. The plaintif f's witnesses did not mention these particulars during the course of their examination in chief and only during their cross examination the date and place of the alleged oral exchange was revealed by these witnesses. The appellate court rightly noted that in the absence of such particulars in the plaint the plaintif fs could not be allowed to lead evidence to set up a new case or for that matter to lead evidence beyond the scope of pleadings. The appellate court also rightly noted that there was no proof about payment of Rs.4,50,000/- or for that matter any proof about the allegation that the inquiry in question against deceased Zareena Begum was dropped on account of her having deposited the alleged embezzled amount.
9. Likewise, the appellate court also laid to rest the misconceived premium placed by the trial court on the aspect of possession. The appellate court noted that since deceased Zareena Begum was a co-sharer , she was in constructive possession and hence no mileage could be drawn from this particular aspect of the matter which had unnecessarily attracted the attention of the trial court and weighed with it in the matter of taking a decision.
10. In so far as the subsequent sale through mutation No.5685 dated 13.2.2010 in favour of respondents No.2 and 3 is concerned, the appellate court rightly noted that mutation No.5685 in favour of respondents No.2 and 3 was acknowledged by way of Rapat Roznamcha No.271 entered on the asking of deceased Zareena Begum on 22.1.2010. It also noted that the beneficiaries of the said mutation had produced Naib Teshildar Abdul Rasheed in their favour who deposed unequivocally that the said mutation was recorded in the presence of marginal witnesses Mian Munir Ahmad and Shoukat Hussain at the Dera of one Mian Zafar Bhatti at which place deceased Zareena Begum admitted receipt of sale consider ation. In the same way the Patwari Halqa Muhammad Tauheed stated before the court that he entered Rapat Roznamcha No.271 on 22.1.2010 on behalf of deceased Zareena Begum.
Deceased Zareena Begum also deposed to sanctify the sale transaction and how she appeared before the revenue officer for attestation of mutation. The appellate court, therefore, ruled that the sale mutation had also been proved and the aspect of possession was meaningless because it was not a necessary ingredient of sale and a bonafide purchaser from co-sharers could also be in constructive possession of the property in question. The appellate court, therefore, allowed the appeal, set aside the judgment and decree passed by the trial court and dismissed the suit filed by deceased Zareena Begum.
11. Heard. Record perused. While the counsel for the petitioners M/s Malik Javed Akhtar Wains and Mian Adil Mushtaq have chosen not to appear today even when this civil revision was fixed for today in their presence yesterday with the clear understanding that this civil revision shall not be adjourned, counsel for the respondents is present and has wholeheartedly supported the judgment passed by the appellate court.
12. The most conspicuous aspect in the present matter is that the basis, pretext, motive or reason for the alleged oral exchange could never be proved, even remotely . No evidence whatsoever was led to establish either that the departmental inquiry against deceased Zareena Begum was dropped because she deposited the embezzled amount or for that matter whether the amount was ever deposited or whether that this amount was the same amount of money which was allegedly taken by deceased Zareena Begum from her late brother . This was indeed necessary and of the essence but which never came to pass. It is, therefore, that the appellate court rightly set aside the judgment and decree passed by the trial court in the matter .
13. That likewise, the crucial error committed by the trial court in ignoring the absence of necessary particulars pertaining to date, time and place where the alleged oral exchange took place and the additional error of the trial court allowing evidence to be led beyond pleadings was rightly corrected and modified by the appellate court. Perhaps the Hon'ble Supreme Court of Pakistan in "Moiz Abbas v. Mrs. Latifa and others" ( 2019 SCMR 74 ) was faced with similar facts when it lucidly held at paragraph No.8 as follows:- "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 an 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 agreemen t 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."
14. Similar observations have been recorded in "Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others" ( 2013 SCMR 1300 ) at paragraph No.9.
15. In the same vein it has been held in "Ch. Tariq Mehmood v. Khadim Hussain (Deceased) through L.Rs and others" ( 2019 CLC Note 46 ) at paragraph No.4 as follows:- "When on the basis of an oral agreement to sell the suit was filed in the year 1994 without pleading the specifications of agreement which are necessary , in my view, an oral agreement is to be pleaded in the suit with full detail i.e. specific date, time and place of agreement arrived at between the parties and the witnesses of agreement as well as earnest money paid under the agreement and also plead the full terms of agreement because in an oral agreement to sell there is no document in support of version of the plaintiff."
16. In "Mst. Bushra Bibi and others v. Mst. Nasim Bibi and others" (2015 MLD 335) it has been held that when a person came to the court to prove an oral assertion made in the plaint, he was required to specifically plead the same with full details and where no date, time and place of an oral agreement was pleaded and no names of any witnesses had been mentioned a decree could not be passed.
17. Similar observations have also been recorded in "Kamal Din v . Muhammad Sharif" ( 2006 YLR 1200 ).
18. Therefore, the appellate court rightly disbelieved the oral agreement of exchange because precedent facts to support and breathe life into such an oral agreement were amiss in the presen t case. In the present case the decision of the appellate court is, therefore, correct and ought to be preferred over that of the trial court.
19. What is even more stark and conspicuous about the judgment and decree of the trial court being erroneous and, therefore, unworthy of passing the appellate judicial test is that the trial court allowed witnesses of the petitioners/plaintif fs to record evidence beyond the pleadings preferred by the petitioners/plaintif fs. In "Muhammad Nadeem Khan and another v. Muqadas Khan (decd) through L.Rs and another" (PLD 2022 SCMR 99) the Hon'ble Supreme Court of Pakistan has categorically ruled that no party can be allowed to lead evidence beyond pleadings.
20. In "Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others" (2015 SCMR 1698 ) the Hon'ble Supreme Court of Pakistan has ruled at paragraph No.3 as follows:- "The importance of the pleadings and its legal value and significance can be evaluated and gauged from the fact that it is primarily on the basis thereupon that the issues are framed; though the pleadings by themselves are not the evidence of the case, the parties to a litigation have to lead the evidence strictly in line and in consonance thereof to prove their respective pleas. In other words, a party is bound by the averments made in its pleadings and is also precluded from leading evidence except precisely in terms thereof. A party cannot travel beyond the scope of its pleadings. It may be pertinent to mention here, that even if some evidence has been led by a party , which is beyond the scope of its pleadings, the Court shall exclude and ignore such evidence from consideration. Thus, it is clear that if any party to a lis wants to prove or disprove a case and some material has to be brought on the record as part of the evidence, which (evidence) otherwise is not covered by the pleadings, it shall be the duty of such party to first seek amendment of its pleadings (note:- for the support of the opinion, see judgment)."
21. In "Messrs Essa Engineering Company Pvt. Ltd. and another v. Pakistan Telecommunication Company Limited and another" (2014 SCMR 922), it has been held that whole object of framing issues would be defeated if parties are allowed to travel beyond them and claim or oppose reliefs on grounds not taken in the pleadings and not covered by the issues.
22. In "Muhammad Wali Khan v. Gul Sarwar Khan and another" (PLD 2010 SC 965) the Hon'ble Supreme Court of Pakistan has rightly observed at paragraph No.5 as follows:- "The arguments that such mutation has been admitted in evidence by the trial Court without any objection from the petitioner , suffice it to say that even that being so, the evidence which is brought on the record by a litigant, even not subjected to objection by the opposing side, but it is outside the purview of his pleadings, should not be looked into by the Court, rather should be ignored. Resultantly the High Court on account of the above could not consider the said mutation and grant relief to the respondent, which was not within the parameters of their defence. The learned High Court in this regard has committed a grave illegality in the exercise of its jurisdiction, thus the impugned judgment cannot sustain in law .
23. In "Muhammad Asghar v. Mst. Ghafooran through Legal Heirs and others" (2021 MLD 1745 ) it has been held at paragraph No.6 as follows:- "6. Plaintiff while appearing as PW-1 in his statement has stated that gift was made in the presence of Ahmad Ali and Mukhtar Ahmad as well as in presen ce of respondents/sisters but nobody raised any objection thereto but the said oral gift was not incorporated in the revenue record due to illness of his father . In his statement the petitioner has made unauthorized improvements as the names of the witnesses were not mentioned in the plaint, as such, evidence produced by the petitioner is out of pleadings which cannot be considered or discussed, rather are liable to be ignored while deciding the lis. Reliance is placed on the cases titled as Zulfiqar and others v. Shandat Khan (PLD 2007 SC 582), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914), Combined Investment (Pvt.) Limited v. Wali Bhai and others (PLD 2016 SC 730) and Moiz Abbas v . Mrs. Latifa and others ( 2019 SCMR 74 )."
24. In so far as the question of sale is concerned, the appellate court rightly noted that the mutation of sale stood proved and the rhetoric by the petitioners about said mutation being executed during the currency of a stay order passed by the civil court was factually incorrect and, therefore, not worthy of being relied upon. Likewise, the appellate court also corrected the incorrect approach of the trial court with reference to granting unnecessary weightage to the question of possession since possession is not an inherent ingredient of a sale.
25. In "Abdur Rehman v. Khaliq Dad" (1995 SCMR 755), it has been held that, "the transaction being that of sale, delivery of possession was not legally essential."
26. In "Muhammad Moizuddin and another v. Mansoor Khalil and another" (2017 SCMR 1787 ) the Hon'ble Supreme Court of Pakistan has noted with approval the essential ingredien ts and elements of sale and conspicuously missing from the said ingredients is the element of possession. Reliance is placed on the ratio laid down in paragraph No.12 of the said judgment.
27. In the matter before this Court the sale was complete in all respects because the essential elements of a sale had been fulfilled i.e. the parties, the subject matter , the conveyance and the consideration.
28. In this view of the matter , the incorrect and erroneous approach of the trial court in decreeing the suit filed by the petitioners was rightly corrected by the appellate court which set aside the decree passed by the trial court and dismissed the suit filed by the petitioners. There is no illegality , irrationality or erroneous exercise of jurisdiction by the appellate court in the matter so as to attract the revisional jurisdiction of this Court.
29. This civil revision calls for no interference and is hereby dismissed .