SHAHID BILAL HASSAN, J. Tersely, the respondent instituted a suit for declaration along with specific performance of contract and perpetual injunction against the petitioners by maintaining that respondent and petitioners are relatives and belong to same caste; that allegedly in the year 1970, the respondent purchased land measuring 01-kanal bearing Khasra No. 2326/2-0 against consideration of Rs.6,000/- from the petitioner No.1 and the respondent constructed rooms and got installed electricity meter; that since then the respondent has been in possession of the disputed land. He further asserted that the petitioner No.2 filed a false and frivolous application in connivance with petitioner No. 1 against the son of respondent namely lmran before the General Assistant Revenue, Hafizabad with the allegations that the son of the respondent has illegally possessed over the land of the petitioners, upon which the Revenue Department submitted the report on 22 06.2011 that the son of the respondent had not illegally possessed over the land of the petitioners and respondent had purchased the land in the year 1970 and since then he had been in possession of the disputed land but due to mutual trust the respondent did not incorporate his name in the revenue record by sanctioning the mutation in his favour; that the disputed land has become valuable and the petitioner No.1 has alienated the same to the petitioner No.2 through mutation No.696 dated 06.09.2005 and the said mutation to the extent of disputed land is against law and facts, void and inoperative upon the rights of the respondent. The respondent prayed for cancellation of the said mutation with further prayer that the petitioners may be directed to execute the sale deed in favour of the respondent in pursuance of alleged oral agreement and a decree for perpetual injunction be also passed' in favour of the respondent.
The petitioners by filing written statement contested the suit and controverted the averments of the plaint. The divergence in pleadings of the parties was summed up into issues and evidence of the parties was recorded. On conclusion, the learned trial Court vide impugned judgment and decree dated 06.03.2015 decreed the suit in favour of the respondent. The petitioners being aggrieved preferred an appeal but the same was dismissed vide impugned judgment and decree dated 15.05.2015; hence, the, instant revision petition has been filed.
2. Heard.
3. Section 42 of the Specific Relief Act, 1877 postulates that:- `Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit seek for any further relief: Bar to such declaration. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.'
Bare reading of above said section makes it vivid that declaratory decree can only be passed to the effect of a pre-existing right which is being denied by some person. In the present case, admittedly the respondent based his claim on an oral agreement allegedly- reached at between the respondent and present petitioner No.1 as back as in the year 1970 but perusal of the plaint shows that particulars of the land and of the alleged oral agreement are not detailed in the plaint, which otherwise ought to have been pleaded and proved and when the position is as such the subject agreement is void for uncertainty in terms of section 29 of the Contract Act, 1872 and consequently it cannot be specifically enforced as enunciated in section 21(c) of the Specific Relief Act, 1877. Therefore, when the respondent has yet to establish his right on the basis of alleged oral agreement, how can he claim a declaratory decree, because the petitioners have not denied his pre-existing right, which is pre-requisite for seeking a declaratory decree. In Muhammad Riaz and others v. Mst. Badshah Begum and others (2021 SCMR 605), the Apex Court of the country has invariably held:- '6. The plaintiffs in the instant case relied upon an oral agreement. However, the plaintiffs did not set out the particulars of such oral agreement as per either of the prescribed forms (above) or as nearly as may be thereto and also did not describe the land which was the subject matter of the agreement. Therefore, the agreement would be void for uncertainty in terms of section 29 of the Contract Act, and consequently, it could not be specifically enforced as stipulated by section 21(c) of the Specific Relief Act.'
4. In view of the above, when the respondent has not pleaded the particulars of alleged oral agreement and even the names of the witnesses in whose presence such agreement was reached at, the evidence produced by him would be considered beyond the pleadings and it is a settled and cardinal principle of law that no one can be allowed to prove his case beyond the scope of pleadings as enunciated by the August Court of country in a case reported as Muhammad Wali Khan and another v. Gul Sarwar Khan and another (PLD 2010 Supreme Court 965). In another case reported as Mubarak Ali and others v. Khushi Muhammad and others (PLD 2011 Supreme Court 155), it has been held that no one can be allowed to plead and seek relief from the Courts on a plea not founded and embedded in his pleadings. Another judgment reported as Combined Investment (Pvt.) Ltd. v. Wali Bhai and others (PLD 2016 Supreme Court 730), can also be referred, which pronounces that none of the parties to a judicial proceeding can be allowed to adduce evidence in support of a contention not pleaded by it and the decision of a case cannot rest on such evidence.
5. In addition to the above, the c respondent has not led any evidence showing that he was put in possession of the suit pursuant to the alleged oral agreement between him and the petitioner No.1.
Not a single word has been uttered about the payment of the consideration amount by the P.Ws. produced by the respondent. Ownership of the petitioners over the disputed property has been proved through unimpeachable and cogent evidence rather the same is an admitted fact.
6. Pursuant to the above discussion it is observed that the learned Courts below have failed to adjudicate upon the matter in hand by appreciating law on the subject in a judicious manner; therefore, the Courts below have misread evidence of the parties and when the position is as such, this Court is vested with authority to undo the concurrent findings as has been held in Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) and Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001).
7. For the foregoing reasons and discussion while placing reliance on the judgments supra as well as judgments reported as Muhammad Nawaz (deceased) through LRs. v. Haji Muhammad Baran Khan (deceased) through L.Rs. and others (2013 PSC 1683) and Ali Muhammad v.
Muhammad Hassan and others (2021 CLC 1111 Lahore), the revision petition in hand is allowed, impugned judgments and decrees passed by the learned Courts below are set aside and in consequence thereof the suit, instituted by the respondent/plaintiff is dismissed. No order as to the costs.