SHAHID BILAL HASSAN-J: Succinctly, the respondent instituted a suit for possession through specific performance of an agreement to sell with permanent injunction against the petitioner by maintaining that the petitioner entered into an agreement to sell dated 19.11.2012 with the respondent regarding a shop measuring 12x15 feet situated at Mauza Ajnianwala, Tehsil & District Sheikhupura for a consideration of Rs.1,000,000/-. It was further averred that the whole consideration amount was paid by the respondent, due to close relationship between the parties, the petitioner promised to deliver the possession afterwards; that the respondent had been asking the petitioner either to execute the sale deed or to return the money but he refused; hence, the suit.
The petitioner contested the suit by submitting written statement and controverted the averments of the plaint. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties was recorded in pro and contra. The learned trial Court vide impugned judgment and decree dated 22.01.2019 held the respondent entitled to recover Rs.1,000,000/- from the present petitioner and denied the specific performance of the purported agreement. The petitioner being aggrieved preferred an appeal but the same was dismissed vide impugned judgment and decree dated 28.09.2019 by the learned appellate Court; hence, the instant revision petition.
2. Learned counsel for the petitioner has argued that the impugned judgments and decrees are not sustainable in the eye of law; that the same are against law and facts of the case; that the judgments and decrees are based on surmises and conjectures; that misreading and non-reading of evidence has been committed while passing the impugned judgments and decrees by the learned Courts below; that no authority was conferred upon the attorney by the principal to institute the suit but this aspect of the case has been ignored altogether by the learned Courts below; that the purported agreement to sell does not contain any description of the property/shop in question and is a vague document, therefore, the suit is not maintainable but this fact has been ignored; that the impugned judgments and decrees have been passed mere on wrong presumptions and assumptions, which is not warranted under law; therefore, material illegalities and irregularities have been committed. As such, by allowing the revision petition in hand, the same may be set aside and suit of the respondent may be dismissed throughout with costs.
3. On the adverse, learned counsel for the respondent has submitted that the respondent has successfully proved her case but even then the decree for specific performance has been denied by the learned Courts below and only the paid amount has been ordered to be returned to her; however, despite that the respondent is satisfied with the decree. He has prayed for dismissal of the revision petition in hand.
4. Heard.
5. The pivotal document in this case is Ex.P2, the purported agreement to sell, perusal of the said document goes to make is diaphanous that there is no mentioning as to how the petitioner owned the disputed property. There is no Khata number, Khasra number, Qilla number or other description of property and only surrounding boundaries have been submitted. No proof of ownership of the petitioner with regards to the disputed property has been submitted rather it has come on record that the petitioner did/does not own the disputed property rather the same is owned by his father.
Moreover, the stamp paper on which the alleged agreement to sell was written does not bear signatures of the vendor overleaf, rather P.W.1 has admitted during cross examination that the stamp paper bears his signature. Furthermore, the P.W.1 who is father of the respondent appeared as attorney of respondent and one of the marginal witness. The respondent has not appeared in the witness box so as to record her evidence and face the cringe-making questions during cross examination. He entrance in the witness box was necessary especially when it was stance of the petitioner that he did not enter into any kind of agreement to sell with the respondent rather he signed certain blank papers for affidavit in respect of settlement of marital dispute arose between the respondent and his brother, as the respondent was his sister in law (wife of his brother) and he did not receive any amount from the respondent in lieu of disputed property, which otherwise was not owned by the petitioner. Non-appearance of the respondent in the witness box strengthens the stance of the petitioner that in actual some family dispute arose between the respondent and brother of the petitioner, due to which brother of the petitioner divorced the respondent and father of the respondent managed and maneuvered the purported agreement to sell only to harm the brother of the petitioner through the petitioner by causing them financial loss. Therefore, the best evidence has been withheld by the respondent, which arises adverse presumption that if she would have appeared in the witness box, she would not have stood and successful after facing the cross examination.
Apart from the above, the P.W.1 in his ancillary statement has made improvements and deposed beyond the pleadings as well as contents of the alleged agreement to sell Ex.P2 by stating that in case of any defect in the title, the petitioner (defendant) bound himself to pay back the amount Rs.1,000,000/-, because the said factum has neither been pleaded nor the same has been narrated in the purported agreement to sell; therefore, the deposition of P.W.1 cannot be relied upon. In addition to the above, P.W.2 is the marginal witness of the purported agreement to sell, who has also failed to narrate the description of the disputed property and even give the detail of its boundaries/surroundings. P.W.3 has nothing to do with the agreement to sell, because his name is not mentioned thereon, so his evidence is nothing but hearsay, therefore, the same cannot be relied upon. Wazir Hussain, the stamp vendor is also not a truthful witness because in examination in chief he stated that sale amount was paid in his presence but during cross examination he admitted that no sale amount was paid in his presence. The said witness (P.W.5) has also admitted that he did not inspect the Fard Milkiat and further stated that the place for which the stamp paper was written, was not owned one.
6. From the accumulative above discussion, it is concluded that the respondent has failed to prove the contents of the purported agreement to sell as per mandate of Article 79 of the Qanun-e- Shahadat Order, 1984 and non-appearance of the respondent also attracts the adverse presumption of Article 129(g) of the Order, 1984 ibid. Reliance is placed on judgment reported as Hafiz Tassaduq Hussain Vs. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241). As against this, it seems that the petitioner has been trapped only to cause harm to his brother (ex-husband of the respondent) and the stance taken up by the petitioner seems to be more plausible and cogent as well as appeals to the prudent mind.
7. Pursuant to the above, it is observed that the learned Courts below have failed to adjudicate upon the matter in hand by appreciating law on the subject; therefore, the Courts below have misread evidence of the parties and when the position is as such, this Court is vested with authority and ample power to undo the concurrent findings as has been held in Nazim-Ud-Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24), Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630), Ghulam Muhammad and 3 others v.
Ghulam Ali (2004 SCMR 1001) and Habib Khan and others v. Mst. Bakhtmina and others (2004 SCMR 1668).
7. The crux of the discussion above is that the revision petition in hand succeeds and the same is allowed, impugned judgments and decrees are set aside, consequent whereof the suit instituted by the respondent stands dismissed. No order as to the costs.