SHAHID BILAL HASSAN-J: C.M.No.1-C of 2019 Through this application, the applicants seek permission to bring on record certain documents.
Relying upon contents of the application supported by an affidavit, the same is allowed subject to all just and legal exceptions.
Main Revision Petition Succinctly, deceased respondents No.1 and 2 namely Muhammad Hayat and Khan Muhammad instituted a suit for specific performance against the present respondent No.3 Muhammad Hayat, respondent No.4 Muhammad Azam and the present petitioner, contending therein that the respondents No.3 and 4 were owners of the disputed property; that a criminal case was lodged against the present respondent No.4/Muhammad Azam and the respondent No.3 was in need of money; that the respondent No.3 entered into oral agreement dated 06.06.1989 with the respondents No.1 and 2 and sold out the disputed land to them in lieu of Rs.18,000/- per acre; that a stamp paper was also purchased by the respondent No.3 on 05.11.989 for the execution of agreement; that the respondent No.4 was in jail, therefore, the execution of agreement was postponed with the consent of the parties; that at the time of alleged oral agreement the disputed land was mortgaged with agricultural bank; that the respondents No.1 and 2 got deposited Rs.17,824/- in the account of the respondents No.3 and 4 on 06.06.1989; that the possession of the disputed land was handed over to the respondents No.1 and 2; that the respondents No.1 and 2 made improvement over the disputed land; that the respondent No.4 executed a power of attorney No.309 in favour of respondent No.3 on 09.09.1990; that the respondent No.3 executed agreement to sell relating to the disputed land with the respondents No.1 and 2 and received Rs.180,000/- from them; that according to the terms and conditions of the said agreement, the respondents No.3 & 4 had to complete the alleged sale in favour of the respondents No.1 and 2 in the shape of registered sale deed/oral mutation, etc.; that he respondents No.1 and 2 also deposited Rs.10,000/- in the loan account of the respondents No.3 & 4 on 28.06.1992; that they paid Rs.220,068/- to the respondents No.3 & 4 out of total amount of Rs.223,313/-; that on 10.09.1992 the respondents No.3 and 4 were asked to complete the registered sale deed in favour of the respondents No.1 and 2 after receipt of outstanding amount but they refused; hence, the suit with the prayer that a decree for specific performance may be passed in favour of the respondents No.1 and 2/plaintiffs. They also sought relief in the alternative for recovery of Rs.220,068/- as sale consideration and Rs.75,000/- for improvement made over the suit land as respondents No.3 and 4 had alienated the suit land to the present petitioner/defendant No.3 vide mutation No.330 dated 31.10.1992.
2. The petitioner and respondents No.3 and 4 contested the suit by filing written statement and controverted the averments of the plaint, fully negated the stance taken up by the respondents No.1 and 2. The petitioner also filed a suit for recovery of possession against the respondents No.1 and 2, which was duly contested by them. Both the suits were consolidated and out of the divergent pleadings of the parties, the learned trial Court framed consolidated issues. Both the parties adduced their oral as well as documentary evidence. On conclusion of trial, the learned trial Court vide consolidated judgment and decree dated 21.03.2001 decree suit of the respondents No.1 and 2, whereas dismissed suit of the petitioner.
3. Feeling aggrieved by the same, the present petitioner preferred appeal, which was allowed and case was remanded to the learned trial Court for decision afresh by giving findings on all issues on the basis of evidence on record. After remand, the learned trial Court vide impugned consolidated judgment and decrees dated 11.04.2007 again decreed suit of the respondents No.1 and 2 and dismissed suit of the present petitioner. The petitioner being aggrieved of the same preferred appeal. The learned appellate Court vide impugned judgment and decree dated 08.10.2011 maintained the above said consolidated judgment and decree and dismissed the appeal; hence, the instant revision petition.
4. Heard.
5. The parameters, in respect of oral agreement, have been settled by the Apex Court of the country in a celebrated judgment reported as Muhammad Nawaz through L.Rs. v. Haji Muhammad BaranKhan through L.Rs. and others (2013 SCMR 1300) and it has invariably been held that:- '........................... We also hold that although it is not the requirement of law that an agreement or contact of sale of immovable property should only be in writing, however, in a case where party comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the party to prove that there was consensus ad idem between both the parties for a concluded oral agreement. An oral agreement by which the parties intended to be bound is valid and enforceable, however, it requires for it prove clearest and most satisfactory evidence.'
The said esteemed judgment was followed by this Court in Karamdad v. Manzoor Ahmad and 2 others (2015 CLC 157- Lahore) and it was further observed that:- '6. The perusal of plaint reveals that respondent/plaintiff did not disclose the name of witnesses before whom the alleged oral sale was struck between the parties. Even no period has been mentioned by the respondent/plaintiff in his plaint for completion of oral agreement to sell. No doubt, an oral agreement to sell is permissible in law, but it has to be proved through credible and un-impeachable evidence.'
Now, when the facts of the instant case are considered on the touchstone of the two judgments ibid it appears that the respondents No.1 and 2 while instituting suit for specific performance have failed to plead time, place and names of witnesses in whose presence the purported oral agreement was reached at between them and the respondent No.3 (Muhammad Hayat). For ready reference, paragraphs No.1 and 2 of the plaint of suit titled "Muhammad Hayat, etc. v.
Muhammad Hayat, etc.", because whole the case stance of the respondents No.1 and 2 rests on these paragraphs, are reproduced infra:- The above reproduced paragraphs are sufficient to reach to a conclusion that the case of the respondents No.1 and 2 has not been pleaded as per requirement of law, because in case of oral agreement not only strong and unimpeachable evidence is required to be produced on each and every incident of such a transaction has to be pleaded, which is lacking in the case of the respondents No.1 and 2 as has been referred above. Therefore, the evidence of P.W.4 and P.W.5, the alleged witnesses of oral agreement, produced by the respondents No.1 and 2, is nothing but beyond pleadings, which cannot be considered as has been held in judgments reported as Sh.
Fateh Muhammad v. Muhammad Adil and others (PLD 2008 SC 82), Hyder Ali Bhimji v.
Additional District Judge Karachi South and another (PLD 2012 SC 279), 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. Pleading and proving of each and every link and chain of oral transaction is necessary and sine qua non. In judgment reported as Moiz Abbas v. Mrs. Latifa and others (2019 SCMR 74), the Apex Court of the country has held:-
8. We find that no date, time, place or names of witnesses of the alleged oral agreement has 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 respondent 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 agreement 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 agreement are more susceptible to improvements made by the 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 agreement lead to grant of decree, 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 unscrupulous and devious litigants to get decrees by fraud, deceit, skillfully made improvements at different stages the trial.'
Moreover, in judgment reported as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524), it has been held that:- 'The law relating to oral agreement is quite clear, the terms and conditions which were orally agreed have to be stated in detail in the pleadings and have to be established through independent evidence which is neither the case of the appellant nor was it so set up before the lower fora.'
Similar view was reiterated and adopted in judgments reported as Muhammad Riaz and others v.
Mst. Badshah Begum and others (2021 SCMR 605) and Saddaruddin v. Sultan Khan (2021 SCMR 642).
6. Moreover, as is evident from paragraph No.2 of the plaint, that the respondents No.1 and 2 pleaded that they deposited Rs.17,824/- in the account of respondent No.3/ defendant No.1 on 06.06.1989 but during evidence it has been deposed that the same was deposited by one Wali Muhammad, son of respondent No.1; when this factum has not been pleaded in the plaint, the evidence in this regard will also be considered beyond pleadings and cannot be relied upon while rendering judgment, as has been held in the above said judgments. Moreover, it is not clear that for what purpose Wali Muhammad deposited the amounts on different times in the loan account of the respondent No.3.
7. In view of the above, when the basic and initial oral agreement has not been proved, which was necessary to be pleaded and proved independently, the subsequent events in the shape of purported agreement to sell dated 10.09.1990 Ex.P4 has no value in the eye of law especially when the respondents No.3 and 4 have specifically negated the same while submitting written statement and their non-appearance in the witness box in peculiar facts and circumstances of the case would not harm the case of the present petitioner, because the respondents No.1 and 2 have to stand on their own legs and any shortcomings or lacunae in the evidence of the petitioner would not be helpful to them and they have to prove their case on the strength of their evidence. In this regard reliance is placed on judgments reported as Sultan Muhammad and another v.
Muhammad Qasim and other (2010 SCMR 1630), Anwar Sajid v. Abdul Rashid Khan (2011 SCMR 958) and Sultan v. Noor Asghar (2020 SCMR 682). In addition to this, it is not proved on record that Ex.P4 was ever read over and explained to the parties of the same and no certification in this regard was given by the P.W.6, the alleged scribe of the Ex.P4, disputed agreement. Moreover, the same does not bear the NICs numbers of the witnesses.
8. Besides, the alleged general power of attorney is also dubious because in evidence it has been stated that Deputy Superintendent Jail identified the executant i.e. Muhammad Azam but in the end of the said general power of attorney name of Ch. Muhammad Anwar, Assistant Superintendent Central Jail Mianwali is written whereas the stamp of Deputy Superintendent Central Jail, Mianwali is pasted with signatures as witness of identification, which casts aspersion and doubt. Original record of the said general power of attorney from the concerned Revenue Office has been summoned and gone through, which has been sealed again. Moreover, it is a settled principle of law that an agreement to sell does not create a title rather the same can be used in order to sue and until & unless the same is proved before a Court of competent jurisdiction, the same cannot be considered a title document.
9. As against the above, the petitioner has purchased the disputed property from the respondents No.3 and 4 through the mutation No.330 dated 31.10.1992 against consideration and the stance of the petitioner has been accepted and acceded to by the respondents No.3 and 4; therefore, he has every right to get possession of the same from the respondents No.1 and 2, whose possession is nothing but that of illegal occupants.
10. 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).
11. The Crux of the discussion above is that the revision petition in hand succeeds, which is hereby allowed, impugned judgments and decrees are set aside and suit of the respondents No.1 and 2 for specific performance of agreement to sell dated 10.09.1990 is dismissed whereby suit of the petitioner for recovery of possession is decreed. No order as to the costs.