Sultan Tanvir Ahmad, J:- The respondent filed suit No. 639/1- R. T., dated 19.09.2011 for specific performance of agreement dated 26.09.2008 (the 'agreement') with respect to 04 marla property situated at Thatha Langian, Bashmoola Faiz Pur Khurd, Tehsil Ferozewala, District Sheikhupura, further detailed in suit ('property-A') allegedly purchased by him against consideration of Rs.160,000/-, out of which Rs.110,000/- was paid and remaining Rs.50,000/- was settled to be paid in three months of the agreement. It is claimed by the respondent that the entire consideration was paid within time and additional sum of Rs. 40,000/- was also paid to the petitioner, as registration fee.
2. Defence is set-up that due to stay order with respect to property-A, with consent of both sides vide mutation No. 8024 dated 17.07.2009 (the 'mutation') for property measuring 04 marla 01-Sq.ft. falling in square No. 5 ('property-B') was passed in favour of the plaintiff for which additional sum of Rs.40,000/- was paid by the plaintiff to the defendant / petitioner and payment of this additional sum is acknowledged at the back of the agreement.
3. Payment of Rs.200,000/-, execution of the agreement and the mutation are admitted facts. As per the learned advocates of the two sides, the real dispute is that if property-B is given in place of property-A and for enhanced consideration or if both are result of two separate agreements between the parties and for different considerations? The submissions of learned advocates kept revolving around Rs.40,000/-. One claims that this was paid as registration fee and costs, by the plaintiff to the defendant against property-A. The other states that total Rs.200,000/- is the one which is paid for property-B and the mutation has been effected. The learned Courts below examined the evidence but reached to different conclusions.
4. The learned advocates, during the course of arguments, have invited attention of the Court to different parts of evidence and requested to reappraise the evidence. I have heard the arguments at length on 08.04.2025, 11.04.2025 and 18.04.2025. Since the documents were exhibited more than a decade ago and pertains to 1990s, therefore, the required original revenue record was also summoned and examined.
5. Most important remained examination of plaintiff (PW-5), who stated that the back of the agreement contains acknowledgement of full payment of Rs.160,000/- and additional amounts.
However, it has been admitted by him that the agreement at its back, containing clauses of payment of additional amounts, do not provide that the same is for registration fee or stamp duty etc.:-
6. So far as the possession of property-A is concerned, it is not so stated in the agreement that the same was delivered but plaintiff / PW-5, in his cross-examination and at his own, deposed that possession was taken over by him, in the following words:- This leads to clear inference that possession of property-A, if at all with the plaintiff, was taken over without permission.
7. It is also worth noting that in the suit it has not been disclosed that there was some simultaneous bargain for property-B. This is admitted by the plaintiff in his cross-examination and he confirmed that stay against property-A became reason for not executing registration, within stipulated time period. This strengthen the standpoint of defendant-side and it cannot be precluded that against higher consideration for slightly larger property / property-B was agreed to be passed on to the plaintiff. I asked the learned counsel of the respondent as to this aspect but he could not give any satisfactory answer.
8. Both sides have claimed some subsequent settlement of terms in addition to the terms in the agreement. Plaintiff by stating that amount higher than what was settled in the agreement was paid, though claiming that this amount is registration fee. This claim even otherwise is against practice and custom that such amount is paid by the buyer at the time of registration or while purchasing stamp-papers. There is no stipulation in the agreement, contrary to this practice.
9. The defendant-side has pleaded that for the specific circumstances, in lieu of property-A, property-B has been transferred to the plaintiff in manners disclosed above. In this respect the plaintiff (PW-5) was also cross-examined and he has deposed as under:-
10. PW-1 is witness of the agreement. Although he stated that Rs.40,000/- acknowledged at the back of the agreement is for registration but no satisfactory answer is given by him that when everything was being brought in writing then what stopped the plaintiff to bring it in written form that Rs.40,000/- is for registration. No answer in this regard is available in the entire evidence.
Further, thumb impression or signature of PW-1 is not present at the back of the agreement, which reflects that the PW-1 was not present when the subsequent bargain was taking place.
11. Another important witness appearing from plaintiff-side is Allah Ditta (PW-3), who is witness of the mutation. He has not deposed anything, in his examination-in-chief, regarding bargain of property-A, the additional sum or settlement of terms as to the purchase of property-B prior to the mutation. He confirmed that he has no relevance with the agreement or subsequent elements relating to the agreement. He further deposed that he has no idea about what is stated in the suit.
He failed to answer anything as to the suit property / property-A and then stated as follows:-
12. The defendant appeared as DW-2. He stood by his stance in the pleadings. I have carefully gone through his cross-examination and also asked the learned counsel of the plaintiff to read any answer which has effect that defendant's examination-in-chief or his stance is incorrect. The learned counsel invited attention to those answers where the witness confirmed that the mutation was attested. I am afraid that this is not the dispute.
13. Besides what has been discussed above, the following discrepancy, in evidence, as to the additional sum is also important:- The two witnesses have given different amounts paid to the defendant for the purposes of registration.
14. There is no stipulation in the agreement that upon initial payment of Rs.110,000/- the possession is to be transferred. The stance as to delivery of possession upon the said payment is against the agreement. In the admitted document (the agreement and the back of stamp paper), it is not mentioned that Rs.40,000/- is for registration. The above comparison of evidence of important witnesses as to amount for registration shows that both have given contradictory statements. The depositions are also contrary to written document. A case is attempted to be made by the plaintiff that there are two bargains; one for property-A and another for property-B. This attempt is made after the defence is set-up. Somehow, the transaction of the mutation is not given in the plaint. As per version of plaintiff the agreement as to property-A is refused to be performed but thereafter the mutation is passed for the amount that is equal to total sum paid having written proof. The additional sum of Rs.40,000/- is fixed, paid and acknowledged but the purpose explained by the plaintiff could not be proved by him.
15. This is settled that it is always a question of fact whether the parties have substituted their earlier agreement with a new. This depends upon the intention of the parties[1]. The one who alleges this has the burden to prove[2]. The prerequisites include consensus ad idem amongst the parties[3]. The Honourable Supreme Court of Pakistan as well as this Court in Muhammad Iftikhar Abbasi[4] and Mst. Waris Jan[5] cases have examined the essentials of novation. I have carefully examined the pleadings and evidence in the light of above discussed law. Evaluating the same on the balance, has persuaded me to conclude that the parties agreed to replace their first agreement for property-A with another one for property-B. The evidence of DW-2 / defendant remained convincing and irrefutable, whereas, the plaintiff / respondent initially failed to disclose the alleged independent bargain and then facing the set-up defence, produced witnesses who gave highly contradictory answers on material points. The stance of the plaintiff, in the given circumstances of the case, is also found too implausible.
16. For what has been discussed above, I am inclined to agree with the findings of the learned trial Court. Therefore, the present civil-revision is allowed and the suit is dismissed. No order as to costs.
1. "Messrs Ismail Brothers (Karachi) Ltd., Karachi versus Messrs S. M. Fazail & Co., Karachi" (PLD 1958 (W.P.) Karachi 158).
[2]"Mrs. Mussarat Shaukat Ali versus Mrs. Safia Khatoon and others" (1994 SCMR 2189).
Also see "Haji Baz Muhammad Khan and another versus Noor Ali and another" (2018 SCMR 1586).
3. Y. A. J. Noorbhai and another versus S. P. L. K. R. Karuppan Chetty" (1925 Privy Council 232).
4. `Muhammad Iftikhar Abbasi versus Mst. Naheed Begum and others" (2022 SCMR 1074).
5. `Mst. Waris Jan and another versus Liaqat Ali and others" (PLD 2019 Lahore 333). revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.