On 11-3-1990, respondent No. l filed a suit. The plain narrates that respondent No.2 leased-out the suit land to him on 20-12-1983 for the period Kharif 1984 to Rabi 1989 subject to payment of Rs.50,000 as lease money for the entire period of lease; that the entire amount of lease money was received by the respondent No. 2 and he executed an agreement dated 20-12-1983; that apart from the terms of the said lease it was agreed that after harvesting the crop of Rabi 1989, respondent No.2 shall return a sum of Rs.70,000 to respondent No. l and if he failed to do so then respondent No.2 shall be bound to transfer the suit land in favour of the respondent No. 1 in which case the consideration would be Rs.105,000 and a sum of Rs.50,000 paid on 20-12-1983 shall be deemed to be an advance adjustable against the said sale price and that the respondent No. l shall be entitled to get the agreement specifically enforced on payment of Rs.55,000 in the Court, that on 17-2-1984, respondent No. 1 received a sum of Rs.14,000 while on 15-6-1984, another sum of Rs.9,000 was received yet another sum of Rs.5,000 was paid on 15-2-1989; that after adjusting the said payments the balance out of the sale price is only Rs.27,000; that Respondent No.2 has not paid back Rs.70,000 and instead has transferred the suit land to the appellant vide a Mutation No.425 attested on 18-12-1989 without knowledge or consent of respondent No. 1; that appellants were aware of the sale agreement in favour of the respondent No. l as an entry was made in the Roznamcha Waqiati on 13-8-1989. With these averments, a prayer was made for a decree of Specific Performance of the said agreement to sell respondent No,2 filed a written statement on 18- 6-1990. He admitted that he did lease-- out the land for a period of 3 years as alleged but he has vehemently denied that he agreed to return a sum of Rs.70,000 or to sell the land as alleged by the respondent No. 1. The appellants filed their written statement on 16-4-1990 and pleaded that they are bona fide purchasers for value and without notice; onmerits they stated that they were not aware of any agreement or its details as alleged in the plaint. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit of respondent No. l vide a judgment and decree dated 12-10-1995. First appeal filed by the appellants was heard by a learned Additional District Judge. Khanewal who dismissed the same vide his judgment and decree dated 10-6-1997.
2. Learned counsel for the appellant contends that both the learned Courts below have misread the evidence on record while recording their respective judgments and decrees and as such the same are contrary to Law.
Learned counsel for respondent No. 1, on the other hand, supports the impugned judgments and decrees.
3. I have gone through the records with the assistance of the learned counsel for the parties.
The agreement sought to be specifically enforced is on record as Exh.P.1. I am constrained to observe that none of the learned Courts below cared to examine the said agreement. The agreement Exh.P.1 narrates that respondent No.2 has leased-out the suit land to Respondent No. l for the period Kharif 1984 to Rabi 1989 against a sum of Rs.20,000 and has received the entire amount; that apart from the said lease money, respondent No.2 has received a sum of Rs.50,000 from respondent No.1 and has promised that within the period of the lease, i.e. Upto harvesting of crop of Rabi 1989, he will transfer the suit land for a consideration of Rs.1,05,000 and in case he does not do so he will return a sum of Rs.70,000 to respondent No.1; in case of failure of respondent No.2 to pay the said amount of Rs.70,000, then respondent No. l will be entitled to deposit a sum of Rs.55,000 in Court and to seek Specific Performance of the contract.
4. A plain reading of the said agreement shows that by all means this was an agreement akin to a clog on the equity of redemption. Even otherwise the terms are very clear. It was mutually agreed that in case within the period of the lease i.e. Upto harvesting of crop of Rabi 1989, the Respondent No.2 failed to transfer the land for a sum of Rs.1,05,000 to Respondent No. 1, the former shall be liable to return Rs.70,000 to respondent No. 1. It was only out the failure of respondent No.2 to pay the said amount of Rs.70,000 to respondent No.1 that the latter was to get the agreement specifically enforced on payment of Rs.55,000.
5. I have examined the evidence in the light of said terms contained in the agreement Exh.P.1.
Muhammad Daud Respondents No.1 entered the witness-box As P.W.3 on 10-5-1992. I have minutely examined the said statement made by respondent No.1. I find that he has remained absolutely silent in the course of his examination-in-chief and has not uttered even a word that he demanded the return of Rs.70,000 from respondent No.2 after the expiry of the terms of the lease and that the respondent No.2 refused to return the amount to him. Although in view of the said silence there was no need to make any suggestion in the cross-examination, yet the cross- examiner took a chance and put questions on the point to respondent No.1 and he admitted that he has neither filed a suit for recovery of Rs.70,000 not has he ever given a notice to respondent No.2 claiming that said amount. There is nothing in the other evidence on record that the said terms of the agreement were met. In this view of the matter, the suit of respondent No. l was not 8 maintainable at all for Specific Performance of the agreement in the absence of any proof that he demanded the return of Rs.70,000 and that Respondent No.2 refused to return the same.
Coming to the plea of the appellants regarding bona fide purchase, Muhammad Rafique, the Guardian-ad-item of minor appellant No.2 entered the witness-box as D.W.3. He stated on oath that the appellants were not aware of any agreement between the respondent No. l and respondent No. 2. The entire reliance of respondent No.1 and consequently of the learned Lower Courts in attributing the knowledge of the agreement to the appellants is the report Roznamcha Waqiati Exh.P.2. This report was recorded on 13-8-1989. To my mind, the said report is liable to be ignored for the simple reason that an agreement neither creates nor extinguishes any title and as such no mutation can be entered on the basis of the same. There was no legal obligation on the Patwari to make an entry regarding the C agreement in his Roznamcha. Be that as it may, admittedly the mutation in favour of the appellants was attested on 18-12-1989. A perusal of Khasra Girdawari Exh.D-2 reveals that for the first time, the entry of respondent No.2 in the column of possession was made on 2-4-1990 i.e. Rabi 1990. I find that entry for Kharif 1989 was recorded on 10-10-1989 and what to speak of the agreement, Respondent No. l is not even recorded as a tenant.
This circumstance amply supports the contention of the appellants that report Exh.P.2 is fabricated and fictitious. Had the report in fact been made on 13-8-1989, then to use the words of the learned Additional District Judge, it was the obligation of the Patwari to have made the entries accordingly in the Khasra Girdawari which he made on 10-10-1989.
7. It also appears strange that throughout the period of lease, respondent No. l did not bother to get the entries of Khasra Girdawari corrected in the column of possession in his name and he thought of it only after the expiry of the lease period in Rabi, 1990.
8. In the above state of evidence on record, I find that respondent No .1 has miserably failed to discharge the burden shifted on him after denial on oath in the witness-box by D.W.3 of the knowledge of the agreement.
9. Consequently the findings of the learned Courts below on Issues Nos.3 to 8 are set aside. This R.S.A. Is allowed. The judgments and decrees of both the learned Courts below are set aside and the suit of Respondent No. l is dismissed leaving the parties to bear their own costs.
H.B.T./S-236/L