' Syed Ahmad Shah, respondent No,1 filed Suit No,237/1 of 1980 in the Court of learned Senior Civil Judge, Mardan against Nawabzada Colonel Muhammad Khalid Khan seeking declaration to the effect that he (Syed Ahmad Shah) was owner in possession of land measuring 2 Kanals, 10 Marlas fully described in the heading of the plaint having paid full consideration to defendant and that the defendant has no concern with the property in dispute. Perpetual injunction restraining the defendant from alienating the suit property was also sought. As alternative relief, specific performance of agreement to sell, dated 8-11-1977 was sought. The said suit was resisted by the predecessor of petitioners/defendants by filing written statement, the learned trial Court after framing as many as 8 issues, recording, pro and contra evidence of the parties passed decree in favour of respondent/plaintiff vide judgment and decree, dated 3.1-1-1994. Feeling aggrieved with the said judgment and decree, Nawabzada Colonel Muhammad Khalid Khan filed Civil Appeal No,16/13 of 1994 in the Court of learned Additional District Judge-II, Mardan. The said appeal was partially allowed vide judgment and decree, dated 1-12-1994, the impugned judgment and decree was modified to the extent that respondent/plaintiff was declared owner of 30 Marlas of suit land instead of 50 Marlas. The petitioners being aggrieved of the said judgments and decrees have filed civil revision in hand (Civil Revision No,129 of 1995).
2. It is worth mentioning that Nawabzada. Colonel Muhammad Khalid Khan, predecessor of petitioners filed Suit No,58/1 of 1991 against the respondents seeking possession of the suit property described in the plaint. A perpetual injunction restraining the respondents/ defendants from alienating the suit property and prayer for recovery of Rs,24,000 as mesne profits was also made.
The said suit was resisted by the respondents/defendants by filing written statement. The learned trial Court framed as many as 11 issues, recorded pro and contra evidence of the parties and dismissed the suit vide judgment and decree, dated 31-1-1994. Being aggrieved with the said judgment and decree, the predecessor of petitioners filed Appeal No,73/13 on 1-3-1994 which was dismissed vide- judgment and decree, dated 1-12-1994. Being dissatisfied with the judgments and decrees passed by the Courts below, the petitioners have filed the Revision Petition. No,130 of 1995.
3. Through this single judgment in (Civil Revision No,129 of 1995) I shall decide both the revision petitions as both are in respect of same property and between the same parties.
4. Mr. Qamar Zaman Tangi, Advocate, the learned counsel representing the petitioners argued that the suit property was owned by predecessor of petitioners namely Nawabzada Colonel Muhammad Khalid Khan, who never entered into any agreement to sell the suit property with respondent No,1 orally or in writing i,e, he neither agreed to sell the suit property to respondent No,1 nor received the sale consideration nor handed over possession to him, but the Courts below have misread and non-read the evidence and arrived at the conclusion which are totally inconsistent with the evidence.
5. It was also argued that the petitioner's appeal against the decree in favour of respondent No,1 in Case No,237/1 in respect of the property in dispute was partially allowed and respondent No,1 was held to be owner of 30 Marlas instead of 50 Marlas vide Appeal No,17/13 filed by the predecessor of the petitioners.
6. It was also argued that the respondent No,1 in his own statement recorded before the learned trial Court deviated from his own pleadings. In his statement he deposed that he had .Entered into an agreement to purchase land measuring 13 Marlas with predecessor of petitioners but in the plaint he stated that he had purchased 50 Marlas of land at the rate of Rs,6,000 and paid a Cheque of Rs,30,000 to Abdul Khaliq. The contradiction between the statement and pleadings clearly shows that respondent No,1 had never entered into an agreement to sell with the predecessor of petitioners.
7. It was also argued that no decree declaring respondent No,1 to be owner of suit property or any portion thereof could be granted on the basis of unproved agreement to sell and receipt issued by a person having no authority in law.
8. It was further argued that it was proved on record that the possession of the suit property was initially with Muhammad Yaqoob and Farrukh Sair, son of respondent No,1 as tenant and it was with the collusion of the above named persons that the possession of the suit premises was taken over by respondent No,1 without consent and permission of the predecessor of petitioners, therefore, the petitioners were not only entitled for decree for possession but for mesne profits also.
9. It was further argued that there is no evidence available on record to prove that respondent No,1 had made improvement in the property in dispute. Neither any receipt was produced in order to prove the improvement nor any person was examined to prove that respondent No,1 had made certain improvements nor any Local Commission was appointed to inspect the property and report the improvements. Therefore, the issue with regard to improvement was-wrongly decided by the Courts below.
10. On the other hand Mr. Abdul Sattar Khan the learned counsel representing respondent No,1 argued that Nawabzada Col. Muhammad Khalid Khan had orally agreed to sell the property in dispute to respondent No,1 and had received a sum of Rs,30,000 through his representative Syed Abdul Khaliq, who had issued receipt Exh.P.W.2/1 on 2112-1977. The amount of sale consideration was paid through cheque which was deposited in his Account. The possession of the property in dispute was also handed over to respondent No,1, therefore, oral agreement was acted upon but the predecessor of petitioners failed to transfer the property in dispute in the name of respondent No,1 which necessitated in filing of suit by him.
11. It was also argued that the respondent No,1 had through cogent and reliable evidence proved his case and that was the reason that Courts below concurrently held him to be owner of property in question.
12. It was also argued that Syed Abdul Khaliq was cashier/ representative of predecessor of petitioners who had not only executed receipt Exh.P.W.2/1, but had also while appearing as P.W.2 admitted having received cheque for Rs,30,000 and depositing the same in Account of Nawabzada Col. Muhammad Khalid Khan. Abdul Khaliq Khan had implied authority of Nawabzada Col. Muhammad Khalid Khan, therefore, the predecessor of petitioners and the petitioners were bound by his acts.
13. Regarding the suit for possession filed by Nawabzada Col. Muhammad Khalid Khan the learned counsel for respondent No,1 argued that the possession of the suit property was handed over to him by the predecessor of petitioners in furtherance to his agreement to sell the property in dispute to him, he was, therefore, in valid possession of the same being its lawful owner as such the question of handing over of possession to the petitioners- and payment of any mesne profits does not arise at ell. The Courts below have properly dismissed their suit and the appeal, therefore, the judgments and decrees of the Courts below do not require any interference by this Court in its revisional jurisdiction.
14. I have heard the learned counsel for the parties and perused the record of the case carefully.
15. The basic question which requires consideration in this case is as to whether Nawabzada Col. Muhammad Khalid Khan had agreed to sell land in dispute to Said Ahmad Shah and in furtherance to that agreement had received Rs,30,000 and had handed over the possession of the disputed property to him or the possession of Said Ahmad Shah over the property in dispute is illegal?
16. In order to prove his case Said Ahmad Shah, respondent No,1/plaintiff in Suit No,237/1 examined Mir Ahmad Jan, Patwari Halqa Bagh-e-Aram, Mardan who placed on record copies of Fard Jamabandis from 1925-26 to 1935-36, for the years 1950-51 to 1970-71 Exh.P.W.1 /1 to Exh.P.W.1/9.
Copies of Khasra Girdawari commencing from Kharif, 1963 up to Kharif 1981 (4 sheets) Exh.P.W.1/10.
Copies of Jamabandis in respect of only numbers owned by Government were produced as Exh.P.W.1/11 "to Exh.P.W.1/19. Copy of Mutation No,45 Exh.P.W.1120. Syed Abdul Khaliq appeared as P.W.2, who placed on record photostat copy of receipt of Rs,30,000 bearing No,28/67, dated 8-11- 1977 Exh.P.W.2/1. Said Badshah, Record Keeper from the Office of Excise and Taxation, Mardan was examined as P.W.3, who exhibited copy of the Register with regard to tax assessment for the year 1977-82 Exh.P.W.3/1, for the period 1982-87 Exh.P.W.3/2, copy of PTI for assessment year 1977-78 Exh.P.W.3/3 Property Tax deposit receipts, dated 27-2-1980 and 17-4-1983 Exh.P.W.3/4 and Exh.P.W.3/5. Mian Rafiuddin and Mian Shamas Gul were examined as .Ws.4 and 5 who stated that they had also purchased properties from Nawabzada Col. Muhammad Khalid Khan and on the basis of receipts issued by his representative. Abdur Rehman retired Draftsman C&W Department was examined as P.W.6. He placed on record Naqsha Tasviri prepared by him as Exh.P.W.6/1 and list of machinery installed therein as Exh.P.W.6/2. Said Ahmad Shah, plaintiff was examined as, P.W.7, who narrated the same facts as narrated in the plaint, however, he admitted having purchased land measuring 30 Marlas.
17. On the other hand Muhammad Yaqoob was examined as D.W.1 Muhammad Fateh Khan, Special Attorney of defendant was examined as D.W.2, who placed on record copy of special attorney as Exh.D.W.2/1.
18. Said Ahmad Shah respondent No,1/plaintiff in his statement deposed that he had through oral agreement purchased land measuring 30 Marlas from Nawabzada Col. Muhammad Khalid Khan for a sale consideration of Rs,30,000 which as per _direction of Nawabzada Col. Muhammad Khalid Khan were paid to Syed Abdul Khaliq Khan, who issued receipt Exh.P.W.2/1. The possession of the property in dispute was also handed over to him in furtherance to oral agreement, therefore, he constructed a workshop, service station and shops over the land in question and no objection was raised either by Nawabzada Col. Muhammad Khalid Khan or by any of his representatives. The amount of sale consideration of Rs,30,000 was also deposited in the Account of Nawabzada Col. Muhammad Khalid Khan as is clear from the statement of Syed Abdul Khaliq, D.W.2. Since the transaction of sale was oral between Nawabzada Col. Muhammad Khalid Khan and Syed Ahmad Shah, therefore, it was incumbent upon Nawabzada Col, Muhammad Khalid Khan to appeared in person and denied not only that he did not transact any sale in favour of Said Ahmad Shah but should have also denied the receipt of sale consideration and factum of handing over possession to him, which was not done by him. No doubt his attorney namely Fateh Khan appeared on his behalf but how could this witness affirm or deny about the oral transaction which took place between the parties, because he was not present at that time when Nawabzada Gul.' Muhammad Khalid Khan agreed to sell the land in dispute to respondent No, 1 . Although the reason for non- appearance for Nawabzada Col. Muhammad Khalid Khan was given that he was ailing, therefore, he A could not appear in person but no efforts were made to get his statement recorded through Local Commission. On the other hand Said Abdul Khaliq, who was cashier of Nawabzada Col. Muhammad Khalid Khan appeared as P.W.2. He not only admitted having issued receipt of Rs,30,000 Exh.P.W.2/1 but also stated that the cheque of Rs,30,000 was deposited in the Account of Nawabzada Col. Muhammad Khalid Khan and the same was credited in his Account. Even the receipt of Rs,30,000 was not denied by the Special Attorney as neither the statement of Account nor any Bank employee was produced to rebut the factum of non-receipt of Rs,30,000, the sale consideration. So far as the handing over the possession of property in dispute is concerned, it is on record that son of Said Ahmad Shah namely Farrukh Sair was already in possession of the property in dispute alongwith Mistry Muhammad Yaqoob as his partner. Mistry Muhammad Yaqoob was examined as D.W.1, but this witness did not speak a single word that he handed over the possession to Said Ahmad Shah. He rather stated that he alongwith Badshah plaintiff (Said Ahmad Shah) were co-tenants of Nawabzada Muhammad Umar Khan on the plot in dispute then the property was partitioned between the members of Nawab family. He admitted in cross-examination that respondent No,1/plaintiff was in possession of the suit property for the last 25 years and in his presence plaintiff never paid any rent to Khalid Khan. With the above discussed evidence it was proved on record that there was an oral agreement between Nawabzada Col. Muhammad Khalid Khan and Said Ahmad Shah for sale of land measuring 30 Marlas, the total sale consideration of which was paid by respondent No,1 to Nawabzada Col. Muhammad Khalid Khan through his cashier Syed Abdul Khaliq P.W.2 vide receipt Exh.P.W.2/1 and that in furtherance to this agreement the possession of the land was also handed over to Said Ahmad Shah, who constructed Service.
Station and shops over the property in dispute in the year 1977 and rented out the shops to others and was receiving the rents regularly. Neither Nawabzada Col. Muhammad Khalid Khan in his lifetime nor any of his representatives raised any objection as to why the property which had allegedly not been sold was being constructed by Said Ahmad Shah. They rather kept mum. The silence of the predecessors of petitioners Nawabzada Col. Muhammad Khalid Khan shows that land measuring 30 Marlas had been agreed to be sold to Said Ahmad Shah. It is also on record that Nawabzada Col. Muhammad Khalid Khan on 19-2-1991 filed Suit No,58/1 for possession of land measuring 50 Marlas but that suit was filed after a period of almost 11 years of filing Suit No,237/1 by Said Ahmad Shah, which was instituted on 3-6-1980. There is no explanation available on record as to why and what for Nawabzada Col. Muhammad Khalid Khan waited for good 11 years for filing suit for possession. Although the learned trial Court had declared Said Ahmad Shah owner of land measuring 50 Marlas, but the learned Appellate Court keeping in view the statement of Said Ahmad Shah that he had purchased 30 Marlas of land had declared him owner of land measuring 30 Marlas, but the question which arises here is that whether the Courts below could declare Said Ahmad Shah owner of land measuring 30 Marlas on the basis of agreement, the answer is in negative. It is by now established law that no declaration could be granted on the basis of an agreement because agreement does not by itself create any right or interest or any charge on the property but on the basis of evidence available on record, it stands proved that Nawabzada Col. Muhammad Khalid Khan had orally agreed to sell land measuring 30 Marlas in favour of Said Ahmad Shah, the entire sale consideration of Rs,30,000 had been paid by Said Ahmad Shah and possession of the property in question had also been handed over to him on which he raised huge construction without any objection from Nawabzada Col. Muhammad Khalid Khan or his legal heirs, therefore, Said Ahmad Shah was entitled for a decree for specific performance of the said agreement. Said Ahmad Shah in Suit No,237/1 had sought decree for specific, performance of agreement as alternative relief, therefore, on the basis of evidence already produced, he is granted decree for specific performance of agreement regarding land measuring 30 Marlas only. In this regard wisdom has been drawn from Mukhtar Baig and others v. Sardar Baig and others 2000 SCM R 45. The impugned judgments and decrees of the Courts below are modified to the said extent. The parties shall have recourse to the learned trial Court if any further proceedings are required in order to complete legal formalities for transfer of land in favour of Said Ahmad Shah.
Resultantly, Civil Revision No,129 of 1995 is dismissed.
19. So far as Civil Revision No,130 of 1995 is concerned, the judgments and decrees passed in Suit No,58/1 and Appeal No,17/13, whereby suit and appeal filed by Nawabzada Col. Muhammad Khalid Khan were dismissed arc, also modified. The petitioners (L.Rs, of Nawabzada Col. Muhammad Khalid Khan) are entitled to decree for possession of land measuring 20 Marlas out. Of the suit property., Therefore, decree for possession regarding 20 Marlas is passed in their favour against respondent No,L The petitioners shall be entitled to get the possession of 20 Marlas from respondent No,1 in a manner that the total land measuring 50 Marlas shall be divided in such a way that Said. Ahmad Shah shall retain his possession proportionate to his 30 Marlas entitlement on road side, whereas petitioners -hall also get their proportionate share on road side i,e, both the parties shall have the rigiit to have the property on road side according to their respective entitlement. If on the property which falls in the share of petitioners, there is any construction raised by respondent No,1, they shall pay the amount of that superstructure to Said Ahmad Shah. The amount of superstructure shall be determined by the Executing Court by sending Local Commission (who shall be expert for assessing the amount of superstructure) to the spot.
20. The petitioners in their suit had also claimed mesne profits at the rate of Rs,8,000 per annum for entire land measuring 50 Marlas. The petitioners are also held entitled to mesne profits at the rate of Rs,3,200 per annum i,e, at the claimed rate for 20 Marlas with effect from 19-2-1988 till handing over physical possession to the petitioners. With the above modification, the Revision Petition No,130 of 1995 is partially allowed. The parties shall bear their own costs.