A suit for specific performance filed by the appellant was dismissed by the learned trial Court vide judgment and decree dated 22-1-1994, where against the appeal filed by him, was dismissed by the First Appellate Court on 20-4-1999. This is now second appeal there against.
2. The suit was based on an agreement dated 4-10-1986 (Exh.P.3), alleged to have been. Executed by the respondent, which as per averments made by the appellant had been sold to him by the respondent for a consideration of Rs.50,000. It was his case that the respondent who was WAPDA employee had been unable to get the house vacated from the then tenant Nisar Anjum for which purpose the appellant had been appointed as attorney to seek his eviction. Special power of attorneys executed on the same date i.e. 4-10-1986 Exh.P.1 and EXh.P.2; were relied upon for that purpose. In support of his assertion the appellant produced Ihsan Bari P.W.1, Abdullah Khan, Stamp Vendor' P.W.2, Faiz Muhammad P.W.3, Iqrar Ahmed P.W.4, Muhammad Nawaz P.W.5 and himself appeared as P.W.6, whereas the respondent/defendant produced Muhammad Sharif D.W.1, Muhammad Aslam D.W.2, Abdul Hameed D.W.3 and Muhammad Younas appeared' himself as D.W.4. On consideration of the evidence on the record the learned trial Judge' dismissed the suit in view of his findings on Issues Nos. 1, 3 and 5, which were dealt) together by him, which judgment, as mentioned above, has been affirmed by the learned Additional District Judge, Faisalabad.
3. The principal point that arises in this appeal, is whether execution of Exh.P.3 (agreement dated 4- 10-1986) has been proved and even if assumed so, could it be regarded as agreement to sell/sale enforceable through the Court. It is contended by the learned counsel for the appellant that the appellant had made payment of Rs.50,000 to the respondent as a sale consideration for the same.
It is further contended that non--mention of consideration in the agreement dated 4-10-1986 was not fatal as even an oral agreement between the parties could be enforced. Reference has been made by him to Bashir Ahmad v. Muhammad Yousaf, deceased represented by Muhammad Shafique 1993 SCM R 183, Balabhadra Misra v. Srimati Nirmala Sundari Devi and others AIR 1954 Orissa 23, Pritam Singh and others v. Jaganath Sarawgi and others AIR 1947 Pat. 1, Kauleshar Prasad Misra v. Abadi Bibi AIR 1915 All. 347, Anandibai Ram Pai v. Hari Suba . Pai (1911) 10 IC 911, Kashi Das Gosain v. Chithru Patras Uraon (1913) 23 IC 813, Thakur Raghubar Singh v. Gajraj Singh and another (1918) 47 IC 920, Subbayyar v. Moniem Subbamania Ayyar and 3 others ILR 1911 36 Mad.
8. The learned counsel for- the respondent has supported the judgment rendered by the Courts below and contends that concurrent findings so recorded as based on correct appreciation of the evidence and need no interference by this Court:
4. The perusal of Exh.P.3 shows that the same is silent about many essential aspects of an agreement of sale. Non-mention about the price settled, paid or unpaid is quite conspicuous and cannot be overlooked or ignored. It may be observed that a sale of property contemplated by law i.e. Section 54 of Transfer of Property Act, 1882 makes the element of price paid or promised or part paid and part promised as of vital importance. An agreement to sell or for sale of the property must contain the essential terms as to price, whether paid or unpaid, time of its performance and disposition of its subject-- matter. Exh.P.3 merely authorised the appellant to seek possession of the house from the occupant namely Nisar Anjum and that he would be considered owner in possession thereof. There is nothing therein about the price settled, paid or unpaid. It is also silent as to how this agreement was to be enforced. This was a document of unique type that is how the Courts below had to examine it deeply and point out various inherent infirmities therein. The document by no standard could be regarded as an agreement of sale for the enforcement of which the Court could exercise its discretionary jurisdiction of specific relief under the Specific Relief Act. There is no cavil that an oral agreement can also be enforced by the Court but such an oral agreement has to be proved by positive, clear and convincing evidence of credible nature. In the present case the mere assertion of the appellant regarding payment of price of Rs.50,000 which remained uncorroborated by any confidence-inspiring evidence could not be believed. The findings thus rendered by the Courts below are based on correct appreciation of evidence. It may be observed that the precedents cited by the learned counsel proceeded on their own peculiar facts. In Bashir Ahmad (supra) the oral agreement and particularly the payment of price to the vendor and delivery of original title documents to the vendee were proved. The evidence in the instant case is wanton and insufficient on essential aspects and the appellant has rightly been non-suited. There being thus no misreading or non-reading of the evidence or illegality committed by the Courts below, no interference is called for.
As a result of the above this appeal has no merit and is dismissed. No order as to costs.