' This civil revision assails judgment and decree, dated 5-12-1997 passed by the learned Additional District Judge, Gujranwala, whereby appeal of the respondents was accepted, judgment and decree of the trial Court was reversed and suit filed by the petitioner was ordered to be dismissed.
2. Precisely, relevant facts are that petitioner filed a suit for specific performance of an oral agreement to sell, dated 28-2-1987 before the learned Senior Civil Judge, Gujranwala, on 21-2-1989 averring that respondent No,8 entered into an oral agreement to sell land measuring 4 Kanals, 11 Marlas, detailed in the plaint, against a receipt, dated 28-2-1987 and received the entire consideration of Rs,24,000 and delivered him possession of the land subject of agreement.
Respondent No,8 appeared in the Court on 1-3-1989 and filed a concessional written statement admitting sale of land but stated that Rs,12,000 were outstanding towards the petitioner. Thereafter, on 1-4-1989 a compromise Exh.C.1 was filed before the trial Court who recorded statement of respondent No,8. Pending suit, Fateh Ali (predecessor-ininterest of respondents Nos.1 to 7) filed an application under Order I, rule 10; C.P.C. Seeking his impleadment on the ground that respondent No,8 had entered into an agreement to sell land measuring 5 Kanals including the land subject of this suit, through a registered agreement, dated 14-4-1987. His application was accepted and he was ordered to be impleaded as a defendant on 3-1-1990. Fateh Ali, subsequently, died and in his place his heirs/legal representatives (respondents Nos.1 to 7) were brought on the file as defendants. Case of respondents Nos.1 to 7 was that respondent No,8 sold his 5 Kanals of land for a consideration of Rs,35,000 and after receiving Rs,29,000 as earnest money executed a registered agreement on 14-4-1987. They further pleaded that suit in hand was collusive qua respondent No,8 and has been filed just to usurp their vested rights. Respondents Nos.1 to 7 did not file their written statement and instead filed an application under Order VII, rule 11, C.P.C. On 27-5-1990 seeking rejection of plaint on the ground that their (respondents Nos.1 to 7) suit for specific performance had already been decreed against respondent No,8 vide judgment and decree, dated 28-9-1989.
The learned trial Judge, who was seized of the matter, vide his order dated 15-2-1994 dismissed the application, whereafter a written statement was filed by respondents Nos.1 to 7 raising similar averments besides taking certain preliminary objections with regard to cause of action, non- maintainability of suit, fabrication of receipt by the petitioner and incorrect valuation of the suit for the purposes of court-fee and jurisdiction. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. After doing the needful the trial Court vide judgment and decree, dated 12-7-1997 decreed the suit of the petitioner.
3. Respondents Nos.1 to 7 aggrieved of the decision, dated 12-7-1997 filed an appeal before the learned Additional District -Judge, where they succeeded as their appeal was accepted, judgment and decree of the trial Court was reversed and suit of the petitioner was dismissed, vide judgment and decree, dated 5-12-1997. Thereafter, the petitioner filed the instant revision petition, which was admitted to regular hearing and has now been laid for final determination.
4. Learned counsel for the petitioner submitted that respondents Nos.1 to 7 had asserted fraud, forgery and preparation of receipt, dated 28-2-1987 fictitiously and Issue No I was framed with regard to this controversy and onus to prove the same was placed on the shoulders of the said respondents, but they brought no evidence on the file to prove this .Assertion, in absence of which suit of the petitioner could not have been dismissed. It has also been contended on behalf of the petitioner that respondents Nos. I to 7 kept their decree, dated 28-9-1989 in a guarded secret, as they did not disclosed in the application filed by their predecessor for becoming party to the suit by the petitioner and as such petitioner could not challenge that decree. According to his submissions decree obtained by predecessor of respondents Nos.1 to 7 on 28-9-1989 at the back of the petitioner does not bind him, as he was not impleaded thereto as party. He further submitted that decree, in favour of predecessor of respondents Nos.1 .To 7 has become unexecutable due to lapse of time and thus, confers no title on them to contest the suit of the petitioner. He further elaborated his arguments by submitting that land subject of petitioner's suit is different than the one mentioned in the agreement to sell in favour of predecessor of respondents Nos.1 to 7 on 14-4-1987 and in this manner on its basis. Dismissal of suit of the petitioner is not justified. It has also been contended on behalf of the petitioner that after conceding suit vide statement, dated 1-4-1989 respondent No,8 was left with no right to make any concessional statement in favour of respondents Nos.1 to 7 on 28-9-1989.
5. Learned counsel appearing on behalf of respondents Nos.1 to 7 refuted the assertions of the petitioner, supported appellate judgment and decree and urged that suit of the petitioner is based on an oral agreement to sell which never came into being but was concocted just to defeat rights of respondents Nos.1 to 7 under a registered agreement to sell, dated 14-4-1987. He further submitted that receipt, dated 28-2-1987 is forged and has been manufactured just to lend a support to the fake asserted oral agreement. It has also been contended that collusion between the petitioner and respondent No,8 is obvious from the fact that he not only conceded the suit of the petitioner but also came out with the similar concessional statement in the suit of respondents Nos. I to 7 just to have money from them. According to learned counsel for the respondents decree, dated 28-9-1989 was duly asserted in the written statement filed by respondents Nos.1 to 7 and having come to the notice of petitioner, remained unchallenged which could not have been annulled in collateral proceedings in form of suit by the petitioner. He also submits that in spite of the fact that decree in favour of respondents Nos.1 to 7 has become inexecutable, rights under the decree remained intact and respondents Nos.1 to 7 are owners of the land in question. He also denied the claim of the petitioner that land in both the agreements. Dated 14-4-1987 and as mentioned in the suit are different. He submitted that this difference occasioned on account of consolidation of holdings operation.
6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, petitioner and respondent No,8 are real brothers and are living under one roof. Petitioner who claims an oral agreement to sell has attempted to prove payment of entire sale price of Rs,24,000 through receipt dated 28-2-1987 the date on which the oral agreement is claimed to have struck between them. It is no where explained on the file as to why these real brothers who entered into an agreement to sell and opted to execute a receipt regarding payment of sale price, why did not reduce into writing an agreement itself. It is also not explained that after payment of entire price why a sale-deed was not got executed from respondent No,8, who while filing written statement in the suit of the petitioner claimed that he only received an amount of Rs,12,000 and this assertion belies the receipt itself, whereunder payment of Rs,24,000 is shown to have been made. Petitioner who asserts, as noted above, oral agreement and is real brother of respondent No,8 (owner) in order to dislodge the impression of collusion between brothers was required to prove beyond any shadow of doubt, not only the payment of price under the receipt, its execution, but the transaction of sale (bargain) itself. He in order to discharge this onus, produced P.W.1 Sabir Ali, who has stated that he signed the receipt Exh.P.1, but has not uttered a word with respect to any bargain between the petitioner and respondent No,8. P.W.2 is Safdar Ali, who has stated in his examination-in-chief that bargain between the petitioner and respondent No,8 was struck in his presence and a receipt was executed by Muhammad Anwar respondent No,8, which was signed by him, but in cross-examination, he demolished the entire case set up by the petitioner by deposing that bargain was completed between them a day earlier to the execution of the receipt in presence of Sabir Ali P.W.1. As remarked above. Sabir Ali has not said anything about bargain which as claimed by the petitioner took place on the date of execution of receipt. This witness has also deposed against the stand of respondent No,8 taken by him in his written statement with regard to payment by the petitioner, wherein he had pleaded that only an amount of Rs,12,000 was paid. P.W.2 has categorically stated that the entire sale price of Rs,24,000 was paid in his presence, which was counted by him and consisted of currency notes of the value of Rs,100 and Rs,50. P.W.3 is plaintiff himself who, contrary to the deposition of P.W.2, stated that respondent No,8 sold his 4 Kanals, 11 Marlas of land by receiving the entire sale price of Rs,24,000, in presence of Safdar Ali and Sabir Ali (P.W.1 and P.W.2).
7. The above scan of evidence brings me to conclude that with such a discrepant evidence regarding payment of sale price, which is in clear conflict with the written statement of respondent No,8, bargain between petitioner and respondent No,8 could not be proved by a solitary statement of P.W.2 who lacks corroboration from any other independent evidence on the file. Petitioner being a beneficiary of the receipt Exh.P.1, out of which he also extracts an agreement to sell, was required, under law, to prove through positive evidence, the above detailed acts, in absence of which, his suit could not be decreed, merely on the ground that respondents Nos.1 to 7 did not bring any evidence on Issues No,l.It may be correct that since the petitioner was not impleaded to the suit filed by respondents Nos.1 to 7, but this lapse also does not give the petitioner a right to decree, without proof. It is settled proposition of law that a party has to succeed on the basis of his own evidence and not on account of lapses in the case of his adversary. Though executability .Of the decree in favour of respondents Nos.1 to 7 dated 28-9-1989 was not a matter, before the two Courts below because it will be decided by the Executing Court, before whom the execution petition, if any, ultimately comes, yet it is a settled phenomena that rights conferred by the decree, not brought for execution, remain intact. In this manner, if the decree, dated 28-9-1989 declared respondents Nos.1 to 7 owners of the land in dispute, their ownership will not extinct only due to non-execution of the said decree. Similarly, argument of the petitioner that land mentioned in the agreement to sell in favour of respondents Nos.1 to 7 and the one mentioned in his plaint, is different, has no substance in it for multiple reasons because on the one hand, rights if any, of the petitioner are being considered under the alleged oral agreement to sell and receipt. Dated 28-2-1987 and if he succeeds in his suit, he will get whatever he has mentioned in his plaint and on the other hand, suit of the petitioner is not being dismissed primarily/exclusively for the reason that respondents Nos.1 to 7 have obtained a decree against respondent No,8 rather it is being dismissed as he could not prove the transaction (bargain) between him and respondent No,8. In this manner, his assertion regarding different land, requires no determination.
8. For what has been discussed above, I have no hesitation in concluding that Appellate Court has taken a rightful. View emerging out of the evidence on the file, which has neither been asserted nor is proved to have been misread or non-read. Appellate Court did not commit any illegality or irregularity, in absence of which no interference is called for in revisional jurisdiction of this Court.
This revision petition has no merit in it and is accordingly dismissed, with no order as to costs.