PLJ 2021 Quetta 1 (DB)
Civil Procedure Code, 1908 (V of 1908)--
----S. 96--Specific Relief Act (I of 1877), Ss. 12, 39 & 54--Suit for specific performance, cancellation of mutation entries and permanent injunction--Dismissed--Sale agreement--Earnest money was paid--Possession was handed over--Application for additional evidence--Dismissed--Appointment of local commission--Report of local commission--Filling of objections--Balance amount was not deposited--Burden of prove--Evidentiary value--Responsibility of appellants--An agreement to sell of immovable property neither creates nor purportedly creates any right or interest on such property--Execution of such agreement does not ipso facto even create a charge on immovable property--Execution of an agreement to sell is not document of truth--Plaintiffs/appellants did not deposit balance amount--It is mandatory for party who seek enforcement of agreement under Specific Relief Act, 1877 to deposit balance amount but no application has been filed before trial Court in this regard--Burden lies on plaintiffs to prove alleged sale transaction of suit land, execution of sale agreement, paying of earnest money to respondent/ Defendant No. 1, mere tendering sale agreement in evidence does not enhance its evidentiary value--Obviously, it was responsibility of appellants/plaintiffs to prove existence of fact which was asserted in suit--Findings of trial Court are based on proper appreciation of evidence and same are well-reasoned warranting no interference by this Court--Appeal was dismissed. [Pp. 6] A, B, C & D
2017 SCMR 2022 and 2018 CLC 1901 ref.
Nemo for Appellants.
Respondent No. 1 Ex-parte.
Mr. Iqbal Ahmed Kasi, Advocate for Respondents Nos. 2 to 5.
Syed Mumtat Baqri, Advocate for Respondents Nos. 6 to 8.
Mr. Abdul Latif Kakar, Additional Advocate General for State.
Date of hearing: 2.10.2019.
PLJ 2021 Quetta 1 (DB)
Present: Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ.
versus
BISMILLAH KHAN and others--Respondents
R.F.A. No. 39 of 2013, decided on 16.10.2019.
Judgment
Abdul Hameed Baloch, J.--This appeal is directed against the judgment and decree dated 09.04.2013 ("impugned judgment") passed by learned Senior Civil Judge-III, Quetta (the "trial Court") whereby the suit filed by the appellants for "Suit for Specific Performance, Cancellation of Mutation Entries and Permanent Injunction" was dismissed.
2. Brief facts of the case are that the appellants/plaintiffs filed the referred suit before the trial Court with the averments that the plaintiffs entered into sale transaction vide agreement dated 04.01.2006 with respondent/Defendant No. 1 in presence of witness Asmatullah in respect of property bearing Khasra No. 661, measuring 9 rod 35 Pole, situated in Mohal Viala Kateer, Mouza Kateer, Tapa Kuchlak, Tehsil Saddar, District Quetta, whereby the plaintiff purchased 3 rod 2/3 poles (hereinafter referred to the property in dispute). Out of total consideration of Rs. 11,45,310/- the plaintiffs/appellants paid Rs. 6,50,000/- to the Defendant No. 1 as earnest money. The possession of the above portion was handed over to the plaintiffs, whereas remaining amount was agreed to be paid when the Defendant No. 1 will transfer the mutation of the above property in the name of plaintiffs and remaining amount was to be paid in three installments till the year 2008. When the plaintiffs repeatedly approached the Defendant No. 1 for transfer of mutation entries in their names in the revenue record then they came to know that Defendant No. 1 in concealing manner sold out the property in dispute vide Mutation No. 390 dated 16.2.2006 to respondent/ Defendants Nos. 2 to 5, and measuring 2 rod 15-1/2 pole has been transferred in their names, subsequently on 25.9.2007 Defendant No. 1 further sold out the disputed property measuring 3 rod 32-3/5 pole vide Mutation No. 459 to the respondent/Defendants Nos. 6 and 8.
3. Defendant No. 1 was proceeded against ex-parte while the other respondents contested the suit by filing separate written statements on legal as well as factual grounds. The trial Court out of the pleadings of the parties framed the following issues:
1. Whether the plaintiffs have purchased the suit property from Defendant No. 1 vide agreement dated 04.01.2006?
2. Whether the plaintiffs paid earnest amount to the Defendant No. 1 in respect of disputed land?
3. Whether possession of the disputed land was delivered to the plaintiffs?
4. Whether the Defendant No. 1 is not performing his part of agreement?
5. Whether the suit of plaintiffs is not maintainable because relief of possession has not been sought?
6. Whether the suit is within time?
7. Whether the suit suffers from non joinder necessary parties?
8. Whether the plaintiffs are entitled to relief claimed for?
9. Relief?
4. In order to substantiate their claim the appellants produced two witnesses as well as got recorded statement of Appellant No. 1 for himself as well as attorney for Appellant No. 2, while the respondent/ Defendants Nos. 2 to 5 produced three witnesses as well as got recorded statement of Defendant No. 2 for himself and as attorney for Defendants Nos. 3 to 5. The Defendant No. 8 got recorded his statement for himself and as attorney for Respondents Nos. 6 and 7.
It is to be noted that the plaintiffs filed an application for additional evidence which was dismissed on 23.2.2011, thereafter the plaintiffs filed an application under Order XXVI, Rule 9, C.P.C. which was contested by defendants on 10.11.2011. The trial Court accepted the application and Mr. Jawad Hassan Advocate was appointed as Local Commissioner. The Local Commissioner submitted his report. The plaintiffs and Defendants Nos. 2 to 8 filed objections on report of Local Commissioner. The plaintiffs filed an application under Order I, Rule 10, C.P.C. and under Order VI, Rule 17, C.P.C. before the trial Court, which was dismissed vide order dated 16.5.2012.
5. On conclusion of trial the suit filed by the appellants was dismissed vide impugned judgment and decree, which has been assailed through this appeal.
6. Despite service of notice neither the appellant nor his counsel appeared, therefore we were left with no option but to hear the learned counsel for the contesting respondents and to decide the matter on the basis of available record.
7. Learned counsel for the Respondents Nos. 2 to 5 contended that the appellants have failed to prove their case through evidence. The statement of appellants' witnesses are contradictory. The appellants have failed to prove that they have purchased the suit property. The trial Court has properly appreciated the evidence and came to a just conclusion. He lastly prayed for dismissal of the appeal.
8. Learned counsel for the Respondents Nos. 6 to 8 contended that the plaintiffs/appellants failed to prove their case through evidence; that the burden of proof lies on plaintiffs/ appellants; that the statements of plaintiffs' witnesses are contradictory and the trial Court has rightly dismissed the suit of the plaintiffs.
9. Heard. Record perused. Perusal of record reveals that the plaintiffs/ appellants filed Suit for Specific Performance, Cancellation of Mutation Entries and Permanent Injunction with the contention that the plaintiff purchased land bearing Khasra No. 661 measuring 9 rod 35 poles in Mohal Viala Kateer, Tappa Kuchlak, Tehsil Saddar, District Quetta on the basis of sale agreement dated 4.01.2006 from Defendant No. 1. The purchased property consists upon 3 rod 2/3 pole in consideration of Rs. 1145310/-. The earnest money Rs. 65000/ was paid to Defendant No. 1 and sale agreement was executed. The PW-1 exhibited the sale agreement before the trial Court and produced one marginal witness of sale agreement. The plaintiffs in support of their claim produced two witnesses, out of whom PW-1 is attesting witness. PW-1 (Attesting witness) stated that the sale agreement was executed on 5.4.2007 while PW-2 stated that the sale agreement was executed on 5.7.2004 whereas in the plaint date of sale agreement is 4.10.2006. The plaintiff No. 1 deposed that he purchased the disputed property from Defendant No. 1 on 5.7.2004 and possession was handed over to plaintiffs. In the plaint the plaintiffs have taken two versions. In Para No. 1 of the plaint it has been stated that he purchased 9 rod 35 pole but in the same para it has been stated that the disputed land consists of 3 rod 2/3 pole while in Exh-P/1 the disputed land has been mentioned as measuring 3 rod 2/3 pole and no other agreement in respect of sale of 9 rod 35 pole is annexed.
10. Now adverting to Exh-P/1, no date has been mentioned on the same, while PW-1 stated that the sale agreement was executed on 5.4.2007. PW-2 and plaintiffs have mentioned the date of execution of sale agreement as 5.7.2004. The statements of witnesses belie the date of execution of sale deed and the sale price. Even the payment of sale consideration has not been proved. There is no date of payment of earnest money to Defendant No. 1.
11. The appellant/plaintiff admittedly produced one attesting witness of agreement to sell. The basic document in a suit for specific performance is the agreement to sell. The onus to prove the same was on plaintiffs. The marginal witness deposed that the bargaining was struck between the parties in his presence and terms and condition of the agreement to sell were read to him but the evidence on record reveals that the alleged sale agreement was not prepared in the presence of the marginal witness.
12. Out of two marginal witnesses of the alleged sale agreement one was produced by the plaintiffs. As per requirement of Article 79 of Qanun-e-Shahadat Order, 1984 two marginal witnesses of the sale agreement were to be produced by the plaintiffs. Plaintiffs/ appellants and their witnesses stated that respondent had given assurance to the appellants that the property would be transferred in their names, but no evidence of credible nature was produced to substantiate such claim. The record also transpires partition of land and transfer of the same in the name of Respondents Nos. 2 to 5 and 6 to 8 on 16.02.2006 and 25.09.2007 respectively in the record of right.
13. The plaintiffs alleged that they purchased the disputed property through sale agreement in consideration of Rs. 1145000/-. It is settled principle of law that a sale consideration of more than Rs. 100 requires registration under Section 17 of the Registration Act, 1908. Reliance is placed on the case of Khair Muhammad v. Nawab Bibi 2001 CLC 1001.
"3. It is mandatory for the person whether plaintiff or defendant who seeks enforcement of the agreement under the Specific Relief Act, 1877, that on first appearance before the Court or on the date of institution of the suit, it shall apply to the Court getting permission to deposit the balance amount and any contumacious/omission in this regard would entail in dismissal of the suit or decretal of the suit, if it is filed by the other side."
Decree sheet be drawn separately.
(Y.A.) Appeal dismissed
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