-Suit for specific performance--Oral sale agreement--Multiple oral agreements--Non-mentioning of time, date and place--

 PLJ 2021 Lahore 851

Specific Relief Act, 1877 (I of 1877)--

----S. 12--Suit for specific performance--Oral sale agreement--Multiple oral agreements--Non-mentioning of time, date and place--Non-mentioning of names of witnesses in pleadings--Veracity of claim--Existence and validity of oral agreement--Burden of proof-- concurrent findings--Challenge to--Multiple oral arrangements between parties inter-se, without clearly stating time, date and place at which purported transactions including oral agreement to sell took place--Names of witnesses who were present at time of oral agreement are also not mentioned in pleading, which raises a serious doubt as to veracity of claim of petitioners to have entered into an oral agreement in respect of suit property, with regarding execution of said oral agreement--Relates to existence oral agreement and its validity and burden of proof too was on plaintiffs--Trial Court has, for cogent reasons and after proper appreciation of evidence on record, rightly decided same--Concurrent findings of facts cannot be upset by High Court in its revisional jurisdiction in a casual manner rather it has to be proved that same are perverse or arbitrary or same are based on misreading or non-reading of evidence which is not position in case in hand--Revision petition dismissed.            [Pp. 853 & 854] A, B & C

2010 SCMR 5 ref.

Ms. Naila Mushtaq Dhoon, Advocate for Petitioners.

Date of hearing: 3.6.2021.

 PLJ 2021 Lahore 851
Present: Anwaar Husssain, J.
KALSOOM AKHTAR, etc.--Petitioners
versus
Mst. PARVEEN AKHTAR, etc.--Respondents
C.R. No. 3239 of 2015, decided on 3.6.2021.

Order

Through instant civil revision, the present petitioners have assailed judgment and decree dated 22.11.2012 passed by the learned Civil Judge, Piplan, District Mianwali which was upheld through judgment and decree dated 11.05.2015 passed by the learned Addl. District Judge, Piplan, District Mianwali (Both the judgments and decrees are hereinafter referred as ‘Impugned Judgments’).

2. Brief facts of the case are that the present petitioners filed suit for specific performance on the basis of oral agreement pertaining to property measuring 6-Kanal 12-Marlas comprising Khata No. 42 situated in Chak No. 04/ML, Tehsil Piplan District Mianwali (hereinafter referred to as ‘the suit property. It is case of the petitioners that they are successor-in-interest of one Muhammad Aslam s/o Abdul Haq who died about 3½ years prior to the filing of civil suit and was owner of plots No. 29 and 30 measuring 7-Marlas each, which were allotted to said Muhammad Aslam (late) and his brother Muhammad Yousaf at chak No. 3/ML, Jinnah Abadi Scheme. Present Respondent No. 1 and her husband who is arrayed as Respondent No. 2, namely, Abdul Qadir (erroneously mentioned as father of Respondent No. 1 in the memo of parties annexed with the instant civil revision), entered into an oral arrangement with Muhammad Aslam (late) and the suit property was exchanged with plots No. 29 and 30. After evaluating the suit property for Rs. 90,000/-and plots No. 29 and 30 for Rs. 60,000/-, balance amount of Rs. 30,000/- was paid by late Muhammad Aslam to Respondent No. 1. On the basis of these oral arrangements, the petitioners are in possession of the suit property whereas plots No. 29 and 30 have been transferred by Respondent No. 1 in favour of respondents No. 3 and 4. Suit was contested, written statement was filed and out of the divergent pleadings, following eight issues were framed:

“ISSUES

1.       Whether the plaintiffs are entitled to the decree for specific performance of the contract as prayed for? OPP

2.       Whether the Defendant No. 1 was competent to dispose off the land in question on the basis of oral agreement in the year 2003? OPP

3.       Whether the plaintiffs are entitled to get decree for specific performance of the contract on the basis of oral agreement? OPP

4.       Whether the present suit is time-barred? OPD

5.       Whether the present suit is not maintainable in its present form and is liable to be dismissed? OPD

6.       Whether the oral agreements are nullity in the eyes of law as well as against the fact and circumstances? OPD

7.       Whether the present suit is liable to be dismissed? OPD

8.       Relief.”

3. Parties adduced their evidence and the learned trial court dismissed the suit filed by the petitioners and the judgment of the learned trial court was upheld by the learned Additional District Judge, Piplan, District Mianwali.

4. Learned counsel for the petitioners submits that the learned trial court as well as the learned appellate court below have erred in deciding the issues conjunctively and in this regard reliance has been placed on Asadullah Khan v. Abdul Karim (1997 CLC 1334). Further adds that the learned courts below have erred in holding that specific performance of an oral agreement cannot be granted. Places reliance on Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others (2003 MLD 131).

5. Arguments heard. Record perused.

6. Perusal of the record indicates that it is not mere an oral agreement to sell on the basis of which the petitioners have filed suit for specific performance but reference has been made to multiple oral arrangements between the parties inter-se, without clearly stating the time, date and place at which purported transactions including oral agreement to sell took place. Moreover, the name of the witnesses who were present at the time of such oral agreement are also not mentioned in the pleading, which raises a serious doubt as to the veracity of claim of the petitioners to have entered into an oral agreement in respect of the suit property, with Respondent No. 1, regarding execution of said oral agreement. I am fortified by the judgments of the apex court reported as Nazir Ahmad & Another vs. Yousaf (PLD 2011 SC 161) and Muhammad Nawaz Through L.Rs vs. Haji Muhammad Baran Khan Through L.Rs and others (2013 SCMR 1300). The Honourable Supreme Court has authoritatively held that a suit for specific performance of oral agreement wherein beneficiary had neither mentioned the terms and conditions of the bargain nor disclosed the names of witnesses in whose presence the oral agreement to sell was arrived at cannot succeed.

7. Argument of the learned Counsel for the petitioners that the issues framed in the suit filed by them have been decided conjunctively

which is in violation of applicable law is not well-founded and reliance placed on Asadullah Khan supra is misconceived as the facts in the said case are distinguished inasmuch as issues No. 1 to 3 decided conjunctively in the instant case, relates to the existence of oral agreement and its validity and burden of proof too was on plaintiffs. The learned trial court has, for cogent reasons and after proper appreciation of evidence on record, rightly decided the same. Similarly reliance placed on Qazi Muhammad Saqib Khan supra is also misplaced as it is clearly held in the said judgment of the Division Bench of this Court that if an oral agreement does not specify terms and conditions of the agreement, it is not valid in the eye of law, which precisely is the situation in the present case as no date, time and place of oral agreement to sell alongwith names of the witnesses present at the time of oral agreement to sell have been mentioned in the plaint of the present case.

8. Even otherwise, concurrent findings of facts cannot be upset by this Court in its revisional jurisdiction in a casual manner rather it has to be proved that the same are perverse or arbitrary or the same are based on misreading or non-reading of evidence which is not the position in the case in hand. In this regard, reference can safely be made to the case reported as Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCMR 5).

9. In view of above, instant petition is dismissed in Iimine.

(Y.A.)  Petition dismissed