NASIR ALI SHAH Versus RIAZ ALI SHAH

On 2‑3‑1983 the petitioner filed a suit against the respondents. In the plaint it was alleged that the respondent No. l agreed to sell the suit land measuring 72 Kanals to the petitioner for a consideration of Rs.24,000. He received a sum of Rs.10,000 and executed an agreement as well as a receipt on 13‑9‑1982 and delivered possession to him; that respondent No.1 proceeded to transfer the land to respondent No.2 by means of exchange deed, dated 22‑9‑1982; that respondent No.2 was aware of the agreement. With these averments a decree was sought for specific performance of the said agreement. Respondent No: l in his written statement proceeded to admit the agreement and‑the receipt of money who alleged that the petitioner had not shown diligence in the matter of performance and the respondent No.2 forced him through some Syed Zafar Ali to sell the land to him in the shape of exchange; that he had apprised respondent No.2 of the said agreement but despite this respondent No.2 insisted and he proceeded to sell the land by means of an exchange. Respondent No.2 in his written statement complained that the suit is collusive inter se' the two brothers i.e. the petitioner and respondent No.l; that they have fabricated some documents to cause wrongful harm to him. He also alleged that the brothers have colluded to deprive him of the land lawfully acquired. He also stated that respondent No. l has got filed a pre‑emption suit by another brother. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree, dated 10‑1‑1988. Feeling aggrieved respondent No.2 filed a first appeal which was heard by a learned Additional District Judge, Chiniot who allowed the same and consequently dismissed the suit of the petitioner on 17‑1‑1989. ,

2. Learned counsel for the petitioner contends that evidence on record has been misread by the learned Additional District Judge; that the inferences drawn by the learned Additional District Judge in his impugned judgment could not have been so drawn on the basis of evidence on record. Learned counsel for respondent No.2, on the other hand, supports the impugned judgments and decrees.

3. I have gone through the copies of the record appended with the Civil Revision, with the assistance of the learned counsel for the parties. The following chronological order of events emerges from a reading of the record:‑‑---

(a) Vide Exh.D.2 four sons of Syed Dawan Ali Shah including the petitioner and respondent No.l purchased land measuring 336 Kanals, 15 Marlas including the suit land measuring 72 Kanals from Mst. Ghulam Sakina vide decree, dated 31‑3‑1982 of a learned Civil Judge, whereby an award was made rule of the Court. They so purchased the suit land for a consideration of Rs.9,00,000.

(b) On 13‑9‑1982 respondent No. 1 executes agreement Exh.P.1 in favour of the petitioner promising to transfer the suit land to him for Rs.24,000 and receives Rs.10,000 vide receipt Exh.P.2.

(c) On 22‑9‑1982 respondent No.l transfers the suit land to respondent No.2 vide exchange deed registered on 22‑9‑1982 (Exh.P.3.).

(d) On 18‑10‑1982 vide sale‑deed Exh.D.1l respondent No. l proceeded to sell the plot, he had received from respondent No.2 in exchange for the suit land.

(e) On 2‑3-1983 the petitioner files to present suit seeking specific performance of the said agreement.

(f) On 22‑9‑1983 Syed Shaukat Ali Shah; a brother of the petitioner and respondent No. l files a suit for possession of the suit land. By pre‑emption (Exh.D‑7) claiming that the‑land has in fact been sold by respondent No. l in favour of respondent No.2 .for a consideration of Rs.25,000.

(g) On 14‑12‑1983 respondent No. l files a written statement in the present suit admitting the said agreement and the receipt and stating that he has sold the land to respondent No. 2 which sale has been given a colour of an exchange and also alleging that respondent No..2 had been apprised of the agreement but still he insisted and purchased‑ the land disguised as an‑exchange.

4. From the record present on the file it is not discernible as to when respondent No. l was served in the present suit. However, he files a written statement on 23‑7‑1984 contending the averments as detailed by me above. It goes without saying that while filing the said written statement respondent No:2 must be failing himself on the horns of a dilemma as he was facing a specific performance suit filed by one brother and a pre‑emption suit alleging the exchange to be a sale, filed by the other, brother of respondent No. 1. Now the agreement is said to have been executed and earnest received on 13‑9‑1982.' It says that the agreement is to be performed by 13‑11‑1982. Only 9 days thereafter respondent No. l proceeded to transfer the land to respondent No. l on 22‑9‑1982. The petitioner has stated in his plaint that:‑‑‑

Now respondent No. 1 did not enter the witness‑box, although a bare reading of his written statement shows that it is an attempt to kill two birds with one stone. On the one hand he affirmed that respondent No.2 was aware of the agreement and still proceeded to get the land arid on the other he took care to support the version of is other brother who had filed a suit for pre‑emption alleging that exchange in favour of respondent No.2 is in fact a sale, by asserting that the land was sold by him to respondent No.2. He accuses the petitioner of indolence in the matter of performance of contract.

5. There is nothing in the evidence, even in the statement of the petitioner as to what motivated respondent No. l to change his mind just 9 days after executing the agreement and receiving earnest money from his other brother. Notwithstanding the fact that on the basis of document Exh.D‑2 the observation of learned Additional District Judge is there. that the petitioner had purchased the suit land for about Rs.2,00,000 on 31‑3‑1982, the fact remains that whereas the agreement was entered into for a consideration of Rs.24,000, the other brother stated in his plaint Exh.D‑7 that the land has been sold for Rs.25,00Q while vide Exh.D‑11 the plot obtained in exchange was sold for Rs.20,000. This would mean that the consideration got by respondent No. l in return for the land from respondent No. 2 was either equal to or even less than the one for which he agreed to sell the land to his brother, the petitioner. The element of greed, thus, stands excluded. No other reason for the said action of respondent No‑1 is coming forth except the one tried to be explained by respondent No. l in his written statement that it was some Syed Zafar Ali who forced respondent No. l to sell the land to respondent No.2 under the garb of an exchange. I have already stated above that respondent No.1 has not entered the witness‑box and since the pleadings are no substitute for evidence the said reason stated by respondent No. l is to be ignored. Another significant aspect of the matter is that while the petitioner was in the witness‑box as P.W.4, the cross‑, examiner tried to extract the answer to the said question posed by me above. It was not stated by the petitioner that the relations had become strained at a point of time before execution of exchange=deed in favour of respondent No.2 on 22‑9‑1982 between the two brothers, so that he would try to cause loss to him as alleged by him. In reply to a question, however, he blurted out that the dispute arose when the land was sold by respondent No. l:

6. Yet another aspect of the case is that in the written statement filed by respondent No. l although tailor made to suit the purposes of the petitioner as well as' the other brother who had filed a pre‑emption suit but it was not .in any manner suggested by respondent No. 11 that whether it was an exchange or' a sale he, made in favour of respondent No.2, the consideration was inadequate. It was not alleged by him that the transaction was without consideration. It has come in the statement of respondent No.2 in the course of cross‑examination that he was not aware of any agreement between the two brothers. The only evidence in proof of the positive assertion that respondent No. l . Was aware of the, alleged agreement is‑the statement of petitioner himself. To my mind in the said state of evidence on record respondent No.2 is entitled 2o the protection of the proviso to section 27(b) of the Specific Relief Act, 1877.

7. Learned counsel for the petitioner contends and I am in agreement with him that direct evidence as such of collusion between the two brothers is not forthcoming on record. However, it is also well‑settled that the civil matters are decided on the basis ‑of probabilities, of course, if material is there t to draw an inference. I seek to draw support from the judgment in. the case of Fazle Ghafogr v. Chairman, Tribunal Land Disputes, Dir, ‑Swat at Chitral at Mardan and 6 others 1993 SCMR 1073. I deem it proper to reproduce here the following experts from the judgment of Chief Justice Muhammad Afzal Zullah (as his Lordship then was) appearing at pages 1076 and 1077 of the said report:‑----

"As has already been mentioned there is always a feeling in such?like cases that the concrete evidence for giving final clear, findings was neither before lower authorities nor before the High Court. Mostly the decisions are rendered on the high probability principle and there is nothing wrong in doing so provided the material available was in the circumstances before the forum concerned and or it was noticed in the orders concerned. Even under the Evidence Act this recourse is possible where the 'evidence' as defined in the said Act is not forthcoming. And judgment regarding 'proof' of a certain fact could be rendered ' if after considering the 'matter' before it, the Court considers its, existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The word 'evidence' has been defined but the word 'matters' which could include evidence as defined as well as other matters did not fall strictly within the scope of evidence. In the cases like the present one the matters would include that material as well which would fall within the scope of mixed facts and law. Amongst others, they will also include documents, presumptions, statements, which might otherwise be not included in the strict scope of evidence: The selection of word 'matters' instead of evidence when defining proof, by the Legislature in its wisdom, was perhaps to decide a large number of cases of this nature wherein evidence stricto senso would not be available."

8. In view of the' above discussion I do find that the inferences drawn by learned Additional District Judge from the evidence available on record as also the attending circumstances of the case can neither be said to be perverse nor the impugned judgment and decrees be said to be the result of misreading or non‑reading of evidence on record. I do not; therefore, find it a fit case to be interfered with in exercise of revisional jurisdiction. The Civil Revision is accordingly dismissed leaving the parties to bear their own costs.

H.B.T./N‑68/L ???????????????????????????????????????????????? Revision dismissed.