MUHAMMAD SAJID Versus MUHAMMAD MASOOD SULTAN
ATIR MAHMOOD, J.--- Brief facts leading to filing of this appeal are that the appellant/plaintiff, Muhammad Sajid (hereinafter referred as appellant) filed a suit for declaration and permanent injunction or alternatively suit for possession through specific performance of the agreement to sell with the averments that respondent No.1/defendant No.1 (hereinafter referred as respondent No.1) was owner in possession of land measuring 95 kanals 7 marlas situated at Mouza Murad Kay Kathia Tehsil Chichawatni pertaining to Khata No.21 out of total khata No.2782; that he was also owner of land pertaining to Khata No.1784, Khatooni No.1794, Ihata No. 1956 land measuring 8 marlas 7 sarsai; that the appellant and respondent No.1 were in Saudi Arabia in connection with their business in the year 1998 and on 04.08.1998 respondent No.1 borrowed 3,78,000 Saudi Rayal (equivalent to Pakistani Rs.52,92,000/-) from the plaintiff; that the respondent No.1 promised that against the said money, he had sold his above mentioned land to the appellant and after deduction of price of the land according to market price, he would return the balance amount to the plaintiff till December 1999; that total price of the aforesaid land was Rs.18,00,000/-; that after deducting the said amount, the outstanding amount against the defendant was Rs.34,92,000/-; that the respondent No.1 did not return the amount till December 1999 and further promised through agreement dated 04.09.1998 that appellant would be entitled to get rest of the property of respondent No.1; that since the respondent No.1 did not pay the money as promised, therefore, the appellant became exclusive owner of the property mentioned in the plaint; that the respondent No.1 illegally and unlawfully alienated the suit land vide mutation No.8651 dated 16.10.1999 through a gift in favour of his sons/defendants Nos.2 to 4 and also alienated his agricultural land vide mutation No.865 dated 29.02.2000 in favour of defendants Nos. 2 to 4.
2. The suit was vehemently opposed by the respondents by filing written statement. Issues were settled as under:
"ISSUES
1. Whether the plaintiff has paid the full sale price of the land detailed in the paragraph No.2 of the plaint and as such is owner of it? OPP
2. Whether the mutation No.8651 dated 16.10.1999 and mutation No.865 dated 29.02.2000 in favour of the defendants Nos.2 to 4 are against law, facts, fraudulent, inoperative qua the right of the plaintiff and is liable to be cancelled? OPP
3. Whether the plaintiff is entitled to the recovery of the possession of the suit land? OPP
4. Whether the plaintiff is entitled to get the decree for specific performance of the contract in alternate? OPP
5. Whether the plaintiff is entitled to get the decree for permanent prohibitory injunction as prayed for? OPP
6. Whether the plaintiff has got no cause of action, locus standi and plaint is liable to be rejected under Order VII, Rule 11? OPD
7. Whether the plaintiff is estopped by his words and conduct to file the instant suit? OPD
8. Whether the suit is not maintainable in its present form? OPD
9. Whether the plaintiff has not come to the court with clean hands? OPD
10. Whether the suit is time barred? OPD
11. Whether the suit is false, frivolous, vexatious and as such the defendants are entitled to get special costs under section 35-A of C.P.C.? OPD
12. Relief."
Evidence led by the parties was recorded. After hearing both sides, learned trial court dismissed the suit of the plaintiff vide judgment and decree dated 29.01.2009, hence this RFA.
3. Learned counsel for the appellant inter alia contends that the impugned judgment and decree is not only against law and fact but also against settled principles of natural justice; that the impugned judgment and decree suffer from material illegalities, irregularities, misreading and non-reading of evidence; that the trustworthy evidence of the appellant was not given due weightage as there are material contradictions in the statements of witnesses produced by the defendants; that the issues were not framed properly, therefore, this RFA be allowed, the impugned judgment and decree be set aside and the suit of the appellant-plaintiff be decreed as prayed for.
4. On the other hand, learned counsel for the respondents-defendants has vehemently opposed this RFA and fully supported the impugned judgment and decree.
5. Arguments heard. Record perused.
6. The points for determination before this Court are that as to whether the appellant is entitled to have a decree for declaration to the effect that he entered into an agreement to sell with the respondent No. 1 after paying the full consideration amount and has become lawful owner of the suit property and as to whether the appellant is entitled to have a decree for specific performance of the agreement to sell.
7. From the perusal of the plaint, it is revealed that the appellant asserted that he entered into an agreement to sell on 04.08.1998 for the agricultural land owned by the respondent No.1, fully described in paragraph No.2 of the plaint. He asserted that an amount of Rs.3,78,000 Saudi Rayal was paid to the respondent No.1 and after determination of actual market price of the suit property which was Rs.18 lacs. The remaining amount of Rs.34,92,000/- remained outstanding against the respondent No.1 which was to be returned to the appellant till December, 1999, therefore, vide agreement dated 04.09.1998, the respondent No.1 was entitled to have the residential property of respondent No.1 mentioned in paragraph No.6 of the plaint. The respondent No.1 categorically denied the receiving of any amount as a loan from the appellant as well as execution of any oral or written agreement. The issues Nos. 1 and 4 are pivotal for the decision of this appeal and the points for consideration as above-referred are based upon the same issues.
8. In order to discharge the onus of the said issues, the appellant produced PW-1 Abdul Shakoor, PW-2 Abdul Sattar, PW-3 Wazir Ali and PW-4 Muhammad Hussain (who appeared as general attorney of the appellant). PW-1, Abdul Shakoor, deposed that an amount of Rs.3,78,000 Saudi Rayal was given to the respondent No.1 as a loan and one year time was stipulated for its return and it was agreed that if the amount is not returned till the stipulated time then the residential house as well as the agricultural property will be given to the appellant. He also deposed that he along with Muhammad Hussain, Haji Abdul Sattar, Sodagar Ali and Wazir Ali went to the house of the respondent No.1 and the respondent No.1 sought a time of 1/2 month but thereafter the property in dispute was transferred in the name of the children of the respondent No.l. In cross-examination, he admitted that he has never been to Saudi Arabia and he was told by the appellant that an agreement has been executed between the parties. He stated that he has seen the document of transactions. He also admitted that he is not a marginal witness of any agreement. He admitted that the facts have been told to him by Muhammad Hussain. PW-2, Abdul Sattar deposed that the amount was disbursed in Saudi Arabia in Saudi Rayal and a document was written in this regard. He further deposed that in case of non-refund of the amount the amount in dispute was to be transferred in the name of the appellant. He deposed that he along with Haji Abdul Sattar and Muhammad Hussain went to the house of the respondent No.1. During cross-examination, he admitted that he is uncle of the plaintiff and he had never gone to Saudi Arabia. He also admitted that no bargain was struck in front of him. He also stated that they went to the house of the respondent No.1 on the asking of Muhammad Hussain. When PW-3, Wazir Ali appeared as a witness he deposed in a similar manner like that of PWs 1 and 2 but did not depose the name of the persons, who visited the house of the respondent No.1. During cross-examination, he admitted that father of the appellant is his paternal uncle; that they went to the house of the defendant in August or September, 1998. He also stated that he along with Abdul Sahkoor, Sodagar Ali and Muhammad Hussain went to his house. He did not utter the name of Abdul Sattar as his companion. None of the said PWs stated the exact date of any alleged agreement or money transaction. According to PW-1 he went to the house of the respondent No.1 in December, 1999 whereas the PW-2 remains silent regarding his alleged visit to the house of the respondent No.1 for asking the return of the disputed amount whereas PW-3 during the course of cross-examination stated that he went to the house of the respondent No.1 in August or September, 1998 which is quite contradictory to the statement of PW 1, as he stated it to be in the month of December, 1999. Now comes the statement of PW-4, who is general attorney of the appellant, who deposed that in the 8th month of 1998, the respondent No.1 took a loan of an amount of 3,78,000 Saudi Rayal with an undertaking to return the same in December, 1999. He deposed that the amount was not returned and the respondent No.1 alienated his property in the name of his sons through "Tamleek". In cross-examination, he stated that he has never been to Saudi Arabia and he was told by the plaintiff that the amount was given to the defendant No.1. He has admitted that the entire story has been told to him by his son, who visited Pakistan after institution of the suit. In rebuttal, DW-1, Mahmood Sultan categorically deposed that he did not receive any amount from the appellant as loan nor he has any business relation with him. He also denied the execution of any agreement to sell with the appellant. In cross-examination he stood firm and no dent could be made in his evidence despite lengthy cross-examination.
9. It is stated in the plaint that alleged agreement took place on 04.08.1998 in the year 1998, vide which the property was sold to the appellant whereas all the witnesses deposed that the amount was taken as a loan and in case of non-return of the said amount the suit property was to be alienated to the appellant. In paragraph No.4 of the plaint, alleged date of transaction is mentioned as 04.08.1998 and in the subsequent paragraph it is 04.09.1998. Though PW-1 deposed that he had seen written document of the alleged transaction but even then no document could be produced by the appellant. A photo-copy of an agreement dated 04.09.1998 was said to be appended with the plaint but there-after during the course of evidence the alleged agreement or any receipt for the payment of alleged loan amount was not produced.
10. Furthermore, all the witnesses produced by the appellant are not the witnesses of any transaction. PW-1 to PW-3 categorically admitted that neither any transaction was made in front of them-nor any document was prepared in their presence. Under Article 70 of the Qanun-e-Shahadat Order, 1984, all the facts except the contents of the document are to be proved by oral evidence and the criteria which has been laid down by Article 71 of the Order ibid is reproduced as under:-
"
71. Oral evidence must be direct. Oral evidence must, in all cases whatever, be direct; that is to say:
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it:
If it refers to a fact which could be heard it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense of in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; ..."
In the present case, neither the evidence produced by the appellant is direct nor it has been of any credence as it is based upon hearsay. Even PW-4, the general attorney of the appellant did not utter the date of execution of alleged agreement nor he stated that any document was written in this regard.
11. We are conscious of the fact that oral agreement is permissible under the law but to prove its execution, unimpeachable evidence is required. In the present case, it is not a case of simple oral agreement, it is a case of some written agreement which took place when a huge amount of 3,78,000/- Saudi Rayal was allegedly given to the respondent No.1 which could not be produced by the appellant during the course of evidence. In this regard presumption could be that the best available evidence, in the shape of some written agreement, has deliberately been withheld by the appellant and had that document been produced in evidence that might had gone against the appellant.
12. The learned trial court has rightly appreciated the evidence of both the parties. No mis-reading and non-reading could be pointed out by the learned counsel for the appellant. In our view, the case of the appellant is of no evidence. The findings of the learned trial court on issues Nos.1 and 4 are unexceptionable and therefore upheld. There is no need to discuss and dilate upon any other issues as in view of the findings upon the above-referred issues Nos.1 and 4, the other issues have become redundant.
13. Before parting with this judgment, we are constrained to observe that we have taken judicial notice of a fact that the appellant had filed another suit of a similar nature regarding different properties against his two brothers namely Muhammad Masood Sultan and Maboob Sultan etc. wherein he asserted that he had given the amount of 3,78,000 Saudi Rayal to Muhammad Masood Sultan on 25.12.1999 and in this case the same exact amount has allegedly been given as a loan to the present respondent No.1 in the year 1998. The said suit was also dismissed by the learned trial court and today we have also dismissed the appeal filed against the said judgment and decree vide our judgment of even date.
14. Therefore, this appeal being devoid of any force is hereby dismissed with cost.
ZC/M-3/L Appeal dismissed.