MUHAMMAD ELLAHI Through His Legal Heirs And Others vs SHER ZAMAN
The petitioners filed a suit for specific performance of an oral agreement of sale regarding land, alleging they had paid the full consideration of Rs. 2,000 to the vendor, Sher Zaman. While the trial court initially decreed the suit in favor of the petitioners, the first appellate court set aside the decree regarding portions of the land purchased by subsequent respondents, finding that the payment of sale consideration was not proven and the agreement was unenforceable. The High Court dismissed the petitioners' revision application, affirming the findings of fact. The core legal question before the Supreme Court was whether the lower courts' findings regarding the failure to prove the payment of consideration and the enforceability of the oral agreement warranted interference in revision. The Supreme Court held that the lower appellate courts' decisions were based on a proper assessment of evidence. Since the findings were purely factual and the petitioners failed to substantiate their claim of payment, the Court declined to interfere, dismissing the petition as no question of law was raised.
- Whether a finding of fact regarding the non-payment of sale consideration in a suit for specific performance can be interfered with in revision?
- Is an oral agreement of sale enforceable where the plaintiff fails to prove the payment of the alleged sale consideration?
ORDER
S.A. NUSRAT, J.--The petitioners filed a suit for specific performance of an oral agreement, dated 25-12-1962 whereby Sher Zaman (since deceased) is stated to have conveyed the suit property to them for a sum of Rs.2,000. Sher Zaman first got a mutation recorded, on 20-2-1965, but he later resiled there from and got the mutation cancelled. The respondents Nos. 2 to 4 are subsequent purchasers of a portion of disputed land and so also the respondents Nos. 5 and 6 in respect of another portion.
2. The suit was resisted by the respondents Nos. 5 and 6; respondent No. 1 conceded the case and others were proceeded ex-parte. The suit was decreed by the learned trial Court in toto. However, on appeal by the respondents Nos. 5 and 6 the judgment and decree was set aside to the extent of the purchase of land by the said respondents as bona fide purchasers for valuable consideration.
It was held by the learned first appellate Court that payment of sale consideration was not proved and the agreement was not enforceable. The petitioners challenged the decision of the first appellate Court by filing a revision application which was dismissed as per impugned judgment by the learned High Court.
3. The learned counsel for the petitioners relied heavily on the first mutation entry and it was contended that the subsequent cancellation of the entry only amounted to resiling from the contract. Nonetheless, according to the learned counsel, the factum of an agreement having been taken place was clear and even if the price was not proved to have been paid, the oral agreement was liable to be enforced and a decree for specific performance should have been passed.
4. Looking to the pleadings in the plaint, however, it appears that the case set up is one of complete sale as in para. 1 it was stated that the plaintiff paid the sale consideration of Rs.2,000 which was acknowledged by the vendor, on 25-12-1964. An oral agreement of sale was pleaded and witnesses were examined in support of such case. The evidence was disbelieved by the learned first Appellate Court and the High Court and a finding has been recorded that the petitioner had failed to prove the payment of the sale consideration. The case set up by the petitioner was that he had paid the full sale consideration which was received by the vendees. This, the petitioner was unable to prove.
5. We have gone through the two appellate judgments which go to show that the disputed issues have been decided on the basis of evidence. The findings recorded in the case are one of facts which do not give rise to any question of law. The petition is accordingly dismissed.
Cited by 1 case
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