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Petitioner: Bashir Ahmad VS Respondent: Khadim Hussain and others
Court Name: Lahore High Court Judge(s): Safdar Saleem Shahid Title: Bashir Ahmad vs Khadim Hussain and others Case No.: Civil Revision No.2025 of 2013 Date of Judgment:2021-06-16 Reported As: 2022 CLC 1300 Result: Revision allowed
JUDGMENT
JUDGMENT SAFDAR SALEEM SHAHID, J. This civil revision is filed against the concurrent findings of the Courts below whereby the learned Civil Judge vide judgment and decree dated 03.12.2012 decreed the suit of the respondent No.1 with the condition that the share of respondent No.2 will remain intact and shortage will be fulfilled from the remaining land of the petitioner and if he has no land in his possession, the value of land 3-Kanals 11-Marlas will be reduced from the sale price and respondent No.1 was also directed to deposit remaining sale price within two months. The aforesaid judgment and decree was assailed before the learned Addl. District Judge who vide judgment and decree dated 05.06.2013 dismissed the appeal on the same grounds. 2. The brief facts of the case are that a suit for specific performance was filed by respondent No.1 Khadim Hussain against the petitioner wherein Syed Alamdar Hussain Shah was placed as defendant. Allegedly before execution of agreement to sell in between the petitioner and respondent No.1, said Syed Alamdar Hussain Shah respondent No.2 purchased the land from the petitioner. The actual stance of respondent No.1 through the suit for specific performance regarding land measuring 16-Kanals 11-Marlas from the total land 29-Kanals 11-Marlas of Khata No.583/569 situated in Basti Noor Shah, Mauza Garh Maharaja, Tehsil Ahmad Pur Sial, District Jhang, was that respondent No.1 entered into agreement to purchase the land for an amount of Rs.6,00,000/- out of which Rs.3,00,000/- were paid as earnest money. He thus prayed that according to the agreement to sell between him and the petitioner the time for performance of the condition was remaining but the petitioner sold out the land measuring 3-Kanals 4-Marlas to respondent No.2 through sale deed No.466/1 dated 18.8.2007, therefore, respondent No.1 filed suit for specific performance. The important background of the proposition is that the petitioner was
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owner in possession of the suit property and his brothers filed a suit for specific performance for the land situated in Khata No.583/569 measuring 39-Kanala 11 Marlas. In that suit on 19.06.2007 the petitioner got recorded his statement and the suit was decreed in favour of his brothers to the extent of land 23-Kanals in exchange of Rs.5,00,000/- and to the extent of remaining land, property 16-Kanals 11-Marlas, suit of Nazir Ahmad etc., the suit of the brothers of the petitioner, was dismissed. For that above-mentioned remaining land the respondent No.1 entered into an agreement with the petitioner for Rs.6,00,000/- and executed agreement on 19.06.2007, wherein it was mentioned that the respondent No.1 would pay remaining sale price upto 15.10.2007 and the petitioner was bound to then register the sale deed in his favour and to handover the possession. But still the limitation of agreement of respondent No.1 was existed when the petitioner resiled from his commitment and out of above said 16-Kanals 11-Marlas the petitioner transferred 3-Kanals 11- Marlas land to respondent No.2 without knowledge and notice to the respondent No 1. Knowingly this act was done by the petitioner. Khadim Hussain respondent No.2 was also having the knowledge of above said agreement between petitioner and respondent No. 1. Then the respondent No.1 filed the suit with the version that the agreement to sell dated 01.07.2008 was in the knowledge of respondent No.2, but he with mala fide intention and to cause loss to the agreement of respondent No.1 fraudulently got registered a sale deed which is ineffective upon the rights of the respondent No. 1. It was also alleged by the respondent No.1 that he was always ready to make payment of remaining consideration amount. 3. The petitioner filed written statement, contested the suit on legal as well as factual grounds, raised preliminary objections that whole stance of the respondent No.1 is false, based on forged and fictitious narrations and suit is liable to be. dismissed. The respondent No.2 also filed a written statement where he mentioned that he is a bona fide purchaser of land measuring 3-Kanals 11- Marlas for consideration of Rs.1,25,000/- and he also had the possession of the same and the respondent No.1 has no cause of action and alleged agreement to sell claimed by respondent No.1 is forged, fictitious, illegal, based on fraud and liable to be cancelled. Out of pleadings of the parties, learned trial court framed six issues, recorded evidence and decreed the suit vide judgment and decree dated 18.01.2012. Appellate Court, however, remanded the case for fresh trial with the direction to frame additional issues- vide judgment and decree dated 06.03.2012. These issues are reproduced as under:- 1. Whether defendant No.1 entered into agreement to sell with plaintiff regarding the suit property in consideration price of Rs.6,00,000/- and plaintiff has paid Rs.3,00,000/- as earnest money? OPP 2. Whether plaintiff is entitled to decree for specific performance of contract as prayed for? OPP 3. Whether plaintiff has no cause of action? OPD. 4. Whether suit is not maintainable in its present form? OPD 5. Whether suit is false and frivolous and is liable to dismiss with special costs? OPD 6. Whether alleged agreement to sell is forged and fictitious and based on fraud? OPD. 7. Relief. 6-a Whether defendant No.2 has purchased the property measuring 03 kanals and 11 marlas out of the suit land from the defendant No.1 through registered sale deed No.466/1 and he is bona fide purchaser of the same? OPD-2 6-b Whether the defendant No.2 has knowledge and notice of the alleged agreement to sell dated 1.8.2007 prior to his purchase through registered sale deed No.466/1? OPP 6-c Whether plaintiff has come to the court with clean hands? OPP 6-d Whether the instant suit is not maintainable due to non-joinder and mis-joinder of the parties? OPD-1 6-e Whether the defendant No.2 is entitled to get special costs under section 35-A of CPC? OPD-2 7. Relief.
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4. After hearing the parties, the learned Civil Judge again decreed the suit in favour of the plaintiff/respondent No.1 vide judgment and decree dated 03.12.2012. Against the aforesaid judgment and decree, petitioner preferred an appeal before learned Additional District Judge, which was dismissed vide judgment and decree dated 05.06.2013. 5. It was version of the petitioner that Article 114 of the Qanun-e-Shahadat Order, 1984 was applicable to the present proposition. The respondent No.1 was bound to deposit remaining amount of Ex.P1 till 15.10.2007, which he did not deposit, so he was not entitled to the decree for specific performance but this legal aspect of the proposition was ignored by the courts below. 6. The judgments and decrees of the courts below also have been assailed on the ground that the execution of Ex.P1 is not proved. The witnesses of said agreement to sell have not proved that Ex.P1 was written against some consideration, the payment of past consideration amount, is also not proved. The version of the petitioner was that he denied the execution of Ex.P1 from the very beginning on the ground that he was illiterate person. Although he sold the land to different persons at different times but he did not sell land measuring 16-Kanals 11-Marlas under the agreement to sell Ex.P1 to respondent No. 1. It was for the respondent No.1 to prove that Ex.P1 was genuinely executed. Both the courts below have not appreciated the evidence of the parties. It was argued that there is an element of misreading and non-reading of evidence. Law also has not been properly appreciated, rather has been wrongly interpreted. The counsel for the petitioner argued that legal aspect of the proposition has been ignored by the courts while framing of issues and deciding of the fate of Ex.P1. It was argued that in Ex.P1, the date for completion of agreement to sell is mentioned 15.10.2007, till that date, the respondent No.1 had not paid the remaining amount, therefore, respondent No 1 was hot entitled for the decree of specific performance. It was argued that respondent No.1 had never sent any legal notice to the petitioner for making of the remaining payment of Ex.P1. Therefore, as per spirit of Article 114 of The Qanun-e-Shahadat Order, 1984, the suit for specific performance of respondent No.1 could not be decreed in his favour. 7. It was argued by counsel for the petitioner that mere agreement to sell does not create any title. The person claiming his title under any document has to prove about the genuineness of the document and in this regard it has to prove that he had played his role on his part. It was argued that PWs were not sure about the contents of agreement to sell. They were not consistent in their statements regarding the settlement of the agreement, regarding the purchase of stamp paper and regarding its execution; the PWs were unable to prove that all ingredients of Ex.P.1 were pen down with consent and knowledge of the petitioner. It was argued that no reliable evidence was produced by respondent No.1 regarding the payment of the alleged consideration amount. So any agreement without consideration is not a valid agreement and is not executable at law. It was argued that specific performance of a contract is a discretionary relief and it cannot be awarded on the basis of doubted evidence specially when the execution of agreement to sell is highly doubtful. Counsel for the petitioner further argued that the petitioner has alleged that he is illiterate person. Then the spirit of law is that his version would be seen in scenario of his intellect capacity. It was argued that the petitioner has brought relevant evidence on record. His witnesses were consistent that no such agreement was settled down between the petitioner and respondent No.1 and no such document was ever executed in between them. The document Exh.P.1 was not a genuine document to be relied upon. It was argued that in spite of lengthy cross-examination the respondent could not shake the veracity of the DWs. The courts below have committed error while apprising the factual and legal position of the proposition. Therefore, both the judgments and decrees of the courts below be set-aside. 8. On the other hand, counsel for respondent No.1 resisted the arguments that the case of respondent No.1 was filed within time. It was further argued that respondent No.1 proved the case beyond shadow of doubt. The agreement to sell Ex.P1 was proved through reliable evidence. The
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PWs were consistent regarding the execution of Ex.P1. The witnesses were consistent regarding the settlement of the agreement and the payment of consideration. Even regarding the purchase and its writing, there was no discrepancy in the evidence of the PWs. It was further argued that the petitioner was in agreement with the respondent No.1 and thereafter satisfaction of the petitioner and after understanding the contents of the document Ex.P1, he signed and thumb marked, the same. It was argued that the respondent. No.1 remained always ready to pay the remaining consideration amount. Suit was filed even before the expiry of date for payment of remaining amount in Ex.P1. i.e. 15.10.2007, as the petitioner resiled from his commitment and he sold out some land under question (Ex.P1) to one Alamdar Shah through registered sale deed No.466/1 dated 18.8.2007. So the respondent No.1 had to file the suit earlier than the expiry of the period mentioned in Ex.P1. It was argued that filing of suit was a notice to the petitioner to show the willingness of respondent No.1 for the payment of the remaining consideration amount on the part of respondent No. 1. It was argued that respondent No.1 proved its case as all PWs have supported his version regarding the genuineness of agreement and execution of document Ex.P1. Under the Qanun-e- Shahadat Order, 1984 the document Ex.P1 is proved one and the courts below have rightly decided the issues in favour of respondent No.1 against the petitioner. 9. It was argued by counsel for respondent No.1 that respondent No.2 knowingly the agreement to sell between the petitioner and respondent No.1, in order to cause loss to respondent No.1 got transferred through registered sale deed in his favour 3-kanals 11-Marlas land which also was assailed by the respondent No.1 through the suit. It was argued that the court has given benefit to respondent No.2 as he had reregistered sale deed in his favour and his right was also admitted by the petitioner. It was argued that in fact respondent No.2 was not entitled for the land and under Section 53-A of The Transfer of Property Act, the rights of the respondent No.1 were protected by law but the court has ignored that part of aspect. It was argued that the trial court decreed the suit in favour of respondent No.1. The matter was assailed before the Appellate Court and the Appellate Court after framing the additional issues i.e. 6-A to 6-E, remanded the case. Counsel for the respondent No.1 criticized that again the evidence of the parties were recorded. The petitioner's witnesses (DWs) changed their stance and they dishonestly made improvements over their statements as they had got recorded previously before the court. In fact the petitioner's witnesses (DWs) tried to fill in the lacunas which they left during the evidence previously recorded before this court in this case. It was argued that although the courts took the notice of the same, yet, that came on record that the petitioner had made intentionally the dishonest improvements through his witnesses. It was argued that there is no substance in the civil revision. All the issues have been decided on its merits. The same be dismissed. 10. Arguments heard. Record perused. 11. Respondent No.1 Khadim Hussain filed the suit for specific performance on the basis of agreement to sell dated 19.6.2007 for the property measuring 16-Kanals 11-Marlas for consideration amount. Rs.6,00,000/-, allegedly out of which 3,00,000/- were paid to the petitioner at the time of execution of agreement to sell, while remaining amount Rs.3,00,000/- were to be paid till 15.10.2007 and the petitioner was bound to then transfer the land in the name of respondent No. 1. In the same suit, the prayer of respondent No.1 was for cancellation of registered sale deed No.466/1 dated 18.8.2007 for the land 3-Kanals 11-Marlas transferred through registered sale deed in favour of respondent No.2 by the petitioner. It was the subject matter of the suit of respondent No. 1. While in the body of plaint, the respondent No.1 has specifically mentioned in Para Nos.1 and 2 which I reproduce here:-
12. In Para No.2, the respondent No.1 mentioned that in presence of witnesses Rs.3,00,000/- were paid on 1.8.2007 and agreement to sell was executed, according to which the remaining part of the
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agreement regarding payment of remaining amount Rs.3,00,000/- was to be paid on 15.10.2007 and with the payment of the remaining amount, the land would also be transferred in the name of respondent No. 1. Before expiry of the date i.e. 15.10.2007 for the completion of agreement to sell, the petitioner sold out 3-Kanals 11-Marlas land to respondent No.2 and because of that, the respondent No.1 had to file the suit on 6.9.2007, before the date of completion of the agreement so that to force the petitioner to fulfill the agreement to sell. In rest of the paras of the plaint, the respondent No.1 agitated against the respondent No.2 for having registered the sale deed in his favour. It was the stance of respondent No.1 that respondent No.2 was well aware of the agreement to sell between the petitioner and respondent No.1 but with mala fide intention in order to cause loss to respondent No.1, he got registered the land in his favour measuring 3-Kanals 11-Marlas. The respondent No.2 submitted separate written statement and mentioned that he was bonafide purchaser. The learned Civil Judge framed the issues in the first round of the trial but did not frame any issue regarding the controversy between the respondent No.1 and respondent No.2. The suit was decreed by the trial court and the decree was assailed before the first Appellate Court. The first Appellate Court remanded the case to the trial court while framing additional issues Nos.6-a to 6-e. 13. There are many factors to analyze in this proposition. It is settled principle that the relief of specific performance is a discretionary relief under the Specific Relief Act. Even if the agreement is proved, the court is not bound to decree the suit in light of the prayer. But the court will consider the other relevant facts brought before it while deciding the fate of the case for specific performance. 14. Before going into the merits of the proposition in hand, I would like to produce the wisdom of section 53-A of the Transfer of Property Act which protects the rights of the purchaser. While relying on case titled "Ghulam Nabi and others v. Seth Muhammad Yaqub and others" (PLD 1983 Supreme Court 344). Section 53-A of Transfer of Property Act says that: "Section 53-A read with Specific Relief Act (I of 1877), S. 27(b)-Contract for sale of immovable property-specific performance of-Protection under S. 53-A of transfer of Property Act does not affect rights of a transferee, for consideration, having no notice of contract or of performance thereof-Vendor without transferring his interest in property entering into an agreement with another to sell same-Can confer title on a third party by executing a sale-deed in his favour. Person in whose favour prior agreement exists can, however, specifically enforce his agreement under S. 27(6), Specific Relief Act and compel vendor to execute a sale-deed in his favour-Held, section 53-A of Transfer of Property Act does not apply where a plaintiff claiming possession of property under a good and genuine contract of sale earlier in date to defendant's contract and latter taking his contract with knowledge of plaintiff's earlier title." 15. It is also settled principle that mere agreement to sell does not create any title and it cannot place any restriction on the rights of the owner unless it is proved. The reliance is placed upon "Muhammad Younas and others v. Mst. Muhammad Bibi and others" (2001 YLR 2789), "Manzoor Hussain v. Muhammad Fazal and 8 others" (2002 CLC 1165), "Muhammad Ashraf v. Muslim Commercial Bank Limited and 2 others" (2018 CLD 911), "Ali Akbar v. Muhammad Aslant Khan and 10 others" (2008 CLC 145). The above mentioned two principles have its application separately if the person having agreement to sell proves its execution, then certainly section 53-A of the Transfer of Property Act will protect his rights, otherwise mere on the basis of agreement to sell the right to enjoy the property by the owner, cannot be curtailed. Keeping in view the above mentioned legal aspect, the courts below were to analyze the proposition in hand. The moot points in this proposition were, (i) Whether any agreement to sell was agreed between the petitioner and respondent No.1? (ii) Whether in lieu 01 said agreement, document Ex.P1 was executed ? (iii) If so, then its effects? Law is clear on this point. A valid agreement is defined as under:-
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"Agreement". Every promise and every set of promises, forming the consideration for each other, is an agreement." 16. Mere presence of a document regarding agreement to sell does not mean that it is a proved document. When the document is challenged or its contents are denied, there are certain principles to prove it. In some events the person denying its execution has to prove that it was not executed but in some cases the beneficiary of the document has to prove that it was validly executed. The usual denial from the execution of document is on the grounds: (i) That the document was not executed by the executant. Its signatures and contents are totally denied. Even in some cases, the issuance of stamp paper from the stamp vender is denied. (ii) In some cases the presence of document is admitted one and its issuance from the stamp vender is also admitted but its contents are denied (iii) In case of a Parda Nasheen Lady or illiterate person, usually the beneficiary of the document has to prove the document. In some cases the execution of document is admitted but with the version that it was executed under pressure or by inducing undue influence. (iv) Similarly in some cases the element of fraud is made base for denial of the execution of the document. 17. In all the above mentioned cases, the court has to see the reply of the other side regarding the execution of the document. According to the controversy of the parties, out of the pleadings, issues are to be framed in view of Order XIV, Rules 1 and 2, C.P.C. On the basis of evidence produced before the court, on the framed issues, the courts draw the conclusion. On the legal issues, the courts sometimes frame the preliminary issue and decide the same, like the point of jurisdiction of the court and sometime regarding the limitation. In this proposition, the petitioner never took the ground of limitation in the written statement. No issue regarding this aspect was framed by the trial court. This ground was not agitated before the first Appellate Court but before this court in the Civil Revision this particular point is raised by the petitioner with specific reference to Article 114 of the Qanun-e-Shahadat Order, 1984 that the suit of respondent No.1 was not maintainable. It is settled law that where the time is essence of the contract, the provision of Article 114 of Qanun-e-Shahadat Order, 1984 is specifically applicable. But in this proposition it has no relevancy because the suit was filed before the date of expiry of the date for payment of amount in Ex.P1. Therefore, there was no question of limitation. The objection of petitioner was not genuine one, hence, rejected. Furthermore, it is settled principle that the objection not raised before trial court or before the first Appellate Court cannot be raised in the revisional jurisdiction of the court. 18. Ex.P.1 is denied by the petitioner and the respondent No.2 whereas the case of respondent No.1 was totally based on the said document. As it has been discussed in earlier paragraph, that mere existence of document does not mean that it is approved one. When its contents are denied, then the document is examined under Article 17 of Qanun-e-Shahadat Order, 1984, regarding its production and under Article 79 Qanun-e-Shahadat Order, 1984 whether the same was proved through reliable evidence. According to the contents of Ex.P1 which was written on 01.8.2007, the petitioner had received Rs.3,00,000/- as advance amount in presence of the witnesses. Both the witnesses appeared before the court. Safdar Ali appeared as PW.2 where Malang appeared as PW.3. The statement of PW.2 Safdar Ali is very interesting. I quote it as under:-
Where the other witness of Exh.P.1, Malang stated that:
19. From this evidence of the witnesses, it cannot be confirmed that payment of advance amount of Rs.3,00,000/- was made in presence of the witnesses PW.2 and PW.3. Neither PW.2 nor PW.3 has specifically stated about the factum that payment of advance amount was made in their presence. PW.3 states that the payment was made in presence of the witnesses, but has not
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specifically named himself or any of the witness. Whereas PW.3 says that agreement was settled in his presence while payment of Rs.3,00,000/- were made at the time of writing of Ex.P1 and he does not state that it was given in his presence. The learned trial court has relied on the statements of PW.2 and PW.3. But from the reading of statements of both PWs, the payment of Rs.3,00,000/- as stated by respondent No.1 is not proved. As it has been mentioned in the earlier paragraphs that existence of document is different thing while proving of document is altogether a different thing. 20. If Ex.P1 is analyzed, its issuance is a question mark. On its back, on the other side of the stamp paper, date shows some change, 28 perhaps been converted to 30. Ex.P1 also shows that it was purchased to prepare Iqrar Nama only. The purpose for its purchase and issuance was not mentioned as Iqrar Nama Baiy . The other important thing is that it was purchased from Jhang whereas the parties are residents of Ahmad Pur Sial. They properly belong to Ahmad Pur Sial. The witnesses of Ex.P1 are also residents of Ahmad Pur Sial Tehsil. Then what was the need, to purchase the stamp paper from Jhang. No explanation in this regard has been tendered in the evidence by the respondent No.1 nor any…
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