2016 C L C 1478
[Balochistan]
Before Muhammad Ejaz Swati, J
AZIZ JAN ----Petitioner
Versus
AYAZ and others ----Respondents
Civil Revision No.114 of 2014, decided on 13th May, 2016.
Specific Relief Act (I of 1877) ---
----Ss. 12 & 39---Qanun -e-Shahadat (10 of 1984), Arts. 17(2) & 79---Suit for specific
performance and cancellation of mutation--- Limitation ---Agreement to sell ---Proof ---Procedure --
-Plaintiff was bound to prove execution of agreement to sell in accordance with law ---Ad mission
of co -defendant was not binding on the other even if made in the written statement ---Limitation
would run from the date of specific performance if mentioned in the agreement ---Nothing was on
record as to why suit was not filed during the lifetime o f executant of agreement to sell ---
Agreement was required to be proved by two attesting witnesses of the same---Two attesting
witnesses of agreement to sell had not been produced in the present case ---Statement of scribe
could not support the claim of plai ntiff---No evidence was led to show that impugned mutations
were fraudulently made---No evidence had been led to prove the allegation of fraud against
revenue officer ---Plaintiff had no locus standi to challenge the impugned entries of mutation on
the ground of forgery and fraud---No illegality or irregularity had been pointed out in the
impugned judgments and decrees passed by the courts below ---Revision was dismissed in
circumstances.
Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Nawab Khan v.
Said Karim Khan 1997 SCMR 1840 and Abdul Haq v. Mst. Surraya Begum 2002 SCMR 1330
rel.
Khushnood Ahmed and Abdul Nasir Kakar for Petitioner.
Syed Iqbal Shah for Respondents No.1, 1- b and 1- c.
Naseebullah Tareen for Respondent No.3.
Farooq Sarwar, Asst. A.G. for Respondent No.9.
Date of hearing: 20th April, 2016.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --- The petitioner (plaintiff) filed a suit for
Declaration, Specific Performance of Agreement dated 21st July, 1991, 28th July 1991 and 3rd
July 1993 and Cancellation of Mutation Nos.145, 288 and 302 and Permanent Injunction,
wherein the petitioner averred that he entered into an agreement with Khan Muhammad Hussain
the predecessor of respondent 1- a to 1 -c in respect of 2 -2/1 acres land and water 1 hour 48
minutes situated in Mohal Karez, Mouza Khasoi, Tappa Khanozai, Tehsil Karezat, District
Pishin and agricultural land measuring 17- 1/2 acres and 13 acres of Shamilat/Khushkaba, on the
basis of three agreements dated 21st July, 1991, 28th July, 1991 and 3rd July, 1993 in
consideration of Rs.90,000/ -. It was further averred that two and half acres was delivered to him
and is still in his possession, while 17- 1/2 is joint and un- partitioned. In respect of cause of
action, the petitioner s tated in the plaint that when he came to know that the land in question has
been transferred on the name of respondent No.3 who further gifted the same to the respondent
No.3, whereafter Mutations Nos. 145 and 302 were effected.
2. The respondent No.3 co ntested the assertion of the petitioner by way of filing written
statement. The divergent pleadings necessitated following issues:
(1) Whether the suit of the plaintiffs is barred by time ?
(2) Whether the suit for specific performance and declaration at the same time,
without seeking the possession is not maintainable ?
(3) Whether the plaintiff is owner in possession of 2- 1/2 acres of agricultural land
along with one hour 48 minutes water, situated at Mohal Karez, Mouza Khasoi, Tappa
Khani Tehsil Ka rezat District Pishin ?
(4) Whether through agreement dated 28th July, 1991 and 3rd July, 1993 the plaintiff
had purchased 17- 1/2 acres and 13 acres shamilat/khushkaba land, situated at Mahal
Khushkaba Mouza Khasoi Tehsil Karezat District Pishin from the father of the
defendants Nos.I -a to I -c?
(5) Whether the plaintiff is entitled for the relief claimed for?
(6) Relief ?
3. The petitioner to substantiate his case produced PW -1 Muhammad Khan, PW -2
Muhammad Muqeem, PW -3 Syed Shaukat Hussain, Advocate (Notary Public), PW -4 Akhtar
Muhammad, PW -5 Abdullah Jan and thereafter got recorded his statement through attorney. In
rebuttal, the respondents produced DW -1 Abdul Malik, DW -2 Sultan Muhammad and recorded
the statement of respondent No.3.
4. The Senior Civil Judge, Pishin (hereinafter the "trial Court") vide judgment and decree
dated 31st May 2013 (hereinafter the "impugned judgment and decree") dismissed the suit,
which was upheld by the learned District Judge, Pishin (hereinafter the "appell ate Court") vide
judgment and decree dated 30th December, 2013 (hereinafter the "impugned judgment").
5. The learned counsel for the petitioner contended that the evidence on record has not been
appreciated in accordance with law; that both the Courts be low have misread the evidence; that
the impugned judgments and decrees have been passed by both the Courts below in violation of
Order XX, Rule 5, C.P.C.; that the agreement dated 21st July, 1991, 28th July, 1991 and 3rd
July, 1993 has also not been considered and thus non- suited the petitioner; that the suit was
within time and in this respect the trial Court has failed to consider the cause of action of the
petitioner; that the respondents Nos.1- a to 1- c have supported and admitted the claim of the
petitioner, which aspect of the matter has been un- noticed by the Courts below; that the
respondent No.3 alleged purchase of the property in dispute, whereas the mutation Nos.145, 302
and 28 clearly shows that it was gift and no evidence was produced to substant iate the purchase,
but the Courts below had also ignored this aspect of the matter.
On the other hand, the learned counsel for the respondents Nos.1 to 3 supported the
contention of the petitioner and has not denied his claim.
6. The learned counsel f or the respondent No.3 submitted that the petitioner has failed to
prove his case in respect of specific performance; that the agreement Ex.P/4 -A was not proved;
that the evidence produced by the respondent No.3 i.e. DW -1 and DW -2 supported the case of
the respondent; that no evidence was led to indicate the entries on the name of the respondent
No.3 were forged or fraudulent.
The respondents Nos.2 and 4 to 8 were proceeded against ex -parte on 13th March, 2015.
7. Heard the learned counsel for the part ies and perused the record of the case. The
petitioner had filed a suit for specific performance in respect of agreement dated 21st July, 1991,
28th July, 1991 and 3rd July, 1993 allegedly executed between the father of respondents Nos.1- a
to 1- c. Though t he suit was filed against the predecessor of respondents Nos.1- a to 1 -c, but no
written statement has been filed by the predecessor and thereafter the respondents Nos.1 -a to 1 -c
were impleaded as party, the respondents Nos.1- a to 1 -c had not denied the claim of the
petitioner but in the circumstances of the instant case when the mutation entries had been
transferred on the name of the respondent No.3 and subsequently other respondents, therefore,
the mere admission of respondents Nos.1- a to 1 -c supported the claim of the petitioner cannot be
considered as admission, because the property in dispute had been transferred on the name of the
respondent No.3 by the predecessor of the respondents Nos.1- a to 1 -c. Besides, the petitioner has
joined issue No.4 with the respondents regarding validity and due execution of the agreement,
therefore, the petitioner under the aforesaid circumstances cannot take advantage of any
admission made by the respondents Nos.1- a to 1 -c. It is settled law, that on admission made by a
co-defendant is not binding on the other even if made in the written statement, therefore, it was
for the petitioner to prove execution of the agreement in accordance with law. Reference is
placed to the case of Farzand Ali and another v. Khuda Bakhsh and others, PLD 2015 SC 187,
wherein the Hon'ble Supreme Court of Pakistan in respect of admission of agreement by the
parties observed as under:
"The argument that the agreement to sell in favour of the appellants has been admitted by
the vendors and, theref ore, is valid and the non -signing has lost its efficacy, suffice it to
say that despite the above, the respondent has joined issue with the appellants vis -a-vis
the validity and valid execution of the agreement, therefore, the appellants cannot rely
upon a nd take advantage of any admission made by the vendors, because of the law, that
an admission made by a co -defendant is not binding on the other even if made in the
written statement. Reliance in this regard can be placed on the judgments reported as
Shah Muhammad and 2 others v. Dulla and 2 others (2000 SCMR 1588), Allah Rakha
through L.Rs. v. Nasir Khan and 4 others (2007 CLC 154) and Zeeshan Bhatti v.
Maqbool Bhatti and another (PLD 2001 SC 79)."
8. The petitioner brought a suit for specific performanc e in the year 2011 and to substantiate
the same produced PW -1 Muhammad Khan and PW.4 Akhtar Muhammad, however, in respect
of non- filing of suit within a period of three years, no explanation has been given by the
petitioner except vague assertion that he w as not aware about transfer of the property on the
name of the respondent No.3. The learned counsel for the petitioner contended that the limitation
of three years will run when the date of specific performance is mentioned in the agreement. In
absence of any such date, the limitation will run from the date of knowledge or cause of action.
Though, the limitation will run from the date, if mentioned in the agreement, but in the instant
case, the petitioner has also failed to explain that during the lifetime of the respondents Nos.1- a
to 3-c what circumstances prevented him to get the specific performance of the agreement. There
is no explanation on his behalf in this respect, therefore, the filing of the suit merely on the basis
of Ex.P/4- A without proving the same, the point of limitation has rightly been considered by the
Courts below. The petitioner alleged three agreement, but produced only one agreement dated
21st July, 1991 through PW -4 the son of petitioner writer. This witness also in cross -examination
admitted as under:
He further admitted that:
9. The aforesaid witness in respect of agreement dated 21st July, 1991 has not substantiated
the contention of the petitioner rather made the alleged agreement further doubtful. The
agreement was required t o be proved by two attesting witnesses as the agreement falls within the
purview of Article 17(2) of the Qanun- e-Shahadat Order, 1984 and had to be attested by the two
witnesses as per Article 79 of the Order, 1984. The non- production of two attesting witnesses,
which are lacking, therefore, mere statement of scribe would not serve the purpose, nor scribe of
the agreement supported the claim of the petitioner. Reference is placed to the judgment reported
in PLD 2015 SC 187, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"It is settled law that an agreement to sell an immovable property squarely falls within the
purview of the provisions of Article 17(2) of the Qanun- e-Shahadat Order, 1984 and has
to be compulsorily attested by the two witnesses and this is sine qua non for the validity
of the agreement. For the purposes of proof of such agreement it is mandatory that two
attesting witnesses must be examined by the party to the lis as per Article 79 of the Order
ibid. In this case, the respondent had unequivocally denied the execution of the said
agreement and it is on account of the above that issue No.11 was also framed requiring,
the appellants to prove their agreement; the appellants never objected to the issue or
sought to get it struck off; thus for all intents and purposes they accepted the
responsibility of proving the same, despite the fact that according to their stance now the
said agreement was admitted by the vendors in their written statement. However, the
appellants for this purpose produced P.W.1 who is the scribe of the document, but
admittedly is not the attesting witness and in number of judgments of this court it has
been clearly held, that a scribe of an agreement to sell immovable property is not a
substitute for an attes ting witness, and does not legally qualify to be so, therefore, his
evidence may have a supportive value, but is neither in line with the mandate of law nor
does it meet the test of Article 79 ibid. The only attesting witness examined by the
appellants is D.W.2, namely, Muhammad Hanif whereas the other attesting witness,
Aftab has not been examined, and no explanation has been given by the appellants for his
vital omission which was essential for proving their agreement to sell. This is fatal to the
case of the appellants as per the law laid down in Hafiz Tassaduq Hussain v. Muhammad
Din through Legal Heirs and others (PLD 2011 SC 241)."
10. Whereas the contention of the learned counsel for the petitioner that mutations on the
name of respondent No.3 and others were forged and fraudulent. No evidence was led to show
that the impugned mutations were fraudulently made with the connivance of the Revenue
Authorities. The petitioner (plaintiff) did not lead any evidence to prove the allegation of fraud
against any Revenue Officer and that the entries were forged. Reference in this respect is to be
made to the case titled Nawab Khan v. Said Karim Khan, 1997 SCMR 1840, wherein, entries
made in the revenue record were not interfered, as the presumption of truth was attached to those
entries and no strong evidence was led in rebuttal to warrant interference.
11. The other aspect of the case is that the petitioner had no locus -standi to challenge the
impugned entries on the ground that the same were result of forger y and fraud, because neither
the respondents Nos.1- a to 1- c had challenged the same nor their predecessor in his lifetime
questioned the impugned mutations. In the case of Abdul Haq v. Mst. Surraya Begum 2002
SCMR 1330, the Hon'ble Supreme Court of Pakista n while considering the similar issue
observed as follows:
"Atta Muhammad was deprived of right to inherit the property as a consequence of
mutation in dispute but he did not challenge the same during his lifetime. The petitioners
claimed the property th rough Atta Muhammad as his heirs who filed the suit as late in
1979 about nine years after the sanction of mutation which had already been given effect
to in the record of rights. The petitioners, therefore, had no locus standi to challenge the
mutation in dependently, for Atta Muhammad through whom they claimed inheritance
himself had not challenged the same during his lifetime."
12. In the instant case, the concurrent findings of two Courts below in respect of factual
aspects have been arrived at and no illegality and irregularity in this respect has been found to
disturb the same merely on the ground that proper issues had not been framed. It is quite obvious
from the record that after framing of issues, both the parties led their evidence and the matter
related to issue No.4 including other issues, had been dealt with by the Courts below regarding
which, there is no material irregularity to disturb the findings of Courts below.
In view of the above, Civil Revision Petition No.114 of 2014 is dismissed. Parties are left
to bear their own cost.
ZC/41/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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