PLJ 2025 Quetta 128
Present: G UL HASSAN TAREEN , J.
AZMAT ALI and another --Petitioners
versus
CHAMAN ALI and another --Respondents
C.R. No. 345 of 2020, decided on 29.4.2024.
Specific Relief Act, 1877 (I of 1877) --
----Ss. 12, 42 & 54--Qanun -e-Shahadat Order, 1984 (10 of 1984), Arts. 79 & 129(g) --Oral
contract --Suit for specific performance, declaration and mandatory injunction--Dismissed --
Appeal --Allowed --Denial of oral sale --Non-production of receipt of payment --Failed to prove
execution of mortgage deeds --Ingredients of oral contract were not proved --Challenge to --
Respondent had failed to establish that he had paid Rs. 850,000/ -to the previous two mortgagees
and Rs. 850,000/ - to petitioners’ predecessor --Respondent had not pleaded such facts and terms
and conditions of alleged oral contract of sale. He failed to procure any receipt of payment --
Respondent failed to examine attesting witnesses of mortgage deeds and thus failed to prove
execution thereof by petitioners’ predecessor within preview of Article 79, the Q.S.O.--
Respondent had failed to prove ingredients of an oral contract of sale, as such, Trial Court had
rightly decided issue No. 4 against respondent --The impugned judgment of Appellate Court was
outcome of illegal exercise of jurisdiction, misreading and non- reading of material evidence on
record --Revision petition allowed.
[Pp. 132, 133 & 134] A, B, C, D & E
2021 SCMR 642 & 2013 SCMR 1300 ref.
Mr. Bakhtiar Sherani , Advocate for Petitioners.
Mr. Muhammad Saleem Lashari , Advocate for Respondent
No. 1.
Mr. Muhammad Ali Rakhshani , Addl. A.G for Respondent
No. 2.
Date of hearing 23.4.2024.
JUDGMENT
Aggrieved from the judgment and decree dated 14 September 2020 passed by the learned
Additional District Judge -VII, Quetta, whereby Respondent No. 1’s (“respondent”) suit was
decreed, petitioners have filed instant civil revision petition.
2. On 01 October 2011, respondent had instituted Civil Suit No. 109/2011, for declaration,
specific performance of an oral contract of sale and perpetual injunction against the predecessor
of petitioners with the averments that petitioners’ predecessor was owner of a house bearing
Municipal No. 7- 44/8- A, admeasuring 1310 sq.ft. Mahal and Mouza Ward No. 44, situated at
Talib Hussain Street Syed Abad, Alamdar Road, Quetta (“subject house”) which he had mortgaged to the two mortgagees, Chaman Ali and Lal Muham mad. The first floor of the subject
house was mortgaged to the Chaman Ali for securing the payment of money advanced by way of
loan of Rs. 350,000/ -while the ground floor was mortgaged to the Lal Muhammad for payment
of loan of Rs. 500,000/ -but since he could not have redeemed the mortgaged the subject house
because of financial constraints; as such, he had entered into an oral contract of sale with the
respondent, whereby the subject house was sold out to the respondent at the consideration of Rs. 1,700,000/ -. Respondent had redeemed the subject house by payment of mortgage money,
Rs. 850,000/ -to the mortgagees and obtained the possession of the subject house and, the
mortgage deeds and paid the balance, Rs. 850,000/ -to the predecessor of petitioners in presence
of Nazar Hussain and Muhammad Hussain, however, instead of transferring the subject house in
the name of respondent, petitioners’ predecessor proceeded to the Republic of Poland. In 2009, he returned back and with ulterior motive made an eviction application against the respondent which was dismissed by the learned Civil Judge -VII/Rent Controller, Quetta vide order dated 15
April 2010. In prayer clause, respondent prayed for declaration of ownership, specific
performance of oral contract of sale and perpetual injunction.
3. Petitioners’ predecessor submitted written statement in which he had denied the
mortgages and sale of the subject house to the respondent. The learned Trial Judge framed
following issues:
“1. Whether the suit of the plaintiff is bad for non- joinder of necessary parties:
2. Whether the plaintiff has failed to deposit ad- valorem Court fee?
3. Whether the suit of the plaintiff is barred by time?
4. Whether the plaintiff purchased the disputed property/house bearing municipal No. 7-
44/8- A measuring 1310 sq.ft. situated in Mohal Mouza Ward No. 44 Tappa Urban- III Tehsil city
District Quetta (Talib Hussain street Syed Abad Alamdar Road Quetta) from the predecessor in interest of defendants No. 1- A to 1 -D namely the consideration amount of Rs. 1700000/ -(rupess
seventeen Lac)?
5. Whether the plaintiff is entitled for the relief claimed for?
6. Relief?
4. Respondent examined the previous mortgagee Lal Muhammad as PW -1 who produced
his mortgage deed as Ex.P/1. Nazar Muhammad and Muhammad Hussain appeared as PW -2 and
PW-5, respectively. The Patwari appeared as PW- 2 and produced the revenue record of the
subject house as Ex.P/2. Muhammad Usman, representative of Civil Judge -VII, Quetta appeared
as PW- 4 and produced the judgment dated 15 April 2010 as Ex.P/3. The scribe appeared as PW -
6 and produced and identified his handwriting on the mortgage deeds (Ex.P/1 and Ex.P/4). Respondent appeared as his own witness. In rebuttal, petitioners produced two oral witnesses as DW-1 and DW -2 and, through attorney, Mehmooda Parveen appeared on oath.
The Trial Court judgment and decree dated 18 March 2016, decided issue Nos.3 and 4 against
the respondent and resultantly, dismissed the suit which was set -aside on appeal by the Appellate
Court impugned judgment and decree dated 14 September 2020.
5. Mr. Bakhtiar Sherani, learned counsel for the petitioners contended that respondent had
claimed purchase of the subject house in 2002, thus, the suit instituted on 01 October 2011 was barred by limitation and referred to Article 113, Schedule -I, the Limitation Act 1908 (“Act”). In
addition contended that respondent had failed to prove the oral contract of sale and the plaint is totally silent about the date, month and year of such sale and failed to establish the pleaded sale. In conclusion, the learned counsel placed reliance on the following case laws:
Muhammad Nawaz v. Muhammad Baran Khan, (2013 SCMR 1300),
Imran Bakhsh v. Muhammad Siddique , (2022 CLC 81), Muhammad Yousaf v. Mehmood,
(2016 CLC 1258), Bashir Ahmed v. Shah Muhammad, (2010 CLC 734).
6. Mr. Saleem Lashari, learned counsel for the respondent defended the impugned judgment
and to begin with, contended that the petitioners till date have not instituted suit for possession of
the subject house which is proof of the fact that their predecessor had sold out the subject house to the respondent. In addition, contended that respondent examined the two oral witnesses as
PW-2 and PW -5, before whom, respondent had paid Rs. 850,000/ -to the petitioners’ predecessor
and since eviction application made by the petitioners’ predecessor was dismissed, consequently,
status and possession of the respondent on the subject house is not of a tenant. In conclusion,
contended that cause of action accrued to the respondent when petitioners’ predecessor had
initiated eviction proceedings, thus, suit was instituted within the prescribed period of limitation.
7. Heard and have gone through the record.
8. The first proposition which is to be addressed would be limitation. Petitioners in their
written statement had raised an objection that, suit is barred by limitation. On such material
proposition of mixed question of law and fact, the Trial Court had framed issue No. 3 and finally
held that suit was barred by limitation which finding was set -aside by the Appellate Court. The
findings of the Appellate Court, whereby issue of limitation was decided in respondent’s favour
are brief, non- speaking and ambiguous; as such, do not reflect any legal sense.
Respondent had pleaded that after receiving Rs. 850,000/ -, instead of transferring the subject
house to his name, petitioners’ predecessor had proceeded to the Poland and in 2009, returned
back to the Pakistan. In their common written statement, petitioners had not denied such fact. In
his cross -examination, the DW -1 stated that in 2003, petitioners’ predecessor had gone to the
Poland and also admitted it correct that in 2009, he returned back to the Pakistan. For the
purpose of instant case, Section 13 of the Act is relevant which reads as under:
“13. Exclusion of time of defendant’s absence from Pakistan and certain other
territories.
In computing the period of limitation prescribed for any suit, the time during
which the defendant has been absent from Pakistan and from the territories beyond
Pakistan under the administration of the Central Government shall be excluded.”
Section 13 enables a plaintiff to wait, if he is so inclined, till the defendant comes back to Pakistan. The absence of a defendant from Pakistan or where the defendant resides out of Pakistan, the period of his absence from the Pakistan or the period of such residence shall be excluded from limitation prescribed by the Schedule -I, the Act, for any suit. Respondent had not
only specifically pleaded absence of petitioners’ predecessor from Pakistan rather such fact was not specifically denied in the written statement rather was admitted by the DW -1 in his cross -
examination. Thus, respondent was entitled to deduct the period of such absence. According to the respondent, he had purchased the subject house in 2002 and thereafter, petitioners’ predecessor had proceeded to the Poland and came back in 2009, hence, suit instituted on 19 October 2011 by the respondent within three years from the date of coming back of petitioners’ predecessor in Pakistan was within limitation under Article 113, Schedule -I, the Act which
provides three years time limitation of a suit for specific performance of contract. Hence, finding of the Trial Court on the issue No. 3 was incorrect.
9. However, the findings of the Appellate Court on the Issue No. 4 are not correct.
Respondent had pleaded that he had purchased the subject house from the petitioners’
predecessor through an oral contract of sale for sale consideration of Rs. 1,700,000/ -but he failed
to establish that he had paid Rs. 850,000/ -to the previous two mortgagees and Rs. 850,000/ -to the
petitioners’ predecessor. In case of oral contract of sale, it is incumbent upon a plaintiff to plead the specific date, month and year of the sale and the date and month of payment to the vendor. In the instant case, respondent had not pleaded such facts and the terms and conditions of the alleged oral contract of sale. He failed to procure any receipt of payment of
Rs. 850,000/ -to the petitioners’ predecessor. The PW -5, however, during his cross -examination
had stated as under:
“22. The payment of Rs. 850,000/ -in any presence, which I have stated, in this respect,
no iqrarnama was written between the parties, voluntarily stated that deed writer was not
available, therefore, it was written on a rough paper and parties had stated that they
would approach the deed writer.”
The respondent had not produced the said rough paper before the Trial Court. Thus presumption could be drawn under Article 129(g), the Qanun- e-Shahadat Order -X, 1984 that such paper
which could be and is not produced would, if produced, be unfavourable to the respondent who withheld it.
Though petitioners had produced one mortgagee Lal Muhammad as PW -1 but he could not
produce the second mortgagee Chaman Ali as witness. The petitioners had denied the mortgage and the mortgage deeds, however, petitioners failed to examine the attesting witnesses of the mortgage deeds (Ex.P/1 and Ex.P/4) in order to prove that the house was in fact mortgaged by the petitioners’ predecessor with the said Lal Muhammad and Chaman Ali and he had discharged the mortgage liability of such mortgagees at the direction of petitioners’ predecessor. Mortgage deeds were required by the law of Section 59, the Transfer of Property Act 1882, to be effected
only by registered instruments and to be attested by two witnesses but respondent failed to
examine the attesting witnesses of the mortgage deeds and thus failed to prove execution thereof by the petitioners’ predecessor within the preview of Article 79, the Q.S.O.
10. The PW- 2 and PW -5 had described the area of the subject house as 1963 sq.ft. whereas,
according to the respondent’s plaint, it is 1310 sq.ft. The PW -2 is hearsay witness. He during his
cross -examination stated that, respondent had told him about payment of Rs. 500,000/ -and Rs.
350,000/ - to the Lal Muhammad and the Chaman Ali (Q. No. 32). Respondent could not produce
any material evidence that petitioners’ predecessor had entered into an oral contract of sale with him for selling out the subject house in sale consideration of Rs. 1,700,000/ -. The Appellate
Court has overlooked such facts. In respect of proof of an oral sale, the Supreme Court, in the case of Saddaruddin v. Sultan Khan reported in (2021 SCMR 642), has held as under:
“The second legal flaw is that in cases where the sale is pleaded through oral agreement then the terms and conditions which were orally agreed are to be stated in detail in the pleadings and are to be established through evidence. In such like cases, the plaintiff beside detailing subject matter of the sale, the consideration, detail of striking of the bargain, name of the witnesses in whose presence the said oral agreement to sale was arrived at between the parties and other necessary detail for proving the sale agreement as if it would have been executed in writing. Reference can readily be made to the case of Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524) and Muhammad Nawaz through LRs v. Haji Muhammad Baran Khan through LRs (2013 SCMR 1300)”
11. Respondent’s learned counsel stressed on the factum of possession. Mere possession,
without concrete proof of purchase, could not be considered proof of purchase. Though petitioners have not yet instituted suit for possession of the subject house against the respondent, but such inaction of their part, is not a circumstantial piece of evidence of the fact that indeed,
respondent had purchased the subject house. Respondent failed to explain that, what prevented
him from asking petitioners’ predecessor for transfer of the subject house to his name when he
had paid the entire sale consideration. Thus, respondent had failed to prove the ingredients of an oral contract of sale, as such, the Trial Court had rightly decided issue No. 4 against the respondent. In case reported as Saddaruddin v. Sultan Khan (2021 SCMR 642), it has been held
as under:
“Lastly as to the claim of the appellant regarding his prolonged possession coupled with title documents, suffice it to observe that mere prolonged possession even coupled with title document by itself does not establish the claim of ownership unless the sale is established …..”
For the afore discussed reasons, the impugned judgment of the Appellate Court is outcome of illegal exercise of jurisdiction, misreading and non- reading of material evidence on record.
I, accordingly allow the instant civil revision petition, set -aside the impugned judgment and
decree dated 14 September 2020 passed by the learned Additional District Judge -VII, Quetta in
C.A No. 96/2019 and uphold the judgment and decree dated 18 March 2016 passed by the learned Civil Judge -VII, Quetta in Civil Suit No. 109/2011.
Parties shall bear their own costs.
(Y.A.) Revision petition allowedThis 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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