2020 Y L R 602
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
MUHAMMAD RAMZAN and another ---Appellants
Versus
BISMILLAH KHAN and 7 others ---Respondents
R.F.A. No. 39 of 2013, decided on 16th October, 2019.
Specific Relief Act (I of 1877) ---
----S. 12 ---Qanun- e-Shahadat (10 of 1984), Art. 79--- Registration Act (XVI of 1908), S. 17--
-Suit for specific performance of contract ---Agreement to sell--- Proof ---Procedure ---
Statements of witnesses of plaintiff were silent with regard to date o f sale deed and sale
price--- Payment of sale consideration had not been proved--- Plaintiff had produced only one
attesting witness of agreement to sell whereas he was to produce two marginal witnesses of
sale agreement ---Alleged sale agreement was not prep ared in the presence of marginal
witnesses---Sale agreement of more than Rs. 100/ - required registration under S. 17 of
Registration Act, 1908--- Agreement to sell of immovable property did not create any right or
interest on such property---Execution of such agreement did not ipso facto create a charge on
immovable property--- Execution of an agreement to sell was not a document of truth---
Plaintiff had not deposited the balance sale consideration of agreement to sell ---Party who
had sought enforcement of agreement to sell must deposit the balance sale price before the Trial Court but no such application had been filed on behalf of plaintiff ---Plaintiff was bound
to prove alleged sale transaction of suit land, execution of sale agreement, paying of earnest money to the defendant ---Mere tendering sale agreement in evidence did not enhance its
evidentiary value ---Plaintiff was bound to prove the existence of facts which had been
asserted in the suit ---Findings recorded by the Trial Court were based on proper appreciation
of evidence---Appeal was dismissed in circumstances.
Khair Muhammad v. Nawab Bibi 2001 CLC 1001; Hamood Mehmood v. Shabana
Ishaque 2017 SCMR 2022 and Pir Munawar Shah v. Habib- ur-Rehman 2018 CLC 1901 rel.
Nemo for Appellants.
Respondent No.1: Ex parte
Iqbal Ahmed Kasi for Respondents Nos. 2 to 5.
Syed Mumtat Baqri for Respondents Nos.6 to 8.
Abdul Latif Kakar, Additional Advocate General for the State.
Date of hearing: 2nd October, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This appeal is directed against the judgment and
decree dated 09.04.2013 ("impugned judgment") passed by learned Senior Civil Judge -III,
Quetta (the "trial court") whereby the suit filed by the appellants for "Suit for Specific
Performance, Cancellation of Mutation Entri es and Permanent Injunction" was dismissed.
2. Brief facts of the case are that the appellants/plaintiffs filed the referred suit before
the trial court with the averments that the plaintiffs entered into sale transaction vide agreement dated 04.01.2006 wi th respondent/defendant No.1 in presence of witness
Asmatullah in respect of property bearing Khasra No.661, measuring 9 rod 35 Pole, situated in Mohal Viala Kateer, Mouza Kateer, Tapa Kuchlak, Tehsil Saddar, District Quetta, whereby the plaintiff purchase d 3 rod 2/3 poles (hereinafter referred to the property in
dispute). Out of total consideration of Rs.11,45,310/ - the plaintiffs/appellants paid
Rs.6,50,000/ - to the defendant No.1 as earnest money. The possession of the above portion
was handed over to the plaintiffs, whereas remaining amount was agreed to be paid when the defendant No.1 will transfer the mutation of the above property in the name of plaintiffs and
remaining amount was to be paid in three installments till the year 2008. When the plaintiff s
repeatedly approached the defendant No.1 for transfer of mutation entries in their names in
the revenue record then they came to know that defendant No.1 in concealing manner sold out the property in dispute vide mutation No.390 dated 16.2.2006 to respon dent/defendants
Nos.2 to 5, and measuring 2 rod 15- 1/2 pole has been transferred in their names,
subsequently on 25.9.2007 defendant No.1 further sold out the disputed property measuring 3 rod 32- 3/5 pole vide mutation No.459 to the respondent/defendants N os.6 and 8.
3. Defendant No.1 was proceeded against ex -parte while the other respondents contested
the suit by filing separate written statements on legal as well as factual grounds. The trial court out of the pleadings of the parties framed the following issues:
1. Whether the plaintiffs have purchased the suit property from defendant No.1 vide agreement dated 04.01.2006?
2. Whether the plaintiffs paid earnest amount to the defendant No.1 in respect of disputed land?
3. Whether possession of the disputed land was delivered to the plaintiffs?
4. Whether the defendant No.1 is not performing his part of agreement?
5. Whether the suit of plaintiffs is not maintainable because relief of possession has not been sought?
6. Whether the suit is within time ?
7. Whether the suit suffers from non joinder necessary parties?
8. Whether the plaintiffs are entitled to relief claimed for?
9. Relief?
4. In order to substantiate their claim the appellants produced two witnesses as well as
got recorded statement of a ppellant No.1 for himself as well as attorney for appellant No.2,
while the respondent/defendants Nos. 2 to 5 produced three witnesses as well as got recorded
statement of defendant No.2 for himself and as attorney for defendants Nos. 3 to 5. The defendant No.8 got recorded his statement for himself and as attorney for respondents Nos. 6
and 7.
It is to be noted that the plaintiffs filed an application for additional evidence which
was dismissed on 23.2.2011, thereafter the plaintiffs filed an application under Order XXVI, Rule 9, C.P.C. which was contested by defendants on 10.11.2011. The trial court accepted the application and Mr. Jawad Hassan Advocate was appointed as Local Commissioner. The Local Commissioner submitted his report. The plaintiffs and de fendants Nos. 2 to 8 filed
objections on report of Local Commissioner. The plaintiffs filed an application under Order I, Rule 10, C.P.C. and under Order VI, Rule 17, C.P.C. before the trial court, which was dismissed vide order dated 16.5.2012.
5. On conc lusion of trial the suit filed by the appellants was dismissed vide impugned -
judgment and decree, which has been assailed through this appeal.
6. Despite service of notice neither the appellant nor his counsel appeared, therefore we
were left with no option but to hear the learned counsel for the contesting respondents and to
decide the matter on the basis of available record.
7. Learned counsel for the respondents Nos. 2 to 5 contended that the appellants have
failed to prove their case through evidence. The statement of appellants' witnesses are contradictory. The appellants have failed to prove that they have purchased the suit property. The trial court has properly appreciated the evidence and came to a just conclusion. He lastly prayed for dismissa l of the appeal.
8. Learned counsel for the respondents Nos. 6 to 8 contended that the
plaintiffs/appellants failed to prove their case through evidence; that the burden of proof lies on plaintiffs/ appellants; that the statements of plaintiffs' witnesses are contradictory and the
trial court has rightly dismissed the suit of the plaintiffs.
9. Heard. Record perused. Perusal of record reveals that the plaintiffs/ appellants filed
Suit for Specific Performance, Cancellation of Mutation Entries and Permanent Injunction with the contention that the plaintiff purchased land bearing Khasra No.661 meas uring 9 rod
35 poles in Mohal Viala Kateer, Tappa Kuchlak, Tehsil Saddar, District Quetta on the basis of sale agreement dated 4.01.2006 from defendant No.1. The purchased property consists upon 3 rod 2/3 pole in consideration of Rs.1145310/ -. The earnest money Rs.65000/ was paid
to defendant No.1 and sale agreement was executed. The PW -1 exhibited the sale agreement
before the trial court and produced one marginal witness of sale agreement. The plaintiffs in support of their claim produced two witnesses, o ut of whom PW -1 is attesting witness. PW -1
(Attesting witness) stated that the sale agreement was executed on 5.4.2007 while PW -2
stated that the sale agreement was executed on 5.7.2004 whereas in the plaint date of sale
agreement is 4.10.2006. The plainti ff No.1 deposed that he purchased the disputed property
from defendant No.1 on 5.7.2004 and possession was handed over to plaintiffs. In the plaint the plaintiffs have taken two versions. In Para No.1 of the plaint it has been stated that he purchased 9 ro d 35 pole but in the same para it has been stated that the disputed land consists
of 3 rod 2/3 pole while in Exh- P/1 the disputed land has been mentioned as measuring 3 rod
2/3 pole and no other agreement in respect of sale of 9 rod 35 pole is annexed.
10. Now adverting to Exh- P/1, no date has been mentioned on the same, while PW -1
stated that the sale agreement was executed on 5.4.2007. PW -2 and plaintiffs have mentioned
the date of execution of sale agreement as 5.7.2004. The statements of witnesses belie the
date of execution of sale deed and the sale price. Even the payment of sale consideration has not been proved. There is no date of payment of earnest money to defendant No.1.
11. The appellant/plaintiff admittedly produced one attesting witness of agr eement to sell.
The basic document in a suit for specific performance is the agreement to sell. The onus to prove the same was on plaintiffs. The marginal witness deposed that the bargaining was struck between the parties in his presence and terms and condition of the agreement to sell were read to him but the evidence on record reveals that the alleged sale agreement was not prepared in the presence of the marginal witness.
12 Out of two marginal witnesses of the alleged sale agreement one was produced by the
plaintiffs. As per requirement of Article 79 of Qanun Shahadat Order, 1984 two marginal witnesses of the sale agreement were to be produced by the plaintiffs. Plaintiffs/ appellants and their witnesses stated that respondent had given assurance to the appellants that the
property would be transferred in their names, but no evidence of credible nature was produced to substantiate such claim. The record also transpires partition of land and transfer of the same in the name of respondents Nos. 2 to 5 and 6 to 8 on 16.02.2006 and 25.09.2007
respectively in the record of right.
13. The plaintiffs alleged that they purchased the disputed property through sale
agreement in consideration of Rs. 1145000/ -. It is settled principle of law that a sale
consideration of more than Rs.100 requires registration under section 17 of the Registration
Act, 1908. Reliance is placed on the case of Khair Muhammad v. Nawab Bibi 2001 CLC 1001.
14. It is settled law that an agreement to sell of immovable property neither creates n or
purportedly creates any right or interest on such property. The execution of such agreement does not ipso facto even create a charge on immovable property. The execution of an agreement to sell is not document of truth.
15. Admittedly the case is relate d to specific performance of agreement. The
plaintiffs/appellants did not deposit the balance amount. It is mandatory for the party who seek enforcement of the agreement under Specific Relief Act, 1877 to deposit the balance amount but no application has been filed before the trial Court in this regard. In this regard reliance is placed on the case titled Hamood Mehmood v. Shabana Ishaque 2017 SCMR 2022
whereby the Hon'ble Supreme Court has held as under:
"3. It is mandatory for the person whether plaintif f or defendant who seeks
enforcement of the agreement under the Specific Relief Act, 1877, that on first
appearance before the Court or on the date of institution of the suit, it shall apply to the Court getting permission to deposit the balance amount and any
contumacious/omission in this regard would entail in dismissal of the suit or decretal of the suit, if it is filed by the other side."
16. The burden lies on plaintiffs to prove alleged sale transaction of the suit land,
execution of sale agreement, p aying of earnest money to the respondent/ defendant No.1,
mere tendering the sale agreement in evidence does not enhance its evidentiary value. Obviously, it was responsibility of the appellants/plaintiffs to prove the existence of the fact which was asser ted in the suit. Reliance is placed on the case of Pir Munawar Shah v. Habib-
ur-Rehman 2018 CLC 1901.
17. In view of above we are of the considered opinion that the findings of the trial court
are based on proper appreciation of evidence and same are well -reasoned warranting no
interference by this court. Therefore, instant appeal is dismissed with no order as to cost.
Decree sheet be drawn separately.
ZC/143/Bal. Appeal 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,
let us know.