PLJ 2013
Present: Abdus Sattar Asghar, J.
KAMEER and another--Appellants
versus
ABDUL MAJEED--Respondent
R.S.A. No. 145 of 2004, heard on 25.2.2013.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 70 & 71--Oral evidence--Onus probandi--There is no cavil to proposition that in terms of Art. 70 of Q.S.O. all facts except contents of documents might be proved by oral evidence--Art. 71 of Order, 1984 contemplates that oral evidence must, in all cases whatever be directed. [P. 635] A
Evidence--
----Agreement to sell--It is well established principle of law of evidence that a person can tell a lie but document cannot. [P. 636] B
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 17--Oral agreement to sell--Divergent pleading--Application for amendment was allowed--Proposed amendment was not likely to change nature of suit--After demise of predecessor, appellant resiled and refused perform agreement--Documentary account--Respondent was under heavy burden to prove alleged factum of oral agreement to sell between parties which he could not establish through reliable ocular or documentary. [Pp. 636 & 637] C
Error of Law--
----Court commits an error if it acts contrary to law--Validity--If a Court acts contrary to law, it acts without jurisdiction and its order to that extent is nullity--It is bounden duty of Court to decide controversy between the parties on basis of evidence on record which is legally admissible--A decision based on mistaken assumption and misreading or non-reading of evidence falls within ambit of an error of law. [P. 637] D
Mr. Shahid Qayyum Chaudhry, Advocate for Appellants.
Mr. Inayatullah Chaudhry, Advocate for Respondent.
Date of hearing: 25.2.2013.
Judgment
This Regular Second Appeal is directed against the judgment and decree dated 14.11.2001 passed by learned Civil Judge Depalpur whereby respondent's suit for specific performance was decreed in his favour against the appellants. It also impugns the judgment and decree dated 23.6.2004 passed by the learned Additional District Judge Depalpur whereby appellants' appeal against the judgment and decree of the learned Civil Judge was dismissed.
2. Brief facts leading to this appeal are that on 31.10.1994 Abdul Majeed respondent lodged a suit for specific performance against the appellants alleging that the appellants and their father namely Hamza jointly owned an area measuring 44 Kanals and 12 Marlas as per record of rights for the year 1992-93 situated in Mauza Ajja Bhutta Tehsil Depalpur; that about 2¬ years back appellants' predecessor namely Hamza orally agreed to sell the suit land in favour of the respondent in consideration of Rs. 3,00,000/-; that the respondent is in possession of the suit land since long however after the agreement to sell he is in possession of the same as owner; that the appellants also received a sum of Rs.50,000/- out of the consideration amount and remaining amount of Rs.2,50,000/- had to be paid at the time of registration of the sale-deed; that after the demise of Hamza appellants refused to complete the sale whereas the respondent was inclined to make the balance payment of Rs.2,50,000/- towards the consideration amount.
3. The suit was resisted by the appellants by filing contesting written statement on 14.3.1995 contending that the respondent had earlier lodged a suit which was dismissed as withdrawn without seeking permission to file fresh one therefore fresh suit is barred by law. The appellants also contended that neither their predecessor namely Hamza nor they themselves ever entered into any agreement to sell with the respondent. They also denied receipt of any earnest amount of Rs.50,000/- from the respondent. They categorically contended that in fact the suit land devolved upon their mother Mst. Rabiah Bibi real sister of the respondent as inheritance from her father; that the suit land was in joint Khata of Mst. Rabiah Bibi and the respondent; that the respondent cultivating the suit land has been paying share in produce to Mst. Rabiah Bibi; that after the demise of Mst. Rabiah Bibi the respondent out of greed is declining the appellants' co-sharership.
4. Arguments heard. Record perused.
5. Record reveals that after framing of issues on the basis of divergent pleadings of the parties respondent concluded his evidence on 11.1.1996. Appellants concluded their evidence on 8.11.2000. Thereafter on 22.11.2000 the respondent lodged an application under Order VI, Rule 17 of the Code of Civil Procedure 1908 seeking amendment in the plaint in order to incorporate the word `defendants' in Paras No. 2 and 3 of the plaint in order to assert that the defendants and their predecessor agreed to sell the suit land in his favour and also received a sum of Rs.50,000/- as advance money out of consideration amount. Proposed amendment was resisted by the appellants. However, learned trial Court allowed the application for amendment vide order dated 25.4.2001 while making observation that the proposed amendment is not likely to change the nature of the suit. It is astonishing that the appellants did not question the vires of the order dated 25.4.2001 before the appellate Court. However perusal of the issues framed by the learned trial Court even before amendment in the plaint transpires that Issue No. 4 was constituted in the manner that respondent's plea against the appellants stood sufficiently covered. It may be expedient to reproduce hereunder the pivotal Issue No. 4 which reads below:
"Issue No. 4. Whether the oral agreement to sell between the parties in respect of the land in dispute was arrived at for a consideration of Rs.3,00,000/- and the defendants received Rs.50,000/- in advance and delivered the possession to the plaintiff? OPP."
5. Onus probandi of above Issue No. 4 was upon the respondent. There is no cavil to the proposition that in terms of Article 70 of the Qanun-e-Shahadat Order, 1984 all facts except the contents of documents may be proved by oral evidence. Article 71 of the Order ibid contemplates that oral evidence must, in all cases whatever, be direct.
6. Abdul Majeed respondent while appearing in the witness-box as PW-1 stated that Ameer Hamza was owner of 44 Kanals and 12 Marlas of land in Mauza Ajja Bhutta who has died and his succession has devolved upon the appellants; that Ameer Hamza before 6 months of his death had agreed to sell the suit land in his favour in consideration of Rs.3,00,000/- and that he had paid advance sum of Rs.50,000/- in front of Muhammad Hussain Pattidar, Qamar Hussain and Ahmad Khan Lambardar and that appellants were also accompanying their father at that time. Bare reading of the above statement of Abdul Majeed respondent transpires that he has not stated that the appellants had entered into an agreement to sell their share in the land measuring 44 Kanals 12 Marlas or that he had paid any earnest money of Rs.50,000/- to the appellants.
7. Respondent also produced Qamar Din as PW-2 who stated that the appellants are sons of his sister-in-law (Sali) and that appellants in possession had agreed to sell their land situated in Mauza Ajja Bhutta; that the respondent had paid Rs.50,000/- to the father of the appellants; that after the demise of Hamza appellants resiled and refused to perform the agreement. Statement of Qamar (PW-2) transpires that he neither stated that Hamza had entered into an agreement to sell the suit land with Abdul Majeed nor uttered that Muhammad Hussain PW-3 was present there. Respondent has also produced Muhammad Hussain as PW-3 who in his statement has not mentioned about the presence of Qamar Din PW-2 at the time of alleged agreement to sell between the parties.
8. Both Qamar Din PW-2 and Muhammad Hussain PW-3 have also miserably failed to state that on what date or in which year parties had entered into an agreement to sell. Both also did not state that how much time had passed since the alleged agreement to sell between the parties. Even the respondent in his plaint has not named them as witness to the impugned agreement to sell. Suit for specific performance was lodged by the respondent on 9.5.2001. Before filing this suit he had also lodged a suit for permanent injunction against the appellants on 6.7.1994, copy whereof is available on the record as Exh.D/5. In the said suit respondent categorically asserted that Ameer Hamza died four months back and that the appellants and their predecessor namely Hamza had agreed to sell the suit land with the respondent in consideration of Rs.3,00,000/- about two years back meaning thereby the impugned agreement to sell between the parties was made about one year and 8 months before the demise of Hamza. Contrary to the above, while appearing in the witness-box as PW-1 in the suit for specific performance the respondent categorically stated that Ameer Hamza entered into the impugned agreement to sell with him 6 months before his demise. It is well established principle of law of evidence that a person can tell a lie but the documents cannot.
9. Perusal of the impugned judgment dated 14.11.2001 passed by the learned trial Court transpires that the learned trial Court appears much impressed from a suggestion made by the appellants to Abdul Majeed respondent during cross-examination that he has been asking Hamza and the appellants to take money and give the land as the same is legacy of his father. It is astonishing that the learned trial Court miserably failed to appreciate the evidence in true perception with reference to the context. Before the said suggestion it was admitted by him that the suit land was part of joint Khata and mother of the appellants had not got it partitioned. The above referred suggestion fails to indicate any agreement to sell between the parties. Needless to say that the respondent was under heavy burden to prove the alleged factum of oral agreement to sell between the parties which he could not establish through reliable ocular or documentary account. It is therefore obvious that the learned trial Court highly misconceived the above noted suggestion. Findings of the learned trial Court on Issue No. 4 based on misreading and non-reading of evidence therefore being against law and facts are untenable. Learned appellate Court also fell in grave error by maintaining the erroneous findings of the learned trial Court on this issue.
10. It is pertinent to mention that the Court commits an error if it acts contrary to law. The term `law' refers not only to statutory law but also general principles of law. If a Court acts contrary to law, it acts without jurisdiction and its order to that extent is nullity. It is bounden duty of the Court to decide the controversy between the parties on the basis of evidence on the record which is legally admissible. A decision based on mistaken assumption and misreading or non-reading of evidence, falls within the ambit of an error of law. In this case concurrent findings of both the learned Courts below therefore based on erroneous reasoning, and misreading and non-reading of the evidence are untenable and liable to set aside.
11. For the above reasons, the appeal is accepted, judgments and decrees of both Courts below are set aside and the respondent's suit for possession is dismissed with costs.
(R.A.) Appeal accepted
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