PLJ 2001 Lahore 776

Present: MAULVI ANWARUL-HAQ, J. Syed NASIR ALI

SHAH-Petitioner
versus Syed RIAZ ALI SHAH and another-Respondents
C.R, No. 928 of 1989, heard on 25.1.2001. Civil Procedure Code, 1908 (V of 1908)-
—S. ilS-Specific Relief Act, 1877-S. 27(b)~Agreement to sell-Suit for specific performance filed
by petitioner decreed by trial Court, dismissed by Addl. District Judge-Challenge to-Respondent
No. 2 was not aware of agreement between two brothers-Only evidence in proof of positive
assertion that Respondent No. 2 was aware of alleged agreement is statement of petitioner
himself--It is well settled that Civil matters are decided on basis of probabilities of course, if
material is there to draw inference-Mostly decisions are rendered on high probability principle
and there is nothing wrong in doing so provided material available was in the circumstances
before forum concerned and or it was noticed in orders concerned-Even under Evidence Act
this recourse is possible where "evidence" as defined in said Act is not forthcoming-And
judgment regarding "proof of certain fact could be rendered if after considering "matter" before
it, Court considers its existence so probable that prudent man ought, under circumstances of
particular case, to act upon supposition that it exists-Held: Inference drawn by Additional
District Judge from evidence available on record as also attending circumstances of case can
neither be said to be perverse nor impugned judgment and decree be said to be result of
misreading or non-reading of evidence on record-Held further: Respondent No. 2 is entitled
to protection of proviso to Section 27(b) of Specific Relief Act-Petition dismissed.

[Pp. 780 & 781] A, B, C & D

Ch. Khurshid Ahmad, Advocate for Petitioner.

Ch. Nasarullah Warraich, Advocate for Respondent No. 2.

Nemo for Respondent No. 1.

Date of hearing: 25.1.2001.

JUDGMENT

On 2.3.1983 the petitioner filed a suit against the respondents. In the plaint it was alleged that
the Respondent No. 1 agreed to sell the suit land measuring 72 Kanals to the petitioner for a
consideration of Rs. 24,000/-. He received a sum of Rs. 10,000/- and executed an agreement as
well as a receipt on 13.9.1982 and delivered possession to him; that Respondent No. 1 proceeded
to transfer the knd to Respondent No. 2 by means of exchange deed dated 22.9.1982; that
Respondent No. 2 was aware of the agreement. With these averments a decree was sought for
specific performance of the said agreement. Respondent No. 1 in his written statement
proceeded to admit the agreement and the receipt of money who alleged that the petitioner
had not shown diligence in the matter of performance and the Respondent No. 2 forced him
through some Syed Zafar Ali to sell the land to him in the shape of exchange; that he had
apprised Respondent No. 2 of the said agreement but despite this Respondent No. 2 insisted and
he proceeded to sell the land by means of an exchange. Respondent No. 2 in his written
statement complained that the suit is collusive inter se the two brothers i.e. the petitioner and
Respondent No. 1; that they have fabricated some documents to cause wrongful harm to him.
He also alleged that the brothers have colluded to deprive him of the land lawfully acquired. He
also stated that Respondent No. 1 has got filed a pre-emption suit by another brother. Issues
were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide
judgment and decree dated 10.1.1988. Feeling aggrieved Respondent No. 2 filed a first appeal
which was heard by a learned Addl. District Judge, Chiniot who allowed the same and
consequently dismissed the suit of the petitioner on 17.1.1989.
2. Learned counsel for the petitioner contends that evidence on record has been
misread by the learned Addl. District Judge; that the inferences drawn by the learned
Additional District Judge in his impugned judgment could not have been so drawn on the basis
of evidence on record. Learned counsel for Respondent No. 2, on the other hand, supports
the impugned judgments and decrees.

3. I have gone through the copies of the record appended with the Civil Revision, with
the assistance of the learned counsel for the parties. The following chronological order of
events emerges from a reading of the record:--
(a)              Vide Ex.D. 2 four sons of Syed Dewan Ali Shah including the petitioner and
Respondent No. 1 purchased land measuring 336 Kanals 15 Marias including the
suit land measuring 72 Kanals from Mst. Ghulam Sakina vide decree dated
31.3.1982 of a learned Civil Judge, whereby an award was made rule of the
Court. They so purchased the suit land for a consideration of Rs. 9,00,GOO/-.
(b)             On 13.9.1982 Respondent No. 1 executes agreement Ex.P. 1 in favour of the
petitioner promising to transfer the suit land to him for Rs. 24.000/- and
receives Rs. 10,000/- vide receipt Ex.P. 2.
(c)              On 22.9.1982 Respondent No. 1 transfer the suit land to Respondent
No. 2 vide exchange deed registered on 22.9.1982 (Ex.P. 3).
(d)             On 18.10.1982 vide sale-deed Ex.D. 11 Respondent No. 1 proceeded to
sell the plot, he had received from Respondent
No. 2 in exchange for the suit land. On 2.3.1983 the petitioner files the present suit
seeking specific performance of the said agreement.
 (e)              On 22.9.1983 Syed Shaukat Ali Shah, a brother of the petitioner and
Respondent No. 1 files a suit for possession of the suit land by pre-emption (Ex.D7)
claiming that the land has in fact been sold by Respondent No. 1 in favour of
Respondent No. 2 for a consideration of Rs. 25,000/-.
(f)        On 14.12.1983 Respondent No. 1 files a written statement inthe present suit
admitting the said agreement and the receipt
and stating that he has sold the land to Respondent No. 2 which sale has been given
a colour of an exchange and also alleging that Respondent No. 2 had been
apprised of the agreement but still he insisted and purchased the land disguised
as an exchange.
4. From the record present on the file it is not discernable as to when-Respondent No. 1
was served in the present suit. However, he filed a written statement on 23.7.1984 contending the
averments as detailed by me above. It goes without saying that while filing the said written
statement Respondent No. 2 must be feeling himself on the horns of a dilema as he was facing a
specific performance suit filed by one brother and a pre-emption suit alleging the exchange to be a
sale, filed by the other brother of Respondent No. 1. Now the agreement is said to have been
executed and earnest received on 13.9.1982. It says that the agreement is to be performed by
13.11.1982. Only 9 days thereafter Respondent 'No. 1 proceeded to transfer the land to Respondent
No. 1 on 22.9.1982. The petitioner has stated in his plaint that: Now Respondent No. 1 did not
enter the witness-box, although a bare reading of his written statement shows that it is an attempt
to kill two birds with one stone. On the one hand he affirmed that Respondent No. 2 was aware of
the agreement and still proceeded to get the land and on the other he took care to support the
version of his other brother who had filed a suit for pre-emption alleging that exchange in favour of
Respondent No. 2 is in fact a sale, by asserting that the land was sold by him to Respondent No. 2.
He accuses the petitioner of indolence in the matter of performance of contract.
5. There is nothing in the evidence, even in the statement of the petitioner as to what
motivated Respondent No. 1 to change his mind just 9 days after executing the agreement and
receiving earnest money from the oiner brother. Notwithstanding the fact that on the basis of
document Ex.D. the observation of learned Additional District Judge is there that the petitioner
had purchased the suit land for about Rs. 2,00,000 on 31.3.1982, the fact remains that whereas the
agreement was entered into for a consideration of Rs. 24,000/-, the other brother stated in bis
plaint Ex.D. 7 that the land has been sold Rs. 25,000/- while vide £x.D. 11 the plot obtained in
exchange was sold for Rs. 20,000/-. This would mean that the consideration got by Respondent
No. 1 in return for the land from Respondent No. 2 was either equal to or even less than the one
for which he agreed to sell the land to his brother, the petitioner. The element of greed thus stands
excluded. No other reason for the said action of RespondentNo. 1 is coming forth except the
one tried to be explained by Respondent No. 1 in his written statement that it was some Syed
Zafar All who forced Respondent No. 1 to sell the land to Respondent No. 2 under the garb of
an exchange. I have already stated above that Respondent No. 1 has not entered the witness-box
and since the pleadings are no substitute for evidence the said reason stated by Respondent No.
1 is to be ignored. Another significance aspect of the matter is that while the petitioner was in
the witness box as P.W. 4, the cross-examiner tried to extract the answer to the said question
posed by me above. It was not stated by the petitioner that the relations had become strained at
a point of time before execution of exchange deed in favour of Respondent No. 2 on 22.9.1982
between the two brothers, so that he would try to cause loss to Mm as alleged by him. In reply
to a question, however, he blurted out that the dispute arose when the land was sold by
Respondent No. 1.
6. Yet another aspect of the case is that in the written statement filed by Respondent
No. 1 although tailor made to suit the purposes of the petitioner as well as the other brother
who had filed a pre-emption suit but it was not in any manner suggested by Respondent No. 1
that whether it was an exchange or a sale he made in favour of Respondent No. 2, the
consideration was inadequate. It was not alleged by him that the transaction was without
consideration. It has come in the statement of Respondent No. 2
in the course of cross-examination that he was not aware of any agreement between the two
brothers. The only evidence in proof of the positive assertion that Respondent No. 1 was
aware of the alleged agreement is the statement of petitioner himself, To my mind in the said
state of evidence on record Respondent No. 2 is entitled to the protection of the proviso to
Section 27(b) of the Specific Relief Act, 1877,
7. Learned counsel for the petitioner contends and I am in agreement with him
that direct evidence as such of collusion between the two brothers is not forthcoming on
record. However, it is also well settled that the civil matters are decided on the basis of
probabilities, of course, if material is there to draw an inference. I seek to draw support
from the judgment in the case of Fazle Ghafoor vs. Chairman, Tribunal Land Disputes,
Dir, Swat at Chitral at Mardan and 6 others (1993 SCMR 1073). I deem it proper to reproduce
here the following excerpts from the judgment of Chief Justice Muhammad Afeal Zxillah
(as his Lordship then was) appearing at pages 1076 and 1077 of the said report:

"As has already been mentioned there is always a feeling in such like cases that the concrete
evidence for giving final clear findings was neither before lower authorities nor before the
High Court. Mostly the decisions are rendered on the high probability principle and there is
nothing wrong in doing so provided the material available was in the circumstances before the
forum concerned and or it was noticed in the orders concerned. Even under the Evidence Act
this recourse is possible where the "evidence" as defined in the said Act is not forthcoming. And
judgment regarding "proof of a certain fact could be rendered "if after considering the
"matters" before it, the Court considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the supposition that it exists.
The word evidence has been defined but the word "matters" which could include evidence as
defined as well as other matters did not fall strictly within the scope of evidence. In the cases
like the present one the matters would include that material as well which would fall within the
scope of mixed facts and law. Amongst others, they will also include documents, presumptions,
statements, which might otherwise be not included in the strict scope of evidence. The selection
of word "matters" instead of evidence when defining proof, by the legislature in its wisdom,
was perhaps to decide a large number of cases of this nature wherein evidence stricto senso
would not be available."
8. In view of the above discussion I do find that the inferences drawn by learned
Additional District Judge from the evidence available on record as also the attending
circumstances of the case can neither be said to be perverse nor the impugned judgment and
decree be said to be the result of misreading or non-reading of evidence on record. I do not,
therefore, find it a fit case to be interfered with in exercise of revisional jurisdiction. The Civil
Revision is accordingly dismissed leaving the parties to bear their own costs.
(B.T.) Petition dismissed.