1989 SCMR 1298 (PLP)

S.12‑‑Constitution of Pakistan (1973), Art.199‑‑Plaintiff on basis of agreement to sell obtained decree for specific performance of contract of sale‑‑Such decrec was'set aside in appeal but was restored in revision by the High Court‑‑Plaintiff had entered into agreement to sell with the person holding power of attorney on allottee‑‑Contention that such attorney was not authorized to teal of the owner enter into agreement to sell the disputed land to plaintiff‑‑Nothing on record was that the attorney had unauthorized entered into agreement to sell with plaintiff where under, he had received earnest money of substantial amount and sale was to be completed when proprietary rights 'were to be obtained by the :owner who was then to receive the balance amount of sale consideration High Court had rightly held that such an agreement was legally admissible to` be entered into and that same could not be equated with an outright sale Plaintiff was' thus found entitled to have the said agreement ,specifically enforced Leave was thus refused. Ch. Muhammad Ashraf Wahlah, Advocate Supreme Court instructed by M.Aquereshi Advocate on Record for Petitioners. Nemo for Respondents Date of hearing: 21st February 1989 JAVID IQBAL,J

This petition for leave to appeal is directed against judgment of the Lahore High Court Multan Bench dated 9 July 1984 whereby civil revision of Muhammad Akram respondents was accepted judgment and decree of the Additional District Judge were set aside and those of the trial court restored. Briefly the facts are that Mst. Rahim Jan respondents No3 was allotted the disputed lands as an Islamabad oustee. By mean of general power of attorney executed and registered no 31 December 1968 at Rawailpandi she appointed Ghulam Rasul respondents No2 as her attorney him inter alia to sell the land in question. :On 2 October 1972 respondent No.2 on behalf of respondent t No.3 entered into an agreement with Muhamsnad A:kram respondent No.l to sell the land in dispute for Rs.45,

000. He received earnest money of Rs.30,0t)0 from him‑ and handed over possession of the land to him. Thereafter respondent No.3 revoked the power of attorney executed in favour of respondent No. 2 on 1 November, 1973. Subsequently on 19 January 1974 respondent No.3 made an agreement with the present petitioners to sell the suit land to them for Rs.50,000 and received from there Rs.20;000 as earnest money: On 30` January 1974 the present petitioners filed suit against , Muhatnmad Akram respondent for a declaration that the agreement, dated 19 January 1974 with them of respondent No.3 was binding upon her and that they were entitled to take possession of the disputed land, and for the issuance of permanent injunction as against her restraining her from alienating the land except to them. On 6 February,1974 a consent decree was obtained to that effect anon the basis of the same‑ mutation was sanctioned in favour of the petitioner's on 8 ‑May 1974‑ as owners of the disputed land. On 18 December 1974 respondent No.3 obtained proprietary rights of the land in question and on the same date the 'sale in favour of the petitioners was completed and agreement to sell was replaced by a registered sale‑deed. In the mean time on28 June 1974 respondent No.l Instituted a shit as against respondent No.3 3 well as the petitioners for specific performance of the _A sale of the land in dispute made in his favour on 2 October 1972 is finalized on 18 December 1974 when respondent No.3 obtained rights‑and in consequence thereof declaring the mutation‑in favour of the petitioners of the said land as void and ineffectual on his rights as we as for the issuance of permanent injunction restraining the petitioners ‑from interfering with his rights in and possession of the land The suit was decided against the petitioners on 18.March.;1979;However,their appeal we reaccepted 1 April, 1982. The appellate judgment was challenged by Muhammad Akram respondent by way of civil revision which as stated above was; accepted Hence the present petition. Learned counsel for the petitioners attempted to argue before us that respondent hho,3 had not. authorized respondent NV:2 to enter into agreement to sell the disputed land to ‑respondent No.1, and that the transaction made of 2 October,: 1972 in favour of Muhammad Akram respondent by Ghulam Rain respondent was outright sale which. was hit by the provisions of section 19 f the Colony Act. ‑It was further submitted that mere delivery of possession to Muhammad Akram respondent Was tit itself not conclusive of the fact that a sale had taken: place and that the conclusion arrived. at by the first appellate Court‑ was correct. We have heard learned counsel at some length but his arguments have no force. Evidently there was nothing on the record to show that Ghularn Rasul respondent had unauthorized entered into an agreement on 2 October 19721 with Muhammad Akram respondent. This was an agreement to sell where under the earnest money of Rs30,000 had been received and the possession given toy Muhammad Akram respondent. However, the sale was to be completed when the proprietary rights were: to be obtained. By respondent No.3 who was to, receive Rs.15,000 as balance amount of the sale consideration. Therefore it was rightly held by the High Court that such an agreement was legally admissible to be enticed into and that it could not be equated with art outright‑sate In that view of the neat Muhammad Akram. respondent was entitled to have the said agreement specifically enforced. Since this is the position we do not find any substance in this petition which is accordingly dismissed. AA./A‑443/S Leave refused.