1994 PLP 1200 (CLC)

This R.S.A. had arisen out of the judgment and decree, dated 20‑10‑1971, by which the learned District Judge, Sheikhupura, had dismissed the appeal of the plaintiff‑appellant against the judgment and decree, dated 16‑11‑1970, whereby his declaratory suit was dismissed with costs by a learned Civil Judge at Sheikhupura.

2. The brief facts of the case are that a piece of land measuring 44 Kanals 5 Marlas situated in the area of Village Manga, Tehsil and District Sheikhupura, was the ownership of Mst. Jewan, widow of Khera. She had four daughters, namely, Mst. Umri, Mst. Bali, Mst. Rehmatay and Mst. Jano. On her death her inheritance mutation was sanctioned to the extent of 19/24 share in favour of her aforesaid four daughters and remaining 5/24 share went to the appellant and the respondents jointly, being the collateral of her husband. Prior to the attestation of inheritance mutation, the parties herein allegedly entered into the agreement, dated 28‑5‑1959, to the effect that whatever share they got from the inheritance of Mst. Jewan, half of it would be given to Muhammad Shafi plaintiff‑appellant, including his. actual share therein, and the remaining half shall go to the defendants‑respondents. Persuant to this agreement, the parties took possession of their 5/24 shares in the estate of Mst. Jewan. However, subsequently the defendants‑respondents, as alleged by the plaintiff‑appellant, tried to eject him from the agreed share of the property and he brought a suit for declaration and permanent injunction.

3. The suit was resisted by the defendants‑respondents. In their written statement they denied the allegations of their opponents, including the execution of the agreement.

4. On the pleadings of the parties the learned trial Judge framed the following issues:‑‑‑ Issues: (1) Whether the agreement was executed by the parties? .(2) Whether the agreement between the parties is enforceable in law? (3) Whether the plaintiff is the owner of the suit land? (4) Relief. After recording the evidence of the parties and hearing their counsel, he decided issue No.l in affirmative and issues Nos.2 and 3 in negative. As a result, he dismissed the suit. Aggrieved by these findings, the plaintiff went up in appeal before the learned District Judge, Sheikhupura, but there too he remained unsuccessful and preferred this R.S.A.

5. Learned counsel for the plaintiff‑appellant has assailed the findings of the Courts below on issues Nos. 2 and

3. He submits that in the agreement (Exh.P‑1) the parties had agreed that in case they emerged successful in the litigation, half of the land would be given to the plaintiff‑appellant and persuant to this agreement they actually transferred possession of half of the land to him but later they resiled from their undertaking and tried to interfere in his possession unlawfully, compelling him to bring the suit giving rise to this appeal. According to him, there was no ambiguity in the terms and conditions of the agreement and it was clearly enforceable, at law but the Courts below took an erroneous view of the matter.

6. I have perused the contents of the agreement (Exh.P‑1) with the assistance of the learned counsel representing the parties and find that the terms and conditions are so ambiguous that it is difficult to make any head or tail out of it. The land originally belonged to Khaira, the husband of Mst. Jewan, and on his death it had devolved on her. She also died and was succeeded by her four daughters, namely, Mst. Umri, Mst. Bali, Mst. Rehmatay and Mst. Jano. Since she had no son, her daughters obtained 19/24 share, while the remaining 5/24 share went to the collaterals of her husband. Out of 5/24 share, equal to 11 Kanals approximately, half of it went to the heirs of Fatha while the remaining half was distributed amongst the parties to this litigation, each one getting a little more than 1 Kanal. The recital in the deed indicates that there was some dispute between the parties with the heirs of Fatha, namely, Munshi etc., while the evidence led by the parties indicates that in fact the dispute was with the daughters of Mst. Jewan. All these facts render the agreement so vague and uncertain that it could not be possibly enforced. Therefore, no fault can be found with the concurrent findings of the Courts below and the appeal is dismissed, with no order as to costs. M.Z.S./A/1360/L ??????????????????????????????????????????????????????????????????????????????? Appeal dismissed.