P L D 1988 Lahore 390 (PLP)

This was a suit for the specific performance of an agreement dated 14‑9‑1940. It was decreed by a judgment of the learned trial Judge dated 6‑5‑1968 and the judgment and decree of the learned trial Court was affirmed on appeal by a judgment of the learned District Judge, Multan, dated 16‑10‑1968.

2. Nazar Rauf etc. defendants, have preferred this Second Appeal.

3. The parties to the agreement dated 14‑9‑1940 (Exh.P6) were Muhammad Hussain and Muhammad Khadim Pir; they were sons of Charagh Ali Shah and it is of some importance to note that they were by different mothers. The land in suit measures 200 Kanals 12 Marlas and is situate in Chak No.481/E.B. Tehsil now District Vehari.The land belonged to the Government and it is now common ground between the parties, and this fact is evidenced by the order of the Colonization officer dated 25‑5‑1928 (Exh.P21A) that the Colonization Officer had, in the exercise of his powers under Section 10(3) of the Colonization of Government Lands Act, 1912, allotted it jointly to Muhammad Hussain and Muhammad Khadim Pir on the conditions published in Punjab Government Notification No.299‑D dated 21‑1‑1926 as amended by Punjab Government Notification No.1138‑D (S) dated 16th September, 1927 . It appears that Muhammad Hussain was an ordinary resident of Sialkot, whereas Muhammad Khadim Pir lived in Chak No.481/E.B. and had been managing the land. On 12‑3‑1932, Muhammad Hussain made an application Exh.Pl/A to the Collector saying that it was necessary for him to shift his residence to his ancestral place Mauza Sand Pur Tehsil Sialkot and praying that his residence at the land should be exemptrd and that in his absence, his brother Muhammad Khadim Pir be allowed to look after the land. The Collector, instead of exempting his residence at land, by his order. dated 15th March, 1932, allowed Muhammad Hussain to transfer his share in his grant of land in Chak No.481/E.B. in favour of his brother Muhammad Khadim Pir son of Charagh Ali Shah . In this way, Muhammad Khadim Pir became the grantee of the entire land.

4. Muhammad Hussain died on 13‑1‑1941. This suit for the specific performance of the agreement dated 14‑9‑1940 was instituted by his son Dr. Riaz A h mad and his widow Mst. Rabia Bibi on 17‑1‑1965 against Muhammad Khadim Pir. Admittedly, the Government transferred the proprietary rights in the land in. suit in favour of Muhammad Khadim Pir on 9‑7‑1959. Their case as laid in the plaint is as follows. flit land had been granted jointly in the names of Muhammad Hussain and Muhammad Khadim Pir and had remained in their joint possession. Later, by mutual agreement, the land was entered in the sole name of Muhammad Khadim Pir. On 14‑9‑1940, Muhammad Khadim Pir executed the agreement in question in favour of Muhammad Hussain agreeing to transfer half of the land to him. Before that, all the terms and conditions of the grant had been fulfilled. On 5‑9‑1959, Muhammad Rhadim Pir had paid Rs.2,501 to the Government and had obtained the proprietary rights. Under the agreement dated 14‑9‑1940, it was necessary for Muhammad. Khadim Pir to give notice to the plaintiffs about the payment of that money and the proceedings for proprietary rights but he did not do so. By the agreement dated 14‑9‑1940, Muhammad Khadim Pir had agreed to transfer half of the land to Muhammad Hussain or his heirs on payment of Rs.900; he had also agreed that ht~ would place Muhammad Hussain in possession and to have the land entered in the name of Muhammad Hussain. The plaintiffs, therefore, claimed that they were entitled to the specific performance of the agreement on payment of Rs.900 + Rs.1,250.50 the latter sum being one half of Rs.2,150.50 which sum Muhammad Khadim Pir paid to the Government on account of proprietary rights.

5. In the original plaint, it was said that the cause of action for the suit had arisen first on 5‑9‑1959 and then on the refusal of Muhammad Khadim Pir to perform his contract.

6. Muhammad Khadim Pir was first proceeded ex parte. On 30‑11‑196b, an application was made on behalf of the plaintiffs praying for the amendment of the plaint. It was said that they had learnt that Muhammad Khaaiw Pir had made a gift of the land in suit to his son Ghulam Rauf and that this had necessitated the amendment of the plaint. The application was allowed and an amended plaint was filed. It suffices to say that in the amended plaint it was said that the cause of action for the suit had arisen first on 14‑9‑1940, then on 5‑9‑1959 and the last time on 31‑8‑1963. In the amended plaint besides asking for the relief of specific performance, the plaintiffs prayed to have it declared that the mutation of gift dated 31‑8‑1963 in favour of Ghulam Rauf, defendant, was ineffective as against the plaintiffs rights.

7. Later, both Muhammad Khadim Pir and his son Ghulam Rauf contested the suit by filing separate written statements. In his written statement, Muhammad Khadim Pir, defendant, did not even admit the fact that the land had been jointly granted to him and his brother Muhammad hussain. He asserted that he had paid the entire Government dues and had obtained proprietary rights and denied that he had entered into any agreement for the transfer of the land in suit in favour of Muhammad Hussain. Ghulam Rauf, defendant, raised a number of legal objections; only two of them, which were pressed before me, need be mentioned. they are that Muhammad Khadim Pir, defendant, was not competent, without the permission of the Collector, to enter into the alleged agreement and that the plaintiffs were estopped from suing for specific performance because they were guilty of contravening the terms of the agreement. He too asserted that the entire land had been granted to Muhammad Khadim Pir and he alone had spent the ,money on it. He had no knowledge of the agreement dated 14‑9‑1940 and, therefore, denied ft.

8. Muhammad Khadim Pir died during the pendency of the suit and is now represented by the appellants.

9. On the parties pleadings, the learned trial Judge formulated the following issues: (1)Whether agreement referred to in the plaint was validly executed by the defendant No.1? O.P. (2)Whether the agreement was not properly stamped and defends No.1 was not competent to execute it? O.D. (3)Whether plaintiffs are estopped on account of violation of agreement by the plaintiffs? O.D. (4)Whether suit is within time? O.D. (5)Whether suit is not properly valued , for the purposes of jurisdiction and Court‑fee? (6)Relief . 10 The learned Courts below found concurrently that the execution of the agreement by Muhammad Khadim Pir was proved and this being a finding of fact must be taken to be concluded by the judgment of the learned Courts below. Otherwise too the finding appears to be unexceptionable, The, agreement was, scribed by Munshi Faiz Ahmad and was attested by Ghulam Mustafa and Saeed Ahmad. Raushan Din, pleader, had also singed it. Both Muhammad Khadim Pir and Muhammad Hussain had also signed it as executants. To prove its execution, the plaintiffs had examined Munshi Faiz Ahmad; they also had the signatures of Muhammad Khadim Pir, defendant, on the agreement examined by a Handwriting Expert, Asghar Ali Shah. On the other hand, the defendants called Ghulam Mustafa, one of the attesting witnesses as their witness. He denied that the agreement had been written in his presence or had been signed by him or Muhammad Khadim Pir defendant. It is noteworthy that on 6‑5‑1967, Muhammad Khadim Pir had appeared in Court and stated that he could not see (read) the agreement; but after the agreement had been read over to him, he said that he had never executed it. The learned Courts below believed the testimony of Munshi Faiz Ahmad and preferred the opinion of Asghar Ali Shah, Handwriting Expert, over that of Mr. Muhammad Ali Anwar Nomani, Handwriting Expert, who was called as witness by the defendants. Asghar Ali Shah, Handwriting Expert, so he the learned Courts below believed was more qualified than Mr.Muhammad Ali Anwar Nomani and in any case, there was evidence that Mr.Muhammad Ali Anwar Nomani had in some judgments of the Courts, which judgments were placed on the record, been described as a Har. Ghulam Mustafa DW was the real brother of Muhammad Khadim Pir, for he and Muhammad Khadim Pir were sons of Charagh Ali Shah by the same mother. Added to it was the fact that his daughter was married to Ghulam Rauf, defendant, in whose favour, Muhammad Khadim Pir had made a gift of the land in suit in the year 1963. The learned Courts below, therefore, treated his testimony, and if I may say so with respect rightly, as that of an interested witness. The execution of the agreement Exh.P6 received further support from the testimony of Rana Sultan and Bashir Ahmad PWs; they stated that Muhammad Khadim Pir, defendant, had visited Sialkot and had, in their presence, admitted the execution of the agreement and had offered to transfer the share of Muhammad Hussain to the plaintiffs on payment of Rs.900 + Rs.1250.50. It was in evidence that the other witnesses to the agreement had died and were not available at the time of evidence. Earlier, however, when Muhammad Khadim Pir had been proceeded ex parte, the plaintiffs had obtained the evidence of Saeed Ahmad and Raushan Din, who had signed the agreement, on interrogatories and those interrogatories are on the record.

11. Learned counsel for the appellants argued that the execution of the agreement could not be said to be proved because none of the attesting witnesses was called as witness. Learned counsel, however, conceded that the agreement was not a document required by law to be attested and, therefore, was not covered by section 68 of the Evidence Act, 1872.

12. The agreement Exh.P6 began with the recital that in truth half of the land belonged to Muhammad Hussain; that Muhammad Khadim Pir had been in possession of the land since its grant and that the parties had fixed the value of the share of Muhammad Hussain to be Rs.900 which Muhammad Khadim Pir was entitled to receive from Muhammad Hussain. Thus, and this is significant, the agreement contained the reasons which impelled Muhammad Khadim Pir to agree to transfer half of the land to Muhammad Hussain. Having done so, and the parties having agreed To the sum of Rs.900 being paid by Muhammad Hussain to Muhammad Khadim Pir, it was further agree~ that whenever Muhammad Hussain paid that sum, he would have hall the land entered in the Government papers in his name and place him in possession of the land; that FILHAL entire land would remain in the name of Muhammad Khadim Pir and he would also remain, in possession and appropriate its income and that Muhammad Hussain would be liable to pay the Government dues to the extent of his share. The agreement ended on the significant note that the same would be binding upon the parties and their heirs. It seems to me that the word FILHAL in the agreement is the key word; its use was intended to convey the parties intention that till such time as the sum of Rs.900 was not paid by Muhammad Hussain to Muhammad Khadim Pir, the latter would remain in possession of the entire land as the sole grantee, would appropriate the income of the land and that he would not be liable to transfer the land to Muhammad Hussain till the payment of Rs.900 was made. (13) Learned counsel for the appellants tried to make two points; first, that the suit was barred by time and secondly that Muhammad Hussain and after him the plaintiffs were under at, obligation by the terms of the agreement itself to pay the Government dues to the extent of one half and as they had failed to do, they were in breach of the contract and were, therefore, not entitled to the discretionary relief of specific performance. As to the first point, it is sufficient to say, that the agreement did not fix, a date for its performance and the case, therefore, plainly fell within the second part of Article 113 of the first schedule of the Limitation Act, 1908. The learned Courts below found that there was no evidence that Muhammad Khadim Pir had refused performance of the agreement anywhere before 31‑8‑1963, the date he transferred, the land to his son Ghulam Rauf by way of gift. The plaintiffs had served notice P13 upon Muhammad Khadim Pir calling upon him to perform his obligations under the agreement by transferring the land to them but he did not care to reply. As Muhammad Khadim Pir had obtained proprietary rights in the land on 9‑7‑1959, he could not have performed his part of the agreement before that date. Far from there being any evidence of Muhammad Khadim Pir having refused performance of the agreement, the testimony of Rana Sultan P.W.2 and Bashir Ahmad P.W.3, which was accepted by the learned Courts below, proved that Muhammad Khadim Pir had himself offered to transfer the suit land to the plaintiffs somewhere in the year 1963 on payment of Rs,2,150.50. At that time, the plaintiffs could not manage the money immediately and later when the plaintiffs went to Muhammad Khadim Pir with the money and uttered it to Muhammad Khadim Pir, his son Ghulam Rauf would, not allow him to honour his commitment. I can, therefore, see no reason for holding that the finding of the learned Courts below was wrong in law or fact

14. Reference was then made to para. 9 of the amended plaint to contend that according to the plaintiffs themselves Muhammad Khadim Pir had refused performance of the agreement on 5‑9‑1959. It appears that this argument is based upon over writing, by which, WOW was made BUR . For that reason the plaints and the written statements were Sealed into a parcel. The doubt is immediately resolved by reference to original plaint as also to the application for amendment dated 30‑11‑1966. in the plaint, it was said that cause of action had arisen first on 5‑9‑1959 (that being the date of conferment of proprietary rights) and then from the defendant s refusal. In the application dated 30‑11‑1966, it was expressly said that cause of action had accrued to the plaintiffs first on 5‑9‑1959, then from the refusal and then from 31‑8‑1963 when the mutation of gift was sanctioned in favour of Ghulam Raoof, defendant. The law being that time starts running against the plaintiffs trout the date of refusal of E performance, mere mention of the date 5‑9‑1959 did not make difference to the plaintiffs right to sue within three years of the refusal.

15. For his second contention, learned counsel for the appellants referred to that part of agreement which said that Muhammad Hussain would pay the Government dues to the extent of one half. What Ghulam Rauf, defendant, had according to the written statement pleaded was that the plaintiffs were estopped from seeking the performance of the agreement because they had themselves contravened it. Thus, it was not expressly pleaded that the plaintiffs had failed to pay the Government dues as Muhammad Hussain had agreed to do under the agreement. In any case, there was no evidence that except for the money paid by Muhammad Khadim Pir to the Government for obtaining the proprietary rights, he had paid any other dues to the Government before 9‑7‑1959. However, that may be, Muhammad Hussain had died in the year 1941 and no evidence was led that at any time thereafter, Muhammad Khadim Pir had informed the plaintiffs that there were any Government dues (o be paid by them. This was necessary because the payment of the Government dues was a matter between Muhammad Khadim Pir and the Government and Muhammad Hussain or hi successors could not directly pay any dues to the Government, Notice for the payment of such dues, if any, must also have been received by~Muhammad Khadim Pir and not by Muhammad Hussain or his heirs. It appears, therefore, that implied in the stipulation that Muhammad Hussain would pay his share of the Government dues was the term that Muhammad Khadim Pir would give notice to the plaintiffs of the Government dues payable by them. Learned counsel for the appellants referred to Muhammad Yaqoob v. Muhammad Nasrullah Khan and others (PLD. 1986 Supreme Court 497) to argue that in order to be entitled to the relief of specific performance, the plaintiffs had first to allege that they had been ready and willing to perform their part Of the contract and invited me to hold that the plaintiffs had failed to so allege and prove. The precedent case turned on its own facts. There Mst.Umda Begum had agreed to recovery the property to Muhammad Yaqub within five years of 13‑5‑1960, on the payment of the price she had paid to the Settlement Department viz. Rs.13,

481. The case of Muhammad Yaqub, plaintiff, however, was that according to an oral agreement between the parties, the price of the claim adjusted towards the price of the shop would be counted at eight Annas per rupee and that the appellant would pay the price of the shop at that rate and since the respondent had got adjusted Rs.13,481 towards the price of the shop through her claim and paid Rs.63 in cash, the appellant would purchase the shop at Rs.6,803.2811. This was, therefore, clearly a case, in which, the plaintiff had not been ready and willing to perform his part of the contract; what he wanted was to have the contract performed in the way he thought it to be and not as it was. As held by the learned Courts below, it was somewhere in the year 1963 that Muhammad Khadim Pir had approached the plaintiffs and asked them to perform their obligations under the agreement by paying the sum of Rs.900 + Rs.1,250.50. In this connection, learned counsel also referred to the cross‑examination of Dr.Riaz Ahmad, plaintiff, where he stated that he had no money to pay when Muhammad Khadim Pir approached him somewhere in the year 1963. That is hardly evidence of the plaintiffs failure to perform their part of the contract or the absence of their readiness or wiltingness to do so.

16. It was lastly argued that the agreement Exh.P6 was hit by Section 19 of the Colonization of Government Lands Act, 1912; according to the appellants counsel, the agreement purported to transfer the land to Muhammad Hussain and as this was done without the necessary permission of the Collector, it was void. A reading of the agreement as a whole shows it clearly that it was a mere agreement to transfer and not a deed, by which, Muhammad Khadim Pir transferred his rights in the land to Muhammad Hussain. To such an agreement section 19 of the Colonization of Government Lands Act has no application. Learned counsel for both the parties relied upon Mst. Begum Bibi and others v. Abdul Sattar 1987 S C M R 1; that was, however. a case in which proprietary rights in respect of the suit land had already vested in the appellants when their attorney had executed the agreement to sell. Here, by the agreement Exh.P6, no rights in praesenti in the land in suit were transferred or purported to be transferred in favour of Muhammad Hussain and tile appellants cannot, therefore, pray the provisions of section 19 in their aid.

17. For these reasons, there is hardly any merit in the appeal, which is dismissed with costs throughout. A.A./ N-118/L Appeal dismissed.