2016 PLP 1 (YLRN)

ALI AKBAR QURESHI, J.

One Hukam Dad deceased (respondent No.8) was issued a permit No.80038 by the Capital Development Authority Islamabad under a scheme known as Islamabad Oustees Scheme on 26.02.1966 for the allotment of agricultural land measuring 12-1/2 acre; said Hukam Dad entered into a written agreement with one Ghulam Qadir, predecessor of the respondents Nos.1 to 6 to sell the land which was to be allotted against the aforesaid permit for a consideration of Rs.15,000/- the said agreement was executed on 19.03.1966. Lastly, till the aforesaid date, no allotment was made to the said Hukam Dad; out of total consideration, a sum of Rs.14,800/- was paid whereas the remaining amount was to be paid at the time of execution of the sale deed; said Hukam Dad also executed general power of attorney in favour of Riaz Ahmad (respondent No.7) one of the sons of Ghulam Qadir; anyhow, the said power of attorney was revoked in 1973; Hukam Dad deceased (respondent No.8) subsequently, on the basis of afore-referred permit, allotted land measuring 49 Kanal 07 Marla situated in Chak No.569/EB Tehsil and District Vehari and land measuring 60 Kanal situated in Chak No.565/EB. On conferment of proprietary rights of the aforesaid land on 08.01.1982, the said Hukam Dad (respondent No.8) allegedly, instead of executing the sale deed in favour of Ghulam Qadir, sold away the suit land in favour of present petitioner No.1 through registered sale deed dated 11.02.1984 for a consideration of Rs.300,000/- along with the possession. On coming to know it, the legal heirs of Ghulam Qadir, respondents Nos.1 to 6, instituted a suit for specific performance on 10.05.1984, along with seeking the specific performance, the cancellation of the registered sale deed dated 11.02.1984 in favour of the petitioner No.1. The petitioner No.1, during the currency of the suit, sold the suit land to the petitioners Nos.2 to 9, therefore, they were also made party. The suit was contested by the petitioners/defendants by filing their separate written statements, and Hukam Dad deceased (respondent No.8) filed his separate written statement. The learned trial court framed necessary issues on the divergent pleadings of the parties, recorded the respective evidence and finally dismissed the suit vide judgment and decree dated 31.01.1991. Against the judgment and decree dated 31.01.1991, an appeal was filed by the respondents/plaintiffs which was allowed, the findings of the learned trial court were reversed and the suit was decreed, hence, this civil revision.

2. Learned counsel for the petitioner, at the very outset of the arguments submitted, that the suit filed by the respondents is liable to be dismissed in view of the principle laid down by the Hon'ble Supreme Court of Pakistan in a landmark judgment cited as Farzand Ali v. Khuda Bakhsh and others (PLD 2015 Supreme Court 187). Further submitted, that the alleged agreement to sell dated 19.03.1966 has not been signed or thumb marked by the vendee (predecessor of the respondents), therefore, the alleged agreement is unilateral and the specific performance of such agreement cannot be sought. When it was confronted to the learned counsel for the respondents, the learned counsel had no answer but argued, that the marginal witnesses were produced.

3. In view of the dictum laid down by Hon'ble Supreme Court of Pakistan in judgment supra, this type of the document has no legal sanctity or validity in the eye of law. Even otherwise, if the contract is reduced into writing, it should not only be signed by the vendor but also by the vendee to complete the imperative element of offer and acceptance, so that it should reflect and establish their "consensus ad idem". This proposition has been dealt with by the Hon'ble Supreme Court of Pakistan in a recent esteemed judgment titled Farzand Ali v. Khuda Bakhsh and others (PLD 2015 Supreme Court 187), the relevant portion is reproduced as under: "

9. In the above context, the first and the foremost aspect of the case is, if the agreement to sell of the appellants was valid because if it is not valid the question of its enforcement through the process of law and the exercise of discretion does not arise. It is an undisputed fact that appellants' agreement has not been signed by them. And an agreement to sell immovable property is not a "deed poll", unlike e.g. a power of attorney which is only executed by the principal and the agent's execution is neither required nor expedient. Rather in law such an agreement (of immovable property) is a contract (note: may be executory in nature) and the first, and the foremost requisite of a contract (agreement) is that the parties should have reached agreement, which unmistakably means, that an agreement is founded upon offer and acceptance. Thus for the purposes of a valid contract (agreement) there should be the meeting of minds of the contracting parties (who are competent in law to contract). And where a contract is reduced into writing, not only should it be Minded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. So that it should reflect and establish their "consensus ad idem", which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of ascent, and reflects and proves the intention of the parties thereto, In particular it refers to the situation where there is a common understanding of the parties in the formation of the contract in the absence of which there is neither a concept nor the possibility of a valid contract. But in this case this is conspicuously lacking by virtue of non-execution (non-signing) of the agreement by the appellants, therefore, in law and fact is no contract (agreement). The argument that the agreement to sell in favour of the appellants has been admitted by the vendors and, therefore, is valid and the non-signing has lost its efficacy, suffice it to say that despite the above, the respondent has joined issue with the appellants vis-a-vis the validity and valid execution of the agreement, therefore, the appellants cannot rely upon and take advantage of any admission made by the vendors, because of the law, that an admission made by a co-defendant is not binding on the other even if made in the written statement Further it has already been ruled by the Hon'ble Supreme Court of Pakistan, that if the agreement to sell is legally invalid, as in this case, the question of its enforcement through the process of law and the exercise of discretion does not arise. It is undisputed fact and even not denied by the learned counsel for the respondents, that the agreement to sell dated 19.03.1966, has not been signed by the vendee, therefore, it was not a "deed poll" as observed by the Hon'ble Supreme Court of Pakistan, unlike a power of attorney, which is only executed by the principal and not signed by the attorney/agent.

4. In view of the above, it can safely be observed, that the agreement to sell allegedly executed by the respondent No.8 in favour of predecessor of respondents Nos.1 to 6 is an invalid document/agreement and cannot be enforced through the process of law as observed by the Hon'ble Supreme Court of Pakistan.

5. Even otherwise, the other record of the case was perused and as also evident from the findings of the learned trial court, that the respondents could not prove the payment of consideration through any reliable or confidence inspiring evidence.

6. There is another aspect of the case, that the alleged agreement, which is otherwise invalid, was executed in the year 1966, whereas the suit was filed in the year 1984, therefore, the suit is otherwise hit by the principle of limitation. The learned trial court, while delivering the judgment, attended all the aspects of the case and finally reached to the conclusion, that the respondents have miserably failed to prove their case and the learned appellate court, without appreciating the material available on the file in true perspective, decreed the suit which is not maintainable in law.

7. Anyhow, the agreement to sell dated 19.03.1966 on the basis of which the suit has been filed, is illegal, unlawful, invalid in view of the dictum laid down by the Hon ble Supreme Court of Pakistan in judgment supra, therefore, the suit filed by the respondents can conveniently be dismissed on this sole ground.

8. Resultantly this revision petition is allowed, the judgment and decree passed by the learned appellate Court is set aside and that of the learned trial Court is upheld. No order as to cost. ZC/M-19/L Revision allowed.