2006 PLP 817 (CLC)

SYED ZAHID HUSSAIN, J.

A suit for specific performance was filed by Munshi Khan, (the predecessor-in-interest of respondents Nos.1 to 9), which Was based upon an agreement to sell dated 28-4-1976. The suit was contested necessary issues were framed by the trial Court. It was tried and eventually decreed vide judgment, dated 18-5-1995 to the extent of 12 Kanals of land for the consideration mentioned in the judgment. The judgment was assailed against by the petitioner, which appeal was dismissed by the learned District Judge, Narowal on 8-4-2000. This is revision petition in this context.

2. The learned counsel contends that under the agreement dated 28-4-1976 (Exh.P.5), the respondent/plaintiff could be granted decree to the extent of 1/5th share of the ownership of the petitioner, whereas the decree has been granted to the extent of his full ownership, which is illegal. According to him even the suit was barred by limitation. The learned counsel for the respondents Nos.1 to 9 contends that the Courts below have rightly granted decree for 12 Kanals of land in favour of the plaintiff and that the case sought to be set up before this Court now was never pleaded in the lower Courts. It is contended that the suit was well within limitation, as after the agreement to sell litigation qua the ownership and entitlement of the petitioner/defendant had remained pending, which concluded on 14-6-1987 when Writ Petition No.256/R of 1985 was disposed of by this Court.

3. The respective contentions of the learned counsel have' been considered. Taking first the question of limitation, suffice it to observe that the ownership and entitlement of the petitioner had been in dispute and clouded due to the litigation, which ensued soon after the agreement. to sell and was concluded on 14-6-1987 when as a result of some compromise, Writ Petition No.256/R of 1985 was disposed of on 14-6-1987 and the ownership/entitlement of the petitioner was reduced to 12 Kanals only. Munshi Khan deceased was party in that writ petition and very much aware of the same. The suit was filed by him on 7-9-1987, which could not be regarded as time-barred. The finding recorded on this issue by the Courts do not call for any interference.

4. Insofar as the extent of the decree to which Munshi Khan deceased was entitled to is concerned, it may be mentioned that agreement related to land measuring 82 Kanals, 1 Marla and Munshi Khan deceased had agreed to purchase 1/5 share out of the same whereas remaining 4/5 was to be sold to others. Munshi Khan thus could sue and obtain decree to the extent of 1/5. As mentioned above, as a result of the litigation that ensued after the agreement the ownership of Sakhi Muhammad petitioner was reduced to 12 Kanals only. It cannot be overlooked that till the disposal of the Writ Petition No.256/R of 1985 on 14-6-1987 no suit was filed by Munshi deceased to seek enforcement of agreement dated 28-4-1976. He was thus fully aware of the litigation pending qua the ownership and entitlement of Sakhi Muhammad and when the matter was disposed of by the High Court he instituted the present suit out of which the present revision petition has arisen. It was within his knowledge that the entitlement and ownership of Sakhi Muhammad had been reduced to 12 Kanals. He could only lay claim to the extent of.1/5 out of 12 Kanals. He could not be granted decree for whole of the land, which in toto was left with Sakhi Muhammad. The decree granted by the Courts below is thus, liable to be modified to that extent.

5. As to the contention of the learned counsel that a new case is sought to be set up by the petitioner before this Court, it may be mentioned that it is not so. The learned District Judge has indeed dealt with this aspect of the matter in paragraph No.11 of the judgment. It thus, cannot be argued that a new plea has been raised before this Court. Suffice it to observe that in a suit for specific performance the plaintiff is to confine his claim to the extent mentioned in the agreement while seeking enforcement thereof. Since the share, which was agreed to be sold by Sakhi Muhammad in favour of Munshi deceased was only up to 1/5 and the ownership of Sakhi Muhammad had been reduced to only 12 Kanals. Munshi Khan deceased could seek proportionate performance to the extent of 1/5 of 12 Kanals. By modifying the decree, this revision petition is accepted accordingly. The modified decree would be for 2 Kanals, 8 Marlas on payment of proportionate price, which already stands paid. It is stated by the learned counsel for the petitioner that the balance amount of Rs.13,262 would be refunded by the petitioner within one month. Decree to be modified accordingly. No order as to costs. H.B.T./S-437/L Order accordingly