2008 PLP 245 (CLC)

MAULVI ANWARUL HAO, J.-- On 1-11-1983 the petitioner filed a suit against the respondents. In the plaint, it was stated that Nawab was the last male owner of the suit-land mentioned in para.1 of the plaint and on his death the land was mutated in favour of respondent No.1, his daughter and respondent No.2, his widow as detailed in the said para.1. Vide Mutation No.305 attested on 6-5-1968 the respondent N6.2 proceeded to sell the land so inherited by them to one Sardar Muhammad for a consideration of Rs.6,

000. At that time, the respondent No.1 was a minor. After attaining the majority, the respondent No.1 did not ratify the said sale and entered into an agreement with the petitioner for the sale of her 1/12 share vide agreement dated 21-10-1981. The consideration was settled at Rs.28,000 and a sum of Rs.20,000 was paid as earnest. A general power of attorney was also executed in his favour by the said lady authorizing him to commence proceedings for the setting aside of the said sale. Acting under the said power of attorney, he filed a suit for declaration and possession. While the suit was pending, on 14-9-1983 the respondent No.1 appeared before the learned Civil Judge and withdrew the suit which was dismissed accordingly. It was contended that the respondent No.1 could not have withdrawn the said suit. I may further note here that the land was alienated meanwhile further and presently is being held by respondents Nos.6-A to 6-C. The petitioner prayed for a decree for specific performance of the agreement, dated 21-10-1981. The suit was contested by the respondent No.6 as also by the L.Rs. of the said Sardar, the original vendee, who denied the said agreement. According to them, the suit was withdrawn by the respondent No.1 in the presence of and after her identification by the petitioner himself. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 20-12-2000. A learned Additional District Judge, dismissed the first appeal filed by the petitioner on 19-2-2002.

2. Learned counsel for the petitioner contends that in view of the admitted fact that the respondent No.1 was a minor at the time of the original sale in favour of Sardar vide Mutation No.305 attested on 6-5-1968 and the contests of the agreement entered into by the said lady in favour of the petitioner, he was entitled to the relief prayed for by him. Learned counsel for the respondent No.1, on the other hand, contends that upon a plain reading, the agreement was contingent upon success in the suit which was proposed to be filed by the petitioner on behalf of the respondent No.1 and the said contingency having never occurred, there is no question of performance of the said agreement.

3. I have gone through the copies of the records. The agreement being pleaded by the petitioner is Exh.P.1. It narrates that Malookan had inherited 1/12 share in some land from her father measuring about 7-1/2 Acres which stands transferred in favour of Sardar Muhammad on 30-4-1968 and she was a minor at that time. She is a Pardahnashin lady. She is appointing Mureed Ali (petitioner) as a general attorney for getting the said mutation cancelled and has agreed to sell the land to him for a consideration of Rs.28,000 and has received Rs.20,000 as earnest. In case the mutation is set aside, she will execute a sale deed and get it registered in favour of the petitioner and in case the suit is not decided in her favour then the earnest money shall stand forfeited. The petitioner will bear all the expenses of the litigation. She will put in personal appearance whenever called by the petitioner to do so.

4. This agreement is dated 21-10-1981. The date of filing of the suit is not available. However, a copy of an order dated 14-9-1983 has been produced by the petitioner himself as Exh.P.5. This, in fact, is a statement by the petitioner to the following effect:

The order of the Court is as follow: I called upon the learned counsel to state as to why and on whose asking the said lady put in personal appearance in Court. He has nothing to state. The reason is obvious because it is in the agreement itself that she had promised to put in personal appearance if called upon by the petitioner to do so. Otherwise the petitioner was to conduct the said litigation at his own expense. To my mind, an inference can safely be drawn that she put in appearance on asking of the petitioner. The statement was recorded in his presence. He further affirmed before the learned trial Court that he identifies the said lady being her general attorney and that she has made the statement of withdrawal in his presence.

5. Apart from the above, the learned counsel for the contesting respondents i.e. subsequent vendees has very correctly argued that the performance of the agreement was dependant upon the success in the suit which was to be filed pursuant to the said agreement. This never happened. Otherwise I find that the learned Courts below have correctly appreciated the evidence on record in the light of the pleadings of the parties. No case stands made out for exercise of revisional jurisdiction. The civil revision is dismissed but without any orders as to costs. S.A.K./M-563/L????????????????????????????????????????????????????????????????????????????????? Revision dismissed.