2017 PLP 403 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this regular second appeal the appellants/defendants have challenged the judgment and decree dated 13.03.1995 passed by the learned Additional District Judge, Chichawatni, whereby the appeal filed by the appellants was dismissed, whereas the appeal filed by the respondents-plaintiffs was accepted and a relief for specific performance of contract was also granted. The appellants have also challenged the judgment and decree dated 30.10.1991 passed by the learned Civil Judge 1st Class, Chichawatni, whereby in a suit for specific performance decree for return of amount was passed.

2. The brief facts are that the predecessor of respondents namely Muhammad Ismaeel filed a suit for specific performance on 03.03.1983 on the basis of registered agreement to sell dated 17.12.1966. The written statement was filed, wherein the defendants-appellants denied the agreement and also raised the legal objections including the objection that agreement is violative of Section 19 of the Colonization of Government Lands (Punjab) Act, 1912. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 30.10.1991 passed by the learned trial court, it was held that the plaintiff proved the agreements to sell as well as payment under both the agreements and the amount deposited in the Government Treasury. Learned trial court decided all the issues in favour of the plaintiffs and refused to grant a decree for specific performance but ordered that the money received by the predecessor of defendants as well as deposited in the Government Treasury be returned. Both the parties preferred their respective appeals. Vide judgment and decrees dated 13.03.1995 the appeal filed by the plaintiffs/respondents was accepted and a decree for specific performance was granted, whereas the appeal filed by the appellants was dismissed. Hence, this second appeal by the defendants.

3. Learned counsel for the appellants argues that the learned trial court has exercised the jurisdiction vested in it by law and the variation in the judgment and decrees, by the learned first appellate court is against the evidence available on the file and therefore against the law and further that grant of a decree in the suit for specific performance is discretionary. The arguments of learned counsel for the appellants are of two fold. First, learned counsel states that the appellants/defendants have denied the execution of any agreement to sell and secondly, the agreement is defective one being unilateral and further that it was in violation of Section 19 of the Colonization of Government Lands (Punjab) Act, 1912; that the respondents/plaintiffs have not fulfilled the conditions of contract, therefore, they were not entitled to a decree for specific performance. Learned counsel was confronted that the alternate pleas taken by the appellants are not self-contradictory; he argues that they have every right to defend the suit and further the defence is not self-contradictory. Relies upon "2010 CLC 1879 (Muhammad Sabir v. Maj. (Rtd.) Muhammad Khalid Naeem Cheema and others), PLD 1998 Karachi 1 (Messrs Petrocommodities (Pvt.) Ltd. v. Rice Export Corporation of Pakistan), 2013 MLD 955 (Faqeer Bakhsh v. Khan Muhammad), 2016 CLC 114 (Irfan Ahmad v. Ahmad Shah through L.Rs and 7 others), PLD 2015 Supreme Court 187 (Farzand Ali and another v. Khuda Bakhsh and others), PLD 1973 Lahore 77 (Agha Sikandar Ali Khan v. Mst. Nawab Bibi and 11 others), 2011 CLC 664 (Khursheed Ahmed Butt v. Captain Feroze Aftab and 3 others), 1995 CLC 1323 (M. Musarat v. Air Comdr. Shafiq Hyder and 3 others), PLD 2003 Supreme Court 676 (Muhammad Khan v. Mst. Rasul Bibi), 1986 MLD 90 (Zehri Khan v. Syed Warasat Hussain and 10 others), 1994 SCMR 111 (Abdul Aziz and another v. Abdul Rehman and others) and 1983 SCMR 559 (Zaheer Ahmad and another v. Abdul Aziz and others)." Prays for acceptance of the appeal.

4. On the other hand, learned counsel for the respondents argues that the findings on all the issues have been concurrently passed by two courts below in favour of plaintiff and the learned trial court while exercising discretion has not granted the decree for specific performance but ordered for return of the amount received by the respondents/ appellants as well as deposited in the Government Treasury. States that the execution of agreement was admitted between the parties by the learned trial court and as such the order of return of money was passed, in this way, there are concurrent findings recorded by two courts below and the learned first appellate court has rightly exercised the jurisdiction/discretion in favour of the respondents/plaintiffs and has granted a decree for specific performance. There is no defect in the judgment and decree passed by the learned First Appellate Court. Relies upon "2007 SCMR 181 (Muzaffar Khan v. Sanchi Khan and another), 1979 CLC 533 (Waris Ali and 2 others v. Ghulam Rasool and another), PLD 1978 SC 213, (Mst. Bibi Khatoon and 7 others v. Abdul Jalil), 1985 SCMR 554 (Bomanshaw Burjorji Gazdar and another v. Mst. Mumtaz Begum and others), PLD 1994 Lahore 108 (Thal Development Authority through Administrator, Thal Bhakkar v. Khushi Muhammad and another), 1979 CLC 570 (Mst. Khurshid Begum and 7 others v. Inam Rabbani and another), 1992 SCMR 1510 (Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others), 1994 SCMR 1935 (Mst. Aisha Bibi v. Nazir Ahmad and 10 others), 2003 CLC 166 (Lal Din v. Member (Revenue), Board of Revenue Punjab, Lahore and others), 1996 SCMR 808 (Abdul Rashid v. Bashiran and another), 1997 SCMR 1866 (Mussarat Sultana v. Muhammad Saeed), PLD 1993 Supreme Court 292 (Messrs Aman Enterprises, Sialkot v. Messrs Rahim Industries Pakistan Ltd., Sialkot and another), 1993 CLC 830 (Haji Muhammad Bashir v. Election Tribunal and others) and PLD 1991 Lahore 262 (Nuhammad Hussain and others v. Muhammad Nawaz and others)." Prays for dismissal of this second appeal.

5. Learned counsel for respondent No.13 has supported the arguments of learned counsel for the appellants and states that he adopts the arguments advanced by learned counsel for the appellants. Though states that he has filed separate appeal i.e. R.S.A. No.18 of 1995 also.

6. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.

7. The agreement to sell is registered one on the basis of which the suit has been filed and in the suit there is reference of previous agreement which is dated 15.09.1959. Both the learned courts below are concurrent by holding that the registered agreement to sell between the parties has been proved by the plaintiffs/ respondents. As there are concurrent findings of fact with regard to existence of registered agreement to sell, therefore, this court cannot afford to reinterpret the evidence, oral as well as documentary; upon the issue of existence of agreements to sell while exercising the jurisdiction under section 100 of the C.P.C. when the second appeal is before this court. Reliance is placed upon "1996 SCMR 808 (Abdul Rashid v. Bashiran and another) and 1997 SCMR 1866 (Mussarat Sultana v. Muhammad Saeed)". When it is so and further the appellants/ defendants opted to deny the existence of agreement to sell on the basis of which the suit has been filed and the previous agreement dated 15.09.1959, then it does not lie in their mouth to say that the appellants are not entitled for grant of decree on the ground that they have not fulfilled the conditions of the agreement, therefore, the fact that the agreement existed between the parties, no exception can be taken against the concurrent findings passed by two courts below. The other aspect of the matter is that land was allotted to the defendant under Tube Well sinking scheme. It will be relevant to note that under the scheme an allottee was bound to make the land cultivable, install tube well etc. Admittedly proprietary rights were conferred upon the defendant on 21.10.1981, certainly after the fulfillment of conditions of allotment. When it is so, the objection of defendant with regard to non-fulfillment of conditions of agreement to sell as well as bar of Section 19 of the Colonization of Government Lands (Punjab) Act, 1912 also goes. Even otherwise it is now settled that Section 19 of the Act (ibid) does not apply on an agreement to sell. Reliance can be placed upon "1979 CLC 570 (Mst. Khurshid Begum and 7 others v. Inam Rabbani and another) and 1992 SCMR 1510 (Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others)". The refusal of learned trial court for specific performance was also violative of "PLD 1993 Supreme Court. 292 (Messrs Aman Enterprises, Sialkot v. Messrs Rahim Industries Pakistan Ltd., Sialkot and another)".

8. Now comes the question that the agreement is unilateral. Actually it was a case of' 'Adh-lappi'. The suit land was allotted to the predecessor of appellants/ defendants under Tube Well sinking scheme and under the scheme the land was to be made cultivable and source of irrigation through the installment of Tube Well was to be created and as per contract and the story built by the plaintiffs/ respondents the allottee i.e. Abdul Ghani predecessor of defendants/appellants was short of funds, therefore, he joined the predecessor of plaintiffs namely Muhammad Ismaeel and under the contract the predecessor of respondents/ plaintiffs invested the money for fulfillment of the conditions of scheme for making the land cultivable.

9. As it was 'Adh-lappi' contract, which is prevalent in this area. When a party is unable to invest money for getting the land cultivable, it was the custom in this area that the allottee used to join any other person for the purposes of investing in the land for making it cultivable and for fulfillment of conditions of allotment and this contract is called 'Adh-lappi' in the local term. The rights of the allottee in the property were on the basis of allotment and the other person who is not an allottee, joins the original allottee have to invest the money for fulfilling the conditions of allotment and after conferment of proprietary rights the allottee used to transfer half of the property in favour of the person investing the money for making the land cultivable under the agreement. The transaction in this case seems to be the same. When the permanent rights have been transferred in favour of allottee, it means that all the conditions for allotment were fulfilled. The appellants/defendants failed to bring on record the evidence that they have invested their own money and had made the land cultivable and there was no agreement of 'Adh-lappi' between the parties.

10. The above discussion gets support from Para No.173 of the Punjab Settlement Manual by Sir James M. Douie, K.C.S.I., I.C.S. Seventh Edition. For ready reference Para 173 is re-produced as under:-- "

173. Adhlapi and taraddadhar tenures

The adh-lapi tenure of the sought-western Punjab must be noticed. A man who sinks a well in land which does not belong to him with the owner's permission becomes proprietor of half of the land which it commands. He very commonly cultivates or arranges for the cultivation of the whole of the land, takes half of the proprietor's share of the produce, and pays half the land-revenue. Whether he has a right of occupancy in the half of the land which he does not own appears to be doubtful, and it has been held that in cases of dispute, either party may enforce partition. The adhlapi tenure is very common in Dera Ghazi Khan, and there a man is sometimes given an eighth share of the proprietary right in well simply for clearing the jangal off the land to be Commanded by it. The taraddadkar in Jhang who had sunk a well acquired by custom a similar title. When the landlord himself sunk the well it was sometimes worth his while to give a man a right to cultivate the land on a hereditary tenure on the condition that he would take half the proprietor's share and pay half the revenue. Such a tenant is also known as taraddadkar. Of course the customary incidents of any land tenure can always be defeated by the express provisions of a written contract; and new tenures are in these days generally created by deed." Further the law laid down by this court in the judgments reported as "PLD 2002 Lahore 48 (Ghulam Muhammad v. Ellahi Bux), 2002 YLR 3357 (Fida Hussain and others v. Muhammad Hussain and others) and the judgment of Board of Revenue reported, as "2015 MLD 1778 (Ghulam Rasool and others)" can be referred. In this view of the matter, the agreement on the basis of which suit was filed is not an agreement to sell stricto sensu but it is an 'Adh-lappi' agreement, therefore, the case law referred to by the learned counsel for the appellants with regard to unilateral agreement to sell is not applicable to the facts of this case.

11. The argument of learned counsel for the respondents-plaintiffs that in the grounds of appeal all other issues have been specifically challenged, wheras issue No.14 has not been challenged in their grounds of appeal, therefore, appeal is liable to dismissal. I have gone through the grounds of appeal filed by the appellants before the learned first appellate court. The argument of learned counsel for the respondents is factually correct but I believe that when in the head note of the appeal as well as in the prayer clause it has been prayed that the judgment and decree be set aside, non-mentioning specifically issue No.14 in the body of appeal does not make any difference.

12. In the grounds of appeal before the learned lower appellate court the appellants have pleaded that as the plaintiffs/respondents are in possession of suit land, therefore, mesne profit be also awarded to the appellants, which shows that the possession of plaintiffs/ respondents has been admitted. Admittedly the proprietary rights were conferred upon the allottee on 21.10.1981 and the suit was filed on 03.03.1983. I have noticed that voluminous evidence has been produced by the plaintiffs which remained unrebutted.

13. The resume of above discussion is that learned counsel for the appellants has not been able to make out the case for interference by this court while exercising the jurisdiction under section 100 of the C.P.C. Consequently, the instant regular second appeal having no force stands dismissed. ZC/H-5/L Appeal dismissed.