2002 PLP 1860 (MLD)

"Muhammad Iqbal and others v. Mirza Muhammad Hussain and others" (PLD 1986 SC 70). "Akhtar Ali and others v. Muhammad Hanif and others" (1989 SCMR 604). "Ghulam Muhammad v. Maula Dad and 6 others" (1980 SCMR 314). Sher Muhammad Khan and others v. Ilam Din and others" (1994 SCMR 470). He further submits that proprietary rights of the petitioners should be protected by the Courts below in view of agreement executed between the petitioners and respondents. In support of his contention, he relied upon a case "Abdul Salam through Legal Heirs and 3 others v. District Collector, Muzaffargarh and 4 others" (2001 CLC 1673). He further submits that as observed by the First Appellate Court, the petitioners should be allowed to amend the plaint, therefore, the judgments of both the Courts below are not in accordance with law laid down by the superior Courts. In support of his contention, he relied upon a case "Mumtaz Hussain v. Faizullah and 5 others" (1999 YLR 981).

4. Learned counsel of the respondents submits that both the Courts below have given their concurrent findings of facts against the petitioners, therefore, the revision petition is not maintainable. He further submits that both the Courts below have decided the case against the petitioners in view of law laid down by the superior Courts. In supports of his contention, he relied upon the following judgments:‑‑ "Allah Dad v. Mehr Khan and 2 others" (PLD 1992 Lah. 437). "Nazar Muhammad and others v. Farid" (1986 MLD 2074). He further submits that agreement to sell was denied by the respondents and possession of the petitioners was not approved on the record, therefore, both the Courts below were justified that the suit for permanent injunction filed by the petitioners was not competent. He summed up his, arguments that agreement to sell executed between the parties is hit by section 19 of the Colonization of Government Lands Act; 1912. , S. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

6. The observations of both the Courts below that permission from the Collector under section 19 of the Colonization of Government Lands Act is mandatory, has no force as per principle laid down by this Court in case Mubarik Ali v. Muhammad Anwar" (2000 YLR 652). The aforesaid proposition of law is also supported by the following judgments:‑‑ "Mushtaq Hussain and others v. Mukhtar Ahmad" (1999 MLD 3384). "Daulat Ali v. Legal Heir's of Ahmad Ali" (PLD 2000 SC 792). "Mst. Khann‑ad‑Din and others v. Government of Sindh and others" (2000 SCMR 1252). It is better and appropriate to reproduce the following operative part of the judgment of the First Appellate Court to resolve the controversy between the parties:‑‑ "They have brought a suit for perpetual injunction on the basis of the agreement to sell about a property that is still owned by the Provincial Government and the proprietary rights have not been conferred upon the respondents. So the learned trial Court rightly rejected the plaint and also dismissed the application for temporary injunction."

7. It is settled principle of law that agreement to sell does not create any vested right, therefore, both the Courts below are justified to reject the plaint of the petitioners as is envisaged by section 42 of the Specific Relief Act. In the case, even if it is admitted that respondents Nos.1 to 6 have transferred their land to the petitioners on the basis of agreement to sell executed between the parties, it will only to be presumed that the petitioners had stepped into shoes of the respondents. They only promised to do so by way of another document, and if they refuse to do so, the suit for specific performance was the only remedy under the law. The petitioners have only remedy to file a suit for specific performance of the contract as is envisaged by section 18 of the Specific Relief Act. The aforesaid proposition of law was considered by the Hon ble Supreme Court in Mst. Ghulam Bibi's case (PLD 1985 SC 354) under:‑‑ . The Question for the examination of which leave to appeal was is whether in the facts and circumstances of the case the appellants (plaintiff's side) should have been permitted by the High Court to amend the plaint so as to convert the suit for declaration as to ownership of the suit‑land into a suit for specific performance of contract exchange involving the suit land. " The Hon'ble Supreme Court after detailed discussion allowed the appeal in the following terms: "In the light of foregoing discussion, this appeal is allowed. The impugned judgment is set aside. The application made by the appellants in the High Court for amendment of their plaint is allowed subject to the payment of Rs.2,000 as costs of the amendment. The case is remanded to the trial Court with the direction that after the amendment of the plaint, the defendants shall also, if they so request, be allowed proper opportunity to amend their written statement."

8. The aforesaid proposition of law is also supported by the following judgments of the Hon'ble Supreme Court in 'Subtain Fazli's case (PLD 1964 SC .337) Ahmad Din's case (PLD 1971 SC 762). . It is settled proposition of law that agreement to sell does not create any right on the property but at the same time it creates right in favour of the purchaser on the basis of the agreement to sell for the enforcement of the agreement to sell meaning thereby he is well within his right to compel the vendor for the enforcement of the agreement but both the Courts below did not consider this aspect of the case. The Honourable Supreme Court has considered this proposition of law in Abdul Hameed's case (PLD 1962 SC 1) and observed as follows:‑‑ "In conclusion, I would like to add that the dominant principle in such cases has always been that equity will only grant specific performance, if under all the circumstances, it is just 2nd equitable so to do."

9. It is pertinent to mention here that the contents of the agreement to sell executed between the parties, reveal that respondents Nos.1 to 6 allegedly had received total consideration at the time of execution of the agreement to sell with the petitioners. This fact brings the case of the petitioners in the area of equity but both the Courts below did not consider this aspect of case at all. It is well‑known maxim that Judge l must wear all the law of‑country on the sleeves of his robe. It is also well‑settled law that Court is empowered to grant such relief as justice of the case may demand and for the purpose of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined as is envisaged by Order 7, Rule 7, C.P.C., but both the Courts below did not give findings of fact on merit qua the specific performance of contract.

10. In view of what has been discussed above, this revision petition is allowed. The impugned judgments are set aside. The case is remanded to the learned trial Court with the direction that suit for declaration with permanent injunction be treated as suit for specific performance with permission to the petitioners to amend the plaint accordingly subject to payment of Rs.10,

000. The learned trial Court after receiving the amended pleadings from the parties, framing additional issue, opportunities of evidence to the parties, decide the suit in accordance with law and merit as a suit for specific performance. Since the controversy between the parties is pending adjudication, since 1993, therefore, trial Court shall decide the same as expeditiously as possible. The revision petition is allowed, with no order as to costs. H.B.T./M‑1035/L Revision allowed.