2000 PLP 45 (SCMR)

MUNIR A. SHEIKH, J.

This appeal by leave of the Court is directed against the judgment, dated 17-1-1994 of the Lahore High Court passed in R.S.A. No. 253 of 1970.

2. The facts of the case giving rise to this appeal briefly stated are that the house in dispute which was an evacuee property was transferred originally to one Badar-ud-Din by the Settlement Department who surrendered his rights in favour of Sardar Baig, deceased through Association Deed. The transfer price of the house was paid/adjusted from the amount available; in the compensation book issued to Sardar Baig in respect of the property left in India by his father. He had five brothers and Mst. Shahidi Begum was daughter of his uncle Amir Baig. They all claimed that the house in lieu of which the claim was sanctioned led by the Claims Department in respect of which Compensation Book was issued, left in India was owned by their predecessor, namely, Subedar Sardar Baig, father of Sardar Baig in which all of them had shares according to Shariat Law, as such. They were also owners in the house in dispute accordingly. Sardar Baig executed an agreement dated 24-7-1961 (Exh. PI) in favour of his said five brothers and Shahidi Begum i.e. the plaintiffs in which he acknowledged that in the amount available in the Compensation Book, he and the plaintiffs had shares according to Shariat Law from which the transfer price of the house in dispute was adjusted, therefore, in the house also, they had shares accordingly. After this agreement (Exh. PI), PTD (Exh. DI) was issued in respect of the house on 2-3-1996 in favour of Sardar Baig.

3. The appellants filed suit on 9-2-1966 for declaration that they were joint owners with possession of the house in dispute alongwith Sardar Baig, deceased. Sardar Baig contested the suit which was dismissed through judgment dated 2-5-1967 by the learned Civil Judge, Gujranwala on the ground that though the execution of agreement (Exh.PI) had been proved but the same did not create any right in the property being an unregistered document. It may be observed here that before the said date on 22-6-1966, Sardar Baig had sold the house to respondent No.2, Maseetay Khan for an amount of Rs.8,000 but this fact was to disclosed before the Civil Court before the decision of the suit.

4. The appellants filed appeal before the learned District Judge, Gujranwala which was dismissed through judgment dated 23-12-1969 with the observation that the suit in the present form for declaration of ownership rights in the property on the basis of agreement in question was not proper whereas the proper remedy was to file suit for specific performance of the said agreement. The appellants filed second appeal (R.S.A. No. 253 of 1970) before the High Court on 9-3-1970. Sardar Baig died during the pendency of this appeal on 21-8-1980. Maseetay Khan, respondent No. 2 was impleaded as one of the respondents in the appeal. This appeal has been accepted through the impugned judgment dated 17-1-1994 by the learned Judge in Chamber who after granting permission to the appellants to amend the plaint to convert the suit for specific performance of agreement remanded the same to the trial Court for disposal in accordance with law against which leave to appeal has been granted to consider whether in the facts and circumstances of this case, declaration could be made in favour of the appellants on the basis of the said agreement of sale and the view expressed by the Trial Court that the same could not be given effect to being unregistered document and that of the First Appellate Court that suit for specific performance of the said agreement of sale as affirmed by the High Court should have been filed.

5. We have examined the agreement (Exh. PI) with the assistance of the learned counsel for both the parties and find that if read as a whole, it is not merely an agreement simpliciter for doing something in future whereas the same, in fact, is an acknowledgement by Sardar Baig that the house in dispute transferred by the Settlement Department in the name of Sardar Baig was owned by him and the present appellants and Mst. Shahidi Begum according to Shariat Law as the Compensation Book from which transfer price was paid belonged to all of them and Sardar Baig merely acted as an agent on behalf of all in getting the same transferred from the Settlement Department. This agreement is prior to the date of issuance of permanent transfer deed on 2-3-1966, therefore, it can safely be held that it was not merely an agreement to do something in favour of the appellants in future and that Sardar Baig acknowledged himself to be merely Benamidar in respect of the shares of the appellants in the house, therefore, a suit for declaration of the rights of the appellants based on the same was very much maintainable in the facts and circumstances of the case.

6. Learned corned counsel for respondent No.2 Maseetay Khan submitted that Maseetay Khan should be allowed to contest the suit and establish before the Court that agreement (Exh.Pl) had not in fact, been executed by Sardar Baig and being transferee of the rights of Sardar Baig, he was entitled to contest suit independently in his own right in the same manner and to the same extent as Sardar Baig was entitled to.

7. We are afraid, the contention in the facts and circumstances of this case is not tenable for he purchased the house during the pendency of the suit and the rule of lis pendens is applicable to him. In such a case, he was not entitled to defend the suit independently from Sardar Baig through whom he claimed ownership rights during the pendency of the suit and the findings recorded against sardar Baig and the judgment delivered against him would be binding on respondent No.2 in the same manner and to the same extent as it was binding on Sardar Baig. Sarder Baig contested the suit and it was held by all the Courts that agreement Exh.P1 was proved to have been executed by him which is a concurrent finding of fact, therefore, binding on Maseetay Khan also.

8. Learned counsel lastly argued that in the later part of agreement, the expression used was that Sardar Baig would either give shares in the house to the appellants or price thereof as they would like, therefore, it should be read as merely an agreement to do an act 'in future. We are afraid, no clause of agreement can be allowed to be read in isolation. It is clear from the agreement if read as a whole that' it was an acknowledgement of the fact that the house belonged to the appellants and Sardar Baig, therefore, it can be construed to be an acknowledgment by Sardar Baig that he was not only acting as agent but also was merely a benamidar for the purpose of completing formalities of transfer of house from the Settlement Department. Even if it is assumed that suit for specific performance of the said agreement was the proper remedy, the present suit could be treated as a suit for specific performance of the said agreement and on the basis of the evidence already produced, the same could justifiably be decreed as the execution of the agreement of sale was held to have been established and entire amount of consideration paid and it was merely a formality to pass decree declaring the plaintiffs as joint owners of the property as claimed in the suit according to Shariat Law shares.

9. For the foregoing reasons, this appeal is accepted, the judgments and decrees of the Courts below are set aside and the suit is decreed. There will be, however, no order as to cost. H . B. T. /M-377/S Appeal Accepted.