2006 PLP 1858 (MLD)

MAULVI ANWARUL HAQ, J.

This judgment shall decide R.S.A. No.21 of 1990 and R.S.A. No.22 of 1990, as these proceed against a common judgment.

2. This case has rather a chequered history. On 16-5-1970, Muhammad Sharif, respondent No.1 filed a suit against respondent No.2 and the appellant. In the plaint it was stated that the land mentioned in the plaint was allotted to respondent No.2 under Mangla Dam Scheme, he agreed to sell the same to respondent No.1 for a consideration of Rs.12500. The entire consideration was paid and an agreement was executed on 26-4-1967 and registered on 7-6-1967. A separate receipt was also executed on 26-4-1967. According to the terms of the agreement instalments were to be paid by respondent No.1 and respondent No.2 shall make statement before .the revenue officer. The possession was already with respondent No.1 as lessee. He kept on depositing the instalments. Proprietary rights were confirmed upon respondent No.2 on 8-4-1970 and a sale-deed was executed in his favour on 18-4-1970. However, instead complying with the terms of the agreement, respondent No.2 proceeded to transfer the land to appellants vide registered sale-deed, dated 22-4-1970. It was stated that the appellants were fully aware of the said agreement and the fact that he is in possession of the land. With these averments a decree for specific performance was sought. Now all the said defendants in the case filed joint written statement in Court. The execution of the agreement was not denied. It was stated that it is void being in violation of section 19 of Colonization of Government Land (Punjab), Act, 1912. It was also averred that the agreement was got executed and registered by fraud. Respondent No.1 however, affirmed the transfer in favour of the appellants. Following issues were framed on 6-6-1970:-- (1) Whether the agreement in favour of the plaintiff, dated 26-4-1967 is illegal, void and inoperative? OPD (2) Whether the disputed agreement is based upon fraud and is without consideration? OPD (3) Relief. Evidence or the parties was recorded. The suit was dismissed by the learned trial Court on 5-12-1970. It may be noted here that both the issues Nos.1 and 2 were decided in favour of respondent No.1 but under issue of relief learned trial Court recorded that that the appellants are bona fide purchasers for value and without notice. Appeal was filed against this judgment and decree. Vide order, dated 22-2-1971, learned Addl. District Judge, Multan framed additional issue No.2-A which is as follows:- (2-A) Whether the defendants No.2 to (sic) are the bona fide purchasers of the suit-land for value without notice? OPD He sent the case to the learned trial Court under Order XLI Rule 25, C.P.C. for recording of evidence and findings on the said issue. Vide order, dated 5-5-1971, learned trial Court answered the additional issue of bona fide purchase in favour of respondent No.1 After the receipt of said findings, learned Addl. District Judge proceeded to remand the case vide order, dated 21-7-1971 by observing that he would not like to deprive any of the parties of right to first appeal. After remand, learned trial Court proceeded to pass a decree on 14-9-1971 with reference to the said earlier judgment. First appeal filed against the said decree, dated 14-9-1971 was dismissed by learned Addl. District Judge on 31-5-1972. The appellants filed R.S.A. No.508/71 in this Court which was allowed on 28-3-1988 and the said judgments and decrees were set aside and the case was remanded back to the learned trial Court to decide the issues afresh. After the said remand, learned trial Court decreed the suit vide judgment and decree, dated 3-9-1888. Two first, appeals were filed. One by the appellants and the other by respondent No.1. Both the appeals were heard together by learned Addl. District Judge, Vehari who proceeded to dismiss both the appeals on 23-11-1989.

3. Ch. Abdul Ghani, Advocate, learned counsel for the appellants has tried to argue that notwithstanding the fact that the execution of the agreement and receipt of money was admitted the same could not be specifically enforced in view of section 19 of the said Act of 1912. Sh. Zia ud Din Qamar, Advocate, learned counsel for respondent No.1 (appellant in R.S.A. No. 22 of 1990) has nothing to say while learned counsel for respondent No.2 supports the impugned judgment and decree with reference to the evidence and the admissions recorded on the file.

4. I have examined the records with the assistance 0f learned counsel for the parties. On 17-9-1970, learned counsel for the defendant in the case got recorded his statement admitting the execution of agreement, dated 26-4-1967. Respondent No.1 never appeared in the witness box to deny the execution or the receipt of consideration. Muhammad Sharif, respondent No.2 appeared as P.W.1 who stated in accordance with his plaint and his statement that the agreement Exh.P.1. and receipt Exh.P.2. were executed by the respondent No.1, was not questioned. Now so far as said contention of the learned counsel for the petitioner is concerned, by now law is well-settled that agreement simpliciter even where the consideration has been paid and the possession delivered, would not attract mischief of section 19 of the said Act, 1912. Reference be made to the case Sher Muhammad Khan and others v. Ilam Din and others (1994 SCMR 470). The finding on issue No.1 is accordingly affirmed. So far as issue No.2 is concerned, there is no evidence whatsoever in support thereof. So far as the matter of bona fide purchase is concerned, respondent No.1 produced in evidence document Exh.P.3. It is an affidavit executed by respondent No.1, stating that he has executed the agreement, dated 26-4-1967 and received consideration for the land. Niamat Ali, appellant No.2, attested the said affidavit. The said appellant appeared as D.W.1. and when confronted he admitted his signatures on Exh.P.3. Allah Ditta, appellant No.1 appeared as D.W.2. He is husband of sister of respondent No.1 He admitted that respondent No.2 was in possession. Baboo, appellant No.3, appeared as D. W.3 and in cross-examination stated that respondent No.2 was in possession and they never made any inquiry from him.

5. In view of the said evidence on record, findings recorded by the learned Courts below on issue No.2-A cannot be said to be suffering from any error of law. Both the R.S.As. are accordingly dismissed with costs throughout. S.M.B./A-161/L Appeals dismissed.