1988 PLP 981 (CLC)

This appeal is directed against the judgment and decree dated 13‑5‑1978 passed by the learned Senior Civil Judge. Dadu in F.C. Suit No. 48 of 1974 decreeing the suit of the respondent No. 2 for specific performance in respect of sale agreement dated 30‑9‑1971 (Exh. 35), hereinafter referred to as the agreement, for agricultural land measuring 26 acres in place of 52 acres, which was the subject matter of the agreement.

2. The brief facts leading to the filing of the above appeal are that the respondent No.2 and the present appellant entered into an agreement with the respondent No. 1 for the purchase of the agricultural land about 42‑35 acres at the rate of Rs.800 per acre. As per clause (2) of the agreement, the payment was to be made as follows: ‑‑ "That the Vendor has agreed to sell and the Vendees have agreed to purchase the said land at the rate of Rs.800 per acre as such the total price of the land admeasuring 42‑35 acres sums upto be Rs.34,300 (Rupees Thirty‑four thousand three hundred) only. Out of this total consideration the Vendor has received an amount of Rs.8,000 (Eight thousand only) as advance for the sale‑deed. The Vendee No.1 shall also pay an amount of Rs.9,000 (Nine thousand only) in the month of January, 1972. The remaining amount of the consideration being Rs.17, 300 (Rupees Seventeen thousand three hundred) will be paid by the Vendees and received by the vendor at the time of registration of this sale‑deed in the month of June, 1972, before the Registering Officer whereafter the consideration shall be treated as fully and finally paid."

3. It appears that respondent No. 1 filed Suit No. 48 of 1974 against the respondent No. 2 and the present appellant, praying therein for the possession and mesne profit of the land covered by the agreement, on the averments that there was breach of the agreement on the part of the respondent No. 2 and the appellant. The above suit was resisted by the respondent No. 2 but the present appellant in his written statement admitted the contents of paras. 1 to 9 of the plaint and as regards paras. 10, 11, 12, 13 and 14 of the plaint, he stated that "nothing is said on the contents of these paras". It seems that the above suit was dismissed by the trial Court on 13th day, 1978. It seems that upon the filing of the written statement by the present appellant in Suit No. 48 of 1974, the respondent No. 2 filed Suit No. 69 of 1974 on 14th September, 1974 for specific performance of the sale agreement. The above suit was resisted by the respondent No.

1. The appellant also filed written statement, in which he averred that he was co‑purchaser under the agreement. The above two suits were consolidated and aforesaid Suit No. 48 of 1974 was treated as the linking suit. Both the parties examined their witnesses in the suits. The respondent No. 1 as the plaintiff in the earlier suit examined himself and the father of the plaintiff Baradi, whereas the appellant examined himself and two witnesses namely, Yousuf and Ali Sher. Respondent No. 2 examined himself. The learned trial Court after hearing the parties by the above judgment /decree, dated 13‑5‑1978 dismissed the Suit No. 48 of 1974 and decreed the above Suit No. 69 of 1974 to the extent of 26 acres as it was found that one of the survey numbers, which was the subject‑matter of the agreement was not available. The appellant being aggrieved by the above judgment and decree has filed the present appeal. Respondent No. 1 who is the vendor has not filed any appeal or cross‑objections.

4. In support of the above appeal, Mr. Abdul Rahim Kazi, learned counsel for the appellant, has urged as follows:‑‑ 0) That since the appellant and the respondent No. 2 were co -purchasers under the agreement, the learned trial Court could not have decreed the suit in favour of the respondent No. 2 alone. (ii) That the appellant's possession is protected under section 53‑A of the Transfer of Property Act. (iii) That the suit could not have been decreed for part of the subject‑matter of the agreement.

5. Mr. Abdul Waheed Katpar, who is appearing for the respondent No. 1 has urged that the respondent No. 2 through his reply, dated 7‑2‑1974 (Exh.43) had demanded the performance of the sale‑agreement in respect of 26 acres and not for 42‑35 acres and, therefore, the breach was on the part of the respondent No. 2 as the purchaser and the suit should not have been decreed.

6. Mr. G.M. Qureshi, learned counsel for the respondent No.2, has submitted as follows:‑‑ (i) That since the appellant was in collusion with the respondent No. 1 and was not interested in getting the agreement specifically performed by the respondent No. 1, the respondent No. 2 was entitled to file the suit for specific performance. (ii) That on the basis of the evidence on record factually the respondent No. 2 was managing the land and was in possession. (iii) That since the remaining land was not available with the respondent No. 1, the learned trial Court could decree the suit for part of the land.

7. Before taking up the contentions of the learned counsel for the appellant and the learned counsel for the respondent No. 2, it will be appropriate to deal with the submission made by the learned counsel for the respondent No. 1 namely, that there was breach on the part of the respondent No. 1 when he demanded the performance of the sale‑agreement in respect of 26 acres in place of 42‑35 acres through his letter, dated 7‑2‑1974 (Exh. 43), in my view it is not open to the above respondent No. 1 to urge the above point as he has neither filed an appeal against the judgment and decree of the trial Court nor has filed any cross‑objections upon the receipt of the notice of the appeal. A party may support a judgment/decree on any ground which might have been decided by the trial Court against him but he cannot impugn the judgment/decree without filing an appeal or cross‑objections.

8. Adverting to the first submission of Mr. Abdul Rahim Kazi, learned counsel for the appellant, that the appellant and the respondent No. 2 are the co‑purchasers under the agreement, it may be observed that he has referred to the contents of the agreement and the second undertaking executed by the brother of the respondent No. 1, dated 2‑3‑1973 (Exh. 36), notice dated 9‑6‑1973 (Exh.40) and another notice dated 27‑6‑1973 (Exh. 41). There is no doubt that in the agreement as well as in the above documents, the appellant has been referred to as co‑purchaser or co‑vendee. In my view, this is not relevant in view of the finding recorded by the learned trial Court as to the fact that the appellant was in collusion with the respondent No. 1 and was not interested in the specific performance of the sale agreement. It may again be pointed out that in the aforesaid Suit No. 48 of 1974 filed by the respondent No. 1 for getting away from the agreement, the appellant instead of opposing the respondent No.1's suit supported it by admitting all the averments of the plaint which indicated that there was breach on the part of the purchasers. In the second suit though the appellant in his written statement has averred the factum that he was the co‑purchaser but did not file any application for being transposed as co‑plaintiff for the relief of specific performance. However, it has been submitted by Mr. Abdul Rahim Kazi, learned counsel for the appellant, that it was open to the appellant to have filed a suit within 3 years from the date of the aforesaid undertaking Exh. 36 and, therefore, the fact that he had not applied for being transposed as co‑plaintiff would not make any difference. He has further submitted that in any case under Order I, Rule 10, C.P.C., it was open to the Court to have transposed the appellant as co‑plaintiff. It will suffice to observe that the finding of the learned trial Court that the appellant was in collusion with the respondent No. 1 and was not interested in the performance of the agreement is sustainable on the basis of the material on record which inter alia include his written statement in the earlier aforesaid Suit No. 48 of 1974. Mr. G.M. Qureshi, learned counsel for the respondent No. 2, has referred to the case of Sher Muhammad v. Ali Muhammad and others, reported in 1986 M L D 597, in which a Division Bench of the Lahore High Court relied upon the case of Muhammad Ali v. Muhammad Shah, 12 1 C 850 and the case of Pyari Mohun Bose v. Kedarnath Roy I L R 26 Cal. 409 and held that if one of the co- purchasers is shown to be disinterested in the performance of the sale‑agreement, the suit for specific performance can be decreed in favour of the other co‑purchaser.

9. I am inclined to subscribe to the view taken in the above Lahore case. In my view, if a co‑purchaser instead of supporting his other co‑purchaser, conspires with the vendor in order to facilitate the latter to wriggle out of the sale agreement, he cannot be allowed to take advantage of the sale agreement after the conspiracy proved to be futile, particularly when he does not join the other to‑purchaser as a co‑plaintiff in the suit for specific performance nor he files himself a suit for specific performance. In the instant case as observed hereinabove, there is sufficient material on record to sustain the conclusion of the trial Court on the above point.

10. As regards the second submission of 11r. Abdul Rahim Kazi, learned counsel for the appellant, that the appellant is protected under section 53‑A of the Transfer of Property Act as he has been in joint possession, it may be observed that he has referred to the testimony of Ali Sher and Yousuf. It may be stated that Ali Sher in his cross‑examination stated that factually he was granted lease 5 years back by the respondent No. 2 and not by the appellant, whereas the other witness Yousuf has stated that he was inducted as Hari of the suit land by the respondent No. 2 and the appellant. In my view, it is not necessary to record any finding on this aspect as the main issue is whether the appellant after having entered into collusion j, with the respondent No. 1 is entitled to a decree for specific performance as a co‑purchaser. It is not an issue, whether the appellant has acquired any right in the suit land by virtue of his alleged joint possession.

11. Reverting to the last submission of Mr. Abdul Rahim Kazi, that the suit could not have been specifically performed for a part of the subject‑matter of the agreement, it may again be observed that the learned trial Court found that only 26 acres of the land were available in respect of which specific performance could be granted. The above 26 acres of land are specifically identified, there is no confusion as to its identity. However, Mr. Abdul Rahim Kazi, has relied upon the case of Wali and others v. Manak Ali and others, reported in P L D 1965 S C 651 and the case of Mian Muhammad Saleem and others v. Mst. Hameeda Begum and others, reported in 1987 S C M R

624. In the former case, the Honourable Supreme Court has held that according to section 17 of Specific Relief Act, 1877 there can be no partial specific performance of a contract except in cases mentioned in sections 14, 15 and 16 of the Act, whereas in the latter case, it has been held by the Honourable Supreme Court that if the land agreed to be sold could not be identified or ascertained no decree for specific performance can be passed. In my view, the above cases have no application to the present case. On the contrary the above first case of the Honourable Supreme Court supports the case of the respondent No. 2 as under section 15 of the Specific Relief Act there can be specific performance in respect of the par of the subject‑matter of the agreement provided the party seeking the specific enforcement of the agreement relinquishes his right in respect of the remaining part.

12. For the aforesaid reasons, the appeal has no merits and therefore, it is dismissed but there will be no order as to costs. A.A./N‑84/K Appeal dismissed.