1997 PLP 1765 (CLC)

By this single judgment in Civil Revision No. 183 of 1984, I would like to dispose of Civil Revisions Nos. 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196 and 205 of 1984, as facts and nature of each case are one and the same.

2. Facts of the case, in brief, are that Hazrat Khan and 14 others, namely, Shor, Redi Khan, Saifur Rehman, Noor Muhammad, Hazrat Gul, Hassan Muhammad, Rehman Gul, Shahzada, Said Rehman, Ahmad Jan, Umar Khan, Anwar Khan, Amin Gul and Bakhtiar, alongwith others, who are petitioners herein the abovenoted revision petitions respectively, filed civil suits against Nawabzada Khalid Khan and others, respondents herein, for specific performance of the sale agreement in respect of land fully described in the heading of their plaints or in the alternative for the recovery of Rs.2,000 plus interest from 6‑5‑1975, the date of the recovery of the earnest money, in all the plaints except in Civil Suit No.212/1 of 1978 "Sher v. Nawabzada Khalid Khan and others" in which case the amount claimed as earnest money in the alternative is Rs.1,500.

3. The main allegations in the plaints were that the suit property was 'Hisadari' ownership of defendant No.l (Nawabzada Khalid Khan) who transferred the same alongwith other land to defendants Nos.2 to 4, his sons and daughters respectively, in order to save himself from Land Reforms impact, but respondent No. l used to receive ' Lagan' and the suit land has remained under his control; that defendant No. l is the father and legal guardian of defendants 2 to 4 and is authorised to sell their land; that defendant No. l in the capacity of legal guardian of defendants 2 to 4 has sold a considerable land owned by defendants 2 to 4 through various mutations; that the suit land is in possession of the plaintiffs since long as tenants on payment of ' Lagan' in cash and have got no other property in their possession owned by defendants in village Mian Gulzara and that defendant No. l has entered into an oral agreement with them to sell the suit land at the rate of Rs.3,030 per Jarib and instructed the plaintiffs to deposit the earnest money on 6‑5‑1975, where after respondent No. l approved the sale transaction of the suit property and promised to transfer the same in the name of the plaintiffs at appropriate time. Thereafter, the plaintiffs had made efforts to pay the remaining sale consideration but defendant No. 1, who is a businessman and occasionally remains out of the city and country, was not available. After the sale agreement the plaintiffs had a chance to meet defendant No. l once or twice for the performance of sale agreement, so entered, but he refused to do so. It may also be mentioned here that during the pendency of the suit, the plaintiffs sought amendment of their plaints so as to include the prayer for recovery of the amount deposited by them with respondent No. l as earnest money, which prayer was allowed.

4. The learned Civil Judge framed as many as 8 issues in the case and after recording evidence of the parties dismissed the suit of the plaintiffs with regard to specific performance of the alleged contract, while granted decree for the recovery of the amount claimed in the alternative by the plaintiffs vide his judgment dated 9‑6‑1983.

5. Feeling aggrieved with the judgments and decrees of the learned trial Court the plaintiffs filed separate appeals before the learned Additional District Judge, Mardan. On the other hand, Nawabzada Khalid Khan and others also filed cross‑objections against the plaintiffs under Order 41, Rule 22 C.P.C. against the same very judgments. The learned Additional District Judge treated the cross‑objections as cross‑Civil Courts and decided the same through a single judgment. The appellate forum after taking great pain in discussing the merits of the case, came to the same conclusion as was reached by the trial Court and thus dismissed the appeals as well as the Cross‑Appeals vide its judgment dated 4‑3‑1984. Hence the present revision petitions.

6. Learned counsel for the petitioners confined his arguments to the grounds already taken before the appellate forum as well as in these revision petitions. From the other side, learned counsel appearing on behalf of respondents contended that Abdul Khaliq Khan was not the owner of the property in question because it belongs to Nawabzada Khalid Khan who transferred the same by way of gift in favour of his children. The treasurer; i.e. Abdul Khaliq, was not the right man to receive the amount, as admittedly the amount did not go to the account of defendant No. l and there is no agreement to sell. The only document is the receipt Exh. P. W.3/ 1, but it does not contain any Khasra numbers or Khata number and the important point in this regard is that there is embargo on the alienation of the property of minors as that is subject to permission of the Court under section 29 of the Guardians Act, and the guardian has to satisfy the Court that the sale is for the benefit of the minors which is lacking in the case in hand.

7. From the record it also transpires that Abdul Khaliq, a treasurer of Nawabzada Khalid Khan was not the legal attorney/representative'of defendant) No. 1, In these circumstances, Nawabzada Khalid Khan cannot be bound down by the acts of his treasurer as the deed executed by Abdul Khaliq, treasurer, clearly speaks that the sale agreement would be subject to, approval , of Nawabzada Khalid Khan. Thus, had there been any instructions by defendant No. l to his treasurer for receiving the earnest money, in that case the said treasurer Abdul Khaliq would not have laid the condition of approval by Nawabzada Khalid Khan. Admittedly, the earnest money was received by Abdul Khaliq, the treasurer of defendant No. 1 but there was no such like agreement between the plaintiffs and defendant No.

1. Besides this, the copy of deed Exh.P.W.3/1 does not disclose the field numbers or the Khata numbers allegedly agreed to be sold ,to the plaintiffs but is only disclosing that 3 Jaribs and 2 Kanals of land in village Mian Gulzara is to be sold, whereas the suit Khasra numbers show a big area of land as is apparent from Fard Jamabandi for the year 1968‑69, EXh.P.W.I/1. Even if it is presumed that defendant No.l had actuallyl entered into a sale agreement with the plaintiffs even then such agreement cannot be specifically enforced under the provisions of section 29 of the Guardians and Wards Act, 1890. However, the argument of the learned counsel for respondents regarding earnest money does not carry force in it. The receipt of the earnest money is admitted by P.W.3 Abdul Khaliq who is stated to be the treasurer of defendant No. l and as Exh.P.W.3/1 is issued on the printed receipt book of the office of Nawabzada Khalid Khan, therefore, the defendant No. l is responsible to return the earnest money to the plaintiffs keeping in view the admission of defendant No. l that Abdul Khaliq was his treasurer.

8. The grounds agitated before me on behalf of the petitioners do not make out a case for interference in the revisional jurisdiction of this Court. The concurrent finding of, facts arrived at by the two Courts below are not open to any exception for the reason that learned counsel for the petitioners has miserably failed to point out any misreading or non‑reading of the oral or documentary evidence by the lower forums on wrongly applying the provisions of relevant law. As a result, while maintaining the judgment and decrees of the learned Courts below being based on proper appraisal of the evidence, I would dismiss the revision petitions with no order as to costs. M.A.K./2161/P Revision dismissed.