1996 PLP 1681 (MLD)

5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record, relevant provisions of law and the precedents. The admitted position on record is that the respondents were allottees of the lot in the equal share and they have been granted proprietary rights accordingly and after grant of proprietary rights., execution and registration of the sale deed they became owners in the same ratio, therefore, each one of them can deal with his share of the land in any manner he liked. Respondent No.1 submitted the written statement which is available at page 37 of the paper book. He admitted all the averments in the plaint. In this view of the matter he was not at issue with the plaintiff on any question of law and fact, therefore, to his extent the trial Court should have at once pronounced the judgment. This was fairly and squarely covered by the provisions of rule 2 of Order XV,.C.P.C. which reads as under:‑‑‑ "2 One of several defendants not at issue. Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants." The other provisions of the C.P.C. referred to by the learned counsel for the petitioner are not relevant.

6. Now coming to the argument of the learned counsel for respondent No.2 that the alleged agreement was one and the defendants were to be deemed as one party. The learned counsel in this behalf has placed reliance on section 17 of the Specific Relief Act, which reads as under:‑‑‑ "

17. Bar in other cases of specific performance of part of contract, the Courts shall not direct the specific performance of a part of a contract except in. cases coming under one or other of the three last preceding sections." It is, therefore, clear that this provision is not absolute but this is subject to exceptions as contained in sections 14, 15 and

16. For the purposes of this judgment section 16 is relevant; The same reads as under: "

16. Specific performance of independent part. of contract.‑‑‑When. a part of a contract which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part. " The general rule is that contract of sale of property through one agreement would be considered indivisible but this is not inflexible and admits of exceptions and this is clear from section 17 of Act I of 1877 which bars part performance but this is subject to the provisions of sections 14, 15 and 16 of Act s1 of 1877. The respondents‑ being owners of specific shares the contract was early divisible. It would be deemed one contract in respect of each respondent. Therefore, there is no merit. in the argument raised on behalf of respondent No.2. The judgment should have been pronounced straightway in respect of respondent No.

1. This is not all. Even he made an application in the first. Appellate Court under Order XXIII, rule 3, C.P.C. during the pendency of the appeal but the same was also not decided. The Court in fact had no discretion in the matter after clear admission of the claim of the petitioner by respondent No. 1 but to decree the suit to that extent.

7. Now coming to the share of respondent No.2. The main defence is that the petitioner failed to prove agreement. In this behalf, his learned counsel, has referred to the judgment of the trial Court. The argument again has no merit because the agreement was proved by the application Exh.PI moved to the Collector by the respondents. The same was also produced by respondent No :2 as Exh.D

3. Their statements Exh.P2 coupled with the copy of Khasra Girdawari, receipts of Lagan, land revenue, purchase of stamp, payment of district council fee and above all the possession of land and title deed thereto clearly prove the agreement between the parties. It was a simple agreement. The terms and conditions are absolutely clear. As against this respondent No.2 did not appear himself. This also not only leads to adverse possession against him but due to his absence the evidence of the petitioner also remained un-rebutted. The defence of respondent No.2 remained un-established and following factors dealt a fatal blow to his case:‑‑‑ (i) His non‑appearance as witness; (ii) failure to summon the Revenue Officer who recorded the statements of the parties; (iii) failure to refer the documents to the Handwriting Expert; and (iv) the statement of attorney D.W.l that he was not aware of the facts earlier to his appointment as attorney. This way, there was no defence worth the name. There is marked difference in the nature of proof in civil and criminal cases. It is only in the criminal cases that the prosecution is required to prove the guilt of the accused beyond reasonable doubt but in the civil cases proof adduced in support of a fact is to be such as to make a prudent man except the same. In this behalf, the following passage from Law of Evidence by Monir makes the things clear:‑‑‑ "There is, however, a marked difference as to the effect of evidence‑in civil and criminal cases. Thus, whereas in a civil case a mere preponderance of probability is a sufficient basis of decision, in a criminal case persuasion of guilt must amount to 'such a moral certainty as convinces the minds of the tribunal as reasonable men beyond all reasonable doubt.' In a criminal case before the Court is called upon to convict a person it has to satisfy itself that possibility of his innocence is ruled out, in a civil case all that is necessary to insist upon is that the proof adduced in support of a fact is such that should make a prudent man to act upon the supposition that it exists." Therefore, the findings of the Courts below on issue No.3 that the agreement was not proved are illegal, against record and liable to be set aside.

8. The learned counsel for the petitioner argued that, assuming and not conceding, there was no written agreement between the parties then the oral agreement, which, was proved by the documentary and oral evidence, was sufficient to decree his suit. There is merit in the argument especially because in .the Specific Relief Act no specific form of the agreement has been prescribed. In the present case terms and conditions are clear from the documents' Exhs. P 1 and P

2. It is also established on record that the same was acted upon by the parties, therefore, the suit was liable to be, decreed even if it is held that there was no contract in. writing as such, Respondent No.2 has failed to explain how the petitioner was in possession of the land and title deed,' receipts for payment of all sorts.

9. Now coming to the legal objection that there was no consideration for the agreement. Before proceeding we have to refer to the definition of consideration as contained in the Contract Act. The same reads as under:‑‑‑ "2(d). When, at the desire of the promisor the promisee or any other person who has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise." Now in the present case it is clear from the documentary evidence on record that the respondents failed to cultivate the land. In the first instance respondent No.1 joined respondent No.2 with him but this arrangement also did not work, therefore, they joined the petitioner with them. The petitioner put in both money and labour to develop the land, paid the dues of the Government and district council fee and as a result thereof the proprietary rights were granted. The respondent in lieu of his investments, money and labour‑wise, had agreed to give him 15/16th share of the land. It is admitted position that even the defendants were not the owners of the land. They have only a right to cultivate it in accordance with the terms of the grant and if‑successful then they were to get the proprietary rights. The investment finance and labour put by the petitioner is a valid consideration, therefore, there is no merit in the argument of the learned counsel for the respondent that the agreement was void for want of consideration.

10. This is not all. The respondents got 1/16th share in the land in accordance with the agreement to sell without any investment. This also formed part of the consideration. It is worthwhile to mention here that such agreements are in vogue and not illegal. In this behalf the learned counsel for the petitioner has rightly referred to the judgments in the cases of Hakim Ali and another, Muhammad lqbal and others, Mst. Begum Bibi and others, Muhammad Afzal and another and Sher Muhammad Khan and others (supra).

11. The upshot of this discussion is that the impugned judgments end decrees, of the trial Court, dated 17th of July, 1982 and of the first Appellate Court, dated 13th of June; 1984 are hereby set aside by accepting this civil revision. The result is that suit of the petitioner is decreed with costs throughout. A.A./M‑27/L Revision accepted.