1998 PLP 2428 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

Leave to appeal has been sought from the judgment dated 20-8-1997 of Lahore High Court Multan Bench, whereby the petitioners' Regular Second Appeal arising out of a suit for specific performance decreed in favour of the respondents and duly affirmed by the first Appellate Court, was dismissed.

2. The facts as narrated in the impugned judgment of the High Court are that Umar Din deceased predecessor-in-interest of the petitioners had agreed to sell the disputed property to Muhammad Sharif, the predecessor-in-interest of the respondents vide registered agreement to sell dated 23-10-1969 for a sum of Rs.8000. A sum of Rs. 4000 was received by the deceased vendor as earnest money who undertook to complete the sale transaction on getting the PTD from the Rehabilitation Authorities. It was also undertaken in the said agreement that if the upper storey of the house in question was not transferred to the predecessors-in-interest of the petitioners, he would transfer the lower portion of the disputed house for a sum of Rs.6000. Later on, only the lower portion of the house was transferred to the deceased/vendee and in consequence a new agreement dated 6-5-1970 was scribed and got registered on 7-5-1970 and a sum of Rs.2000 was paid as earnest money. It appears that litigation between the predecessors-in-interest of the petitioners with some other party concluded on 20-1-1977 in dismissal of former's claim over the upper storey of the disputed house. The grievance of the respondents made in the suit for specific performance was that the deceased/vendor during his life time did not intentionally obtain the PTD from the evacuee authorities so as to frustrate the claim of the respondents. The suit of the respondents was strenuously contested by the predecessors-in-interest of the appellants giving rise to as many as nine issues.

3. The controversy between the parties that survived for determination substantially remained confined to only issue No.6 which is to the following effect: "Whether the property in dispute has not so far been transferred to the plaintiff, if so, what is its effect? OPP".

4. The learned trial Judge after appraising the evidence of the parties, observed that appellant No.1 had defended the suit for specific performance of agreement to sell pleading that PTD had not been issued to them by the Rehabilitation Authorities on the ground that the "dispute regarding the roof of the house in dispute is still pending adjudication between the parties." It was, however, noted in the judgment of the trial Court that the Special Attorney of the respondents has admitted in the examination-in-chief that the petitioners had not succeeded against the successors-in-interest of Muhammad Nabi with whom the petitioners were locked in litigation over the entitlement to the roof and the first storey of the house and in consequence Umar Din deceased vendor was declared ineligible to the allotment of the upper storey. The learned trial judge therefore, concluded that it was definitely on this apprehension that if the vendor is deprived of the roof of the house by the court he would be bound to execute the sale deed regarding the remaining portion of the house on payment of Rs.6000. The learned trial judge also referred to the order dated 10-9-1977 passed by the Deputy Settlement Commissioner which indicated that Umar din deceased-vendor had entered appearance before the former on 10-9-1977 and the Deputy Settlement Commissioner passed the order to Ward Incharge to issue PTD to the deceased/vendor provided there was no injunction issued by any superior Court. Reference was made to the assertion in para.6 of the plaint that round of litigation between the respondents and the successors-in-interest of Muhammad Nabi had been finally adjudicated upon resulting in the dismissal of the claim of the deceased/vendor. It was found as a fact that no injunction had been passed by any superior Court against the issuance of PTD. It was, therefore, held by the learned trial Judge that the predecessors-in-interest of the appellants and theft the appellants themselves "purposely avoided to get the PTD to perpetuate their possession over the property in dispute" and were thus avoiding registration of the sale deed which was obviously devoid of any legal force. As the execution of the agreement to sell had not been denied and the objection of the non-issuance of the PTD had been repelled, a decree for specific performance had been passed on 1-9-1987.

5. Feeling aggrieved, the petitioners challenged it before the learned Additional District Judge, Multan in appeal. The learned first appellate Court did not entertain the plea raised on behalf of the petitioners that since they could not get the PTD issued in their favour, therefore, they were unable to perform their part of the agreement to sell and deliver possession of the house to the respondents. In this regard, it was observed that litigation between the petitioners and Muhammad Nabi another party over the allotment of the roof of the house had attained finality and in consequence lower portion of the house had been transferred to the petitioners. It was found as a fact that PTD had been prepared by the Settlement Authorities and was lying in the office of Additional Deputy Commissioner, Multan, but the petitioners were not collecting it due to the ulterior motive. The finding of the learned trial Judge on the main controversy was, therefore, affirmed by the learned first Appellate Court.

6. Feeling still dissatisfied, the petitioners filed Regular Second Appeal No. 12 of 1997 in the Lahore High Court. A learned Single Judge in the High Court, who was seized of the matter, seems to have rightly observed that the stand of the petitioners on the main controversy of issuance of the PTD in their favour " was rather evasive" and it was proved in evidence that the litigation between the petitioners and the successors-in-interest of Muhammad Nabi, another party to the dispute regarding the upper storey, had ultimately culminated in dismissal of the claim of the petitioners and, therefore, there was no 'bottleneck' remained in the way of the petitioners to execute the sale deed in favour of the respondents. The learned Single Judge placed implicit reliance on the case of Nasira Sultana v. Habib, Bank Ltd. and others (PLD 1975 Karachi 608) and (Retd.) Group Capt. A.M. Ivforau v. Muhammad Azmatullah Siddiqui and 3 others (1991 SCMR 2415) wherein the dictum is that a vendee agreeing to sell the property is debarred to plead the incompletion of his title to the property as under the law the agreement can be enforced through specific performance after grant of proprietary rights.

7. The petitioner's appeal having been dismissed by the High Court, they have now sought leave to appeal. Mr. Samad Mahmood, learned ASC, appearing on behalf of the petitioners, has reiterated the contention which has been repeatedly canvassed before the two Courts below and then in the High Court as well that the suit for possession of the disputed house by specific performance of the agreement to sell was not competent under the law in the absence of PTD to be issued by the Settlement Authorities. In this context, it was submitted that the agreement to sell per se did not confer on the respondents the title to the property involved and, therefore, the suit for specific performance was premature. The learned counsel in support of the proposition that the suit for the enforcement of the agreement to sell was not competent and that as the permanent transfer document had not been issued to the petitioners, the suit for declaration could only be filed placed reliance on the precedent of Pirzada Amir Hassan and another v. Mrs. Shamim Shah Nawaz and another (1987 SCMR 249). The reliance of the learned counsel on the precedent of Pirzada Amir Hassan, supra, to say the least, is mis-placed. In this context the ratio of the precedent case is reproduced hereunder:-- "It is correct that the first suit filed by the respondent side seemingly appeared to be for the enforcement of the agreement to sell but on deeper scrutiny it is observed that specific performance could not be asked by the plaintiff (of the agreement to sell) unless and until the would-be vendee had taken a particular step, namely, of obtaining the permanent transfer documents. It was in this context, therefore, that instead of seeking the specific performance the plaintiff justifiably sought the assistance of the Court to compel in the first instance the would-be vendee to obtain transfer documents from the Settlement Department. Without that the plaintiff could have been advised that the suit for specific performance might not be competent. And when during the pendency of "that suit the defendant obtained the transfer deed the said suit fructified and had become infructuous. Therefore, the trial Court rightly held it so. The argument of the learned counsel that by subsequent amendments the first suit had been changed into a suit for specific performance, besides being without any support of material placed on the record of this petition, was not pressed before the High Court. We, therefore, do not attach any importance to it."

8. It would be noticed that the facts in background of Pirzada Amir Hassan's (supra) are slightly different nonetheless the proposition canvassed by Mr. Samad Mahmood does not lend support from the precedent.

9. Mr. Ibadur Rahman, learned ASC, representing the respondents has invited our attention to the law laid down recently by this Court in the case of Mst. Rehmat Bibi and others v. Mst. Jhandoo Bibi and others (1992 SCMR 1510) which is to the following effect:-- "In the conclusion, however, learned counsel admitted that in this case; when the (alleged) agreement was entered into, the proprietary rights had not been granted to the allottee/grantee. They were subsequently granted to his successors. Otherwise too, he was unable to contest the proposition that the bar in section 19 of Colonization of Government Lands (Punjab) Act (V of 1912) is against the alienation and not against the agreement and that being so the agreement could be enforced through specific performance after the grant of proprietary rights and this is what has happened in this case" (Underlining is provided for emphasis)."

10. In the light of what has been observed above all the three Courts have rightly held that notwithstanding the issuance of the PTD in favour of the petitioners, they had avoided to collect it from the Settlement and the Rehabilitation Authorities in order to frustrate the agreement to sell and, therefore, they are unable to contest the proposition that if the PTD had been issued but had not been intentionally collected by the delinquent party, the agreement would be enforced through specific performance and. therefore, there is no substance in this petition.

11. Finding no force in this petition, we dismiss it with no order as to costs. M.B.A.!A-86/S Petition dismissed.