2021 PLP 657 (CLC)

ASIM HAFEEZ, J.

This Civil Revision impugns judgment and decree dated 28.10.2000 by learned Additional District Judge, Multan, whereby appeal filed by respondent No.1 -Barkatullah (deceased and represented through legal heirs) - was allowed and judgment and decree, dated 10.07.1996, of learned Civil Judge was reversed / set aside. As a consequence of allowing appeal, suit of the petitioner for seeking specific performance and declaration of invalidity against mutation dated 27.06.1987 - issued pursuant to Resolution No.146 by the Cantonment Board, Multan, whereby ownership of Barkatullah qua the property, i.e. House No.1497, Ward No.3, Khatkana Road Bazar, Multan Cantt was recorded - was dismissed.

2. Briefly the facts, essential for the adjudication of instant Civil Revision, are that petitioner filed suit on 16.05.1988 on the basis of agreement to sell dated 18.10.1982, allegedly executed by respondents Nos.2, 3 and 4 against consideration of Rs.20,000/-, out of which Rs.15,000 was claimed to have had paid. Deceased Barkatullah was also impleaded as one of the defendants. The case of the petitioner was that respondents Nos.2, 3 and 4 are sons of deceased Faiz Rasool, whose mother was Mst. Bismillah / Fatima, who was one of the legal heirs of Zainab Bibi, along Khuda Baksh and Muhammad Siddique - since Khuda Baksh remained untraceable and Muhammad Siddique died issueless. Hence, property in question devolved on Faiz Rasool and on his death in 1976, to the respondents Nos.2, 3 and

4. Cantonment Board - impleaded as Defendant No.1 - filed written statement and defended Resolution No.146 dated 27.06.1987 and alleged that same was passed after scrutiny. Respondents Nos.2, 3 and 4 acknowledged the agreement to sell and denied allegation of breach of promise, alleging that ownership rights [Haqooq-e-Malkiat] were not bestowed. Barkatullah filed contesting written statement and claimed excusive ownership of the property. Issues were framed and parties accordingly led evidence. Upon conclusion of trial, learned trial court proceeded to decree the suit of the petitioner. Barkatullah successfully filed appeal, which was allowed, and judgment and decree of learned trial court was set aside, dismissing the suit of petitioner. Hence, this Civil Revision.

3. Learned counsel for the petitioner contends that execution of agreement to sell was proved convincingly. Adds that testimony of P.W-1 and P.W-2 was sufficient for forming opinion, in terms of Article 64 of Qanun-e-Shahadat Order, 1984, regarding relationship of respondents Nos.2, 3 and 4 for the purposes of establishing their ownership of the property in question -respondents being sons of Faiz Rasool, son of Mst Bismillah / Fatima, and Faiz Rasool was entitled to inherit property in the absence of any other claimant. Further submits that Barkatullah (DW-3), appeared as a sole witness, who failed to substantiate claim of ownership qua property in question and in the wake of evasive written statement, no credibility can be extended to claim of ownership. Counsel referred to the decision in the case of Jameel Ahmed v. Saifuddin (PLD 1994 Supreme Court 501).

4. Learned counsel appearing for respondent No.1 supported the judgment of the appellate court.

5. Arguments heard. Record perused.

6. The submissions made by learned counsel for the petitioners were accordingly discussed by learned appellate court, which findings remained unrebutted. No illegality was pointed therein. PW-1 and PW-2 were the residents of locality and their evidence was least helpful in proving relationship of the respondents Nos.2, 3 and 4, for the purposes of convincingly establishing their ownership of the property. Khushi Muhammad (PW-6) was the tenant of the property, who alleged to have executed agreement dated 09.03.1982 (Ex.P-2) with petitioner, reflecting sale of superstructure of the suit property for Rs.15,000/-. Petitioner unsuccessfully endeavoured to establish relationship of landlord and tenant between respondents Nos.2, 3 and 4 and PW-6. And unless the ownership of respondents Nos.2, 3 and 4 was established, no advantage could be claimed by virtue of Ex.P-2. Petitioner appeared as PW-7 and admitted that after cancellation of mutation of Barkatullah, the property was not transferred in the name of respondents Nos.2, 3 and

4. PW-7 admitted that no documents of ownership were examined; admitted that no pedigree table was examined; admitted that no suit was filed by respondents Nos.2, 3 and 4 for correction of mutation.

7. Notwithstanding, failure of the petitioner to prove the entitlement of the respondents Nos.2, 3 and 4 qua property in question, the most fatal aspect was that petitioner has had no right to seek enforcement of agreement to sell, let alone challenge the mutation/resolution No.146. It is significant to note that respondents Nos.2, 3 and 4 represented themselves as Haqdaran in the agreement - no reference to any document of ownership was mentioned in the agreement. There was no evidence at all to show that when alleged rights in the property culminated into ownership, legally transferable. It is an admitted fact that neither any suit was filed by respondents Nos.2, 3 and 4 nor any adjudication of alleged right was sought at any point in time. Even Faiz Rasool had not claimed ownership in his life. No proof was provided to show their relation with alleged tenant P.W-6. Respondents Nos.2, 3 and 4 maintained that rights claimed never matured into ownership.

8. One of the conditions of the agreement, material for the purposes of adjudication of the lis at hand, was that petitioner would be entitled to seek enforcement of the agreement by resorting to court upon default on the part of the respondents Nos.2, 3 and 4 to execute deed after acquiring ownership rights in the property, which core condition remained unfulfilled throughout. Clearly, the enforcement of agreement to sell was subjected to a contingency - till respondents Nos.2, 3 and 4 acquires ownership. The fundamental question is that whether enforcement of a contingent contract can be claimed when contingency or the condition attached was never fulfilled. Right to obtain specific performance of a contract is a statutory right, which in essence is a "vested right of action" - which enables a person to approach court for enforcement but whether any such person can approach a court or exercise such right of action when it was subjected to or conditioned with the happening of an event and such contingency/condition remained unachieved/unfulfilled. No such right can be exercised unless such contingency or condition is fulfilled. This is the principle governing contingent contracts. Guidance is solicited from the ratio of the decision in the case of Muhammad Anwar v. Muhammad Aslam and others (2012 SCMR 345), relevant portion whereof is reproduced hereunder as:- "We are not impressed by the contention of the learned counsel. We have noticed that contract of such a nature is covered by the definition of 'contingent contract' in terms of section 31 of the Contract Act, 1872. Section 32 of the said Act provides how contingent contracts are enforceable in law. The law allows enforcement of a contingent contract, after the event upon which it was contingent, has happened. In order to seek enforcement of a contingent contract, the party suing to enforce an obligation, which is conditioned upon the occurrence of an event, has to only establish that the event has occurred in a manner contemplated by the contract for the obligation to raise".

9. Even a right to sue was not available to the petitioner, in the facts of this case. The judgment referred by learned counsel is distinguishable and not applicable. The petitioner failed to establish its right / entitlement to seek specific performance of the agreement to sell dated 18.10.1982, who, in such circumstances, cannot claim dividend in lieu of any alleged shortcoming of the respondents Nos.1-A to 1-E - legal heirs of Barkatullah. The findings recorded by appellate court on Issues Nos.15, 16, 17 and 17-A are unexceptionable. No illegality or irregularity, in the exercise of jurisdiction by the learned appellate court, is found, which has rightly reversed / set-aside the judgment of the trial court dated 10.07.1996.

10. In view of aforesaid, this Civil Revision is without merit and same is, therefore, dismissed. No order as to costs. SA/M-179/L Petition dismissed.