2002 PLP 662 (CLC)

(2) Whether the suit is maintainable in its present form? OPP (3) Whether the plaintiffs have locus standi and cause of action to bring the suit? OPP (4) Whether the suit is infructuous? OPD 2‑3. (5) Whether the plaintiffs have a valid agreement for sale in their favour as contended in the plaint? If so, what was the consideration agreed? OPP (6) Whether the plaintiffs have paid a sum of Rs.31,000 as an earnest money and are in possession of the suit‑land on the basis of alleged sale agreement? OPP (7) Whether the sale agreement, dated 4‑8‑1975 in favour of defendants Nos.5 to 7 and the sale of the' land in favour of defendants Nos.8 to 16 is illegal, against facts, void and ineffective qua the rights of the plaintiffs? OPP (8) Relief.

4. Parties from both side led their evidence and the trial Court vide its judgment and decree dated 9-6‑1985 dismissed the suit filed by the plaintiffs/respondents Nos.27 to

45. Relevant it would be to point out that suit of the plaintiffs/respondents was dismissed by the trial Court on consideration of its findings on Issues Nos.2, 3 and

4. However, on other issues findings were recorded in favour of the plaintiffs/respondents. An appeal was preferred by the plaintiffs/respondents Nos.27 to 45 assailing the judgment of the trial Court and particularly the judgment on issues Nos.2, 3 and

4. No appeal or cross‑objections were filed by any of the petitioners or the respondents. The First Appellate Court reversed the finding on Issues Nos.2, 3 and 4 and accordingly the suit of the plaintiffs/respondents Nos.27 to 45 was decreed.

5. Aggrieved from that judgment and decree respondents Nos.8, 9 and 10 who are the present petitioners, filed a revision petition.

6. The dispute and the controversy brought before the Court from divergent pleadings of the parties was that respondent No. 1 namely Marzia Sultana had in the first instance surrendered the land situated in Revenue Estate Saugher Kalan, Tehsil and District Jhang. After the surrender of her excessive land she sought re‑allotment of land measuring 661 1Canals, 10 Marlas according to the scheme envisaged under Martial Law Regulation 89 read with M.L.R.

91. The land was allotted in favour of Marzia Sultana. Relevant it would be to point out that title in the land was neither conveyed nor transferred to Marzia Sultana till 1976. However, she acquired the proprietary rights on 27‑1‑1976 when the land was permanently transferred in her favour. The mischief occasioned, when respondent No.

1. In the prospects of obtaining the land mentioned above entered into various types of transaction and she has executed a general power of attorney in favour of respondent No.3 namely Muhammad Sharif on 27‑12‑1963. She is stated to have executed an agreement to sell in favour of respondent No.2 (Muhammad Siddique) on the same day. Thereafter, respondent No. 1, Marzia Sultana executed another, general power of attorney in favour of respondent No.4 (Malik Noor Ellahi) on 17‑10‑1974. Respondent No.4, on the basis of general power of attorney executed sale‑deed in favour of present petitioner on 5‑2‑1976. This sale‑deed was in respect of 400 Kanals of land. Respondent No.4 did not confine to alienate the land in favour of respondents Nos.8 to 12 to the extent of 400 Kanals but he had executed a number of sale‑deeds in favour of other vendees in respect of remaining 236 Kanals approximately.

7. Another tricky situation had arisen when respondent No.2. (Muhammad Siddique), who was merely holding an agreement to sell from Marzia Sultana respondent No. 1 had entered into an agreement to sell with plaintiffs/respondents Nos.27 to

45. This agreement to sell is dated 16‑7‑1964, and was in respect of 400 Kanals of land. The detail of the land, which was subject‑matter of this agreement to sell had been described in the plaint by the plaintiffs/respondents. The case set up by the plaintiffs/respondents was that I they weft; holding registered agreement to sell and in pursuance thereof, they were put in possession of the suit property. Thus, they claimed entitlement to seek the enforcement of their rights.

8. It was stated by the plaintiff that the agreement dated 4‑8‑1975 executed by respondent No.4 on behalf of respondent No. 1 and agreement to sell by respondent No. 1 in favour of respondents Nos.5 to 7 and execution of sale‑deed in favour of respondents Nos.6 to 16, and 18 to 29 provided a cause of action to plaintiff for filing a suit.

9. From the divergent pleadings of the parties, as many as 8 issues were settled. Both the parties produced their evidence and after hearing, the trial Court dismissed the suit. An appeal was preferred by the plaintiffs/respondents Nos.27 to 45 and the appeal was accepted by Additional District Judge, Jhang and the suit filed by the plaintiffs was decreed with slight modification. The plaintiffs were declared to be in possession of the suit property under an enforceable agreement to sell in their favour and respondents were restrained from interfering with the rights of the plaintiffs/respondents Nos.27 to 45 in respect of the suit land. The judgment and decree of Appellate Court is assailed through the present revision petition.

10. Arguments heard. The learned counsel for the petitioner argued that the Appellate Court did not appreciate that plaintiffs/respondents Nos.27 to 45 were not vested with any enforceable right, because they claimed to have obtained an agreement to sell dated 16‑7‑1964 from respondent No.2 (Sh. Muhammad Siddique). The said Sh. Muhammad Siddique himself was not having any right in the property, because he merely held an agreement to sell from respondent No. 1 (Marzia Sultana). Respondent No. 1 (Marzia Sultana) was herself only an allottee and she did not possess any title or proprietary rights in respect of the land in question at the time Muhammad Saddique claims to obtain agreement to sell. Therefore, the learned counsel maintained that a person, who is merely a holder of an agreement to sell, could not convey any right to any other person in the movable property by further entering into an agreement to sell. Next it was argued that because plaintiffs/respondents Nos.27 to 45 did not obtain possession under a valid agreement to sell, therefore, protection under section 53‑A of Transfer of Property Act was not available, to the plaintiffs /respondents. It was further argued that even agreement to sell dated 27‑12‑1963 in favour of respondent No.2 (Muhammad Siddique) was of no legal effect, as respondent No. 1 Marzia Sultana) herself was merely an allottee at that point of time and proprietary rights in her favour were conveyed to her on 27‑1‑1976. Adding to his arguments, learned counsel submitted that doctrine of part performance could only be invoked in favour of plaintiffs/respondents, if their seller had an absolute right/title. It was further added that it was proved on record that Hassan, Khan, Jilal and Moulvi Abdul Haq, who were also plaintiffs had relinquished their claim under the agreement, dated 26‑5‑1964 (Exh.P.4), but Additional District Judge did not consider the evidence on record in its proper perspective. In support of his arguments, learned counsel for the petitioner placed reliance on judgment, titled The Chief Land Commissioner. Punjab and another Ch. Atta Muhammad Bajwa and another 1991 SCMR 736, Sheikh Nazeer Ahmad v. Haii Ghulam i4ussain 1985 CLC 7, M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore PLD 1966 (W.P.) Lah.

953. Muhammad Ali Akbar v. Mst. Fatima Begum AIR 1931 Lah. 591, Shah Nawaz Khan v. Province of Punjab 1997 MLD 173, Messrs Capital Farms. Islamabad v. National Development Finance Corporation PLD 1996 Lah. 99.

11. Refuting the arguments of learned counsel for the petitioners, the counsel appearing for the plaintiffs/respondents Nos.27 to 45 claimed that the petitioners are precluded, to assail the findings of the trial Court on Issues Nos. 1, 1‑A, 5, 6 and

7. According to learned counsel these issues were decided in favour of the plaintiffs/respondents by the trial Court and the present petitioners did not file any appeal or preferred any cross-objection, therefore, according to the learned counsel, the findings of trial Court on these issues had attained finality. An appeal was preferred by the plaintiffs/respondents assailing the findings on Issues Nos. 2, 3, and

4. These issues which were decided against the plaintiffs/respondents by the trial Court were assailed by the plaintiffs through an appeal. It was added by the learned counsel that the findings of Courts below on all other issues, except Issues Nos.2, 3, and 4 have attained finality and the petitioner could only assail the findings of Additional District Judge on Issues Nos.2, 3 and

4. It was further argued by the learned counsel ('or the contesting respondents that findings on Issue No.5 relating to validity of agreement to sell in their favour had attained finality, therefore, this question cannot be assailed by the petitioner. The learned counsel placed reliance on judgments titled Ilamuddin v. Syed Sarfraz Hussain 1999 CLC 312, Mst. Gulzar Bibi v. Public in General 1995 CLC 1551, Dosabai v. Mathurdas Govinddas AIR 1980 SC 1334, Sabir Ali v. Muhammad Mansha and others 1998 MLD 2068, Directorate of Industries and Mineral Development and others v. Messrs Masood Auto PLD 1991 Lah. 174, Amir Bakhsh and another v. Muhammad Ramzan and others 1990 MLD 245; AIR 1980 All.

36. Arguing further learned counsel for the respondents submitted that the principle of lis pendens applied with full force in the 'case and that any right acquired by the petitioner is of no legal effect. Reference in this behalf was made to the case titled Karam Dad v. Ghulam Qasim and other reported as 1999 SCMR 2784. Next it was argued by the learned counsel that a decree, dated 26‑5‑1964 was awarded in favour of defendants Nos.2 and 3 in respect of agreement to sell, dated 27‑12‑1964 whereby agreement to sell in favour of respondent No.2 was affirmed by the Court. Adding further, learned counsel argued that the agreement is arrived at to get a property which right is by itself a property and such right is saleable.

12. Some of the facts which are relevant to resolve the controversy stand admitted between the parties. It is admitted that respondent No.1 was merely an allottee and the proprietary rights were conveyed to her on 27‑1‑1976. Prior to this, she was holding a provisional allotment in her favour. It is admitted that she executed a general power of attorney in favour of respondent No.3 on 27‑12‑1963 and an agreement to sell in favour of respondent No.2 on 27‑12‑1963. It is also admitted that respondent No. 1 had also given a general power of attorney to respondent No.4. Facts that respondent No.4 executed sale‑deed on 5‑2‑1976 on behalf of respondent No. 1 in favour of present petitioners for 400 Kanals which is land in dispute is also admitted. These facts are established from the evidence on record, the vital question in the case relates to legal value of agreement to sell, dated 27‑12‑1963 purported to have, been executed by the respondent No.2 Muhammad Siddique in favour of respondents Nos.27 to

45. This question would be taken up later. Firstly I propose to deal with the legal objections raised by the respondents.

13. It was argued on behalf of the respondents that the trial, Court had decided Issues Nos. 1, 1‑A, 5, 6 and 7 against the petitioners. They had neither filed an appeal nor any cross‑objections were preferred therefore, the findings of the trial Court on these issues had attained finality. It was added by the learned counsel for the respondents that the trial Court had decided Issues Nos.2, 3 and 4 against them and they preferred an appeal. On appeal the Additional District Judge reversed the findings of the trial Court and decreed the suit with slight modification. According to the learned counsel for the contesting respondents the petitioners were precluded to call into question the findings of trial Court on Issues Nos. 1, 1‑A, 5, 6 and 7 through the present revision petition. The cases titled Ilamud Din v. Syed Sarfraz Hussain 1999 CLC 312 Sabir Ali v. Muhammad Mansha and others 1998 MLD 2068, Afzal Khan v. Muhammad Lateef 199.5 CLC 1951 and Directorate of Industries and Mineral Development and others v. Messrs Masood Auto Stores PLD 1991 Lah. 174 were relied by the learned counsel for the respondents in support of legal proposition canvassed. I have examined the judgment o the Additional District Judge, Jhang. I find that the judgment of the Additional District Judge did not confine to the findings on Issues Nos.2 3 and 4 only but findings on other issues were also noted and it was upheld. In para. 6, the finding on Issue No. 1 was upheld after discussing the merit of the case. Similarly in para.7 finding on Issue No. 1‑A was upheld. Likewise findings on Issues Nos.5 and 6 were upheld it paragraph

11. From the tenor of the judgment it is inferred that the Additional District Judge decided the appeal on all the issues. The First Appellate Court by affirming the judgment of the trial Court on issues Nos. 1, 1‑A, 5, 6 and 7 provided a ground to the petitioners for assailing his judgment through the present revision petition. Therefore, the objection of the respondents as regards the right to assail the findings on issues Nos. 1, 1‑A, 5, 6 and 7 are repelled and it is held that the petitioners are entitled to challenge the findings on Issues Nos. 1, 1‑A, 5, 6 and

7. For another reason the objection of respondents Nos.27 to 45 is not tenable which is that under section 96, C.P.C. first appeal is competent from a decree. Similarly under Order 41, rule 22, C.P.C. cross‑objections are available against a part of the decree. In the present case there was no divisible decree, therefore, mere non‑filing of objections on the part of the petitioners would not militate their right to challenge the decree of the Appellate Court through the present revision petition.

14. The second argument raised by the learned counsel for the respondents Nos.27 to 45 is based on the provision of section 53‑A of the Transfer of Property Act. It was submitted by the learned counsel that through an agreement to sell, dated 16‑7‑1964 they were given the possession of the property in part performance, therefore, they were entitled to hold the possession. Reference to case titled Mst. Akhtar Begum v. Mian Aziz and others reported as 1985 SCMR 1617 was made and the judgment of the Additional District Judge was supported. Learned counsel for the petitioners controverted the arguments of the learned counsel for the respondents Nos.27 to 45 and argued that the contesting respondents do not have any right because they did not hold any valid agreement to sell in their favour nor they obtained possession from Mst. Marzia Sultana respondent No.

1. Adding his arguments the learned counsel for the petitioners further submitted that even if any semblance of right could be claimed by the contesting respondents, it could only be used as a shield to protect the possession and it could not be the basis for 'the enforcement of any right.

15. Section 53‑A of Transfer of Property Act enunciates the doctrine of equity of part performance. It should inure from the legally and forcible contract between the transferor and the transferee. In the present case respondent No.2 namely Muhammad Siddique merely produced an agreement to sell on 27‑12‑1965 and that too from Mst. Marzia Sultana respondent No. 1, who herself was merely an allottee. The provisions of section, 53‑A does not dilute the provision of section 41 of the Transfer of Property Act. It merely lays down a principle of equity where a transferee had paid the consideration and in part performance of a written contract he is in possession of the property. Therefore, the claim of the possession of .the transferee should be under a proper valid agreement. In the circumstances of the case, the possession of respondents Nos.27 to 45 is not under a proper, legal and enforceable contract as it will be described herein, therefore, the protection of section 53‑A of the Transfer of Property Act was not available to them and they could not use it as a weapon to obtain a decree for declaration.

16. After dealing with the main objection of the respondents I now deal with the main issue relating to evaluation of the agreement to sell, dated 16‑7‑1964 which the respondents Nos.27 to 45 have procured from respondent No.2. As already narrated above this agreement was executed by respondent No.2 who himself was holding an agreement to sell from respondent No. 1, dated 27‑12‑1963. Section 54 of the Transfer of Property Act described that a contract for the sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties. It does not by itself, create any interest in or charge on such property. Examining these agreement to sell in the light of this statutory principle I have no hesitation to hold that agreement to sell in favour of Muhammad Siddique, respondent No.2 did not create any right or interest in or charge on the suit property. He was merely a holder of agreement to sell from Mst. Marzia Sultana who herself was not having any perfected right in the immovable property as she was herself merely an allottee. Respondent No. 1 Mst. Marzia Sultana sought allotment under M.L.R.

89. The background of the M.L.R. 89 is that it was enforced through a Notification of Government of Pakistan No.187/61, dated 23‑8‑1961 and it was gazetted in the Pakistan Gazette, Extraordinary on 1‑9‑1961 and it was known as Scrutiny of Claims (Evacuee Properties) Regulation. Under this regulation fresh allotment was to be made on the basis of entitlement certificate and any excess land earlier held under any entitlement certificate was required to be surrendered. Mst. Marzia Sultana was stated to have been allotted land under M. L. R. 89 after she had surrendered excess area. It was merely an allotment which was to be finalized by permanent transfer of the land to her. Admittedly the land in suit was permanently transferred to her on 28‑1‑1976. Therefore, in 1963 when she entered into an agreement to sell with Muhammad Siddique respondent No.2 she had no right or permanent title in the land and at the most she could only bargain for her right to seek enforcement of her allotments. None of the parties has produced any document relating .to temporary allotment and subsequent permanent transfer in favour of the respondent No.

1. The learned counsel for the petitioners argued that a person merely holding an agreement to sell could not further convey any right in the immovable property and in that reference was made to case titled Nazeer Ahmad Sheikh v. Haji Ghulam Hussain reported as 1985 CLC 7, Messrs Capital Farm, Islamabad v. National Development Finance Corporation PLD 1996 Lah. 99, M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore PLD 1966 (W.P.) Lah. 953, Rama Asra and another v. Allah Jawaya and another AIR 1931 Lah. 595 and the case titled Chief Land Commissioner, Punjab v. Ch. Att1 Muhammad Bajwa 1991 SCMR

736. The learned counsel for the respondents had also relied on case of Bhairon Prasad Chaurasiya v. Mst. Tara Devi and another AIR 1980 All.

36. The learned counsel for the respondents argued that the agreement to sell creates right in the property and that respondent No.2 was holding a valid agreement to sell on the basis whereof he had further entered into an agreement to sell with the contesting respondents. The learned counsel further added that all rights which Mst. Marzia Sultana respondent No. 1 enjoyed stood assigned to contesting respondents which includes the right to hold property, I am afraid that the argument of the learned counsel for the respondents is devoid of any worth. It was never the case of the contesting respondents that they are the assignee of the right of Mst. Marzia Sultana, respondent No.

1. That the case set up by them in the plaint was that they acquired the right to seek enforcement of an agreement to sell which they had entered into with respondent No.2. As respondent No.2 himself was merely holding as agreement to sell, therefore, he could not convey any right in the immovable property including the right to deliver the possession. Accordingly the contesting respondents did not acquire any right through the factum of possession even if they had acquired the possession from respondent No.2 and further no right in the immovable property could be conveyed by respondent No.2, having no right in the suit property to the contesting respondents, therefore, agreement to sell, dated 16‑7‑1964 was not of any legal worth. The suit was filed on 22‑12‑1975. It is improbable that the respondents Nos.27 to 45 who had filed the suit did not have any knowledge about the conferment of proprietary right of respondent No. 1 but in any case they had acquired the knowledge of the same during the pendency of the suit because the sale‑deeds which were executed by the respondent No.3 as an attorney of respondent No. 1 in favour of the petitioners were challenged and brought on record during the evidence. The suit of the plaintiffs/respondents was dismissed but they never filed any suit for specific performance and even till to date they have not come up with any suit for specific performance which right if at all they had stands completely faded out with the flux of time. I, therefore, hold that the plaintiffs/respondents Nos.27 to 45 did not acquire any right under the agreement to sell, dated 27‑12‑1963 and even if they had acquired any semblance of right the same was lost with the flux of time and in the absence of any valid subsisting contract in their favour, Additional District Judge, Jhang was not legally justified to award a decree of declaration in favour of the respondents Nos.27 to

45. In view of my findings hereinbefore, I allow this revision petition and set aside the judgment and decree, dated 12‑1‑1986 awarded by the Additional District Judge, Jhang and dismiss the suit of the plaintiffs/respondents Nos.27 to

45. Q.M.H./M.A.K. M‑852/L Revision allowed.