1984 PLP 1439 (CLC)

Masud Akhtar for Petitioner. Ch. M. Abdul Salim for Respondents. . Dates of hearing ; 28th June, 1981 and 7th March, 1983. This revision petition under section 115, C. P. C. is directed against the judgment and decree dated 16-2-1974 of the learned Additional District Judge, Mianwali, whereby reversing the judgment dated 20-12-1972, the suit for specific performance of agreement dated 9-12-1968 was dismissed.

2. Briefly stated, the facts necessary for the disposal of this revision petition are that an agreement was allegedly executed by Alam Khan son of Sher Khan predecessor-in-interest of the respondents as per assertions of the plaintiff-petitioner to sell the land in dispute for a consideration of Rs. 1,600 out of which Rs. 1,000 was asserted to have been received at the time of execution. It was further claimed in- the plaint that Rs. 600. the balance of the sale price was also received by the respondents nine months prior to the institution of the suit as by that time Alam Khan, the executants of the said document, had died. It was alleged that and receipt of the balance amount, the land was transferred to respon dent-defendants Nos. 1 and 3 to 5 exclusively. The respondents contro verted these assertions in the written statement filed by them and on the basis of the pleadings of the parties, learned trial Judge framed the necessary issues and after recording evidence of the parties, decreed the suit. It was held that the execution of the agreement as well as the payment of Rs. 1,000 was proved but that the plaintiff-petitioner was not able to prove the payment of Rs.

600. On appeal, the learned Additional District Judge reversed the findings of the trial Court and accepting the appeal, dismissed the suit. The learned Additional District Judge was of the view that as the execution of agreement to sell (Ex. P. 1) is shrouded in mystery and as even the part payment of the alleged sale price was not proved, it would be extremely inequitable, improper and unfair to award a decree for specific performance of contract, against the legal heirs of the alleged executant.

3. The questions whether the T document (Ex. P. 1) was executed by Alam Khan or whether Rs. 1,000 was received by him at the time of execution of the said document or whether the alleged balance of Rs. 600 was paid, have become insignificant as the foremost question to be decided is whether the document (Ex. P. 1) amounts to an agreement to sell or not. The operative words used are as follows: A persual of the above-quoted contents of the documents (Ex. P. 1) would show that though the words have been used, yet these are followed by the words i. e. for four years. Thus apparently the so-called sale or transfer of right was for a period of time. Can such an agreement amount to agreement to sell, or can on the basis of this docu ment, claim be made that the executant agreed to sell the land so as to divest himself of the title in and ownership of the property for ever. According to section 4 of the Transfer of Property Act "sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Thus by affixing a time limit, the intention was not to transfer the ownership in the property. Admittedly, it was never explained as to how the time limit came-to be entered in this document. In these circumstances, this document at best amounts to surrender of the load for a period of four years only and it cannot amount to an agreement to sell, entitling the petitioner to seek enforcement of the same under the provision of Specific Relief Act. It will, therefore, be seen that both the learned courts below failed to determine the real matter in controversy. The plaintiff-petitioner cannot claim the decree prayed for in the suit. The suit was, therefore, rightly dismissed though on other grounds. The revision petition fails and is dismissed with costs. M. Y. H, Revision dismissed,