1982CLC81 (PLP)

Mian Sher Alam for Respondents Nos. 14, 15, 16, 17 and

19. Nazir Ahmad Qureshi for Respondents Nos. 1, 2, 4, 5, 6, 7, 8, 10, 11, 12 and

13. Respondents Nos, 3, 9, 18 and 20 : Ex parle (vide order dated 30th June 1980). Date of hearing: 11th and 12th November, 1980. On 12‑5‑1974 the appellant filed a suit for possession of land measuring 17 marlas and 3 sarsais comprising Plots Nos. 564 and 565 situate in Chak No. 84/RB., Tehsil and District Sheikhupura by way of specific performance of an oral agreement said to have been made by one Ghulam Rasoo.' pre decessor‑in‑interest of respondents Nos. 1 to

13. According to the appellant the property, originally, belonged to the Provincial Government and was allotted to the aforesaid Ghulam Rasool who had made an application to the Collector, Sheikhupura for acquiring proprietary rights. Ghulam Rasool had orally agreed to transfer the said land on a consideration of Rs.5,000 which is said to have been paid in advance. Ghulam Rasool was murdered before he could acquire the proprietary rights. After his death two of the legal heirs of Ghulam Rasool deceased admitted the oral agreement in a subsequent agreement dated 12‑3‑1973 (Exh. P/1). The heirs of Ghulam Rasool deceased acquired the proprietary rights but they did not transfer the land to the plaintiff, which necessitated the filing of the suit. Originally the suit bad been filed against respondents Nos. 1 to 13 but subsequently respon dents Nos. 14 to 20 were added as being the purchasers of the said land. The suit was resisted by the respondents who denied the existence of any oral or written agreement in relation to the land in dispute. Respondents Nos. 14 to 20 did not set up a case of their being bona fide purchasers for consideration without the notice of the earlier sale. It was only contended that the appellant was not entitled to the specific performance of contract even if it was proved to exist. There was also no plea of limitation raised by the respondents. On the pleadings of the parties the following issues were framed (1) Whether Mst. Hakim Bibi defendant No. 9 was divorced by Ghulam Rasool, if so, its effect? O. P. D. (2) Whether Ghulam Rasool deceased had agreed to sell the suit property to the plaintiff and whether he had received Rs.5,000 from him as amount of consideration? O. P. P. (3) Whether the plaintiff is entitled to the specific performance of contract of sale mentioned in issue No. 2? O. P. P. (4) Relief. _

2. The learned trial Court decided all the issues in favour of the appellant and decreed the suit vide his judgment, dated 3‑3‑1979. The respondents filed an appeal, which was accepted by the learned Additional District Judge, Sheikhupura vide his judgment dated 12‑5‑1979. This judgment has been challenged in the present appeal.

3. A perusal of the judgment of the lower Appellate Court would show that the respondents challenged the findings of the trial Court only on issue No.

3. This would be evident from the observations of the learned Additional District Judge as contained in paragraph 8 of the impugned judgment. It is, therefore, submitted on behalf of the appellant that the finding on issue No. 2 as to the existence of agreement of sale in favour of the appellant on payment of Rs.5,000 as consideration stands concluded anal the only point of its enforceability would require determination under issue No.

3. The learned Additional District Judge reversed the findings on issue No. 3 on the following grounds:‑‑ (i) That the agreement of the plaintiff that Ghulam Rasool shall be hit by the provisions of section 19 of the Colonization of Government Lands Act ; (ii) that the suit was barred by time. If the findings on issue No. 2 are not reversed the above grounds could not be made the basis for reversing the findings of the trial Court on Issue No.

3. As regards the applicability of section 19 of the Colonization of Govern ment Lands (Punjab) Act it may be pointed out that it had no application after the proprietary rights in the land had been conferred on the heirs of Ghulam Rasool. According to the appellant the agreement was that the sale shall b made after Ghulam Rasool, the original allottee, had been transferred the proprietary rights. Such an agreement is not hit by section 19 of the said Act and reference may be made to Mirza Muhammad Ahmad Beg v. Mirza Amjed Beg (P L D 1978 Lab. 421), Ghulam Muhammad v. Lakha Singh (A I R 1935 Lab. 181) and Mst. Khurshid Begum v. Inam Rabhani (1979 C L C 570).

4. Similarly the contention that the suit was barred by time also could not be made the basis for setting aside the findings of the trial Court unde B issue No.

3. According to the terms of the oral agreement the transfer of the land in dispute was to be made after the proprietary rights had been acquired and the suit had been filed within three years of transfer. There was no issue regarding the limitation unless the findings on issue No. 2 had been reversed, 1,, the question of limitation could not be legally set up. In a contract which is to be performed on happening of certain events the cause of action would accrue when that event happens. In the present case the deed of title Exh. P. 3 was executed on 16‑1(?‑1973, was registered on 4‑2‑1974 while the suit was filed on 12‑5‑1974. The plaintiff appearing as P. W. 5 had specifically stated that Ghulam Rasool had agreed to transfer the land in dispute for a consideration of Rs.5,000 after acquiring the proprietary rights and that Rs.5,000 had been paid.

5. Issue No. 3 was to the effect as to whether the agreement proved under issue No. 2 could be enforced. The learned counsel for the respondents had argued that it had been brought on record that the respondents Nos. 14 to 20 had taken possession of the land and constructed their houses thereon and it was under this context that the specific performance of the alleged oral agreement was resisted. Reliance was placed on the provisions of section 22 of the Specific Relief Act. This section lays down that the jurisdiction of the Court to decree the specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. It is further provided that the discretion of the Court in this behalf shall not be arbitrary but sound and reasonable guided by judicial principles and capable of correc tion by a Court of appeal. The circumstances under which, the discretion may not be exercised are enumerated in this section. The learned counsel for the respondent has relied on a judgment reported as Kissen Gopal Salaney v. Kally Prosonno Sett ((1905) 33 Cal. 633). This judgment is not helpful to the respondents. It was held in this case that the delay, which was short of the period pres cribed by the Limitation Act and which was not of such a character as to give rise to an inference of abandonment of right was no bar to a suit for specific performance, unless it was shown to have prejudiced the defendant. It was further observed that the defendants in that case had failed to establish on record abandonment of the plaintiff's rights and the agreement was ordered to be specifically enforced. The relevant observations at page 636 may be quoted below "In my opinion delay is not material so long as matters remain in status quo, and it does not mislead the defendant or amount to acquiescence. It must be shown that delay has prejudiced the defendant. To operate as a bar to relief the delay should be such as to amount to waiver of the plaintiff's right by acquiescence, or where by his conduct or neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him, if the remedy were afterwards to be asserted. When such is not the case, any lapse of time short of the period allowed under the Limitation Act should not disentitle the claimant to relief, to which he is otherwise entitled."

6. In the present case the defendant could not take up this plea nor any such issue was claimed. Clause No. I of section 22 is to the following effect "Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part." As the bar under section 22 has not been pleaded and no protection under section 41 of the Transfer of Property Act has been claimed, therefore, this plea cannot be permitted to be raised at this stage. It appears that the' respondents Nos. 14 to 20 had knowledge of the existence of the agreement. The sale deeds Exh. D. 2 and Exh. D. 1 in favour of the defendants Nos. 14 to 20 were made on 24‑4‑1975 and on 12‑11‑1976, respectively after the filing of the suit by the plaintiff. The findings on issue No. 2 had not been challenged by the respondents before the lower Appellate Court. The grounds on which the finding on issue No. 3 was based had no legal basis. In view of the above circumstances I have no option than to accept this appeal, and reverse the finding of the trial Court on Issue No.

3. The respondents Nos. 16, 17 and 19 have filed an application under Order XL, rule 27, C. P. C. being C. M. No. 5683/C of 1980 for permission to lead additional evidence to show that there had existed agreements prior to sale deeds Exh. D. 1 and Exh. D. 2 which relate to a period before the filing of the suit. The agreements were neither relied nor produced before the trial Court. The only explanation furnished for the non‑production of the agreements is that they had been handed over to the counsel who did not produce the same for reasons best known to him. There is no reference of these agreements in the Sale Deed Exh. D 1 and Exh. D.

2. No ground has been made out for allowing this application.

7. The appeal is accepted, judgment and decree of the learned Additional District Judge, Sheikhupura dated 12‑5‑1979 is set aside and the judgment and decree of the trial Court dated 3‑3‑1979 is hereby restored leaving the parties to been their own costs. M. Y. H. Appeal allowed.