2009 PLP 1045 (SCMR)

SHEIKH HAKIM ALI, J.

Facts necessitating the disposal of this petition are as under:-- Allah Rakha and Ghulam Muhammad, who have expired and are being represented by their legal representatives as petitioners in the instant civil petition, had filed a suit for specific performance of agreement to sell in the Court of learned Civil Judge, Tehsil and District Lyallpur, now Faisalabad in the year, 1977. In the aforesaid suit, Allah Bakhsh son of Imam Din and Ghulam Muhammad son of Shah Din along with some other persons, were impleaded as defendants. It was averred in that suit that Allah Bakhsh and Ghulam Muhammad, defendants Nos. 1 and 2 were joint owners of land measuring 44 Kanals and 15 Marlas, situated in Chak No.156-RB, Tehsil and District Lyallpur, along with an Ihata No.89/10, for which they had got tenancy rights from Provincial Government. They had transacted a sale transaction through Daulat Ali son of Faujdar with the plaintiffs for Rs.6,000 for the above mentioned lands and for one Ihata of the Chak. Rs.1,000 were received by Daulat Ali as an earnest money. Allah Bakhsh, defendant No.1, had executed a General Power of Attorney in favour of Daulat Ali, which' was registered on 5-1-1957, while Ghulam Muhammad, defendant No.2, had got registered General Power of Attorney in favour of Ghulam Nabi on 17-1-1957. According to the plaintiffs, the name of Daulat Ali was inadvertently entered into agreement to sell although in reality sale transaction was settled by aforementioned vendors with plaintiffs. It was, therefore, that Daulat Ali, had executed an agreement dated 6-4-1957 in favour of plaintiffs, in which had had acknowledged that the purchase was made on behalf of Allah Rakha and Ghulam Muhammad (the plaintiffs). Ghulam Nabi, the General Attorney of Ghulam Muhammad and Allah Bakhsh had also executed a document on 6-4-1957, wherein the purchase on behalf of Allah Bakhsh and Ghulam Muhammad by Daulat Ali was acknowledged and also the receipt of Rs.1000 for the interest of vendors. Both these documents/acknowledgments on behalf of Ghulam Nabi and Daulat Ali were produced during evidence as Exh.P.3 and Exh.P.4. After grant of proprietary rights, defendants Nos.1 and 2, Allah Bakhsh and Ghulam Muhammad allegedly resiled from the sale contract and executed a registered sale-deed on 27-12-1969 in favour of Nawab Din son of Jalal (predecessor-in-interest of Muhammad Riaz and others, defendants Nos.4-7) and Muhammad Khan son of Ali Muhammad (defendant No.8) for Rs.10,

400. Hence the suit.

2. Defendants Nos.1 and 2 admitted the sale transaction having been made in favour of plaintiffs through Daulat Ali in their written statement. It was alleged that the plaintiffs had not paid the remaining amount of Rs.2000, therefore, the power of Attorney were cancelled and a fake sale-deed was executed and got registered on 27-12-1969 in favour of Nawab Din and Muhammad Khan defendants. It was further asserted by them that amount was not paid by Nawab Din and Muhammad Khan and they had fraudulently got registered sale deed on 27-12-1969 without payment of sale consideration. So it was fake and without consideration document. But defendants Nos.4 and 5, Nawab Din and Muhammad Khan contested the suit through tooth and nail. They pleaded themselves to be a bona fide purchasers for value without notice of the above noted agreement etc. They also denied the settlement of any transaction of sale having been affected by plaintiffs through Daulat Ali with the plaintiffs. The suit was decreed by learned Civil Judge, Faisalabad on 20-11-1978, but on appeal the judgment and decree of the learned Civil Judge, was reversed from learned District Judge, Faisalabad on 1-11-1981, whereby the suit of the plaintiffs was dismissed. R.S.A. No.241 of 1981, carried against was also dismissed by the Lahore High Court, Lahore on 22-5-2001. Hence this petition for leave to appeal.

3. Learned counsel for the petitioner submits that as execution of agreement to sell dated 6-4-1957 was admitted by Allah Bakhsh and Ghulam Muhammad, defendants Nos. 1 and 2, therefore, the production of agreement to sell into evidence was not sine qua non for the decretal of the suit in favour of plaintiffs. Even then, the aforementioned agreement to sell was produced into evidence as Exh.P.4 in the Civil Court, which fact was not noticed by both the learned Courts below, therefore, the judgment of the learned Lahore High Court, Lahore upholding that of learned Appellate Court may be set aside.

4. To appreciate the arguments of the learned counsel, we have examined the whole of record minutely and have noticed that plaintiffs had produced a document in the shape of agreement as Exh.P.3, in the trial Court. The aforementioned document was executed by Ghulam Nabi as General Attorney of Allah Bakhsh vendor, which had contained an acknowledgment of the fact of sale transaction having been settled by Daulat Ali with the vendors and for the benefits of Allah Rakha and Ghulam Muhammad (the plaintiffs). This document is dated 6-4-1957 but is not registered. There is another document, which was brought into evidence, was allegedly executed by Daulat Ali, in which it was narrated that his name was inadvertently written in the agreement otherwise Allah Rakha and Ghulam Muhammad were the real purchasers of the land in dispute. This document is also dated 6-4-1957. We have also found two other documents, which are deeds of general attorney executed by Allah Bakhsh in favour of Ghulam Nabi granting power of general attorney, which is dated 4-1-1957. There is yet another document Exh.P.5/2, which is dated 15-1-1957 of general power of attorney but got registered on 17-1-1957. This document has also shown to have been executed by Ghulam Muhammad in favour of Ghulam Nabi. This is a deed of general power of attorney.

5. Question arises as to whether all these documents can be construed to have conferred right upon plaintiffs to get specific performance of agreement to sell allegedly executed in favour of Daulat Ali by Allah Bakhsh and Ghulam Muhammad, the alleged vendors. We have found an agreement dated 6-4-1957 (Exh.P.3) on the record, which was allegedly executed by Ghulam Muhammad in favour of Daulat Ali, the General Attorney of Both the vendors. There is another document (Exh.P.4) executed on the same date which is shown to have been executed by Daulat Ali. Both these documents are at the most containing acknowledgment. But the original agreement to sell dated 6-4-1957 executed in favour of Daulat Ali by vendors was admittedly not produced. This fact was noted significantly by the learned Courts below also. As the original agreement to sell executed by Allah Bakhsh and Ghulam Muhammad in favour of Daulat Ali on 6-4-1957, was not produced, therefore, the suit for specific performance was held to be not competent and rightly so by the learned Courts below. There is yet another great flaw in the case of plaintiffs which was gone unexplained because they had failed to produce any document, in which Allah Bakhsh and Ghulam Muhammad, vendors might have admitted that they had settled the transaction of sale with Allah Rakha and Ghulam Muhammad, the plaintiffs and that the agreement to sell dated 6-4-1957 was executed in favour of Daulat Ali, as a Benamidar for the real vendees. Accordingly, it cannot be held that Allah Bakhsh and Ghulam Muhammad, vendors had admitted Daulat Ali as Benamidar of Allah Bakhsh and Ghulam Muhammad, the real beneficiaries of the alleged contract of sale. From the above narration, it is evident that the contract of sale having not been directly entered into with the vendors, by plaintiffs, Allah Rakha and Ghulam Muhammad, no relief could be granted to the plaintiffs due to two reasons. Firstly, plaintiffs have failed to bring on record the original or even copy of that agreement to sell dated 6-4-1957, which was allegedly entered into by vendors with Daulat Ali. That document being the primary document, upon which the foundation of whole of the suit was laid, having been missed, the suit was rightly held not to be competent. Secondly, there was no privy of contract between the plaintiffs and the vendors because they were not party to alleged agreement to sell between Daulat Ali and vendors.

6. It is pertinent to point out that Daulat Ali was not made party to the suit although he was a necessary party to it, as he could explain the settlement of transaction and the execution of documents allegedly executed in favour of the parties. Non-impleadment of Daulat Ali in the suit, was also fatal for its success. The sale transaction having not been completed in favour of Daulat Ali, the rights of ownership were not transferred to Daulat Ali by the vendors, therefore, the acknowledgment c in favour of third party, namely, the plaintiffs could not be permitted and accepted unless, it was endorsed and ratified by the vendors. The alleged acknowledgment of Daulat Ali in favour of plaintiffs could not be acted upon unless it was accepted by vendors. Moreover, this acknowledgment was ineffective as against the subsequent purchasers, who had no knowledge of that alleged Benami nature of the transaction. The ingredients necessary to prove Benami transaction were also missing in the evidence. Therefore, the learned Courts below had rightly dismissed the suit of the plaintiffs.

7. There is another important fact in the case of plaintiffs, which was barring their suit to be succeeded. The alleged agreement to sell was dated 6-4-1957, for the specific performance of which suit was filed in the year, 1977. It was admittedly instituted after a period of three years from the date of execution of the registered sale-deed by vendors in favour of Nawab Din and Muhammad Khan on 24-12-1969. This sale transaction was clearly a refusal on the part of the vendors/owners, that the agreement of sale, if any made, with the alleged purchasers-plaintiffs on 6-4-1957 was not going to be performed and completed. In this event, the suit having been filed after three years from 24-12-1969, was clearly barred by time.

8. From the above discussions, it is transparent that the suit of the plaintiffs-petitioners was rightly dismissed. Accordingly, C.P.L.A. is dismissed by refusing grant of leave. M.B.A./A-28/SC Petition dismissed.