2006 PLP 79 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant regular second appeal assailed judgments/decrees dated 7-7-1982 and 30-7-1988 passed by Civil Judge and learned Additional District Judge, Lahore, partly dismissing suit of the appellants and their appeal, respectively.

2. Succinctly, relevant facts are that one Mst. Rashida Khanum deceased was owner of the suit property and being married to Dr. Abdus Sattat deceased respondent No. l , had appointed him as her general-attorney on 13-3-1962 who was claimed to have entered into an agreement to sell dated 24-7-1968 in favour of his sons, agreeing to sell land measuring one Kanal which had two parts (i) 13 Marlas and 75 sq.ft. out of Khasra No.2831 and (ii) six Marlas and 146 sq.ft. out of Khasra No.8272/3360/l/l situated at Baghbanpura, Lahore. Mst. Rashida Khanum died on 3-6-1976 and after her death, sons of Dr. Abdus Sattar from his first wife, filed a suit for specific performance of the agreement to sell dated 24-7-1968, averring that their step-mother Mst. Rashida Khanum who was owner of the land measuring one Kanal detailed in the plaint through her attorney, after receiving entire sale price, delivered the possession of the land which is in their possession as owners but in spite of their desire to have the sale-deed executed, the vendor failed to perform his part of contract. It was further pleaded that late Mst. Rashida Khanum always treated the plaintiffs as owners in possession of the property and on account of family transaction, any registered sale-deed could not be finalized as it's necessity was not felt although the plaintiffs had always been ready and willing to perform their part of contract. It was also asserted in the plaint that after death of Mst. Rashida Khanum, dispute among the heirs regarding her property cropped up and on account of denial of other legal heirs of the agreement in their favour, requirement of filing suit arose.

3. Out of respondents who were defendants in the suit, Dr. Abdus Sattar deceased being defendant No.1 filed a concessional written statement and expressed his willingness that suit of the plaintiffs may be decreed in their favour but defendants' Nos.3 and 4 resisted the suit and denied existence of agreement to sell dated 24-7-1968 besides raising certain preliminary objection in their written statement. Likewise, respondent/defendant No.5 also contested the suit denying existence of agreement to sell and claimed that owner i.e. late Mst. Rashida Khanum in her life time created a "Waqf" in its favour through a registered-deed regarding suit property thus, contested the grant of decree for specific performance in favour of the appellants. In view of controversial pleadings of the parties, framing of issues necessitated and the learned Civil Judge who was cognizant of the matter, after doing the needful, on the basis of his appraisal of evidence, partly decreed the suit of the appellants to the extent of six Marlas and 146 sq.ft. out of Khasra No.8272/3360/ 1 / 1 and their suit with regard to land measuring 13 Marlas and 75 sq.ft. bearing Khasra No.2831 was dismissed as the same was held to be part of "Waqf" created by the owner, vide judgment and decree, dated 7-7-1982.

4. The appellants aggrieved of decree with regard to part of the suit-land, filed an appeal before the learned Additional District Judge but remained unsuccessful as their appeal was dismissed on 30-7-1988. None of the defendants had filed any appeal or cross-objections against the decree of the trial Court dated 7-7-1982. The appellants thereafter filed instant second appeal before this Court which was admitted to regular hearing and after completion of record, has now been placed for final determination. The respondents, except respondent No.5, opted not to contest the appeal and have not appeared in spite of their service. They have also not challenged the decision of the two Courts below by filing any appeal or cross-objections before this Court also.

5. Learned counsel for the appellants submitted that the two Courts below fell in error in not granting decree to the appellants with regard to the whole of the property on the ground that part of the same was Waqf" property which was created subsequently to the agreement to sell in their favour and thus, had no legal consequence. It was further submitted that after agreement to sell, entire sale price whereunder had been paid, vendor was left with no title to include property subject of the agreement, in the Waqf deed hence, suit of the appellants should have been decreed, in its entirety. It was also argued with emphasis that the owner of the property i.e. Mst. Rashida Khanum alias Umtul Rashid was step-mother of the appellants, who having married Dr. Abdus Sattar father of the appellants, remained issueless and through her lawfully appointed attorney/husband, received the entire sale price of the property and having executed the agreement to sell dated 24-7-1968 transferred the possession of the property, made the appellants full owners. According to him, under law transaction of sale stood completed on payment of entire sale price and transfer of possession under the sale but a contrary view taken by the two Courts below being against to the principles governing the subject, is not sustainable. It was further submitted that Mst. Rashida Khanum in her life time never challenged the agreement in favour of the appellants and did not deny their title in the suit property thus, the respondents who had claimed hereditary rights through her husband, could not refute entitlement of the appellants thus, their suit in part was incorrectly dismissed. It was further argued with emphasis that the Waqf-deed dated 11-l1-1968 being subsequent to the agreement in favour of the appellants, created no title in favour of respondent No.5 so as to giving right to it, to contest the suit of the appellants especially when executant of the agreement had filed a conceding written statement. It was also submitted that in view of Provisions of Order XV, rule 1, C.P.C. decree of dismissal of suit of the appellants, deserved reversal but this aspect of the matter escaped notice of the First Appellate Court to the disadvantage of the appellants.

6. Learned counsel for respondent No.5 refuted the arguments of the appellants, supported the concurrent judgments of the two Courts below and urged that agreement dated 24-7-1968 was prepared subsequent to the death of Mst. Rashida Khanum, under connivance between father and sons in order to deprive respondent No.5 of the property dedicated by the owner for pious purposes. According to his submissions, had the agreement to sell been existence at the time of creation of Waqf on 11-1 1-1968 or the same had been in the knowledge of the donor, she could not have included the suit property in the "Waqf Nama" which was duly witnessed by Dr. Abdus Sattar. It was further submitted that agreement to sell dated 24-7-1968 was a fake document that is why no suit for specific performance was filed till the time the suit in hand was filed on 18-3-1979 after lapse o' 1 l years and that too after the death of Mst. Rashida Khanum who died on 3-6-1976. It was further argued that concurrent judgments of the two Courts below being in consonance with the evidence on the file, cannot be disturbed in revisional jurisdiction, as the same do not suffer from any defect of misreading/non-reading the record.

7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Agreement to sell dated 24-7-1968, performance of which was prayed through suit in hand, was executed by Dr. Abdus Sattar in his capacity as general-attorney of his wife late Mst. Rashida Khanum who was step-mother of the appellants. Though executant of agreement dated 24-7-1968 i.e. Dr. Abdus Sattar father of the appellants had admitted receipt of entire sale consideration by filing his concessional written statement before the trial Court but there is no explanation as to why after receiving the entire sale price, a regular registered-deed was not executed in favour of the appellants. The explanation furnished by the appellants for non-execution of the sale-deed that on account of family circumstances/understanding among the parties, resulted in non-execution of any titled document, on the face of it, is not acceptable as the same does not appeal to. reasons. If the circumstances of the family were such that no title document was needed for transfer of suit property in favour of the appellants then why an agreement to sell was executed? Another stance which goes to negate the agreement to sell is that both Dr. Abdus Sattar and his wife Mst. Rashida Khanum alias Umtul Rashid were literate persons and both of them signed "Wagf Nama" dated 11-11-1968. Had the agreement to sell been executed earlier to it i.e. 24-7-1968, it is not imaginable that the same property would have been included in Waqf for litigation for the donee. Waqf-deed dated 11-11-1968 is a registered document which carried a presumption of it's execution but through the agreement in question, an attempt has been made to negate the same. The obvious reason behind preparation of agreement to sell was that the property of the donor was bestowed to respondent No.5 and father of the appellants wished that the same should go to his own sons. Respondent No.5 while appearing in the witness-box categorically deposed that this property was previously donated/handed over to "Anjuman-e-Himayat-e-Islam" in March, 1962 who later on refused to take over the same whereafter it was transferred to respondent No.5 i.e. "Darul Uloom Jamia Naeemia This statement shows the intention of the donor who intended during her life that this property be given for some sacred purpose.

8. There is another aspect of the matter, deceased respondent No. I acted as an. general-attorney of the owner, executed agreement to sell in favour of his own sons without concurrence of his principal as is evident from the above discussion, which as a matter of fact was a transfer in favour of Agent himself. Under the provisions of sections 188 and 214 of the Contract Act, 1872, the general-attorney was required to take special permission from his principal while transferring her property in his own name or in the name of his close fiduciary relations but record is absolutely thirsty of the proof that Mst. Rashida Khanum alias Umtul Rashid ever gave any such permission because she appeared to be ignorant of this agreement, having first transferred the suit property in favour of "Anjuman-e-Himayat-i-Islam" and then in favour of respondent No.5 through a registered "Waqf Nama" dated 11-11-1968. Reference in this behalf can conveniently be made to the judgments of the Honourable Supreme Court in the cases of Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Fida Muhammad v. Pir Muhammad Khan (deceased) through L.Rs. and others PLD 1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 besides judgment by this Court in the case of Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shagufta Rafique 1994 CLC 1690.

9. Assuming but without conceding, if the agreement to sell was really executed on 24-7-1968 the same being not registered as the same was not so required under law, did not put the owner or subsequent transferee through whatever means, at alarm hence onus to prove this document as lawful/valid in terms of Articles 79 and 117 of Qanun-e-Shahadat Order, 1984 heavily lay upon the Agent or the transferees from him i.e. the appellants, besides proof that on the basis of power of attorney, property owned by the principal had been legally transferred by the attorney in the names of his sons but none of them discharged the onus shifting on their shoulders hence "Wagf Nama" dated 11-11-1968 could not have been adjudged, as prayed by the appellants. The appellants could not succeed in their suit against respondent No.S by merely producing two marginal witnesses of their agreement i.e. P.W.1 and P.W.2 who were not aware of transfer of property in question in the name of "Darul Uloom Jamia Naeemia" through "Waqf Nama" dated 11-11-1968. All this brings me to hold that suit of the appellants to the extent of respondent No.5 was correctly dismissed and the appellants were rightly refused the discretionary relief by way of specific performance. For the reasons already detailed above, conceding written statement of deceased respondent No. I was not honest and being without concurrence of the owner, did not furnish lawful basis for judgment against him under Order XV, rule 1, C.P.C. but in spite of it, since decree in favour of the appellants regarding land measuring 6 Kanals and 146 sq. ft. bearing Khasra No.8272/3360/l/1 of Baghbanpura was not challenged by any of the respondents before the First Appellate Court or before this Court hence, the same will continue.

10. For the reasons noted above, concurrent judgments of the two Courts below having been passed in accordance with the evidence on the file, cannot be interfered with in revisional jurisdiction of this Court under section 115, C.P.C. in view of the judgments in the cases of Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Mst. Kaniz Fatima through L.Rs. v. Muhammad Salim and 27 others 2001 SCMR 1493; Abdul Hakeem v. Habib Ullah and 11 others 1997 SCMR 1139; Muhammad Sain v. Muhammad Din 1996 SCMR 1918 and Lutufur Rehman and others v. Zahoor and others PLJ 1999 SC 204, hence, affirming those, this second appeal being devoid of any merit/force is dismissed with costs throughout. S.A.K./M-1204/L Appeal dismissed.