PLD 2009 Lahore 114 (PLP)

SAYED ZAHID HUSSAIN, C J.

This Regular Second Appeal arises out of a suit for specific performance instituted by Abdul Ghafoor (respondent No.1) which was decreed by the trial court on 11-12-2003 and appeal preferred thereagainst by the appellants was dismissed by the learned Additional District Judge, Kasur on 15-2-2005. Connected with the said litigation is C.R. No. 1123-D of 2005 which arose out of a declaratory suit which was instituted by Muhammad Ramzan (deceased) which was dismissed by the trial Court vide the same judgment dated 11-12-2003 and appeal thereagainst also met with the same fate on 15-2-2005. Both these matters have been heard together and will stand disposed of through this judgment.

2. Ninety kanals of land was owned by three brothers, namely, Abdul Shakoor, Abdul Ghafoor and Muhammad Ramzan who had equal share in the joint "khata". Out of that Abdul Shakoor (the predecessor-in interest of the appellants) agreed to sell 18 kanals of land comprising Khasra Nos.1324, 1329 and 1333 in favour of Abdul Ghafoor (other brother) vide agreement (Exh.P-1) dated 29-10-1995 for a sale consideration of Rs.3,48,

750. The validity period of the said agreement was up to 1-2-1996. Before the said date of expiry, another agreement (Exh.P-2) is said to have been executed by Abdul Shakoor in favour of Abdul Ghafoor on 22-1-1996, which made mention of agreement dated 29-10-1995 but in that no terminal date for completion was fixed. Abdul Ghafoor (respondent No.1) had instituted the suit for specific performance on the basis of the above mentioned two agreements, which was contested by the appellants-defendants. In the written statement, execution of agreement dated 29-10-1995 was admitted whereas that of 22-1-1996 was denied and cancellation thereof was claimed vide Notice dated 30-7-1996 (Exh.P-6). The declaratory suit filed by Muhammad Ramzan was consolidated with the same. Several issues arising out of the pleadings of the parties were framed by the trial Court which are as follows:

"ISSUES: (1) Whether the suit is pre-mature? OPD (2) Whether the plaintiff has not come with clean hand? OPD (3) Whether the suit is not maintainable in its present form? OPD (4) Whether the suit is hit by section 21 of the Specific Relief Act? OPD (5) Whether the defendant has validly cancelled the impugned agreement to sell vide notice dated 30-7-1996, if so its effect? OPD (6) Whether the defendant entered into an agreement to sell the disputed land with the plaintiff for a consideration of Rs.3,48,450 and has received Rs.1,55,000 as earnest money? OPP (7) Whether the plaintiff has fulfilled all the conditions of the agreement? OPP (8) Whether the plaintiff is entitled to get the decree for specific performance as prayed for? OPP (8-A) Whether the suit is hit by Order VII, rule 11 of C.P.C. in view of preliminary objection No.2 of the amended written statement submitted by defendant No.2? OPD-2 (8-B) Whether the defendant No.2 has no cause of action or locus standi to file the connected suit No.446/97? OPD-l. (8-C) Whether the defendant No.2 is estopped by his word and conduct to file the connected Suit No.446/97? OPD-1 (8-D) Whether the defendant No.1 is entitled to get special costs under section 35-A of C.P.C. from defendant No.2 for filing a false, frivolous and vexatious Suit No.446/97? OPD-1 (8-E) Whether the connected Suit No.446/97 has not been properly valued for the purpose of court-fee and jurisdiction? If so, its effect? OPD-1 (8-F) Whether the connected Suit No.446/97 is not maintainable in its present form? OPD-1 (8-G) Whether the impugned agreement dated 29-10-1995 renewed on 22-1-1996 is against law and facts, is a fictitious and forged documents, inoperative upon the rights of the defendant No.2 and as such is liable to be set aside? OPD-2 (8-H) Whether the defendant No.2 is entitled to get decree for Declaration as prayed for in the connected Suit No.446/97? OPD-2 (8-I) Whether the court-fee affixed upon the plaint is deficient to the tune of Rs.14,644 and the plaint is liable to be rejected on this score? OPD

9. Relief."

3. The respondent-plaintiff produced Abdul Razzaq (P.W.-1) Deed Writer/Stamp Vendor, who was scribe of both the agreements. Ch. Asghar Ali Gujjar, Advocate (P.W.2) was produced in whose presence Abdul Shakoor had put his signature and thumb mark. Abdul Ghafoor plaintiff himself appeared as P.W.3. Another witness to the transaction was Haji Muhammad Hanif, who appeared as P.W.4. From the defendants side Zahida Perveen wife of Abdul Aleem appeared as D.W. 1 Labba appeared as D. W.2. Abdul Aleem son of Abdul Shakoor appeared as D. W.3 whereas Liaquat Ali son of Muhammad Ramzan appeared as D.W.4. On consideration of the evidence, the learned trial court decreed the suit for specific performance in favour of Abdul Ghafoor plaintiff with the direction to the defendants "to execute the registered sale deed in favour of plaintiffs qua the suit land. They are also allowed to withdraw the remaining sale consideration of Rs.1,93,750 concurrently deposited in the court". The declaratory suit instituted by Muhammad Ramzan (the predecessor-in-interest of the petitioners in the revision petition) was dismissed. Appeals preferred by the parties, as mentioned above, were dismissed by means of common judgment dated 15-2-2005.

4. The learned counsel for the parties have been heard. The prime contention of the learned counsel for the appellants is that specific "khasra" numbers, possession whereof was not with the vendor, could not be sold; that there was no reasons for entering into a second agreement dated 22-1-1996 in presence of agreement (Exh.P-1) dated 29-10-1995. According to him, the subsequent agreement was result of foul play and misrepresentation on the part of the respondent/plaintiff. It is further contended that since the possession of the land was with Muhammad Ramzan, no executable decree can be passed in such circumstances, thus, the suit should have been dismissed. He has cited Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9, Shah Hussain v. Abdul Qayum and others 1984 SCMR 427; Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC (AJ&K) 75; Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others 2007 CLC 1372 and Messrs Karachi Gas Company Ltd. v. Messrs Fancy Foundation PLD 1984 Kar.

233. The learned counsel for the revision petitioners supports the above contentions of the learned counsel for the appellants. From the respondent's side, his learned counsel has supported the concurrent findings recorded by the two courts below and makes reference to the deposition of Liaquat Ali (D.W.4) to contend that there was a family settlement inter se the brothers as to possession of land.

5. Record has been perused and respective contentions have been considered. The parties i.e. Abdul Shakoor, Abdul Ghafoor and Muhammad Ramzan are brothers inter se, who had joint holding of 90 kanals 4 marlas of land. Through agreement dated 29-10-1995 (Exh.P-1), admittedly, Abdul Shakoor had agreed to sell 18 kanals of land in favour of his brother Abdul Ghafoor. The discoverable reasons from the record for subsequent agreement dated 22-1-1996 (Exh.P-2) is that in the first agreement (Exh.P-1) a completion date had been mentioned i.e. 1-2-1996. The suit property was since encumbered, the agreement could not be performed. The subsequent agreement was arrived at with no terminal date for completion thereof. It was also mentioned that the land was since in possession of Muhammad Ramzan (the real brother of the parties) from whom the possession will be taken and delivered to Abdul Ghafoor. It is of significance to note that both the documents (Exh.P-1) and (Exh.P-2) bear the signature and thumb impression of the parties. It is, thus, hard and difficult to deny the execution of these documents. A feeble attempt, however, was made to wriggle out of the same that the stamp paper meant for a receipt was unauthorizedly converted into a agreement to sell (Exh.P-2) by Abdul Ghafoor or the same was cancelled vide notice dated 30-7-1996 (Exh.P-6). There are concurrent findings by the courts below on this aspect and the preponderance of the evidence was in support of the valid execution of agreements (Exh.P-1 and Exh.P-2). The second agreement (Exh.P-2) indeed was in affirmation and continuation of Exh.P-1. In view of the evidence on the record, I am left with no doubt whatsoever that correct appreciation of the evidence has been made by the courts below.

6. As to the reference made by the learned counsel to the precedents of the superior Courts, there can be no cavil so far as the pure proposition of law is concerned. However, it may be observed that Abdul Shakoor deceased like his other brothers was owner of equal share i.e. 30 kanals each. In the agreement dated 29-10-1995 (Exh.P-1), the suit land (18 kanals) comprising Khasra Nos.1324, 1329 and 1333 was shown to be in his own possession but in the subsequent agreement dated 26-1-1996 (Exh.P-2) the following recital is of importance which is:-- In the original agreement, it was mentioned that he was in possession, who, however, appear. to have delivered possession to Muhammad Ramzan, his brother, before execution of latter agreement (Exh.P-2) and had undertaken to arrange delivery of possession at the time of registration of the sale-deed. It is of significance that he was disposing of only part of his share in the joint holding which was well within his permissible right. He could undoubtedly dispose of land to that extent. It cannot be overlooked that all the three parties, namely, Abdul Shakoor, Abdul Ghafoor and Muhammad Ramzan were real brother and appear to have acted on the basis of prior understanding and Abdul Shakoor undertook that he will get possession from Muhammad Ramzan and deliver it to Abdul Ghafoor at the time of registration of sale-deed. Since the contents and the terms of the agreements were clear and ascertainable, the agreement would not lose its efficacy nor frustrated and was enforceable in law. In Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189, it was observed that "It is true that grant of relief of specific performance is discretionary with the court but this discretion cannot be exercised arbitrarily. The relief of specific ' performance being an equitable relief, it can be refused by the Court only, if the equities in the case are against the plaintiff. The court while refusing to grant a decree for specific performance to a plaintiff must find something in the conduct of plaintiff which disentitled him to the grant of equitable relief of specific performance, or the Court reaches the conclusion that on account of delay in seeking the relief, the circumstances have so materially changed that it would be unjust to enforce the agreement specifically. The specific performance of a contract cannot be refused merely because it is lawful for the Court to refuse it." Thus, on no sound basis factual or legal, the plaintiff-respondent could be refused enforcement of agreement. His suit was rightly decreed by the courts below.

7. So far as the revision petition of successors of Muhammad Ramzan is concerned, their appeal was rightly disposed of by the lower appellate Court that necessary adjustment could be made at the time of partition if any such occasion arises. In the circumstances, no interference is warranted with the concurrent view taken by the courts below. In view of the above, I find no justification for interference with the impugned judgment, as a consequence whereof the appeal as also the revision petition stand dismissed. No order as to costs. M.B.A./A-169/L Appeal/revision dismissed.