1996 SCMR 137 (PLP)

‑‑‑‑S. 12‑‑‑Refusal to enforce specific performance of agreement of sale of immovable property‑‑‑Essentials‑‑‑Court can refuse to enforce specific performance of agreement of sale of immovable property, if purchaser was found to be in default or he was unwilling to perform his part of contract‑‑?Where at the time of execution of document in question, respondents had undertaken to obtain permission from Collector for sale of land in question, and admittedly they failed to perform their part of contract, appellants who were not at fault can seek specific performance of contract of sale relating to immovable property‑‑‑Courts below having come to conclusion that agreement in question, was duly executed by all the parties same could not be refused specific performance on the ground that subsequent agreement could not be proved to have been executed by all the co‑sharers of land in question‑‑‑Suit was decreed in terms of Trial Court's judgment and decree as affirmed by First Appellate Court‑‑‑High Court's judgment and decree non‑suiting appellants was set aside in circumstances. Ch. Khalil‑ur,Rehman, Senior Advocate Supreme ,Court and Ch. Ikram‑ul‑I‑laq Naseem, Advocate‑on‑Record (absent) for Appellant. Aamer Raza Khan, Advocate Supreme Court and SA.M. Jafri, Advocate‑on‑Record (absent) for Respondents. Date of hearing: 13th September, 1995. SAIDUZZAMAN SIDDIQI, J.‑‑‑The above appeal with the leave of this Court is directed against the judgment and decree dated 4‑11‑1990 passed by a learned Judge in Chambers of Lahore High Court in R.S.A. No. 663 of 1979. Leave was granted by this Court to consider the following contentions:‑‑ "In support of this petition it is, inter alia, contended that once the A learned Single Judge had found that the respondents had agreed to sell their rights in land in dispute after receiving valuable consideration, he ought not to have withheld the relief of specific performance merely for the reason that the execution of Exh. P‑2 and the further payment of Rs.10,000 had not been established." The relevant facts of the case are that respondents, who are legal heirs of Sher Muhammad, agreed to sell their occupancy rights in land measuring 98 kanals 8 Marlas situated in Chak No.3. Upper Chanab, Tehsil Nankana Sahib (herinafter to be called the `suit land') in favour of the appellant under an agreement of sale dated 5‑10‑1972 (Exh.P.l) for a consideration of Rs.40,

000. The respondents at the time of execution of Exh.P.l received a sum of Rs.5,000 and agreed to receive the balance of the sale consideration at the time of appearing before the revenue authorities and making statement admitting sale of the suit land in favour of the appellant. It is an admitted position in the case that the suit land being an occupancy tenancy prior permission of the Collector was required for effecting the sale of the same in favour of the appellant. It is also an admitted position that it was the responsibility of respondents to have applied and obtained the permission for sale of the suit land m favour of the appellant. According to the appellant the said permission was applied for which was granted by the Collector on 6‑2‑1973 and thereafter Mutation No.15 dated 19‑2‑1973 was attested which recorded the fact regarding the sale of suit land by the respondents in favour of the appellant. However, subsequently the respondents denied the sale with the result the mutation was cancelled and this led to filing of Suit No.81/1 of 1976 by the appellant against the respondents for specific performance of the agreement of sale dated 5‑10‑1972. The case set up by the appellant in the plaint was that after execution of the agreement dated 5‑10‑1972 the appellant entered into another agreement dated 8‑12‑1972 (P.2) under which he paid a further sum of Rs.25,000 to the respondents. It was further alleged by the appellant that another sum of Rs.10,000 was also paid by the appellant to the respondents and, thereafter, the respondent applied for grant of permission to the Collector for sale of the suit land which was granted on 6‑2‑1973 but subsequently the respondents became dishonest and denied the sale in favour of the appellant. The suit was resisted by the respondents and on basis of the pleading of the parties as many as 13 issues were framed. the trial Court after recording evidence of the parties came to the. conclusion that the two agreements namely Exh. P.1 and Exh. P.2 were duly executed by the respondents and that under these agreements the sum of Rs.30,000 was paid by the appellant to the respondents. However, in respect of the allegation of the appellant that she also paid another sum of Rs.10,000 the learned Judge came to the conclusion that this allegation could not be established. With regard to second agreement namely, Exh. P.2 entered into between the respondents and appellant the trial Court observed that although Exh.P.2 was executed only by one of the respondents namely, Nazar Hussain, and that the same was not executed by the ladies in the case but in view of the fact that according to evidence recorded in the case, Nazar Hussain used to look after the affairs of the ladies and Nazar Hussain did not appear in the witness‑box to deny these facts the ladies were at liberty to sue Nazar Hussain for realization of their proportionate share out of the amount of Rs.25,000 which was paid under Exh. P.2. The suit was, accordingly, decreed by the trial Court subject to the payment of Rs.10,000 by the appellant. On appeal filed by the respondents, the Additional District Judge, Sheikhupura, concurred with the conclusions of the trial Court and upheld the judgment and decree for specific performance of the agreement subject to the payment of Rs.10,000 by the appellant to the respondents. The respondents then preferred R.S.A. No. 663 of 1979 before the High Court which was heard by a learned Judge in Chambers of Lahore High Court and by the impugned judgment the two concurrent judgments of the Courts below were set aside and the suit instituted by the appellant for specific performance of the agreement was dismissed with the observation that the sum of Rs.5,000 paid by the appellant under Exh.P.l would be refunded to her. Leave was granted as aforesaid against the judgment and decree of the learned Judge in Chambers. The learned counsel for the appellant .in support of the appeal contended that the learned Judge in Chambers could not interfere with the two concurrent findings of fact recorded by the Courts below merely on the ground that on reappraisal of the evidence another view was taken by him. It is further contended by the learned counsel for the appellant that the learned Judge in Chambers reversed the concurrent judgment and decree of the Courts below on extraneous reasons as the learned Judge was much swayed by the fact that the appellant's husband was a `Patwari' in the area. The learned counsel for the respondents on the other hand supported the judgment and decree of the learned Judge in Chambers and prayed for dismissal of the appeal. The scope of interference by a second Appellate Court with the concurrent findings of fact was laid down by this Court in the case Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) as follows:‑‑ "The legal position does not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon its merits." From the above‑quoted passage, it is quite clear that the concurrent findings of fact recorded by the Courts below could not be disturbed by the second Appellate Court even if it disagreed with the same. The concurrent findings of fact as laid down in the above‑quoted passage could only be interfered with on the grounds mentioned in sub‑clause(c) of subsection (1) of section 100, C.P.C. It is well‑settled law that the second Appellate Court can only interfere with the concurrent finding of fact by the Courts below on the grounds that the decision is based on misreading of evidence or that it was the result of perverse appreciation of evidence on record or that the conclusions were arrived at after ignoring some important piece of evidence on the record. It was held by all the Courts below in the case, including second Appellate Court, that Exh.P.l dated 5‑10‑1972 was duly executed between the parties under which the respondents had agreed to transfer the suit land in favour of the appellant for a sum of Rs.40,000 and that they received ,a sum of Rs.5,000 agreeing to receive the balance at the time of transfer of land in favour of the appellant before the revenue authorities. It is also not disputed before us that as the land agreed to be sold by the respondents under Exh.P.1 dated 5‑10‑1972 was occupancy land prior permission was necessary from the Collector for effecting sale in favour of appellant.. The case of the appellant before the trial Court was that after execution of Exh.P.l another agreement Exh. P.2. was executed on 8‑12‑1972 ,whereunder the appellant paid a further sum of Rs.25,000 to the respondents. The trial Court as well as first Appellate Court came to the conclusion that Exh. P.2 was executed by Nazar Hussain, one of the respondents, and therefore, the other respondents who had not executed the said agreement were only entitled to sue Nazar Hussain for recovery of their share as Nazar Hussain was the son of Mst. Aziz Begum and according to statement of Mst. Aziz Begum, he used to look after and manage the affairs on behalf of the ladies. It is significant that Nazar Hussain was signatory to Exh.P.l alongwith the ladies. It is also in the evidence that Exh.P.2 which was subsequently executed on 8‑12‑1972 and under which the appellant claimed to have paid another sum of Rs.25,000 to the respondents was signed only by Nazar Hussain, although according to evidence at the time of execution of Exh.P.2 besides Nazar Hussain, the ladies were also present, Nazar Hussain was one of the defendants in the suit and it is very significant that he did not step in the witness‑box either to deny execution of Exh.P.2. or deny the receipt of Rs.25,

000. Out of the respondents only Aziz Begum appeared in the witness? box and she not only denied execution of Exh.P.2 but she also denied execution of Exh.P.l and took the stand that the respondents never entered into any agreement of sale of the suit land with the appellant. This part of the statement of Mst. Aziz Begum was not accepted by any of the Courts below: The three Courts below concurrently held that Exh.P.l was executed by all the respondents and that they received a sum of Rs.5,000 towards sale price of slit land. Nazar Hussain respondent was not only a defendant in the suit but was also a co‑owner of the suit land. The appellant claimed that Exh.P.2 was executed by Nazar Hussain for all the owners. Nazar Hussain did not step in the witness‑box to deny these assertions. In these circumstances, the findings of the trial Court and the 1st Appellate Court that Exh.P.2 was executed by Nazar Hussain did not stiffer .from any infirmity so as t9 justify interference by the second Appellate Court. However, as Mst. Aziz Begum and her 3 daughters were not signatory to the document Exh,P.2 and they disowned the execution of document Exh.P.2, it was for the appellant to have proved that Nazar Hussain was authorised by other co‑owners to execute the document Exh. P.2 on their behalf. As the appellant failed to prove that Nazar Hussain was authorised to sign the document Exh.P.2 on behalf of other co‑owners as well, the document was binding only on Nazar Hussain in these circumstances. Accordingly, to the extent of the. shares of 3 daughters and the widow of Sher Muhammad out of the amount of Rs.25,000 the trial Court should have directed payment thereof as a condition for specific performance of the agreement, in addition to the sum of Rs.10,000 which it found was not proved to have been paid to the respondents. The learned Judge in Chambers, however, refused to grant specific performance of the agreement of sale on the ground that it was an equitable relief and the conduct of the appellant was such that it disentitled her to claim the specific performance. The precise observations of the learned Judge in Chambers were as follows:‑‑ "16.????? Apart from the factors noticed above surrounding the exceution of Exh.P.2, there is another important fact which fortifies the conclusion that the execution of Exh.P.2 was extremely doubtful. This is that an application, seeking the permission of the Collector was allegedly made on 25‑10‑1972. A copy of this application is Exh.P.3 Exh.P.4 shows that the appellants had appeared before the Assistant Collector and had admitted the sale and receipt of Rs,40,

000. Exh.P.4 does not mention the date when this statement was made, but learncd counsel for the parties agreed that this statement was made on 27‑1(t‑1972. Now if the payment of Rs.25,000 was made on 8‑12‑1972, then the admission contained in Exh.P.4 that the appellants had received Rs.40,000 on or before 27‑10‑1972 was not an admission of fact. In truth as the appellants had not, by that date, received the sum of Rs.35,000, they would not have, if the statement (Exh. P.4) was their statement, made that admission of fact. The Collector's Order dated 6‑2‑1973, by which the permission was accorded, has not been placed on the record. Instead, a copy of Rubkar said to have been issued from the Collector's office (Exh.P.6) was produced and upon the basis of this Rubkar, Mutation No.15 was attested on 19‑2‑1973 Exh. P.10). This mutation was later cancelled on the ground that it should not have been attested in that manner and in any case, it had been attested? in the absence of the appellants. All this shows and shows clearly that there was a hidden hand behind the transaction and the proceedings concerning it and that hand must be that of the respondent's husband, who was a Patwari. In short, the circumstances surrounding the alleged execution of Exh.P.2 and the circumstances attending the proceedings before the Collector and the attestation of Mutation No.15 strangely militate against the execution of Exh.P.2 and receipt of Rs.25,000 by the appellants. The observation of the learned Civil Judge that Nazar Hussain, appellant, had been acting for the other appellants and the lady appellants should sue him for their shares of the money was based upon the admission of Mst. Aziz Begum in her statement which reads:‑‑ ' This had obviously no reference to the execution of Exh.P.2 and the proceedings evidenced by Exhs. P.3, P.4 and P.5. The plain meaning of what Mst. Aziz Begum said was that Nazar Hussain, appellant, had been acting on their behalf in the prosecution of this suit. In view of what has been said above, I do not think that the failure of Nazar Hussain, appellant, to enter into the witness‑box should give rise to an adverse inference against the appellant's case. The onus to prove the execution of Exh.P.2 lay upon the plaintiff‑respondent and as the relief of specific performance is an equitable relief, the onus was the heavier. She failed to discharge the onus and I am not, therefore, persuaded that absence of Nazar Hussain, appellant, from the witness?box should tip the balance against the appellants." We are unable to agree with the above reasoning of the learned Judge. The first circumstance which persuaded the learned Judge in Chambers to reach the conclusion that the appellant was disentitled to seek specific performance of the contract was that the permission accorded by the Collector for sale of the suit land (Exh. P.3) recited that the respondents had appeared before the Collector and admitted receipt of entire sale consideration of Rs.40,

000. According to the learned Judge in Chambers this alleged admission of the respondents was false on its face as the respondents had not received by that date the sum of Rs.35,000.00 which was the balance of the sale consideration. In arriving at this conclusion, the learned Judge in Chambers failed to take into . consideration that it was the case of the appellant throughout that although she paid a‑ sum pf Rs.25,000 under Exh. P.2 but the document Exh.P.2 was only executed by Nazar Hussain (one of the respondents). She never claimed that the other respondents had also executed Exh.P.2. Therefore, there was neither concealment of any material fact by the appellant nor her assertion could be described as false. As earlier pointed out by us the preponderance of evidence in the case fully supported the contention of the appellant, that the document Exh.P.2 was executed by Nazar Hussain and he received Rs.25,

000. Mst. Aziz Begum, who alone appeared in the case as a witness, not only denied execution of Exh.P.2 but also denied execution of Exh. P.1. All the Courts below having unanimously held that Exh: P.1 was duly executed by all the respondents, non‑appearance of Nazar Hussain in the witness‑box who was one of the joint owners of the suit land and a defendant in the suit, definitely reacted adversely to the plea set up by respondents. Consequently, the inference drawn by the trial Court and the first appellate Court that the sum of Rs.25,000.00 was paid under Exh. P.2 is neither based on p misreading of evidence nor it is based on perverse appreciation of the evidence on record. The fact that the 4 ladies in the case had not signed the document Exh.P.2 could only lead to the conclusion that they were not a party to the agreement Exh.P.2 and therefore, the payment of Rs.25,000 under Exh.P.2 and therefore, the payment of Rs.25,000 under Exh. P.2 could not discharge liability of appellant qua these 4 ladies. The only consequence flowing out of the above circumstances would be that the appellant who had paid Rs.25,000 to only one of the joint owners, would continue to remain liable for payment of the share of 4 other co‑sharers in the suit land to the extent of their shares. With all respect, we may say that the learned Judge was unduly swayed by the fact that the husband of the appellant was a `Patwari' and therefore, the transaction was not a fair transaction. Mere fact that the husband of the appellant was a `Patwari' was not enough to conclude that the deal/transaction was shady or that it gave rise to the circumstances which justified the refusal to grant specific performance of the contract. There is nothing in the evidence of the case to show that the appellant had taken any undue advantage over the respondents in the transaction on account of her husband being a `Patwari'. We are, therefore, of the view that the learned Judge in chambers had proceeded to reverse the concurrent finding of fact on considerations which were totally extraneous to the case. The learned Judge in Chambers also came to the conclusion that non‑appearance of Nazar Hussain was inconsequential. We are unable to comprehend this observation of the learned Judge in Chambers. In view of the finding by the learned Judge in Chambers that Exh.P.l was executed by all the five respondents and they had received Rs.5,000 towards sale of the suit land, non‑examination of Nazar Hussain, who was a defendant/co‑owner of the suit land and who had signed Exh.P.2 and received Rs.25,000 on 8‑12‑1972 from appellant, not only reacted adversely to the plea of respondents in the case but also supported the case of appellant. The trial Court as well as the first Appellate Court, therefore, rightly drew adverse' inference against the respondents on account of non‑examination of Nazar F Hussain, defendant, who alone in the circumstances could deny execution of the document Exh. P.2 by stepping in the witness‑box. In this state of evidence on' record, the onus of execution of Exh. P.2 by one of the co‑sharers Nazar Hussain was duly discharged and the allegation of the appellant that she paid a sum of Rs.25,000 on the execution of Exh.P.2 remained unrebutted. It is a well‑settled principle of law that the Court may refuse to enforce specific performance of an agreement of sale of immovable property, if the purchaser is found to be in default or he is unwilling to perform his part of the contract, In the case before us, it is an admitted position that at the time of execution of Exh. P.1, the respondents had undertaken to obtain permission from the Collector for sale of the suit land. There is nothing in the evidence on the record to show that the respondents performed their part of contract and then called upon the appellant to fulfill part of contract which she failed to perform. On the contrary, the respondents throughout took the stand that they, never agreed to sell the land to the appellant. The Courts below having reached the conclusion that the agreement of sale Exh. P.1 was duly executed by all the parties, could not refuse specific performance of the agreement of sale on the ground that the subsequent agreement dated 8‑12‑1972 could not be proved to have been executed by all the co‑sharers of the land in dispute. ?We, accordingly allow the appeal, set aside the judgment and decree passed by the learned Judge !n Chambers and decree the suit filed by the appellant subject to the, condition of payment of proportionate share of 4 ladies in the property in the case out of sum of Rs.25,000 plus Rs.10,000 which the trial Court had directed the appellant to deposit as a condition for specific performance of the agreement of sale. In the circumstances of the case we will. make no order as to costs. AA./S‑1008/S Appeal accepted.