SARDAR AHMAD Versus SETTLEMENT & REHABILITATION COMMISSIONER
Respondent No. 3 applied for shop No. A/165, Nanak Pura, Rawalpindi, on a form C. S. dated 9th July 1959. He was issued Appendix X under Settlement Scheme No. I for the said shop on 20th November 1959, in the sum of Rs. 3,360. Later, vide order dated 10th December 1959. the Deputy Settlement Commissioner, on a report submitted by some official, ordered "may be transferred to Syed Intizar Ali Shah and Dr. Sardar Ahmad jointly obtaining agreement". The report suggests that the property transferred to Syed Intizar Ali Shah and the petitioner was the one in possession of Ibrahim and respondent No. 3. This property bears No. A/265‑67. There is also a mention of agreement of association but the details of the same are not given. The P. T. O. dated 12th December 1959 is with regard to the property No. A/265‑267 Ratta Road, Rawalpindi and it shows that 1 %. of this property was transferred to Syed Intizar Ali Shah while 99 % was transferred to Dr. Sardar Ahmad.
2. None of the contesting parties hereunto challenged the contents of the P. T. O. but Muhammad Ibrahim the other occupant contested the order of transfer in favour of the petitioner and respondent No. 3 in an appeal which was accepted and the house portion i.e. A/266‑267 was transferred to Ibrahim. The petitioner and respondent No. 3 jointly went up before the Settlement Commissioner who while dismissing their revision petition on 28th July 1970 observed as follows :-
"My attention has been drawn to another agreement whereby the petitioner agreed to surrender his right in respect of the small portion of the house in dispute to Dr. Sardar Ahmad. It is therefore obvious from the facts narrated above that he himself hardly has any interest. The case was rightly decided Jin the Court below and the petition fails and is therefore dismissed herewith."
This observation also went unchallenged. Rather the petitioner and respondent No. 3 jointly contested the litigation before the Chief Settlement Commissioner as well as in review before a delegate of the Chief Settlement Commissioner and then in the High Court in Writ Petition No. 382‑R‑65 against the above‑said Ibrahim. The High Court remanded the case to the Chief Settlement Commissioner who again divided the property and transferred residential portion to Ibrahim. Subsequent to this, however, they fell apart. The petitioner unsuccessfully carried on litigation in a second round up to the Supreme Court alone by impleading Syed Intizar Ali Shah as a respondent in order to get back the residential portion also.
3. While the petition for special leave to appeal was pending in the Supreme Court respondent No. 3 made a review petition before the High Court seeking clarification of their rights about association but the High Court saved the same for a decision by the Settlement Authority. After the failure of the petitioner to get back the entire property transferred, he made an application to the Deputy Settlement Commissioner requesting that the P. T. O. issued on 12th October 1959, be amended with regard to property No. A/265 only. This application was contested by respondent No. 3 who stated that the association was only with regard to property No. A/266‑267 which having been transferred to Ibrahim there was no agreement left to allow a share to the petitioner in the shop. The Deputy Settlement Commissioner by his order dated 11th June 1970, rejected the plea of the respondent and allowed amendment of the P. T. O. so that the petitioner became the transferee of the 99 % of the shop and respondent No. 3 of only 1 %. Respondent No. 3 filed an appeal before the Additional Settlement Commis sioner who upset the order of the Deputy Settlement Commissioner and declared vide his order dated 19th March 1971, that there was no association between the parties. A revision petition by the petitioner failed before the Settlement Commissioner who held that no agreement of association had ever been placed on the record of the Settlement Department and that the agreement being talked of by the present petitioner was in fact a private arrangement, between the two not to be enforced by the Settlement Department.
4. The learned counsel for the petitioner relies on the order of the Deputy Settlement Commissioner dated 10th December 1959, the P. T. O. dated 12th December 1959, the grounds of appeal, revisions and the writ petition filed jointly by the petitioner and respondent No. 3 together with the orders passed thereon, to say that his position as a transferee of 99 % of the property had never been disputed, denied or challenged at any time. The respondent's counsel made efforts to support the order of the Settlement Commissioner and the Additional Settlement Commissioner that there was no agreement of association on the record but he failed in the presence of all the documents referred to above. A perusal of the documents noted above unquestionably go to show that the parties did‑enter into an agreement of association by which respondent No. 3 retained 1% while the petitioner was given 99 % share in the property No. A/266‑267. This agreement was also accepted and acted upon by the Deputy Settlement Commissioner who issued the P. T. O. accordingly. The parties also maintained its effectiveness in the first round of litigation uptill the High Court. The order of the Settlement Commissioner is‑thus based on misreading of the record.
5. The only point arising for determination in this petition is whether the Settlement Authorities could enforce that agreement in the changed circumstances with regard to shop No. A/265 only. The record as it is before me shows that respondent No. 3 applied for the transfer of shop No. A/265 vide his C. S. form No. 264 dated 9th July 1959. Later on Appendix X was also issued to him about the transfer of the same shop on 20th November 1959. It appears that in the meanwhile respondent No. 3 entered into an agreement of association with the petitioner as is clear from the recommendation dated 7th December 1959, of some officer (Annex. `A'). These recommendations were accepted by the Deputy Settlement Commis sioner who vide his order dated 10th December 1959, allowed transfer of the entire property in possession of respondent No. 3 and the petitioner on obtaining agreement. The P. T. O. dated 12th December 1959, shows that E the agreement must have been obtained and the property was transferred jointly to the contesting parties at the rates of 1 Y. to respondent No. 3 and 99/ to the petitioner. The petitioner thus became an owner to the extent of 99 % both in the property No. A/265 and A/266‑267.
6. Respondent No. 3 has placed on record with his written statement an agreement purported to have been executed between the parties whereby apparently the petitioner was given property No. A/266‑267 while respondent No. 3 retained property No. A/265. There is, however, nothing to show if these agreements were in supersession of the previous agreement and if the same were approved by the Additional Settlement Commissioner.
There is also an application dated 21st April 1964, filed by respon dent No. 3 before the Deputy Settlement Commissioner requesting that respondent No. 3 had submitted a form for property No. A/265 and that Dr. Sardar Ahmad petitioner had submitted a form for property No. A/266‑267 and that it had been agreed that property No. A/265 be transferred to respondent No. 3 and the other to the petitioner. Respondent No. 3 requested for an early decision as he was likely to suffer irreparable loss if the same was not done. No order seems to have been passed on this application either. The result is that the original agreement approved by the Settlement Authorities in the form of P. T. O. holds the field. The petitioner is thus a joint transferee, entitled to 99 % share in each and every inch of the property. There is nothing on record to show that a different result had to follow if the extent of the transferred property was reduced. A change in the extent of the property by a subsequent order would, therefore, affect both the parties proportionately and their shares in the property left behind would remain in the same proportion. The contention of the respondent, therefore, is not valid.
7. The petitioner also relied on the principles embodied in section 39 of the Contract Act which reads as follows :‑
"39. When a party to a/ contract has refused to perform, or disabled himself from performing his promise in its entirety, the promisee may put an end to the contract, unless he has signified by words or conduct, his acquiescence in its continuance."
These provisions undoubtedly make clear that in the changed situation as it is in the present case, the option to continue the agreement lies with the promisee. The petitioner, therefore, has the right to seek performance even in the prevailing circumstances. The learned counsel for the petitioner also borrowed support from the provisions of section 15 of the Specific Relief Act to show that the original agreement even though it may be deemed to have bean referring to two properties, is enforceable at his option with regard to l~ the property now left with the other parties. Section 15 reads as follows :-
"15. Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant."
According to Kh. Ghulam Qadir v. Tajammal Hussain P L D 1964 Lah. 329 and M. Noman v. Dacca Improvement Trust and others P L D 1964 Dacca 671 the word 'may' has been interpreted to mean 'shall' and thus the Court has no option but to enforce the agree ment. Provisions of this section have also been interpreted in Joydeb Agarwala v. Baitulmal Karkhana Ltd. P L D 1965 S C 37, the relevant portion of which is as follows :‑
" . One of the latest cases on the subject is cited as Hillingdon Estates Co. v. Stonfield Estates Ltd. 1952 Ch. D 627. There are points of close resemblance between the present case and this particular precedent. A contract had been made in 1938 for sale of two plots of land, described as "Section A" and "Section C". The price per acre had been fixed as well as dates upon which the transfers were to be completed. As to Section 'A' the contracts were completed by payment of price and transfer of possession. With reference to Section 'C' lands, the purchaser had done nothing more than to make a payment of interest up to the 31st January 1949, on the price fixed, when in the meantime the local County Council on the 11th October 1948, made a compulsory purchase. order which was confirmed on the 10th March 1949 by the Ministry of Education. On the 30th March 1949 the County Council gave notice of the purchase order to the vendees and on the 14th July 1949, called upon them, as required by the law, to "treat" i.e., negotiate as to price and other conditions. Thereupon, the vendees sued for a declaration that the contract as to the Section 'C' lands had been automatically and completely discharged as a result of the purchase order. They claimed refund of the interest paid. The vendors counter‑claimed in the suit for specific performance of the contract or damages in lieu. The counter‑claims succeeded, the Judge making the following observations which are relevant to the consideration of the present case :‑
"I have always understood (and indeed it is a common place) that when there is a contract by A to sell land to B at a certain price, B becomes the owner in equity of the land, subject, of course, to his obligation to perform his part of the contract by paying the purchase money; but subject to that, the land is the land of B, the purchaser . . . . . the effect of this notice to treat and this compulsory purchase process is merely to place an obligation on those who are already the owners of the land in question . . . . . I agree that this compulsory purchase order very much altered the situation, but I cannot appreciate that it has altered it in such a fundamental and catastrophic manner as to justify the Court in holding that the whole contract has been frustrat ed . . . . . Undoubtedly, the whole of the compensation money under the compulsory purchase order in the present case will have to go to the purchasers . . . . . the vendors are under no obligation to do anything except to convey the property subject to, among other things, this compulsory purchase order . . . . . I cannot hold that the contract here has been frustrated fundamentally, or indeed, at all.
These propositions are unexceptionable, and we are not aware that they have been questioned at any higher level in the English Courts. We adopt them, with respect to the learned Judge."
The learned counsel for the petitioner also submitted that this agreement had been entered into earlier than the instructions contained in Press Note dated 13th February 1960, and was in pursuance to para. 33 of Settlement Scheme No. I. The validity of this agreement was supported by the judgment of the Supreme Court in Muhammad Hazaq Hassan v. Settlement Commis sioner, Sahiwal 1968SCMR823. In that case the transferee who was a non‑claimant entered into an agreement of association with a claimant and surrendered 9/10th share in the house in favour of the claimant out of whose compensation book the entire transfer price of the house had to be adjusted. A P. T. O. was issued accordingly. About 7 years later the original transferee filed a revision petition before the Settlement Commissioner contending that he had been coerced to enter into an agreement of association with the respondent and prayed that the same be set aside and the P. T. O. be ordered to be issued in his name alone. The contention of the petitioner that the entire P. T. O. was to be issued in the name of the transferee first and that the agreement of association was to be implemented thereafter was not accepted by the Supreme Court in that case and the P. T. O. therefore, was maintained.
8. The cases noted above also support my view that the agreement originally entered into was valid and legal and the same holds good even in the changed circumstances. This agreement is, therefore, enforceable at the option of the petitioner with regard to the property that was left behind.
For the foregoing reasons the impugned order of the Settlement Commis sioner is declared to be without lawful authority and of no legal effect. The petitioner is declared to be transferee of 99 % 'of the share in shop No. A/265. In view of the fact that difficult question of law was involved in the case, there will be no order as to costs.
S. A. H. Petition allowed.