ABDUL REHMAN Versus ILAM-UD-DIN

ORDER

The respondent agreed to sell the land in dispute in favour of the petitioner through agreement, dated 2‑8‑1984 for a consideration of Rs.1,16,375. It was agreed that the sale will be got registered by 2‑8‑1985 and that whole of the consideration will be paid at the time of registration of the sale‑deed or the sanctioning of the mutation. According to the petitioner the respondent did not get the sale‑deed executed or mutation attested within the time agreed upon between the parties. The petitioner, therefore, filed a suit for specific performance of the contract. Alongwith the suit he filed an' application for issuance of a temporary injunction restraining the respondent from alienating the property in dispute and from interfering in his possession over the land in dispute. The application was partly accepted by the learned Civil Judge, Khanewal through order, dated 2‑7‑1986. He restrained the respondent from alienating the property in dispute but rejected the prayer relating to the possession. The petitioner filed an appeal which was dismissed by the learned Additional District Judge, Khanewal on 27‑7‑1986. The present revision petition has been filed against the said orders.

2. I have perused the record and have heard the arguments. The execution of the agreement, daterd 2‑8‑1984 has not been denied by the respondent. According to the petitioner condition No. 9 of the said agreement gave him a right of exclusive possession of the land in dispute without paying any share of produce etc. However, prima facie this condition No. 9 has to be read with condition No. 4 of the same agreement which is more clear in connection with the aspect of possession. Condition No. 4 provides that the possession over the land shall remain joint meaning that it will remain joint between the petitioner and the respondent. In fact they are already co‑sharer in the suit land alongwith their other property as they are brothers as well. Reading condition No. 9 with condition No. 4 would mean that the petitioner was only to arrange for the cultivation of the land which then was in possession of Shera son of Mutalli a tenant. The petitioner had not paid a single penny to the respondent as consideration or part consideration for the land in dispute. The question of handing over the possession to him, therefore, could not arise. Similarly, the parties being co‑sharers had to remain cc‑sharers till the sale was completed. Even if the petitioner was in possession, although he was not, that possession could not be under the sale or in connection with the sale which is yet to be made and completed. It may be pointed out that sale has two essential aspects; one the passing of consideration and the other the passing of possession. In this particular case as the passing of consideration has not taken place there was no question of the passing over of the possession under the sale. The learned appellate Court has rightly pointed out that in fact, according to the Khasra Girdawari earlier the possession of the suit land was with a tenant namely, Shera son of Mutalli and may be the petitioner had obtained possession from him somehow. I agree with him that the possession at the time of then agreement was with the tenant but it is difficult to agree that the petitioner has ousted the tenant or that he has taken over the possession somehow. Two Khasra Girdawari; one for Kharif, 1985 and the other for Kharif 1986 have been placed on record. The Khasra Girdawari relating to Kharif 1985 shows that prior to the crop of Kharif 1985 Shera son of Mutalli was cultivating the land as a tenant but in Kharif 1985 the cultivation somehow passed to the petitioner as a co‑sharer (and not as a prospective vendee). One could think that this entry relating to Kharif' 1985 was correct but entries relating to Kharif 1985 belie this contention. In that Khasra Girdawari the possession of Shera son of Mutalli is still shown up to Rabi 1986 and then all of a sudden the petitioner is shown in possession as a co‑sharer in Kharif 1986. If the petitioner had obtained possession in Kharif 1985 there was no question of showing Shera as a tenant in Rabi 1986. This would show that the entries of the Khasra Girdawaries may be wrong or fake. In any case such a contradictory documentary evidence cannot suffice to prove the possession of the petitioner. As already pointed out the petitioner has paid nothing so far for the land in dispute and, therefore, he cannot be entitled to the equitable relief of injunction. In other words he cannot be allowed to enjoy the fruits of the land without any consideration whatsoever. The learned Courts below were,' therefore, justified in refusing the prayer in respect of the possession.[ There is no material irregularity or illegality in the orders passed bvO3 the learned lower Courts. The petition is, therefore, dismissed in) limine.

H . B . T . /A‑292/L Revision Petition dismissed.