FATEH MUHAMMAD Versus FAQIR ULLAH

This judgment will dispose of R.S.A. No. 5 of 1980 also as both the appeals are by the unsuccessful plaintiff in a suit for specific performance. These arise out of the following circumstances.

2, On 15‑1‑1968, Abdul Haq, who owned the land in dispute, executed an agreement to sell in favour of Faqir Ullah, the respondent, for a consideration of Rs.8,700. On 29‑6‑1968 (Exh.P.l) the respondent, entered into an agreement to sell half of this land in favour of the appellant for half of the total sale consideration. The case of the appellant has been that out of the agreed sale consideration of Rs.4,350, an amount of Rs.4,000 was paid to the respondent on different occasions. However, the respondent alone filed a suit for specific performance against the vendor, Abdul Haq which was decreed on 12‑3‑1971. Pursuant to the aforesaid decree, the sale‑deed was duly executed in favour of the respondent. Thereafter, on 14‑5‑1971, the appellant filed a suit for specific performance based on the aforesaid agreement to sell, dated 29‑6‑1968. The suit was contested. The agreement to sell, dated 29‑6‑1968 was not denied.

3. The suit filed by the appellant was dismissed vide judgment and decree, dated 30‑7‑1979 on the basis of the finding that‑ the terms of agreement to sell were not certain and clear and the property subject‑matter of the aforesaid agreement could not be identified. It was, however, found that under the aforesaid agreement the respondent; had received Rs.4,000 as earnest money. However, while dismissing the suit, the learned trial Court directed refund of the amount of Rs.4,000 by the respondent to the appellant.

4. Against the said judgment and decree both the parties filed appeals. While the appellant felt aggrieved of dismissal of his suit, the respondent challenged the finding of the learned trial Court regarding payment of the sale consideration. These appeals were disposed of by the Additional District Judge, vide his judgments and decree, dated 21‑10‑1979. The learned First Appellate Court affirmed the findings of learned trial Court as to the uncertainty, of the terms of the agreement and want of description of the disputed property but the finding of the learned trial Court that the appellant had paid a sum of Rs.4,000 to the respondent was reversed.

5. Two appeals have been filed by the appellant. One against dismissal of his appeal and the other allowing the appeal of the respondent.

6. The learned counsel for the appellant has contended that execution of the agreement to sell having been submitted the appellant was entitled to the decree. His grievance is that the agreement to sell, Exh.P.l has been misinterpreted by the learned two Courts. According to him, the description of the property was contained in the agreement and no objection was raised in the written statement by the respondent. He further submits that the terms of the agreement could be ascertained with certainty and, therefore, the finding in the impugned judgment to the contrary are against the record. Regarding passing of earnest money, his complaint is that the learned First. Appellate Court arbitrarily rejected the evidence which had been accepted by the learned trial Court.

7. On the other hand, the learned counsel for the respondent has defended the impugned judgment. Reliance was placed on Shajar Ali Hoti v. Esmail Sohani 1987 CLC 2307 to contend that the agreement did not contain material terms. He further contended that the learned District Judge, on re appraisal of evidence, found that the payment of earnest money had not been proved and that being a finding of fact is not liable to be interfered with in second appeal.

8. I have considered the submissions made by the learned counsel for the parties. The suit of the appellant has been dismissed on the grounds that payment of earnest money of Rs.4,000 by the appellant to the respondent was not proved that the terms of the agreement could not be determined with reasonable certainty and that the property subject‑matter of the agreement (Exh.P.l) could not be identified. Therefore, it will be appropriate to reproduce the relevant portion of the aforesaid agreement which is as under:

9. Apart from the fact that the land is described in this agreement quantitatively only, without there being detailed description, the agreement does not provide for the time for its completion and the payment of sale consideration by the respondent. It does not recite that any consideration passed on at the time of execution of this agreement. The learned counsel for the respondent has rightly relied on the case of Shajar Ali Hoti (supra). In the said case time for completion of sale, payment of sale consideration, mode of payment and delivery of possession were found to be missing from the agreement. It was, accordingly, held that it was not capable of being enforced. I find that even if this agreement to sell was liberally construed it did not contain the material terms within the contemplation of section 21(c) of the Specific Relief Act and was, thus, not capable of enforcement.

10. As far as the, consideration for the agreement is concerned, the learned District Judge, on reappraisal of the evidence, found that it was not proved. It may be noted that the earnest money of Rs.4,000 was allegedly paid on different occasions the detail of which had not even been given in the plaint. Neither in the agreement there is a covenant nor there is an assertion in the plaint that any earnest money was at all paid at the time of execution of the aforesaid agreement to sell. In his statement in the Court, the appellant asserted that an amount of Rs.300 was paid at the time of execution of the agreement which is not so recorded in the agreement itself.

11. For what has been stated above, I find no merit in this appeal, which is dismissed.

H.B.T./F‑9/L Appeal dismissed.