MUHAMMAD SHAFI Versus MUHAMMAD SHARIF

Brief facts out of which present revision petition arises are that the petitioner/plaintiff filed a suit for specific performance of the contract, in the Court of Civil Judge 1st Class, Shorkot on 24-4-1995. The contents of plaint further reveal that the land in question measuring 107 Kanals, 16 Marlas situated in Chak No.478/J.B., Tehsil Shorkot, District Jhang, was allotted to Muhammad Sharif, respondent/defendant. An oral agreement was arrived at between the petitioner/plaintiff and the respondent/defendant to the effect that the petitioner will make barren land fertile and as remuneration, the respondent/defendant will transfer 1/2 share of the land in question in the name of the petitioner/plaintiff. A written agreement was also executed between the parties on 31-8-1989: The respondent/defendant resiled from an agreement to sell. The petitioner/plaintiff being aggrieved filed the aforesaid suit for specific performance of the contract. The respondent/defendant filed a suit for cancellation of the aforesaid agreement dated 31-8-1989. The suit of the petitioner/plaintiff was finally dismissed as withdrawn on 12-5-1991. The respondent/defendant has been assigned proprietary rights of the suit-land by the Deputy Commissioner/Collector, Jhang. The petitioner/plaintiff repeatedly asked the respondent/defendant to execute the registered deed or mutation in favour of the petitioner/plaintiff in terms of an agreement dated 31-8-1989. The respondent/defendant resiled from an agreement to sell. The petitioner/plaintiff being aggrieved filed the aforesaid suit for specific performance of the contract. The respondent/ defendant filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties, the learned trial Court framed the following issues:--

Issues

(i) Whether the suit is barred by time? OPD

(ii) Whether the plaintiff has no cause of action and locus standi to bring this suit? OPD

(iii) Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD

(iv) Whether the suit has been instituted with mala fide intention just to pressurize the defendant and the defendant is entitled to special costs under section 35-A, C.P.C., if so, to what extent? OPD

(v) Whether the impugned agreement to sell is the result of fraud and forgery? OPD

(vi) Whether the impugned agreement to sell dated 31-8-1989 has been validly executed between the parties? OPD

(vii) Whether the plaintiff is entitled to a decree for specific performance of the contract, as claimed for?" OPP

(viii) Relief.

The learned trial Court decreed the suit vide judgment and decree dated 15-4-1998. The respondent being aggrieved filed an appeal before the learned Additional District Judge, Shorkot, who accepted the same vide Impugned judgment and decree dated 22-5-1999. Hence, the revision petition:

2. The learned counsel of the petitioner submits that judgment of both the Courts below are at variance. The First Appellate Court reversed the findings of the learned trial Court without adverting to the reasoning of the learned trial Court. He further submits that the petitioner has proved the agreement to sell executed between the parties by producing oral as well as documentary evidence and the First Appellate Court failed to appreciate the same and has given erroneous findings on this aspect of the case. He further submits that the First Appellate Court accepted the appeal merely relying upon sections 17 and 19 of Colonization of Government Lands Act, 1912 without applying its judicial mind that the aforesaid provisions are not mandatory in nature. He further submits that the First Appellate Court decided the case in violation of law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:--

"Said Ali Shah v. Muhammad Shafi 1989 SCMR 1594 and Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others 1992 SCMR 1510."

3. The learned counsel of the respondents submits that the learned trial Court had decided the case without proper appreciation of evidence on record and in violation of mandatory provisions of said sections 17 and 19 of the aforesaid Colonization of Government Lands Act, 1912. He further submits that the First Appellate Court has decided the case after proper appreciation of evidence on record and reversed the findings of the learned trial Court keeping in view the mandatory provisions of sections 17 and 19 of the aforesaid Colonization of Government Lands Act, 1912. He further submits that the aforesaid provisions are mandatory in nature as is evident from the contents of the aforesaid provisions of law. He further submits that the agreement to sell executed between the parties without permission of Collector is void agreement. The respondent/defendant has no lawful authority to execute the agreement with the petitioner/plaintiff without permission of Collector in terms of the aforesaid provisions of law. He summed up his arguments that the judgment of the First Appellate Court is in accordance with law laid down by superior Courts. In support of his contention, he relied upon the following judgments:--

Ghulam Rasool's case 1969 SCMR 54, Wajid Ali's case PLD 1982 Lah. 716, Ch. Ahmad Khan's case 1993 MLD 807, Daulat Khan"s case PLD 2000 SC 792; Sher Muhammad Khan's case 1994 SCMR 470, Inayat Ali Shah's case 1995 CLC 1906, Hakam Ali's case PLD 1981 SC 993.

4. I have given my anxious consideration to the contentions of the leaned counsel of the parties and perused the record.

5. It is pertinent to mention here that the relationship between the parties is that the petitioner and the respondent are real brothers and their wives are also real sisters inter se. This relationship clearly reveals that the oral as well as written agreement was executed between the parties of their own free-will coupled with fact that the respondent had filed a suit for cancellation of the aforesaid agreement to sell which was dismissed subsequently, as withdrawn on 12-5-1991. It is better and appropriate to reproduce the operative, part of the agreement to sell dated 12-8-1989:--

In view of the aforesaid operative part of the agreement, the judgment of the First Appellate Court is not sustainable in the eyes of law. It is pertinent to mention here that it was held by the Division Bench of the Honourable Supreme Court in Ghulam Rasool's case (supra) 1969 SCMR 254 that transfer prohibited by section 19 of the Colonization of Government Lands Act, 1912 is void even as between the parties to transaction and that in the absence of such consent in writing of the agreement, no specific performance of the agreement to sell could be ordered. Subsequently, the Full Bench of the Honourable Supreme Court has considered effect of section 19 of the Colonization of Government Lands Act, 1912 in Muhammad Iqbal's case PLD 1986 SC 70 and held as follows:--

"That the agreement to sell was not hit by the provisions of section 19 of Act (ibid). The latter judgment was followed in the case of Akhtar Ali's case 1981 SCMR 604 and Muhammad Afzal's case 1991 SCMR 1785. "

The observation of the First Appellate Court that permission from the Collector, under section 19, Colonization of Government Lands Act, 1912 was mandatory, has no force, as per principle laid down by this A Court in Mushtaq Hussain's case 1999 MLD 384 which was followed by this Court in Mubarik Ali's case 2000 YLR 652. It is pertinent to mention here that the bar prescribed in section 19 of the aforesaid Act is against the alienation and not against the agreement and that being so agreement could be enforced through the specific performance after B the grant of proprietary rights, as per principle laid down by the Honourable Supreme Court in Mst.. Rehmat Bibi's case 1992 SCMR 1510. The Honourable Supreme Court has considered all the case-law in Waris Ali's case PLD 2000 SC 792. The relevant observation is as follows:--

"Such a reservation was made in, the document itself which reflected the awareness of the constraints, the recognition of its legal effect and an effort-on the part of the parties to the contract to keep themselves well within confines of law and to act strictly in consonance with the requirements of the statute. We are of the considered view that such an agreement to sell cannot be held to be violative of either the express provisions of section 19 of Act 1912 or of the public policy behind such statutory provision. There have been a number of cases in which even oral agreement of sale by vendor in favour of vendee was held to be not hit by the provisions of section 19 of Act 1912. This Court has already settled the law on the subject in the cases reported as Hakim Ali v. Atta Muhammad 1981 SCMR 993, Muhammad Iqbal v. Muhammad Hussain PLD 1986 SC 70, Rehmat Bibi v. Jhando Bibi 1992 SCMR 1510, Sher Muhammad Khan v. Ilam Din 1994 SCMR 470 and Abdul Ghani v. Fatima Bibi 1994 4SCMR 1786."

The aforesaid proposition is also supported by the following judgments:--

Mehr Bakhsh's case 1999 YLR 958 and Abdul Hameed's case 1992 CLC 1504.

It is pertinent to mention here that the respondent/defendant filed a suit for cancellation of agreement dated 31-8-1989 before the Civil Court which was subsequently dismissed as withdrawn on 12-5-1991, therefore the respondent/defendant was estopped to wriggle out from the execution of the agreement between the parties on well-known principle or approbate and reprobate, waiver, res judicata and estoppel as per principle laid down by the Honourable Supreme Court in the following, judgments:--

"Haji Ghulam Rasool v. The Chief Administrator PLD 1971 SC 376 and Pir Bakhsh v. The Chairman Allotment Committee PLD 1987 SC-145.

6. It is also admitted fact that the statement of petitioner/plaintiff was recorded by the learned trial Court, therefore, onus was shifted automatically upon the respondent/defendant to prove that the agreement to sell dated 31-8-1989 was executed by fraud and misrepresentation. The petitioner/plaintiff had proved the agreement to sell executed between the parties by producing oral as well as documentary evidence. The learned trial Court has given findings of fact against the respondent/defendant after proper appreciation of evidence which was not reversed by the First Appellate Court in terms of law laid down by the Honourable Supreme Court in Madan Gopal's case PLD 1969 SC 617, wherein the Honourable Supreme Court has laid down principle that the First Appellate Court should meet the reasoning of the learned trial Court first, then reverse the findings of the learned trial Court but this procedure was not adopted by the First Appellate Court, therefore, the impugned judgment of the First Appellate Court is not sustainable in the eyes of law. The judgment of the First Appellate Court is in violation of the aforesaid judgments of the superior Courts. This concept of jurisdiction and illegal had been considered by the Honourable Supreme Court in Knawal Nain's case PLD 1983 SC 53 to recover the cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse with grave injustice would result, therefrom. In such circumstances, this Court has ample jurisdiction to reverse the findings of the facts of the First Appellate Court while exercising power under section 115 of C.P.C. as per principle laid down by the Honourable Supreme Court, in Shaukat Nawaz's case 1988 SCMR 851 and Muhammad Bakhsh's case 2003 SCMR 286.

In view of what has been discussed above the revision petition is accepted' and the judgment of the First Appellate Court is set aside and the judgment of the learned trial Court is upheld with no order as to costs.

S.M.B./M-1896/L Order accordingly.