SHAH MUHAMMAD Versus MUHAMMAD ISHAQ

On 17‑5‑1977 the respondents filed a suit against Ch. Ali Muhammad deceased the predecessor‑in‑interest of the present appellants (hereinafter to be referred to as appellants). In the plaint it was stated that the appellants claiming to be owner of 9/10 Marlas of land comprising Khasra Nos.1468,1470 and 1471‑min in the revenue estate of Garhi Shahu, District Lahore, agreed to sell the same to the respondents for a consideration of Rs.5,000 per Marla. A sum of Rs.5,000 was paid as earnest money and an agreement was executed on 19‑1‑1975. In para. 2 of the plaint some terms and conditions of the agreement were narrated and an allegation was made that neither 9 Marlas nor 10 Marlas were handed over to the respondents under the said agreement. In the immediately following para. it was stated that the possession of the land sought to be alienated had been handed over to the respondents and they had raised boundary wall around it and in fact had included the same in their house. Thereafter, it was complained that the appellants did not provide a copy of the Jamabandi and notices were issued which were replied. It was then abruptly stated that in fact the appellants were not owner of the land to the extent of 9/10 Marlas and that they were owner of 6‑1/2 Marlas of land. With these averments prayer was made that a decree be passed for 6‑1/2 Marlas of land and in case the appellants are proved to be owners of 9/10 Marlas then the decree be passed accordingly. In their written statement the appellants objected that the suit is for partial performance. On merits it was stated that appellants had never refused the performance of the agreement. They urged that the respondents are stopped from raising plea of title as admittedly they had been delivered the possession of the land under the agreement. Following issues were framed:‑‑

(1) Whether the suit has been wrongly valued for the purposes of court fee and jurisdiction? If so, its effect and what is the correct valuation? OPD

(2) Whether the plaintiffs have performed this part of the contract? OPP.

(2‑a) Whether the plaintiffs have not come with clean hands. If so, what is its effect? OPD

(2‑b) Whether the contract dated 19‑1‑1975 stands rescinded for the reasons mentioned in para. No. 3 of the preliminary objection? OPD

(2‑c) Whether the plaintiffs ace estopped by their conduct to deny the description and measurement of the area? OPD

(2‑d) Whether the suit is not maintainable in view of preliminary objection in para. No 4? OPD.

(2‑e) Whether the plaintiffs are entitled to decree for specific performance of agreement dated 19‑1‑1975? OPP

(3) Relief.

Evidence of the parties was recorded. Vide judgment and decree dated 11‑1‑1988 learned trial Court proceeded to pass a decree for specific performance in respect of 3 Marlas and 200 sq. feet of land on payment of Rs.15,560. The appellants filed a first appeal which was heard by a learned Additional District Judge, Lahore, who dismissed the same on 4‑3‑1989.

2. Learned counsel for the appellants contends that it was case for partial performance which is not permissible under section 17 of the Specific Relief Act, 1877. Further contends that entire trial was misdirected and so was the appeal. According to the learned counsel it stands proved on record that the appellants were the owners of the land subject‑matter of the agreement. Learned counsel for the respondents on the other hand argues that the case falls under section 15 of the Specific Relief Act, 1877 and the impugned judgments and decrees are not liable to be interfered with in this R. S. A.

3. Before proceeding further I may state here that the record was summoned but the Deputy Commissioner, Lahore, reported that the records had been burnt in a fire on 12‑1‑1998. 1 called upon learned counsel for the appellants to file documents attested by him from his brief in the office which he had done. The case has been heard on the basis of record so reconstructed with the agreement of both the learned counsel.

4. Both the learned counsel agreed that Exh. P1 available at pages 21 and 22 of the re‑cnnstructed record is agreement being relied upon by both the parties. This document narrates that 9/10 Marlas of land comprising Khasra Nos.1468,1470 and 1471‑min in the Garhi Shahu, Lahore, is owned and possessed by the appellants and said land has been agreed to be sold to the respondents at the rate of Rs.5,000 per Marla. The land is further described as follows:‑‑

East: 35 feet wide road;

West: Bungalow of the respondents.

North: Plot of Mst. Surraya Jabeen.

South: Road, located opposite house No.201 of Ch. Shah Muhammad, Advocate. Oft I

The document further narrates that a sum of Rs.5,000 has been paid as earnest money and a period of 2 years has been settled for performance. It further provides that all arrears of taxes etc. were to be cleared and "Jamabandi" will be obtained and sale‑deed will be executed. It further narrates that possession of land has been delivered out to the respondents with authority that they can raise boundary wall around it and include it in their house. This document was executed on 19‑1‑1975.

5. I have already narrated above that the plaint narrates without any demur (para. 3) that the possession of the land sought to be alienated had been delivered and the respondents have raised a boundary wall and included the land .in their house. It is indeed ‑shocking as to how in the presence of said document on record and the said pleading of the respondents, the learned trial Court indulged itself into a question as to how much land is in possession of the respondents. None of the parties questioned the correctness of any portion of the said agreement. In view of the said admission and in absence of any allegations that the respondents came to lose possession because of any acts attributable to be appellants, the question as to whether or not the respondents were in possession or the extent of possession was wholly irrelevant.

6. Of course what was relevant was as to whether or not the appellants were owners of land agreed to be sold by them to the respondents. I have carefully examined both the judgments of the learned lower Courts and I am unable to find any findings by the learned lower Courts that the appellants were not owner of the land subject‑matter of the said contract. Both the learned lower Courts have proceeded to add a new condition to the agreement Exh. P1. Both of them have proceeded to state in their respective judgments that it was condition of the contract that the appellants will get attested copies of record of rights regarding their ownership and as such final measurement was to be made and then the contract was to be enforced. I do not find any such clause or term in the said agreement.

7. Be that as it may, the Tehsildar was called upon to report and he had in fact reported.

The Local Commissioner answered the reference as follows:‑‑

8. No gainsaying the fact that Local Commissioner was neither asked to determine the ownership of the appellants and I am positive that the learned Courts below could not have abdicated their, authority to favour of the Tehsildar to determine the question of title. Thus, all that the Local Commissioner reported was the area in possession of the respondents in Khasra No.1468. I may state here that the land was sold from Khasra Nos. 1468, 1470 and 1471‑min The Local Commissioner opted to remain absolutely silent regarding the said other Khasras and learned lower Courts, of course, have relied upon the said report in complete oblivion of pleadings and evidence on record. In the process they have failed to take note of the copy of "Jamabandi" for the year 1983‑84 filed by the Local Commissioner alongwith his report which narrates that late Ali Muhammad (the executant of the agreement alongwith his brother Ghulam Muhammad) is recorded to be owner of 1 Kanal, 17 Marlas, 15 sq. feet of land in Khasras Nos .1466, 1468 and 1470. This means that just in these two numbers he owned about 18 Marlas of land. Muhammad Ishaq one of the respondents appeared as P.W.I and he has even made a slight allegation that the appellants were not owner of the land.

9. In view of the above state of evidence on record I do agree with the learned counsel for the appellants that the learned Courts below have completely misdirected themselves. I also find that the impugned decrees for partial performance cannot be sustained as the case is not covered by any of the provisions of sections 14, 15 or 16 of the Specific Relief Act, 1877. At 8 the same time I find that the plaint had been intelligently (rather cleverly) drafted. A bare look on the plaint would show that respondents have deliberately tried to raise a dispute and this was done because they were already aware by the response of the appellants to their notices that they had never refused the performance of the agreement. They were fully aware that they are raising a false dispute and thus saw to it that prayer is made in a manner to save themselves from the consequences provided in section 17 of the Specific Relief Act, 1877, which absolutely prohibits partial performance. They have prayed that a decree for 6‑1/2 Marlas be passed. Further stated that in case the appellants are found to be owner of 9/10 Marlas of land then the same be awarded. The admitted position on record is that the possession of the land was in fact delivered to the respondents and they had included the same in their bungalow. The suit in view of the said contents of the plaint cannot be thrown out for the said technical objections of part performance in the abovesaid circumstances. However, at the same time it is relief in equity which is being claimed by the respondents and they must do equity and should be made to be equity.

10. They paid only Rs.5,000 to the late plaintiff and took over the possession of the land and. are enjoying the same with impunity eversince. They raised a false plea. The result was that they managed to linger on their suit filed on 17‑5‑1977 till 11‑1‑1988 and insisted on obtaining a decree, and defending it thereafter, which could not have been passed under the law. I do find that the appellants on the other hand from the day one had been MR. that they are ready to perform the agreement as entered into between the parties, In order to do complete justice in the matter I am of the humble opinion that the respondents must compensate the appellants. Had they paid the amount of Rs.45,000 (the only genuine dispute appears to be as to whether it was 9 or 10 Marlas and I am inclined to give benefit to the respondents) on the date stipulated for performance the appellants could have beneficially utilized the same as the respondents had utilized their land. I find that the facts of this case are akin to the case of Muhammad Siddique v. Muhammad Akram (2000 SCMR 533). In the said case an agreement was entered into on 5‑5‑1962 for consideration of Rs.12,000. Rs.10,000 was deposited in the account of the vendee on 5‑5‑1962 while Rs.2,000 were to be paid at the time of registration of former document. The vendee filed a suit after about 11 years which ultimately culminated in proceedings before the Supreme Court of Pakistan in C.A. No.999 of 1995. The Hon'ble Supreme Court raised the amount of consideration of Rs.2,000 to Rs.1,00,000 while upholding decree for specific performance. In the present case also there is nothing on record rather the record bespeaks that the appellants had never refused the performance of the agreement yet they were dragged into litigation commencing from 17‑5‑1977 onwards. I find that this is an apt case for adopting the principle stated in the said judgment of the apex Court.

11. In view of what has been discussed above, `this R. S. A. is allowed inasmuch as the judgments and decrees passed by the learned Court below are set aside and instead a decree is passed for specific performance of the said agreement for 9 Marlas of land. I hereby raise the amount of balance consideration of Rs.40,000 to Rs.10,00,000. The performance of the agreement will be subject to payment of Rs. 10,00,000 after the adjustment of the said amount of Rs.5,000, this will be done by a deposit in the trial Court on or before 30‑4‑2001 failing which the suit for the respondents shall stand dismissed with costs.

Q.M.H./M.A.K./S‑218/L Appeal allowed.