MALIK HAJI Versus ABDUL RAZAQ
Brief facts necessary for the disposal of the instant revision petition emerging out of the plaint are that suit land (detailed in the plaint) was sold by Gul Muhammad father of the respondent No. l Abdul Razzaq (for the sake of convenience hereinafter called the defendant No. l), for a consideration of Rs.3,200 to Malik Haji petitioner No. l and Malik Abdullah, predecessor of the petitioners Nos.2 to 10 and possession was also delivered to them. Later on Mutation No.722 was also accordingly sanctioned in favour of these two purchasers (hereinafter called the plaintiffs). This sale was pre‑empted by Malik Karim Bakhsh and Mst. Noor Khatoon, by way of filing of civil suit, To protect this sale, Abdul Razzaq son of vendor Gul Muhammad (defendant No.. 1) also filed a pre‑emption suit, the expenses whereof were agreed to be borne by the plaintiffs/vendees Malik Haji and Malik Abdullah. The pre- emption suit filed by Abdul Razzaq (defendant No. l) was decreed and suit of Malik Karim Bakhsh, etc., was dismissed. Since the pre‑emption suit of Abdul Razzaq was "Benami", therefore, no steps were taken for execution of the decree and the plaintiffs Malik Haji, etc., remained in possession rather measures were taken to `get the suit land transferred in the name of the plaintiff. Firstly Abdul Razzaq defendant No‑1 mortgaged the land with Allah Ditta respondent No.3 (hereinafter called the defendant No.3) (who was also an attorney of defendant No. 1 and the plaintiffs) vide Mutation No.762, dated 6‑2‑1971. A pronote was also executed by Abdul Razzaq defendant No. l in favour of Allah Ditta. Thereafter, the land was transferred in the name of Ghulam Sarwar a son of Malik Abdullah (now petitioner No.2) and Allah Wasaya son‑in‑law of plaintiff No.1 Malik Haji through mutation No.800, dated 17‑3‑1962. Thereafter, the suit land was redeemed and thereafter mutation of Sale No. 1040 in the name in the Revenue Record of ‑Ghulam Sarwar was also incorporated. During the proceedings of this mutation Abdul Razzaq moved an application to the Revenue Officer that this mutation be not attested but his application was rejected and mutation was sanctioned on 10‑3‑1970 against which Abdul Razzaq preferred an appeal which was also dismissed by Assistant Commissioner/Collector, Ahmadpur East vide his order, dated 23‑4‑1970, however, his appeal against the same was accepted by the Additional Commissioner, Bahawalpur and Mutation No. 1040 was cancelled. In this background the plaintiffs filed the instant suit for declaration that the decree dated 1‑7‑1960 passed in favour of defendant No.l Abdul Razzaq in his pre‑emption suit is "Benami" and ineffective qua their rights. By way of consequential relief a decree for permanent injunction restraining the defendants from interfering in the possession of the plaintiffs over the suit land has also been prayed. During the trial of the suit, one of the plaintiffs Malik Abdullah expired and present petitioners Nos.2 to 10 have been brought on the record being his legal heirs. Defendants Nos. l and 2 (respondents Nos. l and 2) hotly contested the suit by raising various legal and factual pleas through their written statement but defendants Nos.3 and 4 (respondents Nos.3 and 4) have submitted the consenting written statement. The rest of the defendants/respondents Nos.5 to 27 did not appear in the trial Court and they were proceeded ex parte.
2. Keeping in view the pleadings of the parties, the learned trial Court framed the following issues:‑‑
(1) Whether the suit is time‑barred? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the transaction is hit by section 54 of the Transfer of Property Act? OPP
(4) Whether the plaintiffs are owners in possession of the suit land? OPD
(4‑A) Whether the plaintiffs are in adverse possession of the suit land for more than 12 years? If so, its effect? OPP
(5) Relief.
3. Parties led evidence in support of their respective assertions. Learned Civil Judge, Ahmadpur East decided Issues Nos.2 and 3 in favour of the plaintiffs/petitioners and the remaining issues were decided against them. Consequently the suit was dismissed by the learned trial Court vide his judgment and decree dated 4‑11‑1978 which remained maintained by the learned District Judge, Bahawalpur while dismissing the appeal vide judgment and decree dated 11‑6‑1979.
4. The aforesaid judgments and decrees have now been impugned through the instant revision petition filed by the petitioners/plaintiffs.
5. The findings of learned trial Court on Issue No. l against the petitioners was reversed by the learned District Judge and the suit was held to be within the limitation. This finding was not challenged by way of filing of cross‑objection in this Court, so the finding on this issue given by the learned District Judge, is hereby affirmed.
6. The finding of the learned trial Court on Issue NoA(A) was affirmed by the learned District Judge, which has not been seriously argued before me. Even otherwise this concurrent finding is in accordance with law and facts, the same is re‑affirmed.
7. As a matter of fact, parties have advanced their arguments on Issue No.4.
8. Learned counsel for the petitioners vehemently argues that the learned Courts below have proceeded on wrong premises of law and facts while deciding Issue No.4 against the plaintiffs. Their findings to the effect that the contract between the plaintiffs and defendant No. l in the context of "Benami" was violative of section 23 of the Contract Act. As per learned counsel the agreement between the parties was mainly to protect the possession of the plaintiff by filing a pre‑emption suit in order to defeat the pre‑emption suit of the rival pre‑emptor Malik Karim Bakhsh and Mst. Nooran, and admittedly, the expenses of this litigation on behalf of defendant No. l/Abdul Razzaq were borne by the plaintiffs. Seen from this angle the agreement between the parties cannot be said to be violative of section 23 of the Contract Act, as "Benami" transaction, if proved, is not unlawful. In the instant case Abdul Razzaq defendant No. 1 could not bypass the agreement rather he was estopped from doing so. It is specifically pin‑pointed that though the learned Civil Judge arrived at a conclusion that the contract between the parties was not proved; yet the learned District Judge did not agree with the same and observed that a contract did exist between the parties. It is urged with force that in the presence of this finding, the learned District Judge was not justified to dismiss the appeal of the petitioners against the judgment and decree of the learned trial Court. The finding of the learned District Judge to the effect that the contract between the parties was against the spirit of section 23 of the Contract Act, cannot be maintained, as the contract was perfectly lawful. In support of the submission learned counsel has referred to the following judgments:‑‑
(1) AIR 1924 PC 162 (Subhadrayammav. Venkatapati Raju);
(2) AIR 1926 Lahore 43 (Kesho as v. Tulsi Dass);
(3) AIR 1931 PC 100 (Ramanamma v. Viranna);
(4) AIR 1920 Lahore 123 (1) (Indar Singh v. Munshi); and
(5) PLD 1968 Karachi 723 (Hoshing and others v. Dr. Eddie P. Bharucha and others).
9. On the other hand, learned counsel for the respondents vehemently supports the impugned judgments and decrees by submitting that the same have been passed strictly in accordance with law and facts and no illegality was committed by the learned Courts below declaring the agreement between the parties, if any, violative of section 23 of the Contract Act (IX of 1872). In support of the contentions, reliance has been placed on 1995 CLC 1906 Lahore (Inayat Ali Shah v. Anwar Hussain); PLD 1985 SC 86 (Muhammad Ismail and others v. Mst. Mussarat Zamani and others); PLD 1971 Dacca 112 (Hussain Ali Khan v. Firoza Begum) and PLD 1969 Karachi 221 (Sultan v. Nawab Mouladad).
10. To appreciate the arguments of the learned counsel for the parties, it would be appropriate to reproduce section 23 of the Contract Act:‑‑
"Section 23. What considerations and objects are lawful and what not.‑‑The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
11. In the facts and circumstances of this case; it is to be ascertained as to how the agreement between the parties, was hit by this provision of the Contract Act.
12. As per the plaintiffs, they have financed the defendant No. l for bringing his suit to a success in order to defeat the suit of the rival pre emptor, so that their possession of the suit land under the sale made in their favour by the vendor/father of respondent No. 1, be protected.
However, it is not convincingly established, that for what consideration the respondent No. l filed the pre‑emption suit when he was not to be benefited (allegedly) in case his suit is decreed, as the same was (allegedly) for the benefit of the plaintiffs. It is well‑settled that a lawful agreement i.e. contract' consists of three essentials: (a) Proposal, (b) acceptance, and (c) consideration. In this case, at least the element of consideration for respondent No. 1 is missing and any transaction without consideration cannot be lawfully enforced or on the basis thereof no declaration of any right can be awarded. Reference may safely be made to section 25 of the Contract Act, which, with certain exception lays down that agreement without consideration is void. To show that none of the exception is available here, section 25 is reproduced as under:‑‑
"Section 25. Agreement without consideration vide, unless it is in writing and registered or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law. An agreement made without consideration is void, unless‑‑‑
(1) It is expressed in writing and registered under the law for the time being in force for the registration of (documents) and is made on account of natural love and ~ affection between parties standing in a near relation to each other; or unless
(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compilable to do, or unless
(3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.
In any of these cases, such an agreement is a contract.
Explanation 1.‑‑‑Nothing in this section, shall affect the validity as between the donor and donee, of any gift actually made.
Explanation 2.‑‑An agreement to which the consent of the promisor is freely given is not valid merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given. "
13. Viewed from another angle, as per the plaintiffs the vendor Gul Muhammad and his son Abdul Razzaq (defendant No.1/respondent No.l) were having strained relations with Karim. Bakhsh and Mst. Nooran (rival pre‑emptors), so they wished that the suit land be not obtained by the (rival pre‑emptors). Reference is made to para. No.2 of the plaint and the statement of Malik Haji one of the plaintiffs. Relevant portion is reproduced:‑‑
It was further deposed by him that his proposal was accepted by them (plaintiffs). Meaning thereby they were mainly persuaded to satisfying the feelings of vengeance and vindication of Abdul Razzaq (defendant No. l/respondent No. l) and his father Gul Muhammad. If this is to be taken as consideration for respondent No. l/defendant No. 1, the alleged agreement is surely hit by section 23 of the Contract Act. There can be no lawful agreement for the purpose of satisfying the negative feelings/desires of one party and thus, to defeat the legitimate right of any other person, in this case, the rival pre‑emptors. It also means that main purpose was also not to enforce the right of pre‑emption of Abdul Razzaq but only to deprive the rival pre‑emptors of their rights available under the law and in this context plaintiffs and the said respondents joined hands with each other, so the element of collusiveness also comes into the picture and this being so the alleged agreement falls within the mischief of section 23 of the Contract Act.
14. Seen this case from another angle, apart from the above dimension, the question as to whether the prayers of the plaintiffs through their suit to the effect that pre‑emption decree dated 1‑7‑1960 passed by the learned Civil Judge in favour of defendant No.l/respondent No.1 Abdul Razzaq be declared unlawful and inoperative qua their rights, could be granted? To me, that answer is in negative. In the pre‑emption suit plaintiffs were also a party and decree was passed against them and the same is binding and cannot be declared unlawful through the instant suit filed by them. Even if the said decree is taken to be collusive one, the plaintiffs/petitioners being a party to the same (as they had given consenting statements in the trial Court) do not have any right legal as well as moral to go beyond the same.
15. Apart from the above reasoning, I am in agreement with the concurrent findings of the learned Courts below with reference to section 23 of the Contract Act and the same are immune from further scrutiny in this petition filed under section 115, C.P.C.
16. The judgments cited by the learned counsel for the respondent No. 1 are helpful to advance his case but the judgments cited by the learned counsel for the petitioners cannot be strictly made applicable to the facts and circumstances of the instant case.
17. Resultantly, the instant revision petition fails and the same is dismissed leaving the parties to bear their own costs.
H.B.T./M‑620/L Revision dismissed.