Mst. MARYAM BIBI Versus MUHAMMAD ALI through L.Rs.

ORDER

CH. IJAZ AHMED, J.--- The petitioners have sought leave to appeal against the judgment of the Lahore High Court passed in F.A.O. No.69 of 2004 wherein the learned High Court set aside the order of the first Appellate Court dated 13-12-2003 and restored the order of the executing Court dated 24-4-2003.

2. Brief facts out of which the present petition arises are that Muhammad Taqi was the original owner of the total land in question measuring 138 Kanals and 13 Marlas. The said original owner had sold the said land to petitioners No.1 and 2 for consideration of Rs.2,50,000. Respondent No.1 and others filed pre-emption suit in the Court of Civil Judge, Chiniot against the petitioners and the original owner. The trial Court decreed the suit vide judgment and decree, dated 28-10-1985. Petitioners being aggrieved filed appeal before the District Judge who accepted the same and dismissed the suit of the respondents vide judgment and decree, dated 16-3-1986. The respondent being aggrieved filed R.S.A. No.92 of 1986 in the Lahore High Court which was disposed of on 15-2-2001 in view of the compromise arrived at between the parties according to the which, 2/3rd of the land in question was to remain in the possession of the petitioners and I/3rd of the land in question measuring 46 Kanals, 4 Marlas, 3 Sarsai was to be given to the respondents. The respondents filed an application before the trial Court on 23-7-2001 for withdrawal of Zar-e-Punjum and also whole of the decretal amount deposited by them in the Court. The petitioners did not oppose the withdrawal of the said amount. The respondents thereafter filed execution petition before the executing Court for execution of the judgment of the High Court, dated 15-2-2001. Petitioners filed objection petitions before the executing Court. The executing Court overruled the objection of the petitioners vide order, dated 21-4-2003. Petitioners being aggrieved filed revision petition in the Court of Additional District Judge, Chiniot who accepted the same vide order, dated 13-12-2003 and remanded the case of the executing Court with direction to frame issue, record evidence of the parties and then decide the matter on merits in accordance with the law. The respondents being aggrieved filed F.A.O. No.69 of 2004 in the Lahore High Court Lahore which was accepted vide impugned judgment dated 24-10-2005 and set aside the remand order, dated 13-12-2003 and restored the order of the executing Court dated 21-4-2003.

3. The learned counsel for the petitioners submits that it was never the intention of the parties that the respondent would not pay for the land which was given to them in terms of the compromise. He further urges that the learned High Court as well as the executing Court erred in law to non-suit the petitioners without adverting to the facts of the case and without perusing the compromise deed: He further submits that the first Appellate Court was justified to decide the ease in favour of the petitioners. The learned High Court had reversed the same without meeting the reasoning of the first Appellate Court.

4. The learned counsel for the respondents has supported the impugned judgment and heavily relied upon paras.3 to 6 of the impugned judgment. He further urges that the learned High Court had concurrently decided the case in favour of the respondents after judicial application of mind whereas the first Appellate Court had, decided the case without application of mind. He further maintains that the land in question is still iu the possession of the petitioners.

5. The learned counsel for the petitioners has not denied this fact that the possession of the total land in question is in their possession. The execution is pending adjudication before the executing Court.

6. We have considered the submissions made by counsel for the parties and have also perused the record. It is better and appropriate to reproduce compromise/agreement, dated 29-11-2000 arrived at between the parties on the basis of which R.S.A. No.92 of 1986 was disposed of on 15-2-2001 along with operative part of the impugned judgment, dated

Operative part of judgment dated 15-2-2001

"The parties have settled their dispute amicably. A written compromise mark "A" has been produced before this Court today which has been placed on the record according to which the vendees have surrendered an area measuring 46 Kanals, 4 Marlas in favour of the appellants out of the disputed land measuring 138 Kanals and 13 Marlas. The learned counsel for the respondents submits that he has no objection to the modification of the impugned judgment and decrees of the learned first Appellate Court in accordance with the compromise of the parties."

7. Mere reading of the aforesaid agreement/compromise deed and operative part of the judgment, dated 15-2-2001 clearly shows that it was not mentioned that whether the consideration price is to be paid or not to be paid by the respondents to the petitioner quo 1/3rd land measuring 46 Kanals, 4 Marls, 3 Sarsai. The following are the admitted facts on the basis of record :--

(i) Petitioners purchased land measuring 138 Kanals and 13 Marlas from original owner Muhammad Taqi for consideration of Rs.2,50,000.

(ii) Respondents filed suit for pre - emption against the petitioners which was decreed vide judgment and decree dated 28-10-1985.

(iii) Petitioners appeal before the District Judge was allowed and suit of the respondent was dismissed vide judgment dated 16-3-1986.

(iv) Respondents filed R.S.A. No.92 of 1986 in the Lahore High Court.

(v) Compromise/agreement was executed between the parties on 29-1 1-2000.

(vi) R.S.A. was disposed of in terms of agreement on 15-2-2001.

(vii) Respondents submitted application before the trial Court on 23-7-2001 for withdrawal of Zar-e-Panjum and total decretal amount deposited by them in Court.

(viii) Petitioners appeared before the trial Court and had not objected for withdrawal of the said amount.

(ix) Respondents filed execution petition before the executing Court on 30-8-2002 seeking execution of the High Court judgment dated 15-2-2001. The same is pending adjudication.

(x) Petitioners filed objection before the executing Court which was rejected on 21-4-2003.

(xi) Revision petition filed by the petitioners was accepted vide order dated 13-12-2003.

(xii) Respondents filed F.A.O. before the High Court which was accepted vide impugned judgment, dated 24-10-2005.

8. In case the aforesaid facts are put in juxtaposition, then' there are two logical conclusions arrived at which are as follows:--

(a) Respondent had withdrawn Zar-e-Panjum along with total decretal amount unconditionally and without reserving any right or claim in the suit-land by the respondents before the trial C Court after the disposal of R.S.A. by the learned High Court. Therefore, respondents had no right to file execution petition on 30-8-2002.

(b) The compromise deed is silent qua the consideration price paid or not to be paid qua 1/3rd land by the respondents.

9. The respondents wanted to take the benefit of the omission that the land in question was not originally owned by the petitioners. As mentioned above the petitioners had purchased the same through registered sale-deed from the original owner for consideration of D Rs.2,50,000. It is pertinent to mention here that due to the omission of the aforesaid words, parties have been litigating the matter in Courts of law since 2001. In such situation the Court has to construe the document in question itself. It is a settled law that question of the proper construction of a document is a, question of law and not of fact as law E laid down by this Court in Gulzar Khan's case PLJ 1974 SC 179. In view of what has been discussed above, a confusion was created due to the omission of the words in the compromise deed so it became necessary to examine the intention of the parties. It is also a settled law that the Courts of law are required to examine the intention and not F merely the form of any order or direction contained therein dependant upon the facts, situation and context of each case while considering a document or an instrument. As mentioned above, the suit of the respondent was dismissed by the first Appellate Court vide judgment end decree dated 16-3-1986 against which R.S.A. No.92 of 1986 of the respondent was pending adjudication when the matter was patched up between the parties. The petitioners could not agree to surrender 1/3rd of land out of total land purchased by them to the respondents without receiving the proportionate consideration from the respondents. It appears that the respondents want to take the 1/3rd land without paying even a single penny to the petitioner who had purchased the same from the original owner for consideration. Therefore, equity demands that the document must be interpreted in such a manner to give benefit to the petitioners and not to the respondents in the given circumstances.

10. For what has been discussed above, the petition is converted into appeal which is allowed as a result whereof the impugned judgment of the Lahore High Court and order of executing Court are set aside. Respondents are directed to pay 1/3rd of total price to the vendees and vendees arc also directed to hand over the vacant possession of the 1/3rd H of the prt5perty hi question to the respondents in terms of compromise deed and order dated 15-2-2001 passed in R.S.A. No.92 of 1986. Parties are directed to appear before the executing Court on 13-12-2006 on which date respondents shall pay the said price to the petitioners before the executing Court and the possession of the land shall also be handed over to the respondents simultaneously on the said date.

S.A.K./M-179/SC Appeal accepted.