MUHAMMAD SALEH Versus MUHAMMAD AMIN

MAHMOOD A. KHAN, J.--- This Revision Application has questioned the concurrent findings wherein the suit of the applicants for Declaration, Possession and Permanent Injunction was decreed conditionally entertaining rights of both the parties by the learned trial Court and at the appellate stage the said decree was not disturbed after the required discussion considering that the required payment on part of the respondent seems to have been deposited.

2. The background of the case is that the present respondents based upon an agreement of sale made in the year 1998 filed a suit for specific performance in the year 2000 against the present applicants for the subject land having a total sale consideration of Rs.3,60,000/ - out of which a sum of Rs.2,50,000/ - was paid and possession was also delivered. The favorable decree was also acquired in 2003 however the required balance amount was not paid within the specified period. The applicants filed the present proceedings in the year 2005 contending that as the balance amount having not been paid the possession be delivered to them. The learned trial Court was however pleased to frame 8 issues on the prime defence taken by the respondent that instead of the balance amount as required in the sum of Rs.1,10,000/- an amount of Rs.2,00,000/- was demanded by the owner and after recording evidence held "that the possession may be acquired by the present applicant against refund of the said Rs.2,50,000/- within a period of two months and in case the plaintiff fails the suit stands dismissed and the respondents gets the entitlement to get the sale deed registered on deposit of Rs.1,10,000/- within a period of 15 days".

3. Learned counsel for the applicants contends that the condition as kept in the impugned orders is not available as the respondents had failed to acquire rights in conclusion of the decree as available with them earlier and as such no revival of the earlier proceeding was available in the subject proceeding required for possession only. Learned counsel in this regard has relied upon the case law reported as 2012 SCMR 983 and 900.

4. Conversely, learned counsel for the respondents however, contended that subsequent to filing of these proceedings the interim orders obtained on 12.04.2010 was not communicated to the respondents and as such the respondents have filed proceedings of execution wherein on orders of the executing Court sale deed dated 18.12.2010 having M.F Roll No.1931 dated 24.11.2011 has been acquired against the deposit of the required amount. It is further contended that the sale deed having been acquired these proceedings have become infructuous. Learned counsel further contends that powers of revision available to this Court are limited and as such this revision application not finding any irregularity or illegality and same is liable to be dismissed. While concluding his arguments reliance is made the case laws reported as PLD 1983 SC 53, 2005 SCMR 1643, 2007 SCMR 589, 2007 SCMR 336, 2009 Law Notes 1139 and 2017 SCMR 679.

5. Learned counsel for the applicants in rebuttal contended that no notice of the execution application whereby the said sale deed was ever served. He further relies upon the orders of this Court dated 12.04.2010 when the interim orders was granted whereby suspension of the decree was ordered and appearance of one of the respondents for himself and on behalf of others stands recorded in the order dated 30.08.2010. Lastly he prayed that the revision may be allowed.

6. Having heard the learned counsel and gone through the record. It is apparent that the respondents had initially filed a suit for Specific Performance in respect of subject land wherein the sum of Rs.2,50,000/- [Rupees Two Hundred and Fifty Thousand] was paid by them against the total sale consideration as agreed between the parties of Rs.3,60,000/- [Rupees Three Hundred and Sixty Thousand] and as such acquired a decree whereby Rs.1,10,000/- [Rupees One Hundred and Ten Thousand] i.e. the balance amount was payable by them. That on failure of the payment of the said amount the present applicants initiated the proceedings for possession. The possession stood granted to them provided they paid the amount of advance money. Nothing has been shown to disentitle the respondents from the said condition being available in law or in facts especially considering the provisions of section 53-A of the Transfer of Property Act, 1882 along with norms of justice and fair play. Though it can well be argued that the willingness of the respondents to purchase the subject property and making the required payment cannot be completely inferred as the option/ process of execution to the earlier decree was not availed, however the earlier decree not providing any effect as to non-payment along with the element of non-willingness of the appellant to return the benefit cannot be ignored to the extent of depriving the respondents in the matter completely especially where substantial amount stood paid. In this matter it is however observed that as to the payment of the balance amount the learned trial Court as well as learned appellate Court has failed to consider the element of equity properly for both the parties. It has been further observed that the learned trial Court as well as appellate Court has not considered the element that where the sum of Rs.2,50,000/- was paid for the whole land as partial consideration the present applicants were never restricted to file suit for balance corresponding land as no rights were available to them for the consideration already received, provided however the subject land being of agriculture nature was open to partition and as such finding from the concerned revenue authorities were required to be obtained and that in alternative the enhancement of price which is always present on account of lapse of time has not been considered. Considering the element of equity with the above observations a simple calculation follows i.e.:

The respondents having paid Rs.2,50,000/- out of agreed amount of Rs.3,60;000/ - as such having paid 69.44% are required to pay 30.56% of the price at present.

In the present circumstances, it is ordered that the respondents may validate the sale deed acquired as referred above by making a further payment of 30.56% of the present value within a period of 110 days from the date of this order failing which their right/s shall be restricted to the amount paid for which including the amount of balance amount paid by them and in case the said respondents failed to pay the same the present sale deed available shall stand cancelled and they shall be entitled only for a sale deed available to them and for the balance area for which amount is not paid the possession shall be available to the appellants. The required partition in such a situation created for the subject agricultural land shall be got effected by the revenue authorities under the supervision of the Executing Court and the official valuation is to be considered in the matter.

7. With the above observation, the revision application stands disposed of with the said variation to the impugned orders.

ZC/M-126/Sindh Order accordingly.