Mst. BARKAT BIBI and others vs MUHAMMAD RAFIQUE and others

1. ' NASIM HASAN SHAH, J.--This appeal, by leave of this Court, is directed against the judgment, dated 28-6-1980 passed by the Lahore High Court, Lahore in R.S.A. No,1051 of 1978.

2. ' The relevant facts briefly stated are as follows: The respondents herein filed a suit on 3-1-1977 in the Court of the Senior Civil Judge, Sheikhupura, for possession of land, measuring 26 kanals 13 marlas situated in Chak No,5/RB Rattian, Tehsil and District Sheikhupura, through specific performance of an agreement to sell, dated 24-7-1953 against the appellants herein. It was, inter alia, averred therein that the aforesaid land was previously owned by respondents Nos.3 and 4 and two other persons namely Siraj Din and Ismail (both since dead), the predecessor-in-interest of the remaining respondents herein who had, vide oral mutation of sale bearing No,392 (attested on 10- 6-1953) sold the said land in favour of Muhammad Din, predecessor-in-interest of the appellants herein for a sum of Rs,5,000 subject to the condition that as and when the said vendors could arrange the sale price Muhammad Din would reconvey the said land to them; that in pursuance of this condition, Muhammad Din had executed an agreement to reconvey the land on 24-7-1953; that the respondents had now been able to arrange payment of Rs,5,000 and that they were desirous of re-conveyance of the land in question but the successors-in-interest of Muhammad Din had failed to do so. Hence the suit for specific performance for enforcement of the agreement, dated 24-7-1953.

3. ' The defendants (respondents herein) in their written statements controverted the allegations made in the plaint and the pleadings of the parties gave rise the following issues:

(1) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? O.P.D.

(2) Whether Muhammad Din, deceased, executed the agreement in dispute? O.P.P.

(3) If Issue No,2 is proved in the positive whether the agreement in dispute is without consideration?

4. O.P.D.

(4) Whether the plaintiffs have no cause of ad ion? O.F.D.

(5) Whether the plaintiffs are entitled to specific performance of the disputed agreement? O.P.P.

(6) Relief.

5. ' The learned trial Court, after recording the evidence of the parties, was pleased to decree the suit on 25-9-1978. Feeling aggrieved the appellants filed an appeal which was dismissed by the learned District Judge, Sheikhupura, vide judgment and decree, dated 18-12-1978. Not being satisfied therewith the appellants filed an appeal in the Lahore High Court (R.SA. No,1051 of 1978).

6. But this too remained unsuccessful and the appeal was also dismissed by the learned High Court vide judgment passed on 28-6-1980. Hence this appeal.

7. ' We have heard Mian Saeed-ur-Rehman Farrukh, Advocate in support of this appeal and Mr. Ghulam Mujtaba, Advocate, in reply.

8. ' The agreement, dated 24-7-1953, which was sought to be specifically enforced, is in the following terms: {{URDU TEXT}} A perusal of the above "Iqrarnama" shows that there is no reference made therein specifically to the exact consideration for the agreement. Moreover, we observe that it is a unilateral offer made by Muhammad Din to reconvey the land as soon as they (the vendors) themselves have raised the money. No indication is to be found in the document that this offer was accepted by the respondents for no one on the side of the respondents has signed this "Iqrarnama" in token of its acceptance. It was no more than a proposal because unless the person to whom the offer is made signifies his willingness to accept it, the proposal does not, in law, ripen into an agreement. Now it is only an "agreement", as the term is understood in law, which can be enforced by a suit for specific performance. Accordingly, it is only if the so-called "Iqrarnama" qualified as an agreement would it have the effect of creating a legal relationship between the parties so as to give rise to jural, as opposed to moral, obligations and then only would a suit for specific performance be maintainable on its basis. The so-called "Iqrarnama", dated 24-7-1953, on close examination, however, does not qualify to be an "agreement". Hence a suit to specifically enforce it was not competent.

9. ' Accordingly, Issue No,5 namely "whether the plaintiffs are entitled to specific performance of the disputed agreement?" ought to have been decided against the plaintiffs and we hold accordingly.

10. ' The Courts below have relied on this Court's judgment entitled Habibullah Khan v. Muhammad Ishaq and others PLD 1966 SC 505. But that ease is distinguishable as a proper and legal "agreement" for reconveyance existed between the parties therein. This is evident from the following extract of the judgment:-- "The properties in dispute, situated in the District of Peshawar, belonged to the predecessor-in- interest of the appellants, who sold them to one Qazi Muhammad Ishaq, the predecessor-in- interest of the respondents, for Rs,2,000 by a deed of sale executed on the 13th of March, 1926, and registered on the 24th of March, 1926. On the same date another agreement for reconveyance was also executed between the parties for the reconveyance of the properties to the vendors on payment of the same amount of money after 15 years".

11. ' (underlining is ours)

12. ' A proper agreement had been executed between the parties in that case. Hence the aforesaid judgment is not apposite here.

13. The upshot is that this appeal must succeed. The judgments and decrees of the Courts below are, accordingly, set aside and this appeal is allowed, with costs.