MUHAMMAD YAQOOB And Others Versus GHULAM RASOOL And Other

ORDER

ABDUL SHAKURUL SALAM, J. --This order 'will deal with Civil Petitions for Leave to Appeal Nos.213 and 218 of 1990 against a consolidated judgment in two revision petitions recorded in Civil Revision No.445-D of 1989 by a learned Judge of the Lahore High Court on 4-12-1989.

2.State land measuring 24 acres bearing Square No.47, killas Nos.1 to 9, 11 to 25 was allotted under Chahi Scheme in favour of Ghulam Rasool and Muhammad Maqbool in 1964. Proprietary rights were conferred vide deed dated 10-1-1983. Predecessor-in-interest of petitioners Nos.1 to 3 and petitioners 4 and 5 in first petition filed a suit for specific performance of an agreement of sale of land Exh.P.1, out of the aforesaid land, comprising of Square No.47 killas Nos.1 to 9 and 11 to 13. It was resisted, inter alia, on the grounds that the agreement Exh.P.1 was void being against M.L.R. 115 and that it was not executed by Muhammad Maqbool nor had he authorised the executant Ghulam Rasool to sell his land. On conclusion of the trial, the learned Civil Judge vide judgment and decree dated 9-5-1985 decreed the suit in its entirety to the extent of Ghulam Rasool on payment of Rs.19,404 which the defendants had paid for consideration and Lagan of the land. On. Appeal of the defendants, the learned Additional District Judge held that the suit land could not be decreed in its entirety,, and Ghulam Rasool defendant, "was bound to convey half of his holding whereas the remaining half belonged to Maqbool who was not otherwise obliged under the agreement to sell." Accordingly, he dismissed the appeal with the modification that "the suit shall be deemed to have been decreed to the extent of 45 kanals and 19 marlas being half of the holding of Ghulam Rasool while the suit with respect to Maqbool shall remain dismissed." The plaintiffs as well as the defendants filed separate revision petitions which have been dismissed by a learned Single Judge of the Lahore High Court vide order dated 4-12-1989. They have filed aforetitled Civil Petitions for Leave to Appeal.

3.After hearing the learned counsel for both the parties and looking at the documents referred to by them, i.e., agreement of sale EX.P.1 and the ownership of the sellers vide Register Haqdaran Ex.P.2, the first question which arises is whether the agreement EX.P.1 was not violative of Martial Law Regulation 115, Para. 24(3), leaving with the sellers less than the subsistence holding of 12-1/2 acres. Secondly, whether the decree. Could be passed for partial specific performance when the alienation though of specific Khasra number is of a joint holding of two persons when one was not a party to the agreement and he has right over every inch of the joint holding.

4.To consider the aforesaid contentions, leave is granted.

5.Security for costs in the sum of Rs.5,000 in each case. Status quo shall be maintained in the meanwhile.