PLJ 2000
[
Present: ch. ijaz ahmad, J. MUMTAZ HUSSAIN-Petitioner
versus
FAIZ
ULLAH and others-Respondents
C.R. No. 219/D of 1988, decided on
31.5.1999.
Specific Relief Act, 1877 (I of 1877)--
—Ss. 42 & 18-Civil Procedure Code 1908 (V of 1908), S. 115-Suit for declaration of title
on basis of agreement to sell—Agreement to sell could not create any
interest in property in question, even if presumed to be genuine-Judgment, of
Courts below is dismissing plaintiffs suit was, thus, in accordance with provisions
of S. 42, Specific Relief Act, 1877--Plaintiffs only remedy was to file suit
for specific performance of contract as envisaged by S. 18 of Specific Relief Act, 1877--Plaintiff,
however, would be well within his right to
compel vendee for enforcement of agreement
but Court below did not consider such aspect of case-Courts below have given
concurrent findings of fact that agreement to sell was executed by one of the defendant on his own
behalf and on behalf of other defendants as their attorney and that he
had received specified amount at the time of
registration of agreement to sell-Such fact would bring plaintiffs case in area of equity, thus, Courts
below were empowered to grant such
relief as justice of case demanded and for purpose of determining relief asked for whole of plaint must
have been looked into so that substance rather than form should be examined as
per dictates of O. VIII, R. 7
C.P.C.-Impunged judgments were set aside, case was remanded to trial Court with direction that
permanent injunction be treated as
suit for specific performance with permission to plaintiff to amend plaint subject to payment of specified amount-Trial
Court after receiving amended
pleadings from parties, framing additional issue,opportunity of evidence
to parties, decide the suit in accordance with law
and merits as suit for specific performance. [Pp.
1365,1366] A to D
PLJ 1986 Lah. 481; PLD 1992 B.J 33; 1980 SCMR 314; 1981 SCMR 993 1985 SCMR 1617; 1994 SCMR 470; NLR 1982 SC 47; PLD 1985 SC 345; PLD 1964 SC 337; PLD 1971 SC 762 ref.
Ch. Abdul Ghani, Advocate for Petitioner.
Kh. Muhammad Ashgar, Advocate for Respondents.
Date of hearing: 31.5.1999.
judgment
Brief facts giving rise to this revision petition are that land in question measuring 87 Kanal and 10 Marias and portion of Ahata measuring 17^ marlas situated in Chak No. 186--EB Thesil and District Vehari was allotted to one Abdullah predecessor of Respondents Nos. 1 to 5/Defendants Nos. 2 to 6 in Attia Dari Scheme by the Govt. After the death of aforesaid Abdullah the property was inherited by Respondents Nos. 1 to 5 as legal heirs. Respondent No. 1 was appointed General Attorney by Respondents Nos. 2 to 5 on 19.11.1974. Respondent No. 1 executed Agreement to Sell with petitioner on 10.3.1975 for a consideration of Rs. 25000/- out of which Rs. 21000/- was received by him from the petitioner at the time of registration of Agreement to Sell and Rs. 4000/- to be received by him form the petitioner at the time of sale. The land in question was Govt. Land the propriety rights have not been conferred on Respondent No. 1 to 5 till 10.3.1975. The application was made for the transfer of propriety rights to the District, Collector by Respondents No. 1, Subsequently Respondents Nos. 2 to 5 revoked the authority of Respondent No. 2 by general attorney. The petitioner/plaintiff requested the respondents/defendants to implement the Agreement to Sell dated 10.3.1975 but Respondents Nos. 2 to 5 were bent upon selling the land in dispute to some 3rd person; hence the petitioner filed suit for declaration with perpetual injunction against respondents/defendants. Respondents Nos. 2 to 5 filed joint written statement and denied the contents of the plaint. Out of the pleadings of parties, the following issues were framed:--
1. ' Whether the plaintiff has neither cause of action nor locus standi to bring this suit ? OPD.
2.
Whether
the suit is not maintainable in its present form ? OPD. Whether the suit land was agreed to be sold vide registeredAgreement to Sell dated 10.3.75 by the Defendants
Nos. 2 to 6 to the plaintiff and
latters are not entitled to sell it further toany one else except the plaintiff ? OPP.
3.
Relief.
The learned Civil Judge, 1st Class, Vehari, dismissed the suit vide judgment and decree dated 15-12-1986; the petitioner being aggrieved, filed appeal before the learned District Judge, Vehari, who entrusted the same to learned Addl. District Judge, who also dismissed the same vide judgment and decree dated 7-3-1980; hence the present revision petition.
2. The learned counsel
for the petitioner stated that both the Courts below decided the case against the
petitioner on the basis of the reportedjudgment (PLJ 1986 Lah 481) and PLD 1982
Baghdad-ul-Jadid 33). He further contended that both the judgments are
distinguishable on facts andlaw. He further stated that the case of the petitioner is
governed by the Judgment of Hon' be Supreme Court reported as (1980 SCMR 314) and(1981 SCMR 993); that the petitioner being
in possession and the vendor having
received the consideration amount was bound by his Agreement; thatjudgment relied by both the Court below did not
consider Section 53-A of the Transfer
of property Act; that case of the petitioner is governed by Section53-A of the
Transfer of property Act and relied upon (1985 SCMR 1617);
that although propriety rights have
not been conferred upon Respondent No.
1, even then the Agreement to Sell executed by Respondent No. 1 withthe petitioner is binding between the petitioner
and respondents. He relied upon (1994 SCMR 470). He further stated that
Agreement to Sell createdright in favour of
the petitioner but both the Courts below did not consider this aspect of the case at all. He summed up his
arguments that thepetitioner is in
possession of the disputed land, therefore, Section 53-A of Transfer or Property Act is attracted in full
force but both the Courts belowdid
not consider this aspect of the case.
3. Learned counsel for
the respondents contended that Section 53-A of Transfer of Property Act is not attracted
at all as the averments of the plaint clearly reveal that the petitioner took the
possession before the Agreement
to Sell executed between the petitioner and Respondent No.l. therefore, Section 53-A of the Transfer of
Property Act is not attracted at all; that
both the Courts below rightly decided against the petitioner by virtue ofSection 42 of the Specific Relief Act; that
Agreement to Sell does not create any
title in favour of the petitioner and both the Courts below concurrentlydecided against the petitioner in accordance with
law laid down by the Superior Courts
and relied upon (PLJ 1986 Lah 481); (PLD 1982 Beghdad-ul-Jadid 33); that the propriety rights have not been
conferred upon
respondents-, therefore, the
petitioner has no right whatsoever to file present suit by virtue of Section 19 of the Colonization Act and relied
upon(NLR 1982 S.C.rev.47). He summed up his arguments that both the Courts below have concurrently decided against the
petitioner and this Court has nojurisdiction
the disturb the concurrent findings of facts given by both the Courts below unless and until the same is the
result of misreading and non-reading
of record or violation of any principle laid down by the SuperiorCourts.
4. I have given my anxious consideration to the contentions of learned counsel for the parties. It is admitted fact that both the Courts below have given concurrent findings of facts against Respondents Nos. 2 to 5; that Respondent No. 1 executed Agreement to Sell on behalf of himself and on behalf of Respondents Nos. 2 to 5 on 10-3-1972. Both the Courts below after proper appreciation of evidence on record gave findings of facts on Issue No. 3. But both the Courts below have concurrently decided against the petitioner that Agreement to Sell does not create any title on the properly, therefore, both on the principle and on authority an Agreement to Sell, can not create any interest in the property and such an Agreement even if presumed to be genuine and proved would fail to create any titles in the property. The judgments of both the Courts below are in accordance with the provisions of Section 42 of the Specific Relief Act which reads as under:
"any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right and the Court may in its discretion make therein a declaration that he so entitled, and the plaintiff need not in such suit asked for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so."
The simple reading of the aforesaid provisions would reveal that any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny, his title to such character or right and the Court- may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief.
In the instant case even if it is admitted that Respondent No. 1 has transferred the land in question to petitioner on the basis of Agreement to Sell, it will only be presumed that petitioner ha? stepped into the shoes of respondents. They only promised to do so by way of another document and if they refused to do so the suit for specific performance was the only remedy under the law. The petitioner has only remedy to file suit for specific performance of Contract as is envisaged by Section 18 of the Special Relief Act. The aforesaid proposition of law was considered by the ' Hon'ble Supreme Court in Mst. Ghulem Bibi's case (PLD 1985 SC 345) and observed as under: -
"The question for the examination of which Leave to Appeal was granted is whether in the facts and circumstances of the case the appellants (Plaintiffs side) Should have been permitted by the High Court to amend the plaint so as to convert the suit for declaration as to ownership of the suit land into a suit for specific performance of contract exchange involving the suit land."The Hon'ble Supreme Court after detailed discussion allowed the appeal in the following terms:
"In the light of foregoing discussion, this appeal is allowed. The impugned judgment is set aside. The application made by the appellants in the High Court for amendment of their plaint is allowed subject to the- payment of Rs. 2000/-as costs of the amendment. The case is remanded to the trial Court with the direction that after the amendment of the plaint, the defendants shall also, if they so request be allowed proper opportunity to amend their written statement."
The aforesaid proposition of law is also supported by the following judgments of the Hon'ble Supreme Court in Subtain Fazil's case (PLD 1964 SC 337); Ahmed Din's case (PLD 1971 SC 762). It is settled proposition of law that Agreement to sell does not create any right on the property but at the same time it creates right in favour of the purchaser on the basis of the Agreement to Sell for the enforcement of the Agreement to Sell meaning there by he is well within his right to compel the vendee for the enforcement of the Agreement but both the Courts below did not consider this aspect of case. The Hon'ble Supreme Court has considered this proposition of law in Abdul Hameed's case (PLD 1962 S.C. 1) and observed as follows:
"In conclusion I would like to add that the dominant principle in such cases has always been that equity will only grant specific performance, if under all the circumstances, it is just and equitable so to do."
As mentioned alove both the Courts below have given concurrent findings of facts that Agreement was executed by Respondent No. 1 on behalf of himself and on behalf of Respondents Nos. 2 to 5 and received Rs. 21,000/-, out of Rs. 25,000/-at the time of registration of agreement to Sell. This fact brings the case of the petitioner in the area of equity but both the Courts below did not consider this aspect of the case at all. It is well known Maxim that judge must wear all the law of the Country on the sleeves of his robe. It is also well settled law that a Court is empowered to grant such relief as the justice of the case may demand and for the purpose of determining the relief asked for the whole of the plaint must looked into, so that the substance rather than the form should be examined as is envisaged by Order 7, Rule 7 CPC but 0 both the Courts below did not give finding of fact on merit qua the specific performance of contract.
In view of what has been discussed above, this revision petition is allowed, The impugned judgments are set aside. The case is remanded to the trial Court with the direction that suit for declaration with permanent injunction be treated as suit for specific performance with permission to the petitioner to amend plaint accordingly subject to payment of Rs. 10,000/-. The trial Court after receiving amended pleadings from the parties framing additional issues, opportunities of evidence to the parties, decide the suit in accordance with law and merits as a suit for specific performance. Since the controversy between the parties is pending adjudication since 1986 therefore, Court shall decide the same as expeditiously as possible.
(A.A.J.S.) Revision accepted.