2013 S C M R 1408
[Supreme Court of Pakistan]
Present: Anwar Zaheer Jamali, Ijaz Ahmed Chaudhry and Muhammad Ather Saeed, JJ
KARIM NAWAZ and another—Petitioners
Versus
HABIB ULLAH KHAN—Respondent
Civil Petition No.157 of 2007, decided on 6th May, 2013.
(On appeal from judgment dated 15-12-2003 in Civil Revision No.393 of 2002, passed by the Lahore High Court, Lahore.)
(a) Specific Relief Act (I of 1877)—
—-S. 12—Colonization of Government Lands (Punjab) Act (V of 1912), S.19—Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79—Suit for specific performance of sale agreement—Allotment of State land through entitlement certificates to defendants as affectees of Chashma Barrage Scheme—Sale of suit land through registered sale agreement and special-power-of-attorney in favour of plaintiff by defendants through their co-defendant/father/general attorney holding registered power of attorney on behalf of remaining defendants—Defendants’ denial to have executed such documents—Proof—Defendants during trial had not denied execution of registered general power-of-attorney in favour of co-defendant/general attorney—Such agreement between parties found mention that all rights of entitlement certificates of suit land issued to defendants had been transferred to plaintiff, who was given authority to pay outstanding dues thereof, if any, and obtain allotment rights in his favour, over which defendants would have no objection—Defendants’ general attorney before Sub-Registrar had admitted execution of sale agreement and special power-of-attorney in favour of plaintiff—Presumption of truth was attached to such three registered documents—Plaintiff had proved execution of such documents by examining scribe and two marginal witnesses thereof—Burden to prove such three documents had shifted to defendants after denying execution thereof—Defendants had failed to discharge such burden—Defendants’ general attorney though being alive had not appeared as witness to deny execution of such documents nor had they made application for comparison of his signatures thereon—Defendants had been allotted suit land one year prior to such agreement and only formalities were left to be performed by them—Plaintiff had proved his possession over suit land and receipt of entitlement certificates from defendants—Suit was decreed in circumstances.
Mian Muhammad Abdullah v. West Pakistan Road Transport Corporation Lahore 1992 SCMR 378 distinguished.
(b) Specific Relief Act (I of 1877)—
—-Ss. 12 & 17—Suit for specific performance of sale agreement executed by five vendees jointly—Part performance—Scope—Allotment of State land to five defendants-vendees through different entitlement certificates issued to them separately on different occasions—Sale of suit land by defendants in favour of plaintiff through joint sale agreement—Specific performance of independent part of such joint agreement—Scope—When contract was severable, then court might grant specific performance for such part, which ought to be performed—Part performance in present case would be permissible, even though plaintiff’s agreement with each of defendant-vendee being independent—Illustration.
Muhammad Younis Bhatti, Advocate Supreme Court for Petitioners.
Zulfiqar Khalid Maluka, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent.
Date of hearing: 6th May, 2013.
JUDGMENT
IJAZ AHMED CHAUDHRY, J.—This petition for leave to appeal calls in question the validity of the judgment of the Lahore High Court, Lahore dated 15-12-2003 passed in Civil Revision No.393 of 2002, whereby while accepting the same, the judgment of the Additional District Judge Bhakkar dated 3-12-2001 has been set aside and the judgment of the Civil Judge dated 4-4-2002 decreeing the suit filed by respondent No.1 has been restored.
2. Brief facts of the case are that respondent Habibullah filed a suit for specific performance on the basis of a registered agreement to sell dated 30-8-1988 through which petitioner and four others had agreed to sell the land allotted to them under Chashma Barrage Scheme for an amount of Rs.5,00,000 (Rupees five lakhs) through their attorney Sufi Amir Abdullah on the basis of general power of attorney executed and registered on 8-4-1984, alleging therein that the possession of the land in question was handed over to him and he not only developed the said land by expending a huge amount but also paid the installments under the allotment to petitioner No.1. The suit was resisted by the petitioners/defendants by denying the execution of special power of attorney as well as agreement to sell. On the basis of the divergent proceedings of the parties, the learned trial Court framed the following issues:
(1) Whether defendant No.2 attorney of defendant No.1 vide an agreement to sell dated 30-8-1988 has agreed to sell the suit land with plaintiff? OPP.
(2) Whether plaintiff has paid the entire sale price or the suit land to defendant No.1 through his attorney defendant No.2? OPP
(3) Whether defendant No.2 has executed power of attorney in favour of plaintiff? OPP
(4) Whether plaintiff is entitled to get specific performance on an agreement to sell if so on what terms and conditions? OPP
(5) Whether plaintiff has got cause of action? OPP
(6) Whether suit is not maintainable in present form? OPD
(7) Whether description of the suit land in incorrect? OPD
(7-A) Whether the suit is partial if so its effect? OPD
(8) Whether the suit is time barred? OPD
(9) Whether plaintiff is estopped to file the suit by his word and conduct? OPD
(10) Relief
3. After recording oral as well as documentary evidence adduced by the parties, the learned Trial Court, vide judgment and decree dated 4-4-2000 decreed the suit in favour of the respondent Habibullah. Petitioners/defendants challenged the said judgment and decree in appeal before the Additional District Judge, Bhakkar, who, while accepting the same vide judgment dated 3-12-2001 set aside the judgment and decree dated 4-4-2000 and dismissed the suit filed by the respondent/plaintiff. Feeling dissatisfied with the aforesaid judgment and decree, the respondent filed Civil Revision No. 393 of 2002 before the Lahore High Court which was accepted vide judgment and decree dated 15-12-2003 whereby the judgment of the appellate Court was set aside and that of the Civil Judge decreeing the suit of the respondent was restored.
4. Learned counsel for the petitioner contends that execution of agreement to sell, the receipt of payment of Rs. Five lakhs and execution of special power of attorney in favour of the respondent have been denied; that in the agreement to sell consideration amount has not been mentioned ; that there are contradictions in the statements of the witnesses produced by the respondent to prove the execution of the agreement to sell; that under section 17 of the Specific Relief Act partial decree for specific performance cannot be issued; and that the land was not yet allotted in the name of the petitioners and no suit for specific performance could be filed, thus on this score alone judgment and decree of the nigh Court is liable to be set-aside, He has placed reliance upon Mian Muhammad Abdullah v. West Pakistan Road Transport Corporation Lahore (1992 SCMR 378).
5. On the other hand learned counsel for the respondent has contended that since agreement to sell and special power of attorney are registered documents, therefore, presumption of truth is attached to these documents; that Sufi amir Abdullah, father of the petitioner Karim Nawaz was alive but he did not appear as a defence witness to deny the execution of the documents and no reason has been shown as to why he did not enter appearance as a defence witness; that no application was moved for comparison of the signatures of Amir Abdullah on the disputed documents; that the respondent, after execution of the agreement, had invested a huge amount for the development of the land and the possession of the land was also delivered to the respondent which further fortifies the claim of the respondent, as such, the findings arrived at by the High Court are liable to be sustained.
6. We have heard the arguments of the learned counsel for the parties and have gone through the evidence available on record.
7. Claim of the respondent is that father of the petitioner Amir Abdullah was attorney of the petitioners and all of them were affectees of Chashma Barrage Scheme. The Government under the Scheme of affectees of Chashma Barrage had allotted the land in their favour, the amount of which was yet to be paid. The petitioners who are sons, daughters and wife of Amir Abdullah had executed a general power of attorney in favour of Amir Abdullah on 8-4-1984 which is a registered document and has been placed on record as Exh.P-4. This fact has not been denied by the petitioners. After obtaining general power of attorney the said Sufi Amir Abdullah entered into an agreement to sell with the respondent on 30-8-1988. According to contents of the said agreement to sell the petitioner and other family members of Amir Abdullah on the basis of general power of attorney, referred above, had fully authorized Sufi Amir Abdullah to enter into an agreement to sell for the land, proposed to be allotted to the effectees of Chashma Barrage in the village Naro, Tehsil and District Mianwali as the entitlement certificate No.156-162-157-159-164 for the year 1987 (Exh.P-13) had already been handed over to them. It is also mentioned in the said agreement to sell that the application for allotment of land measuring 12 1/2 acres per perchi (entitlement certificate) in Rakh Maujgarh, Tehsil Mankera, District Bhakkar, had been given to them by the concerned department. The petitioners and their other family members through their general attorney, Amir Abdullah entered into an agreement with the respondent Habibullah to the effect that all the rights of the entitlement certificate of the allotment of the land have been transferred to Habibullah in the presence of marginal witnesses. It is also mentioned in the agreement to sell that heirs of the executants will have no concern with the said right of allotment and respondent Habibullah will be entitled to all rights on the said land. He was also given the authority to pay the outstanding amount, if any, and to obtain allotment rights in his favour on which the petitioner and other family members would have no objections. This agreement was presented before the Sub-Registrar Mianwali. General attorney of the petitioners admitted the execution of the documents before the Sub-Registrar Mianwali on 30-8-1988 (Exh.P-1) showing payment of an amount of Rs.Five lakhs by the respondent which was also signed by Sufi Amir Abdullah in the presence of the witnesses. Similarly a special power of attorney in favour of the respondent was also executed by Sufi Amir Abdullah on the same day regarding the suit land which was also registered before the Sub-Registrar Mianwali on 30th August, 1988. These three documents are registered documents and presumption of truth is attached to these documents. The scribe of the aforesaid documents, namely, Muhammad Hafeez Khan appeared as P.W.1 and admitted that he had written the said documents and had put his signatures thereon. These were got written by Sufi Amir Abdullah in favour of respondent Habibullah and Sufi Amir Abdullah and others had put their signatures on the said documents. Two marginal witnesses P.W.2 Muhammad Naseem Khan and P.W.3 Sher Muhammad were also produced by the respondent who had fully proved the execution of the documents. In the above circumstances, on the denial of the petitioners regarding execution of the aforesaid document, onus had shifted to the petitioners but they badly failed to discharge the said onus. Admittedly, Amir Abdullah who had executed the said documents was alive but he was not produced in the Court to nullify the execution of documents in question. Even no application was ever moved for the comparison of his signatures on the said documents, as such, the High Court has correctly relied upon the said documents for restoration of the judgment of the Civil Court whereby the suit filed by the respondent stood decreed.
8. As far as the contention of the learned counsel for the petitioners that the rights had not yet been fully transferred in favour of the petitioners and no agreement to sell could be relied upon and the agreement was not enforceable in view of the case titled Mian Muhammad Abdullah v. West Pakistan Road Transport Corporation Lahore (1992 SCMR 378) is concerned, it is observed that the facts and circumstances of the cited case are different and distinguishable from the facts and circumstances of the instant case. In the cited case the claim of the petitioner was based on an endorsement issued by the Chairman of the respondent Board to the effect that the property was to be transferred in the name of the petitioner as soon as the sanction of the Chief Settlement Commissioner is received and on the condition that he will charge the same rent from the Board which is being paid at present to the Settlement Department. Subsequently, on refusal of the Board to transfer the property in the name of the petitioner, he approached the civil court on the basis of the said endorsement. The learned Civil Judge observed that the endorsement was not signed by the Chairman himself and that it was not addressed to the petitioner by name, hence, on the basis of these findings, the Civil Court held that there was no valid agreement to sell existed between the parties for the sale of land and dismissed the suit, which findings were upheld by the learned High Court as well as by this Court, whereas the case in hand is entirely on different footings. In the instant case the allotment certificates had already been issued in favour of the petitioners, total area of land was also disclosed in the agreement and only formalities were left to be performed, agreement to sell was arrived at between the petitioners and the respondent which was duly presented before the Sub-Registrar Mianwali on 30-8-1988 where the general attorney of the petitioners admitted the execution of the documents and put his signature on agreement to sell which was exhibited and proved by producing marginal witnesses before the Civil Court. Even the land in question was allotted in favour of the petitioners in the year 1987, one year prior to the agreement and the respondent also proved his possession over the said land by producing Exh.P.15, a copy of the daily diary of the Patwari concerned.
9. As far as the contention of learned counsel for the petitioners that under section 17 of the Specific Relief Act partial decree for specific performance cannot be issued, is concerned, it is observed that a specific issue No.7-A was framed in this regard which was duly dealt with by the learned Trial Court by deciding the same in respondent’s favour and the learned High Court has also dealt with the same as under:–
“8. Allotment in favour of respondent No.1 is not joint with the other co-vendors, as is evident from Exh.P.1. Allotment in question of 100 kanals of land in the name of Karim Nawaz Khan is Exh.P.12, which was exclusively in his name. All the five vendors, on whose behalf respondent No.2 agreed to sell their allotted land, were given entitlement certificates on different occasions. Price of lot of each vendor is mentioned as Rs.1,00 Lac each in the receipt (Exh.P.3). Now under section 17 of the Specific Relief Act 1877 it is provided that part performance of a contract cannot be allowed except in case mentioned in sections 14, 15 and 16 of this Act. Section 16 of the Specific Relief Act reads as under:
“S.16. Specific Performance of independent part of contract. When a part of a contract which taken by itself can ought to be specifically performed, stand on a separate and independent footing from another part of the same contract which cannot or ought not be specifically performed, the court may direct specific performance of the former part.”
9. From the language of provisions of law above produced, it is clear that in the situation of the case, like the one in hand, part performance is permissible, because it provides that if the contract is sever able then specific performance may be granted for that part which ought to be performed. Besides it, I find that agreement of the petitioner with each of the vender is independent because their allotment took place on different occasions and all these stands on a separate and independent footing from one and another part of the agreement so it cannot be said that decree passed by the trial court were in part performance of the agreement.”
The above findings of fact recorded by the learned High Court are based on proper appreciation of evidence on record which warrant no interference by this Court in exercise of its constitutional jurisdiction under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973.
10. For what has been discussed above, we find no merit in this petition which is dismissed and leave is refused.
SAK/K-6/SC Leave refused.
