' This civil revision has been directed against the judgment and decree dated 18-4-2000 passed by the learned Additional District Judge, Jhelum, who, while allowing appeal of the respondents decreed the suit for possession through specific performance against the judgment dated 4-8- 1998 of the learned trial Court recording dismissal of the suit.
2. Precisely, on 6-4-1993, the respondents/plaintiffs and the petitioners effected compromise Exh.P.2, in the previously instituted suit, for grant of permanent injunction, which was withdrawn on 6-4-1993. The plaintiffs claim to have paid a sum of Rs.50,000 to the petitioners. Nos.1 to 3 on 14-4- 1993 (Exh.1) in terms of compromise Exh.P.2. The land in dispute was transferred by way of gift to the petitioners Nos.4 to 8 vide gift deed No.645\ dated 194-1993. On 30-11-1993 the respondents filed a suit for possession through specific performance in respect of the land fully detailed and described in the plaint, on the basis of compromise and receipt. An application under Order 21, rule 32, C.P.C.
Was also filed. Written statement was filed, denying the averments. Controversy gave rise to the following issues:--
(1) Whether the defendants .Nos.1 to 3 entered into a compromise on 6-4-1993, to sell the suit-land of the plaintiff? OPP.
(2) Whether the defendants Nos.1 to 3 received sale price Rs.50,000 from the plaintiff on 14-4-1993?
OPP
(3) Whether the plaintiff is entitled to decree for specific performance as prayed for? OPP
(4) Whether the sale-deed No.645 dated 19-4-1993 is illegal, void and ineffective upon the rights of the plaintiffs? OPP
(5) Whether the plaintiff has got no cause of action to file this suit? OPD
(6) Whether the suit is liable to dismissal under section 21 and other sections? OPD
(7) Whether the suit is liable to dismissal in the light of contract Act.? OPD
(8) Whether the suit is bad for non-joinder of necessary parties? OPD
(9) Whether the description of the suit property is incorrect? OPD.
(10) Whether the guardian of the minors Nos.7 and 8 has not been properly appointed? OPD
(11) Whether this suit is not properly valued for the purposes of Court-fee, if so, its effect? OPD
(12) Relief.
3. The respondents produced Muhammad Mehrban, P.W.1, Ch. Muhammad Boota, P.W.2 and Qamar-uz-Zaman himself appeared as P.W.3. In the documentary evidence receipt for payment of Rs.50,000 was tendered as Exh.P.1. Compromise in the Court was exhibited as P.2, statement and order of the Court in previous suit for injunction was produced as Exh. P.3, gift deed No. 645, dated 19-4-1993 in favour of the petitioners Nos.4 to 8 was produced as Exh.P.4 and Record of -Rights for the year 1989-90 as Exh.P.5. The petitioner Muhammad Siddique and Muhammad Rafique examined themselves as D.W.1 and D.W.2. The learned trial Court by its judgment dated 4-3-1998 dismissed the suit. The application of the respondents under Order 21, rule 32. . C .P.C. Was also dismissed.
4. The learned trial Court observed under Issue No.1 that the respondents Nos. 1 to 3 entered into compromise on 6-4-1993. However, under Issue No.2, it was found that consideration amount of Rs.50,000 has not been paid to the petitioners/ Defendants. It was held that the contents of Exh.P.1 have not been proved on record in accordance with law and the same is doubtful. An appeal was preferred against the judgment dated, 4-3-1998. The learned Appellate Court allowed the appeal and decreed the suit by its judgment dated 18-4-2001. It was held that Exh.P.1 stood proved on record and the learned trial Court has wrongly decided Issue No.2 against the respondents. Present civil revision assails the judgment of the learned Additional District Judge, dated 18-4-2001.
5. The learned counsel for the petitioners contends that the compromise recorded in Court (Exhs.P.2 and Exh.P.3) and receipt Exh.P.1 did not constitute lawful agreement for sale on the ground that one of the executants Muhammad Shafique was minor and without obtaining leave of the Court, required under Order 32, rule 7, C.P.C. Was unenforceable in law. He relied on Arshad Ali and 2 others through his brother v. Muhammad Ashraf and 2 others PLD 2000 Lahore 172, wherein it was held that the agreement or compromise on behalf of the minor is subjected to a pre-condition of a finding recorded by Court in express words to protect the interest of the minors. Similar is the ratio in cases Mahboob Baig and 5 others v. Muhammad Hussain and another 1999 YLR Lahore 1119; Mst.
Roshani and another . v. Consolidation Officer and 5 others 1999 YLR Lahore 2702; Muhammad Younis and others v. Muhammad Amir Alam Khan and others 1989 MLD Lahore 1537; Mst. Sajida Sultana and another v. Messrs Eastern Traders and 3 others PLD 1971 Karachi 109; Muhammad 'Sabeel Khan v. Muhammad Riaz Khan and 2 others PLD 1983 SC AJ&K 13; Smt. Vidayabai and others v. Moorajmal 1980 SCMR 267 and Safdar Hussain and another v. Afzal Mumtaz and 2 others 2001 MLD Lahore 740, relied by the petitioners' learned counsel. He further adds that if Exh.P.1 is considered to be an independent agreement of sale, the same is not enforceable as Muhammad Shafique, petitioner-defendant No.3 was minor and was suffering under disability to enter into contract.
6. He further contends that Exh.P.2 and Exh.P.3, can at the most, be considered as previous statement which can be used for the purposes of confrontation as provided under Article 140 of Qanoon-eShahadat Order, 1984. He rightly placed reliance on Sikandar Hayat and 4 others v.
Master Fazal Karim PLD 1971 SC 730; Muqarrab Hussain through legal heirs and others v. Pirzada Muhammad Rafique through legal representatives 2001 YLR Lahore 1103 and Atta Muhammad represented by legal heirs and others v. Matloob Alam Khan 1996 SCMR 601.
7. The r9ceipt Exh.P.1, which is in the nature of sAle-deed, is neither registered nor execution, thereof, been proved. Attesting witnesses have made contradictory statements regarding the execution and attestation thereof. Alleged receipt is on the simple paper although a stamp paper was obtained for writing of the receipt. The evidence shows that Exh.P/1 is an independent transaction for sale whereas in the plaint reliance is being placed on the proceedings in civil suit culminating in its withdrawal. The receipts is established to be forged, hence cannot be relied upon nor discretionary relief can be granted.
8. Conversely, the learned counsel for the tespondents while supporting the judgment urged that the agreement was lawfully entered into between the parties in adjudication of the suit, before the competent Court of law. A sum of Rs.50,000 was lawfully paid to the petitioners Nos.1 to 3 which cannot be doubted in any manner.
9. Order 32, rule 7, C.P.C. Provides that no next friend or guardian for suit shall, without permission of the Court, expressly recorded in the proceedings, enter into an agreement or compromise on behalf of minors with reference to suit in which he acts as next friend or guardian. Subsection 2 of section 7 provides that any agreement or compromise entered without leave of the Court, so recorded, shall not be binding on the minor.
10. Bare reading of the above quoted provisions of Order 32, rule 7, C.P.C., it is crystal clear that the minor's interests are, primarily, to be safe-guarded by the Court. Any agreement or compromise without express leave of the Court is prohibited. The Court has not to pass an order in routine, but is required to pass a conscious order in express manner. Granting permission to a guardian or next friend to effect compromise and to hold that it is in the interest of the minor, failing which the same will be deemed to be voidable agreement. Exh.P.2 is an agreement signed by Qamar-uz-Zaman and Mir Zaman, on one side while petitioners Nos.1 to 3 on the other side. One of the petitioners Muhammad Shafique was minor and on his behalf, his guardian Muhammad Siddique put his thumb-impression. An application for compromise was filed. It was disposed of by the Court vide Exh.No.3. No conscious order has been passed by the learned trial Court granting express permission to enter into compromise on minor's behalf.
11. Exh. P.1, is a receipt dated 14-4-1993. The petitioners are stated to have received a sum of Rs.50,000 as part payment for sale of the land mentioned therein, in favour of the respondent. This receipt Exh.P/1 was marginally witnessed by Muhammad Zaman, Mehrban and Muhammad Boota, out of them, Muhammad Mehrban has appeared as P.W.1. He stated that the civil suit was instituted, which ended in compromise. One week after compromise, the petitioners received a sum of Rs.50,000 and issued receipt in token thereof. Muhammad Rafique had signed while remaining respondents put their thumb-impressions. Scribe of the receipt was stated to have expired. Ch. Muhammad Boota appeared as P.W.2. He is a witness of Exh.P.1. He stated that Muhammad Rafique, Muhammad Siddique and Muhammad Shafique had transferred the land and received Rs.50,000. P.W.1 stated that the receipt was executed in Katchary. According to him, the bargain was struck down at the house of Qamar-uz-Zaman in his presence and of P.W.2. He stated that it was about 10-00 a.m. The amount was paid on demand. The bargain was settled for a sum of Rs.50,000. It was paid on the next day. Stamp paper was purchased. Receipt was executed. Qamar-uz-Zaman had paid the amount to Muhammad Rafique. P.W.2, the other marginal witness stated in cross-examination that the transaction was finalized in the house of the plaintiff. He stated that besides him the vendor/petitioners and the respondents were present. He stated that on the day when the bargain took place, a receipt was executed on the same day in the Court premises, at 11-00 a.m. It was written by scribe. The amount was paid in Katchary before the scribe. Mehrban had counted the amount. Anwar of Chanan was also present. He too signed the receipt. Plaintiff Qamar-uzZaman admitted in his cross-examination that Muhammad Shafique was minor. He conceded that by way of compromise, it was resolved that the petitioners will transfer their land. No mention was made about consideration amount. He stated that the bargain took place one day before the execution of receipt Exh.P.1. He stated that Mehrban, one of the marginal witness has extended facility of loan of Rs.50,000, which was paid to the petitioners.
Mehrban, however, is silent to this effect. D.W.1 Muhammad Siddique stated that neither bargain took place nor they received any consideration amount. They also denied the execution of receipt.
He further stated that earlier suit was compromised.. In cross-examination, he stated that the compromise Exh.P./2 was neither signed nor thumb-marked by them. He denied the execution of receipt Exh.P.1. He stated that they have transferred the land in favour of Altaf and others.
Muhammad Rafique appeared as D.W.2. He denied the sale in favour of the respondent.
12. One of the petitioners namely Muhammad Shafique being minor could not transfer the suit-land in favour of the respondent. The agreement, therefore, to his extent was not valid. Exh.P.1 appears to be an independent transaction for agreement of sale. Whether on the basis of the receipt, which includes the share of Muhammad Shafique minor, specific performance can be claimed. Section 17 of the Specific Relief Act provides that as a rule, specific performance of contract should be granted in its entirety and not in parts. The Honourable Supreme Court of Pakistan in Razia Sultana Bano and 4 others v. Muhammad Sharif and 9 others 1993 SCMR 804, held that the rule is firmly established that the contract for sale of the property in one lot will generally be considered indivisible for reasons that there is obvious injustice in compelling the purchasers of the entirety to take undivided part or shares of the estate. To similar effect is the observation recorded in Wali Jahania and Allah Dad v. Manak Ali and others PLD 1965 SC 651, wherein it was held that even if the shares of the vendees were not specified, as long .As contract was one, section 17 would bar splitting up of the transaction. The law contemplated only one decision of a dispute.
13. The upshot of the above discussion is that the agreement Exh.P./2 was not a valid agreement. It was executed during the minority of the petitioner Muhammad Shafique. Receipt Exh.P.1 is independent to Exh.P.2. It was thumb-marked by Muhammad Shafique, who was minor and was under disability to enter into any contract or agreement. The agreement being one could not split up and enforced in parts.
14. As to the payment of Rs.50,000 through Exh.P.1 the same was made under an agreement, which was not valid in law. The market value of the currency has suffered erosion due to rapid inflationary trend. The petitioners Nos.1 and 2 are, therefore, liable to return Rs.1,00,000 to the respondent being double the amount paid to them in the year 1993.
15. In view of the above discussion, this civil revision' is allowed, the impugned judgment and decree of the learned Additional District Judge is set aside and that of the learned trial Court is restored.