Munir A. Sheikh, J.--This appeal by leave of the Court is directed against the judgment dated 7.7.1994 of the Lahore High Court, Bahawalpur Bench whereby revision petition filed by the appellants against the judgment of the First Appellate Court has been dismissed.
2. Haji Muhammad Ismail son of Ghulam Muhammad, deceased predecessor-in-interest of Respondents Nos, 1 to 5 entered into an agreement of sale dated 31.1.1968 which was registered on 1.2.1968 in favour of Respondent No, 6 Abdul Aziz son of Ghulam Muhammad and Fazal Hussain son of Imam Din who is Appellant No,
4. It appears that Muhammad Ismail vendor had a dispute about the payment of an amount in respect of Patta of this land with his brother Abdul Aziz son of Ghulam Muhammad, Respondent No, 6, therefore, the parties agreed for mediation of Saeed ur Rehman for settlement of the dispute. He made decision on 9.4.1968 which was produced in evidence as Exh. P1.
According to this document, the dispute between Muhammad Ismail vendor and Respondent No, 6 plaintiff regarding Patta, was settled and regarding agreement of sale made in favour of Abdul Aziz and Fazal Hussain, it was stated that they had agreed not to purchase the property and Muhammad Ismail undertook to sell the same to his brother Abdul Aziz, Respondent No, 6 for the same amount of consideration i,e, Rs, 27000/- fixed in the original agreement of sale dated 31.1.1968.
3. After two months of the said decision, Haji Muhammad Ismail vendor through sale-deed transferred the land in favour of Abdul Aziz son of Umar Bakhsh and Fazal Hussain the original prospective vendees under prior agreement of sale. Respondent No, 6 filed suit for specific performance of the agreement of sale (Exh. P1) which was contested by Haji Muhammad Ismail, Abdul Aziz and Fazal Hussain jointly by filing joint written statement. In this written statement, all the three defendants admitted that possession of the land in dispute had been delivered to Abdul Aziz plaintiff under the said document (Exh. P.1 ) but in reply to the relevant paragraphs, they denied having entered into any agreement for mediation of Saeed ur Rehman. In the trial Court, Saeed ur Rehman appeared as PW5 whereas Respondent No, 6 plaintiff examined himself as PW6 who categorically stated that the said agreement of sale/Faisla Salsi was signed by Haji Muhammad Ismail, vendor and also by Abdul Aziz son of Umar Bakhsh the original vendees and by Ghulam Nabi as agent of Fazal Hussain, the other vendee. It is in the evidence of PW5 that Fazal Hussain was not present when he originally took the matter and it was postponed for his appearance and subsequently Ghulam Nabi who was examined as DW3 appeared before him and signed the said decision/agreement as agent of Fazal Hussain saying that he was near relative of Fazal Hussain and had been authorized by him to refer the matter to him (PW5). The trial Court through judgment dated 7.6.1969 dismissed the suit on the ground that though execution of decision/agreement of sale Exh. P1 had been proved but the same was not an agreement of sale but an award delivered by an arbitrator and unless it was made rile of the Court, it did not create any rights as such could not be enforced as an agreement to seek specific performance of the same. In appeal filed by Respondent No, 6, however, the First Appellate Court took view that the said document was an agreement of sale, therefore, could be enforced as such. On reversal of the judgment and decree of the trial Court, the suit was decree through judgment dated 8.9.1980 against which revision petition filed by the appellants herein has been dismissed through the impugned judgment dated 7.7.1994 against which this appeal by leave of the Court is directed.
4. Leave was granted to determine whether it was an award or agreement of sale.
5. We have gone through the said document and find that it was a composite document through which on the hand, dispute about Patta of the land between Muhammad Ismail vendor and his brother Abdul Aziz son of Ghulam Muhammad Respondent No, 6 was sought to be settled and the second about agreement of sale executed by Muhammad Ismail vendor in favour of Abdul Aziz son of Umar Bux and Fazal Hussain son of Imam Din dated 31.1.1968. In respect of dispute about Patta, it was agreed that Abdul Aziz, Respondent No, 6-Pattadar shall pay to Muhammad Ismail specified amount as lease money on a particular date whereas in respect of agreement of sale dated 31.1.1968, it was stated that the prospective vendees had agreed not to purchase the property which shall be purchased by Respondent No, 1 Abdul Aziz deceased plaintiff for an amount of Rs, 27000/- and that he would be liable to pay Rs, 1000/- in addition thereto in the eventuality mentioned therein.
6. The First Appellate Court and the High Court after taking into consideration the terms of this document attending circumstances and the evidence produced by the parties recorded as finding of fact that it was agreement of sale, therefore, the same could be enforced as such to seek specific performance thereof.
7. Learned counsel for the appellants firstly argued that since Fazal Hussain was not party to the document, therefore, the same could not have been construed or held to be an agreement on his behalf or by him, for Ghulam Nabi was not agent of Fazal Hussain.
8. This argument though appears to be ingenuous but not tenable on close scrutiny of the record.
The suit filed by Respondent No, 6 was based on Exh. P1 alleging that it was an agreement of sale the contents of which must be in the knowledge of the present appellants when they filed the written statement. No plea was raised that Ghulam Nabi who had signed the said document as agent of Fazal Hussain was not authorized by him to bind him. Ghulam Nabi was examined as DW3 by the appellants who admitted his close relationship with Fazal Hussain by saying that his sister had been married to Fazal Hussain and Fazal Hussain's sister was married to him and that Abdul Aziz deceased plaintiff was also him `Chachazad.' They were family members and in the absence of any plea raised in the written statement to the contrary viz that Ghulam Nabi was not authorized by Fazal Hussain to enter into any agreement on his behalf, they could not be allowed to raise such a plea subsequently much less accepted. It may also be mentioned here that DW3 Ghulam Nabi in the examination-in-chief denied the existence of any Salsi Faisla but in cross-examination, he admitted to have approached Saeed ur Rehman with others and also presence of his signatures on the document, therefore, his statement that he was not authorized by Fazal Hussain was a clear lie which cannot be accepted, for appointment of agent could be made orally. Learned counsel for the appellants then argued that the agreement of sale in favour of Respondent No, 6 was dependent upon performance of part of the agreement regarding payment of amount of Patta by him to Muhammad Ismail the vendor which part of the agreement having not been performed or pleaded to have been performed, as such, Respondent No, 6 was not entitled to a decree of specific performance he having failed to prove that he was ready and willing to perform his said part of the agreement.
9. This argument also has no substance. As has already been observed, this document is an agreement of composite nature one part of which is with regard to Patta which is a matter exclusively between Muhammad Ismail vendor and Respondent No, 6 with which the present appellants who are holders of the previous agreement of sale had no concern. The other part was an independent agreement by which agreement dated 31.1.1968 was expressly rescinded and rights flowing from relinquished by Abdul Aziz and Fazal Hussain, vendees, therefore, they could not turn around and plead that the said agreement was still effective and could be enforced.
10.Learned counsel for the appellants lastly argued that according to Section 48 of the Registration Act, the previous agreement of sale dated 31.1:1968 in favour of the appellants being a registered document, would take preference over the subsequent unregistered agreement of sale Exh,. P1 in favour of Respondent No, 6, therefore, Respondent No, 6 could not enforce the same against the appellants. Section 48 provides that in case, the vendee under an unregistered document or agreement is delivered possession, the principle that registered document would take preference over unregistered document would not be applicable. In the written statement filed by the appellants in this suit, it was admitted by all the defendants that possession of the land had been delivered to Respondent No, 6 under the said agreement of sale i,e, Faisal, Salsi, therefore, no benefit could be claimed under Section 48 of the Registration Act on the ground that agreement dated 31.1.1968 was a registered document.
11. The execution of sale-deed in favour of the appellants by Muhammad Ismail after execution of the agreement of Sale Exh. P1 could not in any manner detract from the rights of Respondent No, 6 under the law as holder of prior agreement of sale vis-a-vis the said sale-deed of specific performance thereof.
12.. The findings of fact recorded by the First Appellate Court and affirmed by the High Court through the impugned judgment have not been shown to have suffered from any legal infirmity such as misreading or non-reading of any material piece of evidence, therefore, this appeal has no substance which is accordingly dismissed leaving the parties to bear their own costs.