' Brief facts of the case are that the petitioners had purchased certain land from Muhammad Anayat, the father of respondent No.2, Muhammad Boota, through a registered sale-deed, dated 28-1-1993, Muhammad Anayat, while selling the land L.) the petitioners, also gifted another chunk of his land in favour of Muhammad Boota, and his three other sons. Subsequently, it transpired to the petitioners that before the sale of the land to them. Anayat, has already agreed to sell the same land in favour of a third party, who had filed a suit for Specific Performance against Anayat, which is pending. In this situation, when the petitioners approached Muhammad Anayat, Muhammad Boota, his son executed an agreement, dated 18-3-1993, Exh. P-2, agreeing that in case, the suit for the specific performance filed by the third party is decided against his father, and the sale in favour of the petitioners, is affected, on that account, he not only agreed to compensate the petitioners by promising to hand over a part of the land mentioned in Exh.P.2, inter alia gifted to him by his father, but also that such land, shall be transferred by him, to the petitioners, obviously, in lieu of the land, that might loose because of the specific performance case.
2. Thereafter, Muhammad Anayat, made a conceding statement in the suit for the Specific Performance, which was decreed in favour of the third party, resultantly, the petitioners were deprived of their ownership qua the land purchased by them, through the sale-deed, dated 29-1- 1993, therefore, in pursuance of the agreement, dated 18-3-1993, between them and Boota, they brought a suit for specific performance in which Anayat was also arrayed as a party and the backdrop of the agreement Exh. P.2, was also mentioned. The suit was contested by the defendants, issues were framed; parties were put to trial; the petitioners proved the earlier sale- deed and also the execution of the agreement to sell by respondent No.2, which in the facts and circumstances, constituted a valid agreement between the parties. But learned Civil Judge, was pleased to dismiss the suit, holding that the consideration in favour of Muhammad Boota, is not proven and therefore, the agreement is void. However, nothing much was said about the execution or otherwise, of the agreement Exh.P.2. Anyhow, the trial Court passed the decree for a sum of Rs.1,50,000 in favour of the plaintiff and against the defendants, which amount was paid by the petitioners, as the consideration for the sale in their favour by Anayat. Against the above, the petitioners preferred an appeal, but no cross-appeal, etc. Was filed by the defendants and the learned Appellate Court, while giving its findings on issue No.4, though has categorically concluded as below:--- "In order to prove the execution of the agreement dated 18-3-1993, Exh.P.2, the appellant had produced marginal witnesses of the agreement as P.W.3 and P.W.4 and also have supported their averments in the plaint, hence the execution of the agreement to sell Exh.P.2 is fully established."
' Yet while deciding Issue No.5, which is, whether the plaintiff is entitled to the decree for the specific performance, and if so, on what terms and conditions, the Court has come to the conclusion that Muhammad Boota was only the surety; he was not the exclusive owner of the said land, which was gifted to him and also his three brothers, but the brothers have not agreed to sell their share of the land in question, resultantly, the agreement Exh.P.2, cannot be enforced against them. It is categorically submitted by petitioner's counsel that the share of Muhammad Boota, in the joint holding gifted by Muhammad Anayat, to him and his other bothers, is about 34 Kanals and 7 Marlas, which is more then 2-1/2 acres, agreed to be sold through the agreement Exh.P.2, therefore, in such circumstances, the petitioners were entitled to the grant of the decree for the specific performance from the share of Boota, Exh.D-2, and this vital aspect has not been considered by the Courts below.
2. On 25-3-2004, despite service, as none represented the respondents, therefore, they were proceeded ex parte.
3. I have heard ex parte argument of learned counsel of the petitioners and find that the judgments and decrees of the two Courts below cannot be sustained. Because of the backdrop of the case, it has been duly proved on the record, and is an undeniable fact that earlier Anayat, the father of Muhammad Boota, has sold the land to the petitioners, but due to the suit for specific performance of the third party, which was decreed on the statement of Anayat, the petitioners could not retain the subject-matter of the sale. It is thus for the above consideration, as the rights of the petitioners, were likely to be affected, Boota for the consideration, which his father had received from the petitioners, to which he also acknowledged and accepted and to honour the commitment, by his father, and perhaps to save him from a serious legal action, agreed to transfer the suit-land to the extent of 2-1/2 acres. As mentioned earlier, the petitioners' sale was rendered ineffective, when the suit for specific performance was got decreed by Anayat, on account of his concession in that suit, therefore, the agreement, which was earlier depended upon the happening of a contingehcy, on occurrence thereof, became a pure and simple agreement to sell of the land, for the consideration mentioned therein. The view of learned trial Court that consideration has not been proved, is absolutely against the provisions of section 2-D of the Contract Act, because the trial Gourt, unfortunately has restricted the definition of consideration only to the payment of money, but it has a very wider connotation in law and would undoubtedly, include the one involved in the case.
4. The Court of appeal, while giving finding on issue No.4, has categorically held that the agreement Exh.P-1, stands proved, but while considering Issue No.5, has erroneously came to the conclusion that respondent No.2, stood as surety and that he is only a co-sharer in the property in question, which is owned by his brothers also, who had never agreed to sell the said property in favour of the petitioners, and resultantly, the suit for specific performance cannot be allowed, suffice it to say that when the agreement Exh.P-2, is carefully perused, it is a surety agreement in the first part, but when the petitioners are deprived of the land on account of the decree for the specific performance, in favour of a third party, it has attained the status of an agreement of sale of the immovable property, therefore, when such agreement, as held by the Court of appeal, stood proved, the petitioners were entitled for the specific performance of the share of Muhammad Boota in the joint holding. Obviously, the petitioners could have even stressed for the transfer of the share of other brothers of Boota. But when according to Exh.D-2, the share of Muhammad Boota in the joint land is about 34 Kanals, which is far more than the suit-land, agreed to be sold in favour of the petitioners, therefore, I find that the exercise of discretion, by the Courts below, in not allowing the specific performance of the agreement is in flagrant violation of the settled rule for the exercise of the discretion. Thus the impugned judgments and decrees are undoubtedly the result of erroneous exercise of jurisdiction, passed with material irregularity, which cannot be sustained.
' In the light of above, this revision petition is accepted and the judgments and decrees of the Courts below are set aside. The suit of the petitioners for the specific performance of the agreement to sell Exh.P-2, is allowed in the terms that the respondent No.2, is directed to execute the sale-deed of 2-1/2 acres from his joint holding with regards to Khasra numbers mentioned in the agreement to sell, in favour of the petitioners, for the consideration of the amount of Rs.1,50,000, which the respondent No.1, the father of respondent No.2, has already received from the petitioners and has been determined by this Court as a valid consideration for the said agreement. In case of the failure of the respondent to do the needful within two months from today the petitioners shall be entitled to seek the execution of the deed by the Court through the process of execution.