MIAN SAQIB NISAR, J.--- A suit for the specific performance filed by the appellant has failed at both the forums below. Hence this appeal.
2. Briefly stated the facts of the case are, that the property bearing No.B-1-2R-18, situated at Ravi Road Okara was owned by Kamran Sharif (minor), respondent No.1; however, it is claimed by the appellant that the 'shop was in fact purchased by Malik Muhammad Sharif, the father of Kamran, but in the name of his minor son. Anyhow, the shop which stands divided into two portions was under the tenancy of Farhad Jamil, etc. And Muhammad Latif, etc. In order to seek their eviction, respondent No.1, through his father Malik Muhammad Sharif, brought two ejectment applications and while those were pending, a compromise is stated to have been effected between the parties, to the said petition, whereby Malik Muhammad Sharif, agreed to sell the two shops in favour of the present appellant and, therefore, the ejectment applications, in terms of the compromise dated 31- 3-1990, (Exh.P.2 and Exh.P.5), were withdrawn. Muhammad Sharif died a day after and as the transaction of the sale was finalized by the respondent No.1, therefore, the appellant brought the suit for the specific performance on 19-5-1990, against him; during' the pendency of the suit, as it divulged that respondent No.2, had purchased the shop from Kamran Sharif, therefore, the said respondent, was added as defendant No.2. Both the defendants contested the matter; respondent No.1 denied in his defence that his father entered into any sale agreement with the appellant or received any consideration front him. He further challenged the competency of his father to agree for the sale of the property belonging to him; he further took up the plea that the purchase of the said shop was never made by Malik Muhammad Sharif, rather it was done by him directly; defendant No.2, Muhammad Javed, also filed his written statement; besides taking the same defence, as that of respondent No.1, he additionally took up the plea that he is the bona fide purchaser of the property. Out of the pleadings of the parties, the following issues were framed:--
(1) Whether the suit is false and frivolous? OPD
(2) Whether the plaintiff has no cause of action? OPD
(3) Whether the plaintiff has not come to Court with clean hands? OPD
(4) Whether defendant's father entered into a agreement to sell with plaintiff for a sum of Rs.1,35,000 and received the total amount? OPP
(5) Whether the defendant's' father was competent to execute the disputed agreement? OPP
(6) Whether the plaintiff is entitled to a decree for specific performance of the contract? If, so on what terms? OPP
(7) Relief.
The appellant examined four witnesses namely Mirza Abdul Aziz (P.W.1), Haji Zahoor Ahmed (P.W.2), Abdul Rashid (P.W.3), Muhammad Latif (P.W.4), Muhammad Arshad (P.W.5) and Abdul Aziz (P.W.6).
He also produced documentary evidence such as Exh.P.1, power of attorney on behalf of Khalil Ahmed; Exh.P.2 application for compromise in the eviction petition, Exh.P.3, and Exh.P.4, the orders of the Court; Exh.P.5, another application for compromise in the second ejectment petition; Exh.P.6, is the copy of the plaint in the civil suit titled Mirza Muhammad Sharif v. Shamim Akhtar and others Exh.P.7 copy of the order of the Civil Judge; Exh.P.8 and Exh.P.9, application for restoration of ejectment application and the written reply thereof, respectively and Exh.P.10, copy of the order of the Civil Judge.
3. On the other hand, the respondents produced Mst. Nasim Akhtar (D.W.1), Kamran Sharif (D.W.2), Muhammad Javed (D.W.3) and Muhammad Ismail D.W.4 and tendered in evidence the documents Exh.D.1, birth certificate of Kamran Sharif and Exh.D.2, the copy of the application for the grant of guardian certificate by Mst. Naseem Akhtar. On the conclusion of the trial, the learned Civil Judge, by giving his findings on Issues Nos.4 and 5, against the appellant, has dismissed the suit, while findings on the other issues including the issue, if respondent No.2, is a bona fide purchaser, are against the defendants; aggrieved of the judgment and decree, the appellant filed the first appeal, which has been dismissed and the decision of the learned Civil Judge, has been affirmed by also dismissing the cross-objections filed by respondent No.2, on the findings of issue No.6-A, claiming himself to be the bona fide purchaser of the property, which plea did not find favour with both the learned Courts below, because he has purchased the property, during the pendency of the suit, and at the best was held to be an assignee of Kamran Sharif. The appellant being dissatisfied of the two decisions, has brought this second appeal, whereas no cross-appeal, etc., has been filed by respondent No.2, against the dismissal of his objections on Issue No.6-A.
4. Learned counsel for the appellant contends that the findings of the Courts below on Issues Nos.4 and 5, about the incompetency of the father to enter into an agreement to sell on behalf of his minor son, are illegal and unlawful, because according to the provisions of section 362 of the Mohammadan Law by Mullah, a father is a natural and legal guardian and therefore, in the light of the law, laid down in the case reported as Yamin Khan and others v. Rais Jhangli Khan and others 1999 CLC 1755 and Muhammad Murasleen v. Syed Noor Muhammad Hussani PLD 1968 Kar. 163, cannot only competently agree but even can sell the property of his minor son and thus, such agreement of sale is valid and enforceable under the law. It is further stated that after attaining the age of the majority and during the pendency of this appeal, Kamran Sharif, had entered into an agreement with the appellant, for the resolution of the dispute on the basis of the opinion of a mutually nominated referee; the referee so appointed made a statement that the agreement to sell was executed by Malik Muhammad Sharif, in favour of the present appellant for a valid consideration. It is also submitted that even otherwise, through the statements of P.W. To P.W.5 the consideration has been duly proved to have been made to Malik Muhammad Sharif by the appellant.
5. The learned counsel for the respondent No.2, on the hand has stated that there is no proof of offer and acceptance and the payment of the consideration by the appellant to Malik Muhammad Sharif. Malik Muhammad Sharif, even being a legal and natural guardian, was not competent to sell the property until and unless it was proved that the sale was for the benefit of the minor falling within the mischief of section 362 of the Mohammandan Law by Mulla; it is also stated that the alleged agreement to sell is absolutely vague and ambiguous and does not specify the terms and conditions of sale or even mention the exact amount of the consideration. It has been concurrently found by the two Courts below that the sentence "about the consideration" in the so-called agreement is an interpolation. Therefore, in view of the settled law that an agreement of sale without consideration is void, the Courts have rightly refused to enforce the same. As regards the agreement between the appellant and respondent No.1, for the decision of this appeal through the opinion of a referee and its consequences, the learned counsel for the respondent by relying upon the case reported as Nisar Ahmed Sheikh v. Secretary to Government of Punjab PLD 1982 SC 457 argued that it shall have no effect upon the right of respondent No.2. Learned counsel for the respondent No.2, has also stated that sale agreement by father can only be valid and enforceable, if the same falls within the purview of section 362 of the Muhammadan Law by Mulla. In this behalf, he has cited the judgments reported as Muhammad Zofigan v. Muhammad Khan and others PLD 2004 Lah. 255 and Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 1996 Lah. 483.
6. I have heard learned counsel for the parties. As far as the alleged agreement to sell is concerned, suffice it to say that Khalil Ahmed, the appellant is not a party to this agreement; there is no offer by him for the purchase of the property, which could be accepted by Muhammad Sharif; therefore, such document cannot be termed as an agreement of sale, between the appellant and the respondent No.1, through his father. Besides, the terms and conditions of the agreement are absolutely vague and according to the law, such ambiguous agreement is not enforceable. Above all, there is no mention in the agreement, as to what is the amount of consideration, for which the appellant shall purchase the property. The words "Raqim ada ho choki hay" to a naked eye appear to be an interpolation, and this is the view expressed by the learned Court of appeal as well.
Resultantly, irrespective of the question, if the father of a minor as being legal and natural guardian, can enter into a valid agreement of sale or otherwise, I am constrained to hold that there is no valid agreement of sale, as having been found by the two Courts below, which could be enforced in law.
As regards the other plea that respondent No.1 had earlier agreed to get the matter settled through the statement of a referee, suffice it to say that the contesting respondent No.2, was not a party and it is settled law that an admission of a co-defendant shall not be binding upon the other.
Moreover, once the respondent No.1, even if during the pendency of the litigation, has sold his right and interest of the property, which is the subject-matter of this litigation, he was left with no authority to compromise with the appellant for the settlement of the dispute, even in the garb of the opinion of a referee. The real dispute after the sale to respondent No.2, was between the appellant and him and he as the assignee of the respondent No. 1, has every right to independently contest the matter on merit to protect his rights, as the lawful purchaser. This argument of the appellant's side also stands nullified on account of the observation made by the Honourable Supreme Court in the Civil Appeal No.1860 of 2001, when the Court, while remanding the matter, observed:-- "In view of the offer made by one of them and accepted by the other the appellant has been non- suited being aware that he is a party and the trial Court has decided the case against him holding that he is not bona fide purchaser of the property but in our opinion before non-suiting him on this ground, he had at least a right to pray for the dismissal of appeal filed by the respondents notwithstanding the fact whether both of them have entered into a compromise with each other, therefore, non-providing an opportunity of hearing the appellant is violating the principle of natural justice as it has been enshrined in maxim audi alteram partem."