' MIAN HAMID FAROOQ, J.---Muhammad Sharif, the appellant/plaintiff, through the filing of the second appeal, under section 100, C.P.C., has called in question judgment and decree, dated 20-12- 1989, whereby the learned. Additional District Judge accepted respondents appeal, dismissed appellant's suit for specific performance and set aside the judgment and decree, dated 30-1-1988, passed by the learned trial Court, through which it decreed appellant's suit for specific performance of an agreement to sell.
2. Briefly stated the facts of the case, as discernible from the available record, are that the appellant filed a suit, for specific performance of an agreement to sell, dated 25-10-1988 (Exh.P-3) and alternatively for a decree of possession through pre-emption, against the respondents, pleading therein, that Mst. Rehmat-un-Nisa and Mst. Nemat Ara Begum, the respondents Nos. 3 and 4, claiming to be the owners of the land, measuring 116-Kanals 5-Marlas, agreed to sell the said land favouring the appellant, vide agreement to sell, dated 25-10-1988, for consideration of Rs,1,50,000, out of which a sum of Rs,10,000 was paid in advance, while the residue amount was to be paid at the time of the registration of the sale-deed. According to the appellant, in part performance of the said agreement, the possession of land in question was delivered to him; that the sale-deed could not be executed on account of the pendency of the suit titled "Muhammad Aslam v. Rehmatun-Nsia" and issuance of injunctive order and that the appellant was ready to perform his part of the contract, but the said ladies/vendors sold the same land to Noor Ahmed, respondent No,1, (now represented by his legal heirs) and Sadiq Ali, respondent No,2, vide registered sale-deed, dated 9-4-1983 (Exh.P-6 = Exh.D-2). It was further the case of the appellant that although the subsequent vendees were in the knowledge of the prior agreement to sell in his favour, yet they opted to purchase the said land and that the appellant had also superior right of pre-emption as against the respondents. All the respondents filed joint written statement, thereby controverting the allegations made in the plaint, however, admitting the execution of the agreement to sell, dated 25-10-1980, between Mst. Rehmat-un-Nisa etc. And the appellant. It was pleaded by the ladies that the appellant did not fulfil the terms of the A agreement to sell within the stipulated period, failed to pay the remaining amount and also abandoned the said agreement/ A bargain, inasmuch as the original agreement to sell was returned/delivered to the vendors. In these circumstances, the defence of the ladies/vendors was that as there was no prior contract of sale, therefore, they validly sold the questioned land in favour of Noor Ahmed etc. As regards the case of the subsequent purchasers, they asserted that at the time of the execution of the sale- deed, as the original agreement to sell, dated 25-10-1980, between the appellant and the ladies, was shown to them, therefore, they were satisfied that there is no prior agreement to sell and, thus, their rights are protected.
' The learned trial Court, out of the divergent pleadings of the parties, framed the following issues.
' Issues
(1) Whether the suit is incorrectly valued. If so, what is the correct valuation and with what effect?
OPD
(2) Whether the suit is bad for misjoinder of causes of action? OPD
(3) Whether the plaintiff is estopped by his own words and conduct to file the suit? OPD
(4) Whether the suit is bad on account of laches? OPD
(5) Whether the plaintiff has no cause of action to file the suit? OPD
(6) Whether the defendants Nos.3 and 4 are bona fide purchasers for value? If so, its effect? OPD
(7) Whether the defendants Nos. 1 and 2 entered into an agreement to sell the suit-land to the plaintiff for a sum of Rs,1,50,000 and also received Rs,10,000 as earnest money? OPP
(8) Whether the plaintiff is entitled to the decree for specific performance of the contract? If so, on what terms and conditions? OPP
(9) Whether the plaintiff remained ready and willing to perform his part of the contract? OPP
(9) Whether the plaintiff has got a superior right of pre-emption qua the defendants-vendees? If so, its effect? OPP Relief.
' The learned trial Court, after recording the documentary as well as oral evidence of the parties and as a result of findings on Issues Nos.6, 8 and 9, decreed the suit, favouring the appellant, vide judgment and decree, dated 30-1-1988. Subsequent purchasers filed the appeal assailing the said judgment and decree, however, it appears from the record that the rest of the respondents did not challenge the said judgment. The learned Additional District Judge, while reversing the findings of the learned trial Court on Issues Nos. 6, 8 and 9, accepted said respondents' appeal and dismissed appellants' suit, vide judgment and decree, dated 20-12-1989, hence the present second appeal.
3. The learned counsel for the appellant, while supporting the judgment and decree of the learned trial Court, has submitted that the appellant was ready to perform his part of the contract but on account of the pendency of the suit titled "Muhammad Aslam v. Mst. Rehmat-un-Nisa", regarding the same land, the ladies/ vendors were not in a position to execute the sale-deed, that section 129 of the Qanun-e-Shahadat Order is not attracted in the instant case and that the original agreement to sell was returned to the vendors on the assurance that after the final determination of the pending case, a fresh agreement to sell or sale-deed will be executed. Conversely, the learned counsel for the subsequent purchasers has submitted that the said respondents are bona fide purchasers for consideration and the original agreement to sell, dated 25-10-1980 was shown to them at the time of the execution of the sale-deed in their favour, therefore, their rights are protected under the law. The learned counsel, representing respondents Nos. 3 to 5, has supported the impugned judgment by submitting that after the abandonment of the agreement to sell/bargain by the appellant, the original agreement to sell was returned to them, therefore, they have validly and legally sold the land in question favouring respondent No, 1.
4. Execution of agreement to sell, dated 25-10-1980 (Exh.P-3) between the appellant and the ladies/vendors and the contents of the said agreement are admitted by all the parties, including the subsequent purchasers. It is also admitted that the original agreement was delivered back by the appellant to the vendors and the sale-deed (Exh.P-6 = Exh. D-2) was executed by the vendors favouring Noor Ahmed etc. However, there are different view points of the parties regarding the return of the original agreement to sell to the vendors. The appellant did not plead in the plaint that the original agreement to sell, dated 25-10-1980 was returned to the vendors. However, through the production of the evidence, the appellant has tried to prove that the original agreement to sell was returned to the vendors with mutual consent of the parties, as there was some litigation pending regarding the land in question and it was orally agreed that after the culmination of the litigation, fresh agreement to sell/sale-deed will be executed. According to the stance of the vendors ladies, the appellant could not fulfil the terms of the agreement within the stipulated period, and the parties arrived at a compromise with the result that the appellant abandoned the bargain and consequently returned the original agreement to sell to them. Be that as it may, the fact remains that the original agreement to sell, on the basis of which the suit was filed by the appellant, was delivered to the vendors/ladies and it was in their custody. There is a strong evidence on record in their favour that the appellant, either due to abandonment of the agreement to sell or on account of some compromise returned the original agreement to sell to the vendors and, therefore, the appellant cannot succeed on the basis of the said agreement to sell. If the appellant was serious in the bargain and there was no compromise between the parties, as alleged, then there was no occasion to return the original agreement to sell to the vendors, even if it was claimed by them that some sort of litigation is pending and the fresh agreement to sell would be executed. The appellant failed to place on record any document, which would even prima facie prove the stance of the appellant or show that on the assurance given by the vendors, the appellant returned the original agreement to sell to them. No prudent man would return the original agreement to sell to the vendors, more so when the earnest money of Rs,10,000 was paid, on the oral assurance of the vendors that the fresh agreement to sell would be executed. Additionally, I have examined the plaint and find that the appellant did not plead the said facts in the plaint. Contents of the plaint do not show that the original agreement to sell was returned to the vendors and under which circumstances. It appears that the appellant either concealed the material facts from the very inception of the case or subsequently tried to improve his case by taking the plea that the agreement to sell was returned to the vendors on account of some verbal assurance. In both the cases the appellant is precluded from relying upon the said plea and thus the same is of no avail to them. The vendors were in possession of the original agreement to sell, irrespective of the fact that as to how the same came in their possession, and thus admittedly at the time of the sale, no legal and valid agreement to sell exists in favour of the appellant, therefore, the ladies/vendors were competent to sell the same land to any other person. In the circumstances, the subsequently purchasers did not commit any illegality in purchasing the land in dispute.
5. It is settled law by now that in the cases of immovable property, time is not the essence of the contract. The said principle is not applicable in the case in hand, as the sale contract was not broken on the plea that the appellant did not make the payment within the agreed period. In this case, the defence of the vendors, as discernible from para.4 of the written statement, is that the appellant could not fulfil the terms of the agreement to sell and did not make the balance payment, therefore, he entered into a settlement/ compromise with the vendors, abandoned the said agreement/bargain and returned the original agreement to sell. Had the appellant not returned the original agreement to sell to the vendors, to my mind he would have been on much stronger/better footing. In view whereof, the contention of the learned counsel for the appellant that the time was not the essence of the contract is of no help to the appellant.
6. Now coming to the case of the subsequent purchasers. As noted above, the original agreement to sell was in possession of the vendors, they showed it to the subsequent purchasers at the time of execution of sale-deed and on the basis of the said original agreement to sell, they were satisfied and justified to believe that no prior agreement to sell exits in favour of any person. Noor Ahmed etc., after examining the original agreement to sell, rightly believed that agreement to sell regarding the said property has been rescinded coupled with the fact that the vendors were still shown to be the owners of the same property in the revenue record. Under these circumstances, subsequent . Purchasers were justified in purchasing the questioned land, through a registered sale-deed, after the payment Rs,3,00,000, as compared to the earlier consideration price of Rs,1,50,000. In addition to the above, there is sufficient evidence on record, which go to show that Noor Ahmed etc., were bona fide purchasers for consideration and, thus, their rights qua the property are protected.
7. There is another aspect of the case. The agreement to sell was executed on 25-10-1980, while the sale-deed was executed, in favour of Noor Muhammad etc., on 9-4-1983, thus, the same was executed two and a half years after the execution of the agreement. Admittedly, during the said interregnum period, the appellant did not take any steps for the enforcement of the agreement to sell, inasmuch as no notice was given to the vendors. It flows from the conduct of the appellant that he acquiesced over the matter and did not initiate any legal proceedings presumably on the ground that he has himself abandoned the agreement to sell. Institution of the suit by the appellant appears to be an afterthought.
8. I have examined both the judgments and find that the judgment of the learned appellate Court is legal and the findings thereof are not only in accordance with the record of the case but the same are also in consonance with the law on the subject. To my mind, the judgment of the learned trial Court, as compared to the learned lower appellate Court's judgment, is not suitable in law and suffers from grave legal errors, which have been rectified by the learned appellate Court by reversing the findings of the learned trial Court on Issues Nos.6, 8 and 9 and substituting its own findings, which are supported by reasons. I am not inclined to restore the judgment of the learned trial Court, which has rightly been reversed by the learned lower appellate Court.
9. In my view as the impugned judgment is neither contrary to the evidence on record nor in violation of the principle of administration of justice, thus the judgment of the learned appellate Court should ordinarily be preferred. If any cases are needed, the judgments reported as Mir Muhammad alias Miral v. Ghulam Muhammad (PLD 1996 Karachi 202). Ilamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal Heirs and 5 others (1999 CLC 313) and Aasa v. Ibrahim (2000 CLC 500) can be referred.
10. Upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same stands dismissed with no order as to costs.