' JAWWAD S. KIjAWAJA, J.---Ijaz Ahmad petitioner-defendant impugns the concurrent decrees of the learned trial Court, dated 2-5-2005 and of the learned appellate Court, dated 3-12-2005, whereby a suit filed by Subhan Khan (respondent No.1) seeking specific performance of a part of agreement (Exh.P-1), dated 20-6-1996, has been decreed.
2. According to the agreement, execution of which is admitted by the petitioner-defendant, a total area of 21 kanals, 7 marlsa was agreed to be sold by him to the two respondents jointly for a total consideration of Rs,4,67,875. The respondents paid a sum of Rs,1,30,000 to the petitioner at the time of execution of the agreement and the balance was to be paid by 15-12-1996. Thereafter, it appears, a dispute arose between the two respondents. They, therefore, did not pay the balance amount. Subhan Khan respondent-plaintiff alone filed the suit for specific performance and impleaded the other vendee, namely, Fajar Khan (respondent No.2) as a defendant. His case was that out of the earnest money of Rs,1,30,000, he had contributed Rs,68,000. He sought partial specific performance to the extent of 8 Kanals only out of the total area of 21 Kanals, 7 Marlas mentioned in the agreement (Exh.P-1).
3. Both Courts below have decreed partial performance of theagreement (Exh.P-1) as prayed for by the respondent-plaintiff. Learned counsel for the petitioner states that this is contrary to law as held in the case titled (1) Wali, (2) Jahania and (3) Allah Dad v. (1) Manak Ali, (2) Lal and (3) Murad (PLD 1965 Supreme Court 651).
4. I have gone through the cited precedent, which is clearly distinguishable on facts. In the said case, the question arose as to the abatement of proceedings and whether such abatement resulted in abatement to the extent of the deceased party or in its entirety. It is in this context that the Honourable Supreme Court held that sections 14, 15 and 16 of the Specific Relief Act had no application.
5. Another factual aspect of this case, which distinguishes it from the precedent cited by learned counsel for the petitioner, is the implicit acceptance of the respondent's right to a separate conveyance deed as reflected in paragraph 3 of the written statement filed by the petitioner- defendant. It is stated therein that the plaintiff (not the other defendant namely Fajar Khan) did not obtain registration of the conveyance in his favour. This indicates that the petitioner was prepared to execute a separate conveyance in respect of 8 Kanals in favour of the respondent-plaintiff. In the grounds of appeal before the learned appellate Court the petitioner did plead that partial performance of the agreement could not A be allowed. However, the contents of the written statement noted above and also the evidence on record do not support his plea.
6. Whether or not an agreement is severable, and thus enforceable partially, is a question of fact which depends on a number of circumstances. These may include, cumulatively, the terms of the B agreement itself, the pleadings of the parties and the evidence adduced by them. In the present case the distinct share of the respondent-plaintiff was mentioned in the agreement. Although a number of preliminary objections to the suit were raised by the petitioner in his written statement, the suit was not objected to on the basis that it sought partial enforcement of the agreement (Exh.P-1). On the contrary, as noted above, paragraph 3 of the petitioner's written statement shows that the petitioner would have been willing to execute a separate conveyance in favour of the respondent-plaintiff.
7. In addition to the above, I have gone through the testimony of the petitioner as D.W.1. He did not state that the agreement was not severable or that he was not obliged to execute a separate conveyance in favour of the respondent-plaintiff. He merely deposed that the earnest money paid by the respondent-plaintiff was forfeited by him. A note, at this stage, needs to be made of an argument advanced on behalf of the petitioner. It was submitted by his learned counsel that the petitioner had entered into the agreement (Exh.P-1) on the clear understanding that thetotal consideration would be paid to him jointly, by the two promises viz. The respondent-plaintiff and Fajar Khan (respondent No.2). It was further stated that the petitioner had entered into some other bargain on this basis. These submissions, however, are contrary to the record as not one word to this effect was uttered by the petitioner when he appeared as a witness. (D .W . 1) in support of his case.
8. The want of severability was, no doubt, a possible defence against the respondent's suit for specific performance. This defence, however, had to be proved on the record. For reasons which have been discussed above, I am not in any doubt that the petitioner failed to do so. I may also added that no issue in this respect was framed by the learned trial Court nor was such issue claimed by the petitioner before the learned trial Court or the learned appellate Court. In this view of the matter, it is not possible to accept the plea of the petitioner that partial performance of the agreement (Exh.P-1) could not have been decreed.
9. It is also important to bear in mind that the other vendee in the agreement, namely, Fajar Khan is the full brother of Ijaz Ahmad petitioner-defendant. There is evidence on the record to show that the two brothers colluded among themselves in order to deprive the respondent-plaintiff of his rights under the agreement (Exh.P-1). This evidence has not been rebutted. On the contrary, the testimony of the petitioner as D.W.1 lends support to the respondent's claim that the transaction was devised by the two brothers so that the amount paid by the respondent-plaintiff could be forfeited and his right to enforce the agreement (Exh.P-1) to his extent could be frustrated. This circumstance has also been noted by the learned Courts below.
10. In the foregoing circumstances, I find the impugned decrees to be unexceptionable. This petition is, therefore, dismissed with costs throughout.