' MAULVI ANWARUL HAQ, J.---On 13-11-1981 the respondent filed a suit against the petitioners. In the plaint, it was stated that land measuring 16 kanals, 12 marlas comprised in Main Khasra No,570, as described in Para. 1 of the plaint, was owned by Fazal Ahmad, the deceased defendant (the predecessor-in-interest of the petitioners). He had sold away 10 kanals, 15 marlas and is retaining 5 kanals, 17 marlas. Out of the said land, he agreed to sell 10 kanals of land, as described in para. 2 of the plaint in favor of the respondent (1/5 share) and one Muhammad Boota .4/5 share) for a consideration of Rs,2,12,000. He received a sum of Rs,20,000 as earnest and executed an agreement on 6-4-1980. The date of performance was fixed as 6-8-1980, he executed a sale-deed in favor of Boota regarding 8 kanals of land in accordance with the agreement and got it registered. He was called upon to transfer two kanals of land after receiving the balance amount of Rs,38,400 but he has been dilly dallying. He accordingly sought a decree for specific performance. The deceased defendant filed a written statement. He admitted the agreement as particularized in the plaint. He proceeded to state that except 5 marlas, the remaining land has been sold. He took the plea that at the time, the sale-deed was registered in favor of Muhammad Boota, the respondent refused to buy his share of the land as he had no money and consequently the entire earnest money was adjusted in the sale-deed made in favor of Boota. Following issues were framed by the learned trial Court:--
(1) Whether the suit is maintainable in its present form? OPD.
(2) Whether the plaintiff is estopped by his own words and conduct? OPD.
(3) Whether the defendant is owner of the suit-land? OPP.
(4) Whether the suit is not maintainable for non-joinder of necessary parties? OPD.
(5) Whether the defendant is entitled for special cost under section 35-A, C.P.C.? OPD.
(6) Whether the defendant agreed to sell the suit-land in favor of the plaintiff and received earnest money?, OPP.
(7) Whether the plaintiff was willing to perform his part of contract? OPD.
(8) Whether the plaintiff is entitled for the decree of specific performance? OPD.
(9) Relief.
' Evidence of the parties was recorded. The learned trial Court found issues Nos.1, 2, 6 and 7 in favor of the respondent." Issue No,5 was also found against the petitioners. Under issue No,3 it was held that the petitioners are no longer owner of the land. Under issue No,8 it was found that as the petitioners are no longer the owners of the land specific performance cannot be allowed. He, however, directed them to return Rs,4,000. It will be pertinent to mention here that under issue No,4 it was held that the suit is not bad for non-joinder the necessary party. A decree for Rs,4,000 was accordingly passed on 7-11-1987. The respondent filed a first appeal which has been allowed by a learned ADJ, Daska, on 9-4-1994. He has opined that since, admittedly, the petitioners inherited other land from Fazal Ahmad, they are bound to transfer 2 Kanals from the said land to the respondent.
2. Learned counsel for the petitioners argues that since the respondent had sought specific performance of an agreement which was with regard to a specific property, the learned ADJ had no jurisdiction to pass a decree qua the land admittedly not the subject-matter of the agreement.
Learned counsel for the respondent has argued that the petitioners or the deceased defendant failed to disclose the particulars of the sales and, in fact, there is no evidence on record that the suit-land has, in fact, been sold and if so to whom. He has also tried to argue that the doctrine of feeding the estoppel contained in section 43 of the Transfer of Property Act, 1882, as also in section 18 of the Specific Relief Act, 1877, would be applicable and the judgment of the learned ADJ can be justified with reference to the same.
3. I have gone through the copies of the records. There is no dispute whatsoever that Fazal Ahmad deceased defendant agreed to sell the suit-land to the respondent. There is no denial of the execution of the agreement and its contents. The plea that the respondent refused to purchase the land has been disbelieved by both the learned Courts below.
4. Now the learned trial Court has held and the learned ADJ has agreed that the said two kanals of land has been sold. I however, find that in the written statement filed by Fazal Ahmad and then by the petitioners as his LRs,, there is no particular whatsoever to any sale including the date as also the particulars of the vendees. There is nothing in the evidence as to when the sales were made and to whom. On the other hand, the admitted position which is otherwise apparent from the Register Haqdaran Zamin Exh.P.2, is that the said main Khasra No,570 measures 16 kanals 12 marlas was owned by Fazal Ahmad deceased. The agreement was for 10 kanals including the 8 kanals sold to Boota. I, therefore, do find that both the learned Courts below have made the said observations without there being any material on record in support of the same.
5. Now coming to the impugned judgment of the learned ADJ and the said contentions noted above, the provisions of section 18 of the Specific Relief Act, 1877, to my mind would not be applicable. These would apply if had it been a case that Fazal Ahmad had an imperfect title to the land agreed to be sold but perfected the same at a point after the execution of the agreement.
However, the case of Fazal Ahmad was that he had sold away the land. The finding recorded by the learned trial Court that the suit is not bad for non-joinder of necessary parties has not been questioned. This is a case where even if it be proved that Fazal Ahmad had, in fact, sold away the entire land in the said main Khasra No, 570, he and then his LRs are guilty of suppression of facts by not disclosing the details of the sales and the particulars of the vendees at any time.
6. This civil revision is accordingly allowed. Both the impugned judgments and decrees are set aside. The result would be that the suit A filed by the respondent shall be deemed to be pending.
The parties shall appear before the learned Senior Civil Judge, Sialkot, on 10-1-2007. The learned Senior Civil Judge shall then entrust the matter to a competent learned Civil Judge at Daska who will requisition the records of the suit and call upon the petitioners/defendants to file an additional pleading disclosing the particulars of the sales including those of the vendees. The learned trial Court shall then compare the said statement with Exh.P.2 to find out as to any land is available in main Khasra No,570 adjusting the said sales. In case two kanals of land is available then the suit shall be decreed straightaway qua the same. In case it is found that no land is available then the learned Civil Judge shall examine the said sales and call upon the respondents to implead the vendees in the suit who will be summoned and after giving them a chance of filing a written statement and leading evidence qua the pleas to be taken by them, the suit to be decided with reference to the merits of the said pleadings. The question of limitation, if raised by the said vendees, will be decided withreference to the observations made above qua the conduct of the petitioners/defendants. The learned Civil Judge shall make all efforts to decide the suit within the year, 2007. The costs of this civil revision shall be borne by the petitioners. Counsel fee is fixed at Rs,10,000.
7. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Silakot.