SH. HAKIM ALI, J.---I intend to dispose of instant Civil Revision No.2528 of 2005, (Muhammad Saleem v. Mst.
Marryam Bibi and others), Civil Revision No.2565 of 2005 (Muhammad Saleem v. Mst. Marryam Bibi and others) and Writ Petition No.18370 of 2005 (Muhammad Saleem v. Marryam Bibi and others) simultaneously and through this lone order, as commonality of facts, parties and law points have been found therein. Writ petition is in fact, an off-shoot of main civil suits.
2. Dispute had arisen between the parties witt regard to an upper storey building of Shop No.2 which was situated in Block No.3, Tehsil Tandlianwala, District Faisalabad. (For detailed description vide plaint of the suits).
3. Facts stated out by the learned counsel for the parties and found from the record are that Khushi Muhammad, Walt Muhammad and Mst. Saleema Bibi, sons and daughter of Malik Allah Ditta, Caste Khichi were owners of the above mentioned disputed property. According to Abdul Qadir respondent/ plaintiff, Khushi Muhammad agreed to sell upper storey of this Shop No.2 to him on 31- 12-1987, in consideration of Rs.45,000 and out of it Rs.10,000 were received by him. While for the completion and performance of the agreement date was fixed as 15-1-1988 according to that contract. Thereafter, Khushi Muhammad executed another document on 24-3-1988, in which he not only extended the date of performance of agreement from 15-1-1988 to 10-6-1988 yet received Rs.5,000 more from the settled consideration.
4. After about one year, Khushi Muhammad and his brother Wali Muhammad sold out the constructed shop to Muhammad Saleem, defendant No.2 of the instant case on 16-8-1989 through registered sale-deed. (Exh.P.5) in lieu of Rs.1,50,000. Wali Muhammad, the other co--owner also agreed to sell his share of upper storey of shop No.2 to Abdul Qadir, plaintiff through a document dated 8-12-1990. This sale of upper storey perhaps created agitation in the mind of Muhammad Saleem, who began to claim the ownership of upper storey as part and parcel of his registered sale-deed dated 16-9-1989. This claim and plea of ownership by Muhammad Saleem with regard to upper storey compelled Abdul Qadir to file a suit for specific performance of contract on the basis of above noted agreement to sell dated 31-12-1987 and 24-3-1988, against Khushi Muhammad, wherein he impleaded Muhammad Saleem as defendant No.2 and refuted The claim of Muhammad Saleem by stating that the registered sale-deed dated 16-8-1989 and Mutation No.3559 dated 5-111989 on the basis of that registered sale-deed were illegal, against facts, void, collusive, fictitious and having no effect upon the rights of the plaintiff with regard to "Chaubbara" (The upper storey) in dispute. In the aforesaid suit, permanent injunction was also prayed for as a consequential relief for restraining the defendant from interfering into the possession of the plaintiff or to alienate the upper storey in dispute to any one through any means. This suit was contested by defendant/respondent No.2, Muhammad Saleem by filing written statement while Khushi Muhammad, defendant No.1 admitted the claim of Abdul Qadir, plaintiff, by filing conceding written statement of having no objection if the suit was decreed in favour of the plaintiff. Issues were framed upon the controversies and the parties were directed to produce their evidence. The suit was dismissed by learned Civil Judge, Samundri on 15-11-1995 with cost. Against the aforementioned judgment and decree, appeal was filed by Mst. Marryam Bibi daughter of Hafeez Ullah as well as legal representative of Abdul Qadir who had died meanwhile, before the learned Additional District Judge, Faisalabad who accepted the appeal on 23-9- 2005 and decreed the suit. Aggrieved from the above noted judgment and decree, the instant civil revision has been filed by Muhammad Saleem (defendant No.2 of the suit).
5. With regard to factual aspect of the suit from where Civil Revision No.2565 of 2005 has arisen.
Hafeez Ullah along with aforementioned Abdul Qadir has filed a suit for specific performance on the basis of an agreement to sell dated 8-12-1990 which was executed by both the brothers namely Wall Muhammad, defendant No.1 and Khushi Muhammad, defendant in favour of Hafeez Ullah and Abdul Qadir for the confirmation of the aforesaid sale and specific performance of that agreement. In the aforesaid suit, Muhammad Saleem was also impleaded as defendant No.2 for his registered sale-deed dated 16-8-1989 and Mutation No.3550 dated 5-11-1999 for obtaining declaration against him that the sale-deed and mutation had no effect upon the rights of plaintiff.
That suit was also dismissed by learned Civil Judge on 15-11-1995 while learned Additional District Judge accepted the appeal and decreed the suit on 23-9-2005 Hence, Civil Revision No.2565 of 2005 was filed.
6. As regard Writ Petition No.18370 of 2005, the facts in brevity are that Muhammad Saleem, filed an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, with regard to the shop, mentioned above, against Hafeez Ullah. In the title although he entered only the word "SHOP" yet in para.No.1 of his petition, he claimed ownership of shop along with upper storey.
This petition was also contested. Learned Rent Controller concluded on 11-4-1998 that there was no relationship of landlord and tenant between the parties, so the petition for ejectment was dismissed. Against that order of dismissal, appeal was filed by Muhammad Saleem before learned Additional District Judge which met with the same fate from that Court on 23-9-2005. Hence the present writ petition.
7. With the above noted facts, learned counsel appearing on behalf of Muhammad Saleem, petitioner of the above noted two civil revisions and writ petition, has submitted the following points for determination which are summarized as under:--
(i) The suit filed by respondent Abdul Qadir was not maintainable because plaintiff Abdul Qadir was an insane, as it was admitted by P.W.6 Hafeez Ullah, the father of Abdul Qadir in his statement, therefore, both the suits filed by Abdul Qadir were to be dismissed.
(ii) Agreements entered into with Abdul Qadir were defective and ineffective due to lack of mutuality. The signatures of Abdul Qadir were not put on these agreements executed on 31-12-1987, 24-3-1988 and 8-12-1990, therefore, these agreements at the most could be considered as mere proposal, having not transformed into enforceable contract by law. Learned counsel refers to the following precedents 1990 SCM R 28, (Mst. Barkat Bibi and others v. Muhammad Rafique and others)
2005 YLR 301 (Rehmat All and others v. Faqir Muhammad (deceased) through legal representatives and others).
(iii) Shop No.2 was admittedly sold out to Muhammad Saleem through registered deed dated 16- 9-1989. Although there was no clear mention of upper storey in, yet it was to be considered that upper storey was included in it. Learned counsel further submits that word (residence) noted in the sale-deed was giving out an inference that upper storey was also included in the shop and was also alienated in favour of Muhammad Saleem. As per learned counsel, when single storey is transferred, its roof up to the sky is also transferred on the basis of this reason, upper storey was also transferred in favour of Muhammad Saleem, petitioner. Learned counsel further argues that sale-deed if is not clear, in that event, intention from the document has to be gathered and examined. Learned counsel has referred to 1992 CLC 754 (Malik Hashim Din and others v. Bashir Ahmad) for this proposition.
(iv) There was collusion between plaintiff and defendant who had executed agreement with back dates.
(v) Marginal witnesses of the agreement to sell were not produced while Hafiz Muhammad Rafique D.W.2 had admitted that upper storey was also sold out.
(vi) Mst. Saleema Bibi, had sold out her share of upper storey in favour of Muhammad Saleem, therefore, Muhammad Saleem was also owner of upper storey.
(vii) With these assertions and contentions, learned counsel has prayed that revision petition and writ petition may be accepted as prayed for.
8. Conversely, learned counsel appearing on behalf of respondents submits that upper storey was not included in the shop sold out to Muhammad Saleem, petitioner through sale-deed dated 16-8- 1989. The petitioner was claiming the ownership on the basis of that sale-deed which had not contained any word with regard to the upper storey in dispute. There was no mention of it in the sale-deed and upper storey was never transferred to him.
9. As regard mutuality of contract, learned counsel submits vendor had admitted the execution of agreement to sell and receipt of consideration under it and had also admitted the delivery of the possession of upper storey to Abdul Qadir, plaintiff. Therefore, contract was complete and rule lack of mutuality was not applicable. D.W.2 Muhammad Rafique had admitted not only the agreement having been executed in favour of Abdul Qadir and Hafeez Ullah yet the receipt of sale consideration. He had also admitted that upper storey was not included in the sale-deed.
10. Word "constructed shop" noted in the sale-deed supports the reasoning that upper storey was never included therein. Muhammad Saleem had obtained only possession of shop and not the upper storey. It was, therefore, that he had to file ejectment petition for the eviction of Hafeez Ullah.
11. After hearing lengthy arguments of both the learned counsel and perusal of the record, I have found that bone of contention between the parties is interpretation of sale-deed 16-8-1989 executed in favour of Muhammad Saleem petitioner. According to version of Muhammad Saleem petitioner, upper storey was sold out through the above noted sale-deed while defendants had taken plea that no such sale of upper storey was ever made in favour of Muhammad Saleem, petitioner. To resolve this controversy as to whether upper storey was sold out or not, whether it was part and parcel of this sold out Shop No.2 or not, the document of sale Exh.P.5 has to be examined and analyzed itself. In whole of the aforementioned sale-deed there is no mention of upper storey to be one of portion of the shop. The word used {{URDU TEXT}} are found in the sale-deed. As to why upper storey was not mentioned in the sale-deed if it was a part and parcel of the shop narrated above, there is no explanation by Muhammad Saleem and from his learned counsel.
12. It is rule of interpretation of a document that document itself has to be accepted true and correct by its express and clear words which are to be given their apparent meaning. Addition, subtraction, modification are hot to be supplied to any document when the words used in the document are clear in its meanings and terms and no ambiguity is found in it In the same way, meaning of plain words are not to be stretched in such a way so as to bring into it the properties which are not included therein by its plain wordings. The word "Shop" is a common word which is understood commonly by all and sundry. It cannot be extended and understood so as to include in it the upper storey of it unless the words used and phrased therein the document are such or there is clear intention oozing from the document itself by mere reading of the document that upper storey is included in it. If the intention of the parties to the sale-deed was to include the upper storey of the shop, it must have been mentioned clearly in the sale-deed. The non-mentioning of the word upper storey was itself a proof that upper storey was not being considered .a part of this bargain. Moreover, it may be kept in view that in agreement to sell which was executed prior to the sale-deed in favour of respondents, the upper storey was excluded due to this sale transaction much before the sale-deed dated 16-9-1989 was executed in favour of Muhammad Saleem, petitioner. Khushi Muhammad, had executed first agreement to sell with regard to the upper storey on 31-12-1987 while second agreement was executed on 24-3-1988, therefore, both these agreements were in existence, when the sale-deed 'in favour of Muhammad Saleem was executed.
There is no proof on the record that these documents were collusively prepared or were ante dated. It was, therefore, that upper storey was not mentioned in the sale-deed. The words used in the disputed sale-deed being interpreted by learned counsel for the petitioner for the benefit of petitioner that it includes upper portion and storey of the shop in dispute are mere jugglery of words and not a correct interpretation of the words used in the sale-deed. In fact, these words were used in the sale-deed to show that shop in dispute was being sold out along with its residential easement rights. These words were commonly used in old documents. These words were actually entered in a document to depict that the property, which was being sold was being transferred along with its rights of use, of premises, light and air etc. (Easement rights etc.). From the use of these words, it cannot be held that upper storey was being made a part and parcel of the bargaining and that it was also being sold due to the use of these words. These words are actually displaying rights of easement attached to the property having been sold away but it cannot be interpreted in such a manner so as to include another different and separate property in it.
13. As regard the arguments of learned counsel that sale of shop includes the sale of roof up to the sky, it cannot be accepted and applied to the instant case because, it was not a single unit. It was already bifurcated by the owners of the building into two portions, when they had contracted to sell the upper portion separately prior to the sale-deed executed in favour of Muhammad Saleem, petitioner. It is the sweet will and discretion of an owner/owners to divide his/their ownership into pieces and to sale out one, two or all the portions of his/ their ownership through one or different transaction/ transactions person or persons. No bar or restriction can be imposed upon such transactions unless prescribed by law. Moreover, this plea was not raised in the pleadings and was not shaped into an issue. Parties had no opportunity to meet, prove or defend this issue of fact through evidence. To apply the principle of One Unit building various factors are to be proved before a part of building or property can be declared as one unit and not liable to be transferred separately. In fact, this concept was created with regard to evacuee properties in settlement cases.
Therefore, judgment referred to by learned counsel cannot be held to govern the present case.
14. As regard to the principle of mutuality of contract is concerned, it would suffice to say that it is not necessary that in all cases, a document must contain the signature of the other party. If any party has accepted the contract by getting a document executed in his favour, paying the full or part amount under it, obtaining the possession of the property concerned and receiving the document of title or creating a right to or in the property settled, then the contract cannot be deemed to suffer with the rule/principle of lack of mutuality. If any party to the contract does any act with regard to any part of the contract which is visible and material by performing it and that act leads to irresistible conclusion that the party has accepted it, the contract would be considered. Complete and there will be no question of lack of mutuality of contract.
15. The citations 1990 SCM R 28 (Mst. Barkat Bibi and others v. Muhammad Rafique and others) and 2005 YLR 301 (Rehmat Ali and others v. Faqir Muhammad (deceased) through legal representatives and others) referred to by the learned counsel for the petitioners are not applicable to the present case, because in both the above noted cases it was found and held that an agreement to re-convey the land purchased by the vendee must have been accepted by vendors also otherwise it would be a unilateral agreement. In other words, the insistence of the Court was that there must be evidence with regard to the acceptance of reciprocal obligations. To say it in another way, an offer made must be proved to have been accepted by the other party. In those cases, it was held that failure to prove the acceptance from the other party would not complete the contract. This rule has been laid down by the Hon'ble Supreme Court as well as by this Court which rule cannot be refuted or controverted as it being correct one. But the present case is a different one from the cases referred to above. According to section 8 of the Contract Act, 1872, acceptance by performing conditions or receiving consideration makes the agreement complete PLD 1971 Supreme Court 784 (Messrs Jamal Jute Baling and Co. Dacca v. Messrs M.
Sarkiess and Sons Dacca), the Hon'ble Supreme Court has held that it is not necessary that an agreement must contain the signature of the other party or otherwise it would not be a valid agreement. According to the ratio of the above judgment of the Hon'ble Supreme Court, if an agreement has been accepted and acted upon by the other party, then it would be inconsequential that other party had not signed it. In AIR 1916 Calcutta 771 (Vouwang Raja Challaphroo Chwdhury v. Banga Behary Sen) it was held that if a bond was executed and delivered to the other party then it was not necessary that both the parties must have signed that document.
AIR 1954 Patna 14 (The State of Bihar v. Bengal Chemical and Pharmaceutical Works Ltd.) when an offer required the act to be done, the performance of that desired act was sufficient to render the offer to become a promise. So, from the examination of the above-noted judgments, it is not necessary for the validity of an agreement, that it must contain the signature of the other party, if the other paity is shown to have performed the desired, express or implied condition, act or has done any other thing which can display that the other party has accepted the agreement by his act, or conduct or through the fulfilment of condition like payment of consideration, acceptance of delivery of possession etc. In the performance of agreement, then that agreement would be considered to be a contract having been entered into by the other party with his mutual consent. Mere failure to put signatures of the other party, upon that agreement would not invalidate the agreement or make it ineffective.
Viewed from the above noted discussion, the agreements executed in favour of Abdul Qadir and Hafeez Ullah were valid in the eye of law and were not suffering with any defect of alleged lack of mutuality of contract.
16. As both the parties, the vendor and vendee are in agreement that such a contract (agreement to sell) were entered into between them, so no objection of lack of mutuality can be raised by a third party, particularly, when the possession of the property sold was obtained by the vendee under the, received the' amount and delivered the possession of agreement. The admission of vendor having executed the agreement property in dispute, were sufficient to prove the execution of the contract.
17. In 1992 CLC 754 (Malik Hashim Din and others v. Bashir Ahmad) referred, to by the learned counsel, the facts in that case were different qua the present one. Settlement Department had transferred to a party only "Chobara" but that transferee had laid claim upon the roofs of properties of others proclaiming it to be courtyard and the part and parcel of his "Chobara". In that case, it was clearly held that a single storey property would be deemed to be transferred with roof up to sky. Accordingly, the claim of that transferee was not accepted which was being laid down the roofs owned by of other persons. These above noted facts are clearly showing distinguishable features from the present one. In the instant case, the disputed property itself is a double storey building, wherein in the referred case, roofs of other properties, were single storey. Therefore, the judgment referred to by the learned counsel is not applicable to the instant case.
18. As regard objection of the learned counsel for the petitioner that Abdul Qadir, plaintiff was insane person and was not competent to file the suit could not be entertained at this stage, as this objection was not earlier raised in the suit and no issue was framed on this point. This being a question of fact was necessarily to be raised in the pleadings as it had required evidence on this point in the shape of proving or disproving. Therefore, this question cannot be considered to have not been correctly and competently raised by petitioner.
19. The purchase of share from Mst. Marryam Bibi itself by Muhammad Saleem has gone to prove the version of respondent Abdul Qadir that Muhammad Saleem had considered himself the upper storey not a part of his sale.
20. There is no reason and explanation as to why Muhammad Saleem had not insisted upon the delivery of possession of upper storey at the time of obtaining the possession of the shop purchased by him. This fact itself proves that Muhammad Saleem was admitting by his act and conduct that upper storey was not part of his purchase, and the share, unit or portion of the sale transaction.
21. Therefore, keeping in view the above noted discussion, I do not see reason to differ with the finding of the learned Court below, who have exercised its jurisdiction in accordance with law.
Accordingly, both these civil revisions and writ petition are. Dismissed with no order as to costs.