' MUHAMMAD JEHANGIR ARSHAD, J.---In view of detailed hearing of both the learned counsel for the parties at limine stage/preadmission notice stage, this case is now being disposed of as a PAKKA case with the concurrence of learned .Counsel for the parties office to note accordingly.
2. This Civil Revision is directed against the judgments at variance recorded by two courts below, whereby the learned Additional District Judge, Daska vide judgment dated 21-10-2004 accepted the appeal filed by the respondents against the judgment of the learned trial Court dated 20-4- 2000 decreeing suit for specific performance of agreement to sell in favour of the petitioners, as such suit of the petitioners was dismissed.
3. The facts in brief are that petitioners filed 'a suit for specific performance of agreement to sell before the learned trial Court vide plaint dated 7-5-1997 alleging therein that respondents were owners of the land measuring 8 Kanal situated in Mouza Karanwali Tehsil Daska District Sialkot, were in possession of the same through family partition and had also mortgaged their property to the Agricultural Development Bank of Pakistan, Daska (hereinafter to be referred as A.D.B.P.). They agreed to sell the same to the petitioners for a price of Rs,1,50,000 and for the purposes of getting the mortgage redeemed, Munawar Hussain one of the petitioners deposited an amount of Rs,1,17,000 under his signatures with the A.D.B.P., Daska through receipt dated 8-5-1994 under the instruction of respondents and respondents received the remaining amount of Rs,33,000 in cash for their perusal use and in token thereof executed a registered agreement to sell in favour of the petitioners on 10-5-1994, where after they delivered possession to the petitioners which they are still possessing. It was further agreed that on the attestation of mutation of redemption, the property would be alienated to the petitioners. The petitioners further averred in the plaint that although the redemption mutation was attested in favour of the respondents in the month of August, 1998 but they never informed the petitioners and tried to transfer the property to somebody else, on which the petitioners had to file the declaratory suit to restrain the respondents from alienating the property which was ultimately filed. The suit was contested by the respondents vide written statement dated 23-6-1997 wherein without specifically denying the existence of any agreement or execution of the agreement to sell dated 10-5-1994 the respondents only denied the receipt of consideration under the said agreement. The learned trial Court in the light of pleadings of the parties framed the following issues and directed the parties to lead their respective evidence:-- ' ISSUES:
(1) Whether the suit is incompetent in its present form? OPD
(2) Whether the plaintiffs have not come to the Court with clean hands? OPD
(3) Whether the Plaintiffs have no locus standi and cause of action to file this suit? OPD
(4) Whether this suit is barred by time? OPD
(5) Whether the suit has been incorrectly valued for the purposes of court-fee, if so, what is the correct valuation? OPD
(6) Whether the plaintiffs have entered into sale agreement pertaining to the disputed land with the defendants in lieu of Rs,1,50,000 in view of Iqrar Nama dated 10-5-1994 and possession of the disputed land was also transferred in pursuance of the agreement? OPP
(7) Whether the disputed Iqrar Nama is fictitious and based on fraud? OPD
(8) Whether the plaintiffs are in possession of the suit disputed land as tenants at will? OPP
(9) Whether the suit is frivolous and vexatious and the defendants are entitled to special costs under section 35-A, C.P.C? OPD
(10) Relief.
' The petitioners in their evidence produced Anwar Kakay, Advocate, Daska, Scribe of the agreement to sell Exh.P-1, Ihsan Ullah, employee of National Bank of Pakistan Andhia Moor Branch, Sambrial, Daska P.W.2 to prove withdrawal of Rs,90,500 by the petitioners, Munawar Hussain one of the petitioners appeared as P.W.3, Nazir Ahmad P.W.4 who is the marginal witness of agreement Exh.P.1, Muhammad Rafiq, employee of A.D.B.P. Daska to prove the deposit of Rs,1,17,000 by Munawar Hussain petitioner with the Bank on 8-5-1994 as mortgage money, Liaqat Ali who is also marginal witness of agreement to sell appeared as P.W.6 and with that they closed their evidence by tendering documents Exh.P-1 to Exh.P-17. In rebuttal Shahid Mehmood one of the respondents appeared as D. W.1, Fazal Hussain D.W.2 and the respondents close their evidence by tendering document Exh.D.l. However, Mst. Safia Bibi sister of the respondents also appeared as D.W.3. On the conclusion of trial, the learned trial Court/Civil Judge 1st Class, Daska vide judgment dated 20-4- 2000 decreed the suit of the petitioners as prayed for. Against the said judgment and decree of the learned trial Court the respondents filed an appeal which was allowed by a learned Additional District Judge, Daska vide judgment dated 21-10-2004 resulting in setting aside of the judgment of learned trial Court and dismissal of petitioners' suit. Hence this Civil Revision.
3-A Before recording the arguments of learned counsel for the parties, it would not be out of place to mention here that the only ground which found favour with the learned Additional District Judge for setting aside the decree of the learned trial Court and dismissal of petitioners' suit, was that no consideration under the agreement was paid to the respondents, hence the agreement being without consideration was not -enforceable, therefore, suit was liable to the dismissed.
4. It has been argued by learned counsel for the petitioners that the agreement in question Exh.P.1 is a registered document and after admitting execution of the same having proved of the learned Additional District Judge could not declare or term the same as without consideration, whereas from the evidence available on record it is fully established that said agreement was not only based on consideration but also was executed for consideration. To support his contention learned counsel for the petitioners has referred to the evidence of Ihsan Ullah P.W.1, employee of National Bank of Pakistan, Daska to the effect that an amount of Rs,90,500 was withdrawn from the account of petitioners' mother Mst. Barkat Bibi through Cheque No,081341. The learned counsel has also referred to the statement of Muhammad Rafiq P.W.5 employee of A.D.B.P., Daska deposing that on 8-5-1994 an amount of Rs,1,17,000 was deposited by Munawar Hussain petitioner in the bank account of land in dispute mortgaged with the Bank. The learned counsel further submitted that detail about payment of consideration was specified in the agreement Exh.P.1 which contains an endorsement from Sub-Registrar, Daska to the effect that receipt of an amount of Rs,1,50,000 was admitted before him and that the said endorsement carries a presumption with regard to the payment under said document as held by this Court in the case PIRLA and others v. Noora and others PLD 1976 Lah.
6. The learned counsel contends that in a suit titled Muhammad Khan and others v. Munawar Hussain and others (copy available as Exh.P.14, the present respondents who were defendants Nos.
4, 5 and 6 had filed written statement in para. 4 thereof they had admitted the disputed transaction with the petitioners and had also admitted the execution of the agreement dated 10- 5-1994 in favour of the petitioners and also deposit of mortgage money by the petitioners with the A.D.B.P., thus in the presence of above referred evidence learned counsel concludes that mere evasive denial by the respondents about receipt of the amount and after holding that petitioners have successfully proved the execution of the agreement Exh.P.1 there was no jurisdiction left with the learned Additional District Judge to hold the said document as without consideration and to dismiss the suit.
5. On the other hand, learned counsel for the respondents namely Rana Nasrullah Khan, Advocate has tried to support the findings of learned Additional District Judge on the ground that although the respondents have not specifically denied the agreement or execution of agreement to sell yet as the same has been rightly held by the learned Additional District Judge as without consideration, hence the suit of the petitioners was correctly dismissed, as grant or refusal of decree for specific performance by the Court was a discretionary relief within the meaning of section 12 of the Specific Relief Act and that the Court is not always bound to decree suit for specific performance even in case where the contract is proved. In support of his contention the learned counsel for the respondents has placed reliance on the case Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152; Sinaullah and others v. Muhammad Rafique and others 2005 SCMR 1408 and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189. The learned counsel has further argued that petitioners filed suit for specific performance of agreement to sell with regard to a specific Khasra No,252 which was not exclusively owned by the respondents but formed part of a joint khata consisting of several co-sharers and the share of the respondents in the said khata being nominal in area no decree for specific performance of agreement to sell could be passed in favour of the petitioners with regard to the entire khasra number in the absence of other co-sharers as party as well as without determination of their interest in the said khasra as according to the learned counsel it is an established law that each sharer in a joint khata is deemed owner in each and every inch of the same and no co-sharer can individually claim his ownership in specific khasra number without partition. The learned counsel for the respondents in support of his this contention has placed reliance on the case ; Muhammad Anwar v. Mst. Nawab Bibi and others 2003 MLD 742 and Khurshid Anwar Jalil v. Muhammad Hafeez Mirza and 14 others 2003 CLC 1695.
' Exercising his right of rebuttal, especially with regard to the second argument of learned counsel for the respondents regarding enforcement of agreement in dispute, the learned counsel for the petitioners while placing reliance on the case Mustafa and 3 others v. Muhammad Khan and another NLR 1978 Civil 539 and Shah Hussain v. Abdul Qayum and others 1984 SCMR 427 has argued that transfer by a co-sharer is always subject to adjustment on partition and thus there was neither any infirmity in the agreement to sell nor in the decree issued by the learned trial Court with regard to specific khasra number especially when the share of the respondent in the entire khata was more than agreed area of 8 Kanal and thus the decree passed by learned trial Court although with regard to specific Khasra number yet same would be subject to final adjustment through partition and the petitioners would not be able to claim exclusive ownership over the said specific khasra number unless adjusted on partition.
6. I have considered the above mentioned arguments of learned counsel for the parties keeping in view the evidence on record as well as the law on the subject.
7. Admittedly the disputed agreement to sell Exh. P-1 is a registered document containing an endorsement by the Sub-Registrar with regard to the receipt of consideration having been admitted by the executants of the document i,e, respondents before him and as held by this court in the case "Pirla and others v. Noora and others" (PLD 1976 Lahore 6) endorsement by the Sub- Registrar on a document contains presumption of correctness in terms of sections 52, 58 and 60 of the Registration Act and no more authenticated documentary evidence could be made available on the point of proof of payment of consideration as the facts entered in the endorsement/Certificate are presumed to have occurred and as the said endorsement/Certificate is admissible as an evidence of proof of its contents, hence the same is always presumed to be genuine. Looking in this context the findings of the learned Additional District Judge holding the agreement as without consideration appears to be based not only misreading and non-reading of evidence but also in clear disregard/violation of the abovementioned provisions of the Registration Act, hence, cannot be blessed with any legal sanctity. Further the learned Additional District Judge while dismissing the suit of the petitioners has also ignored the established principle of law that where a document is admitted or its execution is proved then the contents of the same are always considered as proved or admitted and no oral evidence to disprove the contents of said document is admissible in terms of Article 70 of Qanun-e-Shahadat Order and since there is a clear recital in the agreement Exh.P-1 about payment of consideration and also its mode, no option at all was left with the learned Additional District Judge to hold the agreement in dispute as without consideration.
8. The learned Additional District Judge has also misdirected himself by not taking into consideration the evidence of Ihsan Ullah P.W.2 employee of National Bank of Pakistan who made statement about withdrawal of amount on 8-5-1994 from the account of petitioners' mother namely Mst. Barkat Bibi and also ignored the statement of Muhammad Rafiq P.W.5 an employee of A.D.B.P with regard to deposit of mortgage money to the tune of Rs,1,17,000 on the same day i,e, 8- 5-1994 under the signature of Munawar Hussain one of the petitioners. Both these P.Ws. Have neither been materially cross-examined on the point in issue nor they being employees of the Bank are supposed to have any personal motive either against the respondents or in favour of the petitioners for making false statements in Court. The learned Additional District Judge also failed to take into consideration the contents of receipt Exh.P-3 carrying the signatures of Munawar Hussain petitioner (Exh.P-3/1) and also the written statement (Exh.P-15) filed by the respondents specifically admitting the execution of the agreement in question in favour of the petitioners and deposit of mortgage money with the Bank. The narration of above facts lead me to conclude that the learned Additional District Judge was not right in holding the agreement as without consideration, resultantly his findings are not sustainable and are set aside.
9. So far as second contention of learned counsel for the respondents with regard to the fact that Khasra No,252 being part of a joint khata measuring 135-kanals 11-marlas is concerned, I am afraid that the same is legally maintainable being against the established principle of law "any transfer out of a joint khata even with regard to a specific khasra number is always subject to final adjustment of partition and no person can claim his exclusive ownership with regard to a specific khasra number on the ground of having been purchased by him to the exclusion of other co- sharer". The learned counsel for the petitioners has therefore, rightly placed reliance on the case "Mustafa and 3 others v. Muhammad Khan and another" (NLR 1978 Civil 539) and "Shah Hussain v.
Abdul Qayum and others" 1984 SCMR 427) cited above which, on all force, are applicable to the facts and circumstances of the present case. Therefore, this objection of the learned counsel for the respondents is turned down being not tenable in law.
10. As regards the case-law cited by learned counsel for the respondents to canvass the proposition that as grant or refusal of decree for specific performance by the Court was a discretionary relief within the meaning of section 12 of the Specific Relief Act the court is not always bound to decree suit for specific performance even in case where the contract is proved, is concerned, I am afraid that neither the said proposition is applicable to the facts and circumstances of the present case nor the case law cited by the learned counsel has any application to the present case. Rather the judgment of the Hon'ble Supreme Court of Pakistan "Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others" (1994 SCMR 2189) referred to by learned counsel for the respondents himself, supports the case of the petitioners.
11. The abovementioned appraisal of evidence, analysis of the arguments of learned counsel for the parties as well as the case-law, lead me to conclude that the findings of learned Additional District Judge on Issues Nos.6, 7 and 8 holding the agreement in question as without consideration and dismissing the suit of the petitioners, are not sustainable at all. Resultantly, this Civil Revision succeeds and is accordingly allowed, as such by setting aside the judgment of the learned Additional District Judge, the judgment and decree passed by the learned trial court in favour of the petitioners, is restored. However, the decree passed by the learned trial court in favour of the petitioners shall be subject to the condition that same shall be though regarding 8 kanals of land yet would be the share of the respondents out of entire joint khata subject to determination/adjustment on partition. Decree sheet be amended accordingly.