' SYED ASGHAR HAIDER, J.---The petitioner filed a suit for declaration and consequential relief pleading that House No,47/M, which is subject-matter of the present dispute, was purchased by his father and he has been living in the house with his brother, Nazir Ahmad, who later got it transferred in his name. The father of the parties filed an application before the Administrator Corporation detailing this fraud, however, the matter was got compromised on 21-4-1999, according to which respondent No,2 agreed to transfer a plot, measuring 5 Marlas, situated at Lahore Road Bhagtanwala, till 15-7-1999, to the petitioner, in case of default respondent, Nazir Ahmad, was required to pay damages to the petitioner in the sum of Rs,1 Lac and the petitioner be deemed owner of the house, despite lapse of target date the State plot was not transferred in the name of the petitioner, hence he has become owner of the house in his own rights. Conversely, respondent No,2 also filed a suit for possession claiming to be the owner of the property in his own right on the strength of documentary evidence and the stated agreement.
2. The trial Court consolidated the suits and framed consolidated issues, it decreed the suit of respondent No,2 and dismissed the suit of the petitioner. The petitioner filed appeal against the consolidated judgment and decree, it also was dismissed, hence the present petition by the petitioner.
3. Learned counsel for the petitioner submitted, inter alia, that the petitioner has become owner of the disputed house pursuant to the agreement (Mark "A") entered inter se the parties, which, though is not exhibited, but has been admitted by both the parties, further that the compromise dated 21-4-1999, Clinches whole issue and, in fact, binds both the parties and determines their respective obligation, penalties and rights, it envisages reciprocal promises and in case of default penalties contained therein are determined, but unfortunately the Courts below committed glaring illegalities and have not determined the recitals of the agreement correctly.
4. Conversely, the learned counsel for respondent No,2 submitted that there are concurrent findings of two Courts below against the petitioner, therefore, this Court has limited jurisdiction to examine the controversy de novo and the petition be dismissed in view of these findings, further Mark "A" binds both parties and defines their rights and obligations the respondent has performed his part of the agreement and has so stated in the trial Court and also in this Court that he is ready and willing to perform his obligations and transfer the stated plot, but because of legal complications it could not be transferred in the name of the petitioner, although he has no objection if the petitioner takes possession of the same and constructs a house thereon as agreed.
5. I have heard the learned counsel for the parties at length. Serious endeavours were made by the counsel of the parties on the asking of this Court to effect compromise, as both parties are real brothers and the respondent is ready and willing to part with the plot as agreed. Offers and counter offers were exchanged, but nothing could crystallize, therefore, the secretary of the society was summoned in this Court and was directed to devise a method for transfer of plot to settle this controversy. He stated that under the Society's Bye Laws a 10 Marla plot cannot be segmented into two parts, the plot has to be transferred in entirety. In view of this statement, the respondent Nazir Ahmad offered the petitioner entire transfer of plot, subject to payment of 5 Marlas, but he declined. Therefore, the counsel for the parties addressed arguments on merits pleading that the petition be decided on merits.
6. Mark "A" is admitted by both parties, it clearly determines their rights and obligations, it stipulates that the petitioner, who is in possession of the disputed property, would vacate the same and handover possession to the respondent, Nazir Ahmad, by 15-74999, who is required to transfer half share of the disputed lot, i.e, 5 Marlas, in favour of the petitioner without any consideration. It also is stipulated that in case of default the petitioner would be at liberty to get the same transferred in his favour by process of law and if the plot is not transferred in favour of the petitioner, respondent would pay him a sum of Rs,1 Lac, and the petitioner would be deemed to have become owner of the house in his own rights. It also is stipulated in the agreement that in case the petitioner does not vacate the house by the stated date he will pay a sum of Rs,1 Lac as penalty and will not be entitled to 5 Marlas plot.
7. The contents of the document are clear and explicit, respondent No,2 Nazir Ahmad was under a legal obligation to transfer 5 Marlas of this plot to the petitioner, in case needful could not be done, for any reason, then the petitioner could retain possession of the property it his own right. It is clear that responder No,2 was not able to transfer the states plot, as promised, therefore, the petitioner was not required to vacate the house by the target date. It goes without saying that the respondent has made efforts for the transfer of plot, but for the reasons beyond hi: control has not succeeded, therefore, the agreement is not capable of being performed. The trial Court and the lower appellate Court unfortunately have not examined and deciphered Mark "A" properly, the said document can either be accepted in entirety or rejected, but cannot be acted upon piecemeal.
The agreement B contains reciprocal promises, and both parties are required to perform them, the petitioner alone could not be held guilty of non-performance and ordered to vacate the premises.
' Therefore, this petition is allowed, impugned judgments and decree of both the Courts below are set aside, proceedings are remanded to the trial Court to determine the effect and default of the parties qua Mark "A" by framing a proper issue and permitting the parties to lead evidence thereon.
Parties to appear before the District Judge on 23-7-2008, who shall transfer the proceedings to a Court of competent jurisdiction for adjudication.