' MUHAMMAD KHALID ALVI, J.---With the concurrence of the learned counsel for the parties, this petition is treated as Pacca Case.
2. Brief facts of the case are that respondent / plaintiff filed a suit on 20-12-1986 seeking performance of registered agreement to sell dated 3-3-1981 executed by Allah Dad predecessor in A interest of respondents Nos.1 to 4 for the sale of land to be allotted to him in lieu of Permit No,0005354 dated 5-11-1980 and an amount of Rs,29,000 out of Rs,30,000 was received with a balance of Rs,1,000 to be paid. Suit was contested by the present petitioners with the assertion that property in dispute has already been sold by petitioners Nos.1 to 4 in favour of petitioners Nos.5 to 8.
They also disputed the execution of the agreement. After recording evidence of the parties, the learned trial Court vide judgn ent and decree dated 22-7-1999 dismissed the suit. The same was assailed by the respondent through an appeal which was allowed vide Judments and decree dated 13-10-2001.This appellate decree is being assailed through the instant civil revision.
3. It is contended by learned counsel for the petitioners that at the time when the disputed agreement was entered into, there was no corpus available with him which he could transfer to the respondent, therefore, the agreement is void. Relies on Maulvi Abdul Aziz Khan v. Nawabzada Sarfraz Ali and others 1985 SCM R 98 and Mian Muhammad Saleem and others v. Mst. Hameeda Begum and others 1987 SCM R 624. With reference to section 43 of the Transfer of Property Act, it is contended that nothing has been pleaded by the respondent/plaintiff that act of the predecessor of the petitioners was either fraudulent or erroneous, therefore, respondent cannot claim advantage of the said provisions of law. It is further added with reference to section 18 of the Specific Relief Act that in order to seek protection of the said provisions "certain property" has to be in existence at the time of execution of the agreement. It is also added that only Zardar Khan, one of the marginal witness of Exh.P1, the disputed agreement was produced, therefore, in view of Articles 17 and 79 of the Qanun-e-Shahadat D Order, execution of Exh.P1, is not established. Relies on Riaz ur Rehman and others v. Muhammad Urs 2005 M LD 1954.
4. On the other hand, learned counsel for the respondent has submitted that corpus of the land is identifiable from Exh.P3 allotment order dated 29-6-1982, which contains number of the permit as well, therefore, at the time of filing of the suit the property was identifiable.
5. I have considered arguments of learned counsel for the parties.
6. There is no denying the fact that the agreement with regard to certain property would not be enforceable if by any exercise property under the said agreement could not be identified. However, if such property could be identifiable with exactitude with reference to the agreement, then presence or absence of the corpus at the time of agreement would become immaterial. In the instant case, the agreement was with respect to property to be allotted to the predecessor of the petitioners in terms of Permit No,005354 and Exh.3 clearly indicates that property detailed in the head note of the plaint is the F same which was allotted to Allah Dad against the said permit, therefore, there is no ambiguity with regard to the identity of the property.
7. So far as production of only one marginal witness is concerned, having all respect to the judgment cited, it is to be noted that the judgment was delivered with a concept that law of evidence/Qanun-eShahadat Order is procedural law, therefore, the same will have retrospective effect. In my humble view, rights of the parties are to be determined in such-like cases on the date when the agreement was executed and the mode of proof and the quantity of evidence would also be the same which was required on the said date, therefore, the cited judgment would not be applicable to the instant case.
8. Apart from this, conduct of the petitioners is also evident from the fact that not only Exh.P1, the agreement was executed by Allah Dad but he got a step ahead by giving a general power of attorney to the respondent on the same day which was also registered giving all powers to respondent, therefore, mere denial on the part of the petitioners of having not executed the documents Exh.P1 and P2 does not make out a case for interference by this Court in the appellate decree.
9. For what has been stated above, I find no merit in this petition, which is accordingly dismissed.