1. ' ARSHAD NOOR KHAN, J.---This civil revision application under section 115, C.P.C. Has been filed by the petitioner against the judgment and decree dated 22-9-2004 and 27-9-2004 respectively passed by the learned IV Additional District Judge, Mirpur Mathelo in Civil Appeal No,16/2000 Rustam and others v. Fazal Hussain Shah through his Legal Heirs whereby the judgment and decree passed by the learned Senior Civil Judge, Ubauro dated 31-1-2000, has been reversed.
2. ' The case of the petitioner in brief is that Fazal Hussain Shah predecessor-ininterest of the petitioner entered into an agreement of sale with one Rustam, the predecessor-in-interest of respondents Nos.1(a) to 1(e) vide agreement of sale on oath dated 21-7-1979 for Survey Numbers 642(4-00), 643 (3-34), 644(1-14), 645(1-36), 646(4-00) and 659(3-17) total (18-21) acres of land situated in deh Naseer Dhaundhoo, Taluka Ubauro, which was granted to Rustam son of Arbab the predecessor-in-interest of the respondents Nos.1(a) to 1(e) by the Colonization Officer, Guddu Barrage, Sukkur in the year, 1964. The petitioner as per contents of the plaint was in physical possession of the land in question, as such grant of land in favour of the said Rustam, was merely a paper grant without possession of the said land. It is further stated in the plaint that according to private settlement in between the parties on Holy Quran the said Rustam relinquished his paper grant in favour of the petitioner after receiving his settled consideration, which was not shown in the agreement executed in between the parties on 31-7-1979. It is also mentioned in the plaint that the said Rustam will obtain T.O from the department and after obtaining the said T.O, he will transfer the land in question in favour of the petitioner, thereafter, it has come in the knowledge of the petitioner that after getting the land in question transferred in the name of respondent Rustam, the same was transferred in the name of his legal heirs. It is further stated in the plaint that prior to issuance of the transfer order, the said Rustam tried to transfer the said land to someone else, which constrained the petitioner to file civil suit being No,469/1981 in the Court of Civil Judge, Mirpur Mathelo for permanent injunction, which was subsequently transferred to Civil Judge, Ubauro in 1982 where a new number was allotted to the suit being No,343/1982, which was dismissed on 30- 9-1986 against which, the appeal was preferred being Civil Appeal No,57/1986 by the petitioner, which was allowed and the matter was remanded to the Civil Judge, Ubuaro for decision on merits and finally the suit was decreed. It is further stated in the plaint that after issuance of T.O. On 30-9- 1989, the respondent Rustam did not transfer the land in question in favour of the petitioner, which fact came to his knowledge on 30-10-1989 therefore he filed suit for specific performance of contract and for permanent injunction against the respondents. The respondents filed their written statement, denying therein, inter alia, the assertions contained in the plaint. The learned trial Court framed as many as seven issues, which subsequently were also increased by framing five other additional issues. After framing issues the parties lead their evidence in pro and contra to their respective claim and the learned Senior Civil Judge, Ubauro vide judgment and decree dated 31-1- 2000 decreed the suit as prayed. The respondent Rustam filed Civil Appeal No,16/2000, which was entrusted to the learned IV Additional District Judge, Mirpur Mathelo, who after hearing of the learned counsel for the parties, allowed the same and set aside the judgment and decree passed by the learned Senior Civil Judge, Ubauro; hence the present revision application.
3. ' I have heard Mr. Parya Ram M. Vasvani, learned counsel for the petitioner and Mr. Shaikh Amanullah, learned counsel for respondents.
4. ' The learned counsel for the petitioner vehemently contended that in the year 1964 the land in question was granted to respondent Rustam, who was not in possession of the said land, therefore, he executed sale agreement on 31-7-1979. According to him, the said agreement was contingent agreement, which had to perform on receipt of final transfer order in favour of Rustam but Rustam in the year 1989 after getting transfer order in his favour did not conveyed and transferred the property to the petitioner, therefore, he filed the suit for specific performance of the contract, which was rightly decreed by the trial Court and has wrongly been reversed by the learned appellate Court. He further vehemently contended that the learned appellate Court non-suited the petitioner on the ground that marginal witnesses to the said sale agreement, were not examined therefore, the matter was hit under Article 79 of the Qanun-e-Shahadat Act and that the petitioner had not challenged the original grant in favour of the respondent, therefore, the suit was not maintainable and has further contended that the sufficient evidence is available on record to show that the marginal witnesses except one witness have expired long back and the remaining one marginal witness has shifted to some other unknown place, therefore, it was beyond the power and competency of the petitioner to produce the marginal witnesses before the Court and that the original grant could not be challenged by the petitioner as it was condition precedent to the sale agreement that after issuance of transfer order the property shall be conveyed to the petitioner.
5. According to him the suit in any way was not barred because the sale agreement was executed with the condition that after issuance of transfer order the property shall be conveyed and transferred to the petitioner and the T.0 was finally issued in favour of the respondent on 30-9-1989 and the suit had been filed on 5-10-1989, therefore, the suit was also not barred under any law. In support of his contentions, he has relied upon the case of Mst. Rehmat Bibi v Jhando Bibi reported in 1992 SCM R 1510 and the case of Dault All through Legal Heirs v. Ahmed through Legal Heirs reported in PLD 2000 SC 792.
6. ' The learned counsel for the respondents vehemently contended that the land was granted by Colonization Officer under the provisions of Colonization of Government Lands (Punjab) Act, 1912 as applicable in Sindh, (hereinafter shall be referred to as the Act 1912) and since the grant was running grant which in view of section 19 of the Act, 1912 could not be alienated or transferred even for 20 years from the date of the grant of land in the aforesaid scheme. It is further contended that the sale agreement was never executed by the father of the respondents Nos.1(a) to 1(e), they are in possession of the property in question, as such the suit for specific performance of the contract in any case, was not maintainable and the learned appellate Court rightly reversed the judgment and decree passed by learned 'trial Court, which need no interference by this Court.
7. ' I have considered the arguments advanced on behalf of the parties and have gone through the entire material available before me as well as the case law on the subject.
8. ' Fazal Hussain Shah the petitioner has based his claim on the basis of sale agreement dated 31-7- 1979 Exh.152, which allegedly has been executed by Rustam, the respondent No,1 and a perusal of the said sale agreement, Exh.152 shows that it was executed on solemn affirmation on Holy Quran.
9. By virtue of said agreement, the said Rustam has stated that since Fazal Hussain is in possession of the land in question, who is paying the instalments to the Government, as such he relinquished his right in the land in question in his favour and he will transfer the same to him on issuance of T.0 in his favour. A perusal of the said sale agreement Exh.152 shows that the land in question was granted to Rustam by the Colonization Officer, Guddu Barrage, Sukkur in the year 1964. The said barrage land is always transferred to the person/hari who is in possession of the land in question and as per record of the Colonization Officer the said Rustam was entitled for allotment of the land in question, therefore, the land being running grant, was allotted to him. The said Rustam was within his right to dispose of the same by executing sale agreement, which fact is not debatable for the reasons that the said land during the subsistence of running grant could be disposed of by the grantee and in the event of final transfer order, property may be finally transferred by him in favour of vendee but for the said purpose the consideration for sale of said property could not be ignored because whenever there is contract there must be consideration, which is the requirement of the valid contract as valid contract always bears necessary essentials viz proposal, acceptance and consideration. To constitute a contract as valid contract enforcible under the law all the three conditions must coexist and in case, if, any one essential requirement is lacking, the said contract could not be termed to be a valid contract. In the present case I have minutely gone through the contents of the sale agreement Exh.152 and found that nowhere in the said sale agreement consideration of sale is mentioned nor it bears any endorsement regarding receipt of any settled consideration by the respondent, as stated in para 3 of the plaint. The respondent Rustam, in para 5 of his written statement has vehemently denied the assertion of petitioner regarding receipt of any settled consideration and has pleaded that the agreement is without consideration. The sale agreement Exh.152 is therefore, admittedly lacking the one of the valid essential of consideration and since the consideration for transfer of the said land in question is lacking, as such the sale agreement could not be treated as valid agreement and could not be enforced in view of section 25 of the Contract Act. Section 25 of the Contract Act postulates that an agreement without consideration is void unless it is expressed in writing and registered under the law for the time being in force for the registration of the documents and is made on account of natural love and affection between the parties standing in near relation to each other. In the present case no evidence is available on record to show that the parties to the contract are close relatives and have natural love and affection in between them so as to say that the said transfer, is not hit under the provisions of section 25 of the Contract Act. The scope of section 25 of the Contract Act has repeatedly been considered by the Honourable Supreme Court in number of cases and it has consistently been observed by the Honourable Supreme Court that the agreement which are without consideration could not be enforced specifically. If any authority is needed, the reference may be had to the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi reported in PLD 1990 SC 1. The case of Mst. Safia and another v. Muhammad Rafiq and others reported in PLD 1993 SC 62 wherein Honourable Supreme Court was pleased to observe that section 25 of the Contract Act declares all those agreement void which are without consideration except for an exception created by the law itself. In the present case as discussed above, the consideration of sale of the land in question, is totally lacking ab-initio and it has not been established from the evidence available on record to show that the parties are close relatives inter se, who out of love and affection transferred said property, as such in my humble opinion, the sale agreement Exh.152 is void agreement and could not be specifically enforced. Even by virtue of section 28 of the Specific Relief Act, the Court can refuse the specific performance of the contract on the ground that, the consideration is inadequate. The suit filed by the petitioner was therefore completely barred under section 25 of the Contract Act and under section 28 of Specific Relief Act.
10. ' The learned counsel for the petitioner has vehemently contended that the sale agreement based on running grant could be executed and enforced upon because section 19 of the Act, 1912 does not put an embargo on transfer of the same by way of sale agreement and in support of his contention he has relied upon the case of Mst. Rehamt Bibi (1992 SCM R 1510). The contention raised by the learned counsel for the petitioner is in consonance with the observations made by the Honourable Supreme Court in the case of Rehmat Bibi, (supra) wherein, the Honourable Supreme Court was pleased to observe that there was no bar in alienation of the land by way of execution of the agreement, which could be specifically enforced after the grant of proprietary right and for that purpose the bar in section 19 of the Act, 1912 does not come in operation. Similar observations have also been made by the Honourable Supreme Court in the case of Daulat Ali (PLD 2000 SC 792) but both the cases relied upon by the learned counsel for the petitioner, in my humble opinion are not applicable to the circumstances of the present case as in the case of Mst. Rehmat Bibi, supra the sale agreement involved in that case, was executed for a consideration of Rs,36000 whereas in the case of Dault Ali, supra, the sale consideration was agreed in between the parties to the tune of Rs,15000, which fact are miserably lacking in the present case as in the case in hand, there is no consideration settled in between the parties nor mentioned in the sale agreement Exh.152. Even in the plaint it has been admitted that the consideration of sale has not been mentioned in the sale agreement and said consideration has been paid to the allottee namely Rustam but neither the quantum of sale consideration, has been disclosed in the plaint nor it is cleared, as to when and in whose presence, the said consideration was paid to the said Rustam. In such State of affairs as observed above, the sale agreement Exh.152 is void agreement being without consideration, which could not be specifically enforced. Since it has been adjudged that sale agreement Exh.152 is void agreement, therefore, it is not necessary to dilate upon the other submissions advanced by the learned counsel for the petitioner viz examination of the marginal witnesses in support of sale agreement Exh.152 etc. After considering the material available on record as well as the case law on the subject, I am of the opinion that the learned appellate Court rightly reversed the judgment and decree passed by the learned trial Court for specific performance of the contract and I do not find any jurisdictional defect in the judgment and decree impugned herein. The revision application has therefore, no merit and the same is hereby dismissed with no order as to cost.