' AMIN-UD-DIN KHAN, J.---Through this RSA the appellant has challenged the judgment and decree dated 30-1-2008 passed by learned District Judge, Bahawalngar whereby he dismissed the appeal filed against the judgment and decree dated 16-7-2007 passed by learned Civil Judge 1st Class, Bahawalnagar.
2. Brief facts of the case are given in the judgment of the learned trial Court. The learned trial court after conclusion of trial refused the relief for specific performance on the ground that the suit land being in the border area without NOC from the concerned department cannot be decreed. The learned trial Court observed that the department has refused to grant NOC. These findings were upheld by the learned First Appellate Court.
3. Learned counsel for the petitioner submits that the learned trial Court as well as learned First Appellate Court has admitted the agreement between the parties and therefore, the courts have passed a decree for Rs,1,62,000 for the recovery of earnest money; that the defendant/respondent has not filed any appeal or cross objections against the judgment and decree dated 16-7-2007 passed by the learned trial Court, therefore, he is estopped to challenge the findings of both the courts below recorded on the points of facts. He contends that only the legal question of law involved is whether NOC from the concerned department was necessary before passing of the decree for specific performance in favour of the appellant; that the stand of the appellant/ plaintiff that the agreement was admitted by both the courts below is not factually correct; that previously the plaintiff filed a suit for specific performance, the copy of which is Exh.D4 which plaint was rejected on 8-7-2000 copy of which is Exh.P5, this plaint was rejected due to nonpayment of court- fee.
4. Learned counsel for the respondents has supported the impugned judgments.
5. I have heard the learned counsel for the parties and have gone through the record with their able assistance.
6. First of all I will take the point of maintainability of the suit, raised by learned counsel for the defendants on the basis of Exh.D4 and Exh.D5. I have noticed that the plaint Exh.D4 was rejected through order Exh.D5 on the basis of non-payment of court-fee. I am afraid that contention of learned counsel for the defendants is not in accordance with law as under Order VII Rule 13, C.P.C.
The rejection of plaint on any of the grounds mentioned in Order VII Rule 11, C.P.C. Not precludes the plaintiff from presenting a fresh plaint in respect of the same cause of action. The decree for specific performance on the agreement to sell, the decree declares a right of decree holder to have property agreed to transfer to him. Title of the property vests in the judgment-debtor till sale- deed is executed and registered in favour of the decree-holder. On this point I am fortified with law laid down in Muhammad Ishaq v. Muhammad Siddique (PLD 1975 Lahore 909). The suit for specific performance of agreement to sell land which is a subject matter of the suit if it relates to the Colonization of Government Lands (Punjab) Act (V of 1912), in such suit after the acquisition of proprietary rights plaintiff was competent to file the suit and court was legally correct to decree the suit for specific performance in those cases where the limitation is not a bar in the way of plaintiff.
Reliance can be placed on Muhammad Hanif through Legal Heirs v. Province of Punjab through District Collector, Vehari and others (2007 CLC 1309). So far as the point of NOC is concerned, the Hon'ble Supreme Court of Pakistan in a judgment reported in Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney and another (PLD 2008 Supreme Court 591) in a similar border area Para. 6(b) of West Pakistan Border Area Settlement Scheme 1962 is to restrain undesirable persons to occupy or purchase the land situated in the boarder belt. If the vendee was neither adjudicated upon nor declared "undesirable" or "not a suitable person" to settle in border belt by any forum of competent jurisdiction, it could not be said that such vendee was either an "undesirable person" or "not suitable person" and unfit to occupy the land in border belt. I find that parties to the suit are real brothers, therefore, this hurdle is not applicable in this case. The passing of decree for specific performance was not prohibited by any law or even as I have held supra NOC was also not necessary before passing of the decree for specific performance of the contract.
7. In the light of what has been discussed above this appeal is accepted. It has already been held that defendant has received Rs,1,62,000. The suit for specific performance of the contract is decreed to the extent of 100 kanals out of the suit land subject to deposit of Rs,8,38,000 (as he himself valued the suit property as Rs, 10,00,000) within one month from today failing which the suit shall stand dismissed. The parties are left to bear their own costs.