' CH. SHAHID SAEED, J.--- The instant civil revision has been directed against the judgments and decrees passed by the courts below by way of which suit for specific performance, possession and cancellation of mutations filed by the petitioners was dismissed by the learned trial Court vide judgment and decree dated 28-3-2007. Petitioners preferred an appeal, which also met with the same fate by the learned Addl. District Judge Daska on 17-1-2011.
2. Brief facts of the case necessary for the disposal of this civil revision are that the plaintiffs filed a suit for specific performance, possession and cancellation of Mutations Nos.703 and 708 contending therein that the property measuring 93 kanals and 1-marla falling in Khewat No,115, Khatoni No,112, situated at village Faqir Wali, was owned by the defendants. They entered into an agreement to sell regarding the said property with the plaintiffs on 26-12-1997 against the consideration of Rs,5,24,000 and paid an amount of Rs,75000 as earnest money, while, it was settled that after the payment of remaining sale consideration, the sale deed would be executed till 20-3-1998. The plaintiffs visited the court premises on the said date, but the defendants did not turn up. The plaintiffs contacted them at Gujranwala, so, the target date was extended till 30-3- 1998 but even then the defendants did not contact them on the said date. So, the plaintiffs issued notices to the owners of the property through registered letters and acknowledgement due. On 31- 3-1998, the plaintiffs got the copy of record of rights of suit land and came to know that the defendant No,5 had sold out her property vide Mutations Nos.703 and 708 in favour of defendant No,6 in violation of prior agreement, to sell dated 26-12-1997. Therefore, the subsequent mutations are illegal against law and facts and liable to be cancelled.
3. The defendants appeared before the trial Court and contested the suit by tooth and nail while submitting their written statement. Out of the divergent pleadings of the parties the learned trial Court framed the necessary issues including relief. Both the parties got recorded their oral as well as documentary evidence. The learned trial Court after hearing the arguments of both the parties at length dismissed the suit of the petitioneRs, They preferred an appeal, which was also dismissed.
Feeling aggrieved by the said judgment and decree petitioners have preferred the instant civil revision.
4. Learned counsel for the petitioners contends that the judgments and decrees of both the courts below are against law and facts and also based upon surmises and conjectures; that the Additional District Judge Daska has himself compared the signatures of the respondents on Exh.P.6.
This is function of an expert and the Judge has undertaken this exercise without the expertise.
Further argued that none of the respondents/defendants appeared in person to deny the averments of the plaint in the court. D.W.2 admitted while appearing-as attorney on behalf of respondents Nos.4 and 5 that Exh.P.6 carried the signatures of Syed Jafar Hussain but the courts below have hot considered this important aspect of the case. Both the courts have relied upon the dishonest version of Safdar Hussain who was one of the plaintiffs and admitted in his evidence that he had signed the power of attorney along with the petitioners and had advanced earnest money to the respondents. There is misreading and non-reading of evidence and both the courts below have not taken into consideration all the important aspects of the case. Learned counsel further argued that during the pendency of the trial petitioners filed an application to decide the matter on special oath but the respondents refused this offer, hence the influence would be drawn in favour of the petitioners that the agreement to sell was rightly executed between the parties. On the other hand, learned counsel for the respondents contends that at the very first line of Exh.P.6 i.e. Lqrarnama, allegedly executed between the parties, names of Shagufta Gul, widow, Najia Gul and Saira Gul, minor daughters, who have been shown owners of land regarding which the agreement to sell was executed but neither Shagufta Gul nor the minor daughters were owners at the time of execution of the said agreement to sell, nor their signatures are available on the said document, therefore, they were not legally entitled to enter into an agreement with the petitioners; further states that Najia Gul and Saira Gul were minors at the time of execution of agreement to sell, therefore, if any agreement was made on their behalf that was void ab initio. That the petitioners/vendees have not signed agreement, hence they are not entitled to exercise of discretion in their favour. Further argued that at the time of filing suit Safdar Ali was impleaded as plaintiff No,5, in the suit, but subsequently he appeared as D.W.1 and stated that the suit of the petitioners was based on mala fide intention. Further states that it is settled law that sale agreement being in favour of two vendees or more jointly, withdrawal of one would render such bargain to fall through and not executable.
6. Arguments heard. Record perused.
7. Undeniably, Mst. Shagufta Gul, was not owner of the disputed property at the time of execution of the agreement to sell whereas Najia Gul and Saira Gul were minoRs, One Syed Zia Hussain was their general attorney. Allegedly, on his behalf, said agreement was executed but from the perusal of Exh.P.6 it reveals that Mst. Najia Gul and Saira Gul were minors at that time. Any contract or transaction entered into with minors was void for being unauthorized. Section 11 of the Contract Act, 1872 would make the minors incompetent to enter into any contract, therefore, contract if any made on behalf of the minors girls was void ab initio. A Law forbids enforcement of such transaction even if minor was to ratify the same after attaining majority. Minors could not be burdened with liability of a void contract. Record further reflects that Shagufta Gul was neither the attorney of the minors nor their guardian. She has also got no permission of any Guardian Court to sell out their property. Therefore, the minors have not been properly represented. They were not present at the time of alleged agreement to sell. It is pertinent to mention here that in Exh.P.6 i.e. Lqrarnama shares of Mst. Shagufta Gul as well as minors have not specifically been mentioned. In this regard reference can be made to the case of Muhammad Ali through L.Rs, and another v.
Manzoor Ahmed (2008 SCM R 1031).
8. Another aspect of the case is that plaintiff No,5/Safdar Ali who was also tenant of the respondents initially filed the suit for specific performance along with the other plaintiffs but at evidence stage he appeared as D.W.1 and stated that the alleged agreement to sell had never taken place between the parties. It is also settled law that sale agreement in favour of two or more vendees jointly, withdrawal of one would render such bargain to fall through and agreement of sale having been frustrated, thus came to end and in such situation suit for specific of performance could not be decreed. In this regard reference can be made to the case of Muhammad Ishaq and another v. Mst. Sufia Begum (1992 SCM R 1629).
9. It is evident that petitioners/vendees have not signed on the agreement to sell.
Petitioners/vendees by not signing agreement would assume that they have not accepted any liability under the agreement. Such agreement not signed by vendee was not mutually enforceable and no decree could be passed by on its basis. In this regard reference can be made to the case of Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCM R 334).
10. The contention of learned counsel for the petitioners that the petitioners made an offer before the trial Court to decide the matter on special oath but the respondents refused the said offer, hence the influence would be drawn in favour of the ,petitioners that they have rightly entered into an agreement with the respondents. The said contention is without substance because according to section 4 of Oaths Act a person refusing to take special oath would not be presumed to have made a false statement. In this regard reference can be made to the case of Pervez Alam Khan and 15 others v. Muhammad Mukhtar Khan (2001 CLC 1489).
11. It is also an admitted fact that father of P.W.4, namely, Ghulam Rasool who is also marginal witness of Exh.P.6 himself admitted in his cross-examination that he remained involved in more than one case under sections 420, 468, 471, P.P.C. As per record he had prepared another fake general power of attorney to grab the land of one Faqir Muhammad and in that regard a case was registered against him. Therefore, the learned appellate court has rightly discarded the evidence of the said P.W. Tie cause a person having such like reputation cannot be presumed a truthful witness.
12. Furthermore there is concurrent findings of facts in the matter and the courts below while passing the impugned judgments and decrees have taken into consideration all the material aspects of the case. Findings of the lower courts on question of facts and law based on proper appreciation of oral as well as documentary evidence led in the suit were not susceptible to review to be upset or substituted in revisional jurisdiction. The findings of the courts below based on material on record would not be amenable to interfere with in revisional jurisdiction.
13. Resultantly, this revision petition having no force is dismissed with no order as to costs.