AMIR HANI MUSLIM, J. - Through these proceedings the appellant has challenged the order of the Lahore High Court by which it has allowed the Civil Revision filed by the Respondent No. 1 thereby setting aside the judgment and decree of the District Judge Sahiwal passed on 19.12.2005 and affirming the decree of the Trial Court dated 1.11.1986.
2. The facts of the case as they appear from the record are that respondent No. 1 along with one Haitam filed suit for specific performance and injunction against the Respondents No. 2 and 3. The Respondent No. 2 was allotted land measuring 100 Kanals and 5 marlas under 'Grow More Food Scheme' of the provincial government. Prior to the allotment of land to Ali Muhammad (Respondent No. 2), he had agreed to sell 414 Acres of land to Muhammad Aslam (Respondent No. 1), 2 Acres of land to Sakhai Muhammad (Respondent No. 3) and 4 Acres and 5 Marlas to one Haitam at the rate of Rs. 2000/- Per Acre, out of the allotted land. With the joint efforts of respondents No. 1, 2, 3 and Haitam the land was allotted in the name of the Respondent No. 2 and thereafter, Respondents No. 1, 3 and Haitam in terms of oral agreement on payment of their respective shares got possession of the land from the Respondent No. 2 and since then they claimed to be in continuous cultivating possession.
3. The respondent No. 1 claims that since he was a government servant, therefore, his father was cultivating the land purchased by him. The land was barren and after huge investments made by the parties, the land was made cultivatable. Since the land was allotted in the name of the Respondent No. 2, therefore, he was liable to get the agreed portion of the land mutated in the revenue record in terms of the oral agreement. However, in the meantime the allotment in favour of Ali Muhammad-Respondent No. 2 was cancelled by the Board of Revenue which, however, was subsequently restored with the efforts of the parties.
4. On 27.5.1976 by a registered Iqrarnama, the parties affirmed the terms of the oral agreement agreed between them prior to the allotment of the land in favour of the Respondent No. 2. The Respondent No. 2, however, on one or the other pretext avoided to transfer and mutate the land in favour of the Respondents No. 1, 3 and Haitam. As a result of which when the Respondent No. 1 learnt that the Respondent No. 2 intends to sell the land in their possession to some one else, the aforesaid suit was filed by Haitam and the Respondent No. 1 Haitam, who was the brother of the Respondent No. 2 withdrew himself from the aforesaid suit hence the suit alone was contested by the Respondent No. 1 against the other respondents.
5. Written statement was filed by the Respondent No. 2 in which he denied to have received the sale consideration of the land from the Respondent No. 1 whereas the other two purchasers had withdrawn their rights in the land which they acquired under the sale agreement and the deed of Iqrarnama, In the written statement the Respondent No. 2 pleaded that the Respondent No. 1 was in un-authorized possession of the land in question. The Trial Court framed issues whereafter it recorded the evidence of the parties. The Trial Court after hearing the arguments of the parties had decreed the suit of the respondent No. 1 to the extent of his share in the land against which appeal was filed by the appellant challenging the decree, inter alia, on the ground that he has purchased the land from the Respondent No. 2 Ali Muhammad and was bona fide purchaser without notice.
The Additional District Judge, Sahiwal, after hearing the parties had dismissed the appeal on 9.1.1990, affirming the decree of the Trial Court. The appellant filed Civil Revision before the learned High Court at Multan Bench allowed the revision on 5.5.2003 and remanded the case to the Appellate Court with the direction to decide the matter afresh after considering additional documentary evidence produced by the appellant before the appellate forum.
6. The respondent No. 1 Muhammad Aslam sought review of the judgment of the Lahore High Court by filing Civil Review Application which review application was also dismissed on 24.3.2005.
7. On remand the District Judge Sahiwal by its judgment dated 19.12.2005 partly allowed the appeal dismissing the suit of the respondent No. 1 to the extent of specific performance and decreed the suit in his favour against Ali Muhammad-Respondent No. 1 to the extent that the Respondent No. 1 was entitled to recovery of Rs. 9,000/- along with 6% interest from 23.2.1959 which was the date of oral sale agreement till the realizations of the sale amount. This judgment of the lower Appellate Court, was challenged through Civil Revision before the Lahore High Court, Multan Bench and vide impugned judgment the Lahore High Court had allowed the Civil Revision set aside the judgment of the District Judge Sahiwal and affirmed, the decree passed by the Trial Court in favour of the Respondent No. 1.
8. It has been contended by the learned counsel for the appellant that the appellant was bona fide purchaser and the suit filed by the Respondent No. 1 against the Respondent No. 2 was not maintainable on the ground of acquiescence waiver. He next contended that the learned Judge in Chambers of the Lahore High Court has mis-read the evidence while allowing the Civil Revision of the Respondent No. 1. The further contention of the learned counsel for appellant was that the sale agreement between the Respondent No. 1 and the Respondent No. 2 was violative of the provisions of Section 10 of the Contract Act. His next contention was that on the date of sale agreement and Iqrarnama, Ali Muhammad Respondent No. 2 did not have title.
9. His further contention was that the sale agreement was violative of the provision of Section 19 of the Colonization Act, 1912, which requires the prior permission of the Commissioner for sale, which permission was not sought and, therefore, there was not valid contract between the parties to be enforced through Court of law. According to him the suit was incompetent and could, not have been decreed in favour of the Respondent No. 1. In addition, the learned counsel submitted that there was no evidence brought on record, to establish that any payment was made by the Respondent No. 1 and Respondent No. 3 towards sale consideration to the Respondent No. 2. He lastly contended that Exb. D-16, which was's receipt signed by the Respondent No. 1, reflects that the sale agreement and Iqrarnama were manufactured and the land in question was never sold by the Respondent No. 2 to Respondent No. 1.
10. In rebuttal, the counsel for the Respondent No. 1 has contended that respondent No. 1 was bona fide purchaser and was in cultivating possession of land for the last more than 35 years. He submitted that Ex.D-16 was never produced by the Respondent No. 2 during trial; but, in cross- examination the Respondent No. 1 was confronted with the said exhibit which does not spell out the description of land itself. He had contended that the impugned judgment is based on correct appreciation of evidence and the appeal is liable to be dismissed.
11. We have heard the learned counsel for the parties and' have also perused the record. Neither the appellant, who claims to have purchased the land from the Respondent No. 2, nor the Respondents No. 2 has disputed the contents of Exb. P-1 (Iqrarnama), which is a registered document. The contents of Iqrarnama clearly establishes that the land in dispute was agreed to be sold by the respondent No. 2 to the Respondent No. 1, 3 and Haitam, the real brother of Respondent No. 2, prior to the allotment. The Iqrarnama further spells out the areas to be sold to the aforesaid persons and the sale consideration was agreed between the parties. The very Iqrarnama affirms the terms of oral sale agreement agreed between them, prior to the allotment of land, It was further affirmed in the Iqrarnama that the entire sale consideration was paid by the purchaser in advance and possession of the land was handed over to the parties on the allotment made in favour of the Respondent No. 2.
12. At the time of execution of the Iqrarnama, the Respondent No. 2 only had the allotment order and has agreed to transfer and mutate the portions of land, upon conferment of the proprietary rights on him subject to payment of cost of transfer and or mutation without any hindrance, It was further agreed in the Iqrarnama that if the Respondent No. 2 deviates from the terms of Iqrarnama, he shall not only return the sale consideration received by him but shall pay an amount of Rs.
25,000/- as fine to the vendees. The vendees were given option to get the lands transferred through competent Court of law in case the respondent No. 2 violates the terms of the Iqrarnama.
Under the Iqrarnama, the Respondent No. 2 not only has acknowledged to have received the entire sale consideration at the time of oral sale agreement in 1958 but has also acknowledged that he has handed over the possession of the lands to the , Respondents No. 2, 3 and Haitam immediately after its allotment. The contents of the Iqrarnama (Ex.P/1) is reproduced herein below for ready reference:- ((Urdu Text))
12. The contention of the learned counsel for the appellant that no sale consideration was received by the Respondent No. 2 on the date of execution of Iqrarnama and the Respondent No. 1 has failed to prove the payment of sale, consideration to the Respondent No. 2 on the said rate is without substance. The contention of the ,learned counsel for the appellant that the attesting witnesses of Iqrarnama namely Shabhir Hussain PW-3 and Shabhir Ahmed, PW-4 have conceded before the Court in their evidence that no sale consideration was paid by the Respondent No. 1 to Respondent No. 2 in their presence is also immaterial. Under the Iqrarnama the Respondent No. 2 acknowledges to receive the entire sale consideration in the year 1958, at the time of oral agreement and on allotment of land in his favour, he had handed over the physical possession of the land in dispute to the respective vendees. The evidence of the marginal witnesses has not been disbelieved by the learned High Court and or by the Courts below. Therefore, in the face of contents of Iqrarnama, which was a registered instrument and was produced as Exh. P/1 without any objection, we hold that the payment of sale consideration acknowledged therein was made to the respondent No. 2 and he could not take a contrary plea of non-payment of sale consideration by improving his version, once he admits the contents of Exh. P/1.
12. In the present proceedings, it is an admitted fact that the respondent No. 2 had acquired the proprietary rights on 12.8.1979. Prior to acquiring such rights, he had agreed under an oral agreement to sell the land to respondents No. 1, 3 and Haitam. The terms of oral-sale agreement were affirmed by the parties by executing the Iqrarnama (Exh. P/1) in 1976. The contents of Exh. P/1 Were merely an agreement to sell, specific performance of which was postponed to a date when the respondent No. 2 was to acquire the proprietary rights. Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and the effort on the part of the contracting parties to keep themselves well within the confines of law to act in accordance with requirements of law. Such an agreement to sell cannot t>e said to be violative of either the express provisions of Section 19 of the Act or of the public policy behind such a statutory provision. We, for the aforesaid reasons, hold that oral agreement of sale and Iqrarnama are not hit by the provisions of Section 19 of the Act.
13. The next contention of the learned counsel for the appellant was that the contract entered into between the parties was invalid as on the date of oral agreement. Of sale and Iqrarnama, the respondent No. 1 did not acquire proprietary rights to sell the interest in the land to the respondent No. 2 and others, therefore, stich a contract was not enforceable in law.
14. We are not impressed by the contention of the learned counsel. We have noticed that contract of such a nature is covered by the definition of 'contingent contract' in terms of Section 31 of the Contract Act, 1872. Section 32 of the said Act provides how contingent contracts are enforceable in law. The law allows enforcement of a contingent contract, after the event upon which it was contingent, has happened. In order to seek enforcement of a contingent contract, the party suing to enforce an obligation', which is conditioned upon the occurrence of an event, has to only establish that the event has occurred in a manner contemplated by the contract for the obligation to arise, In the case in hand, the eventuality was confined to the conferment of proprietary lights on the Respondent No. 2. He acquired proprietary rights~on 12.8.1979, therefore, on his denial to transfer and mutate the land in the name of the Respondent No. 1, the suit was filed, which was competent and the learned High Court and the Trial Court were justified to decree such a suit.
15. The contention of the learned counsel for the appellant that the appellant was bona fide purchaser without notice has also not been established from the material brought on record, The appellant in his evidence has admitted that he was in knowledge of the fact that the Respondents No. 2 and 1 have dispute over the land prior to his purchase of land. He has further admitted in his cross- examination that he has made attempts to resolve the dispute between them. The admission on the part of the appellant coupled with the admitted fact that on the date of sale of land to the appellant, the Respondent No. 2 was not in possession of the land, but Muhammad AN, father of the Respondent No. T, was in possession, clearly establishes that the appellant was in knowledge about the dispute of the land, therefore, he cannot claim to be a bona fide purchaser. It has also come in evidence that the Respondent No. 1 was a government servant and he after purchase of the land and on delivery of its possession has allowed his father to cultivate it, therefore, he had constructive possession over the land.
16. The issue of Exh. D/16, raised by the appellant's counsel was also insignificant. The Exb. D/16 has been produced to confront the Respondent No. 1 during his cress-examination which would not improve the case of the appellant. The Exh. D/16 which is a, receipt, does not spell out the area of land against which the amount of commission was received by the Respondent No. 2. This document was neither relied upon nor referred to in the written statement by the Respondent No. 2 and mere signatures of the Respondent No. 1 on it, in no way, damage the case of the Respondent No. 1 as it does not have any nexus' with the subject land, therefore, no reliance can be placed on Exh. D/16 to draw adverse inference against the Respondent No. 1.
17. The decision of the revenue authorities against the Respondent No. 1 is also insignificant as the authorities themselves have directed the parties including the Respondent No. 2 to approach the Civil Court of competent jurisdiction to resolve their dispute, inter alia, on the ground that enforceability of sale agreement between the parties was beyond the jurisdiction of the revenue authorities to decide.
19. We, for the aforesaid reasons, in the given circumstances, are of the considered view that the impugned judgment of the learned High Court does not suffer from any legal infirmity and it has rightly decreed the suit of the Respondent No. 2 affirming the judgment of the Trial Court. As a consequence,-this appeal is dismissed. The parties are left to bear their own costs.