' propose to dispose of 1st Appeal No, 64 of 1968 and 1st Appeal No, 65 of 1968 by this judgment as they arise out of a common judgment disposing of two cross-suits filed by the parties against each other.
2. The dispute in this case relates to agricultural land bearing Survey Nos. 70311 to 4 and 705/4 situated in Deh Keenjhar, District Dadu. It is common ground that this land was transferred to the appellant in lieu of his claim together with some other land and by agreement dated 31st January, 1967 the appellant undertook to sell the aforesaid land to the respondents for a consideration of Rs, 18,000 after receiving an advance payment of Rs, 9,000 in cash. The respondents filed Suit No, 8 of 1967 in the Court of District Judge, Dadu on 11th April, 1967 for specific performance of the aforesaid contract and permanent injunction. The case of the respondents was that upon execution of the agreement for sale and after receiving part of the consideration viz., Rs, 9,000, the appellant had made over the possession of the land to the respondents on the same day. According to the terms of the agreement the standing crop on the suit land was to be appropriated by the respondents who were also responsible for the payment of land revenue. It was stipulated that the final sale deed shall be registered on 27th March, 1967 5vheti the retpoila dents would pay the balance of the consideration and both parties would meet at the office of Mohammad Hashim Memon, Bond writer at Dadu. According to the allegations of the respondents they were present at the appointed place on the appointed date alongwith the balance amount of consideration but the appellant did not turn up and thereby committed breach of agreement. The respondents also despatched a notice through their counsel on the appellant on his two addresses known to them but the appellant refused to accept the same. On the other hand, the appellant was alleged to be trying to secure other purchaser with the mala fide intention to dispose of the land at higher price.
3. The appellant did not deny the execution of the agreement for sale and the receipt of part of the consideration but denied having delivered possession of the land to the respondents. His plea was that by taking over possession of the suit land on 31st January, 1967 the date of the agreement for sale, the respondents had themselves committed breach of contract and were, therefore, trespassers upon the land. He also admitted that the standing crops were the property of the respondents as provided by the agreement, but the wheat crop standing on the land was to be appropriated by them only after full payment of the consideration, execution and registration of the conveyance deed. He alleged that besides wheat there was sugarcane, barseem, losan and oil seed cultivation on the land which was forcibly taken away by the respondents before the appointed date, i,e, 27th March 1967. The appellant further contended that he took exception to the conduct of the respondents by means of written communication dated 24th February, 1967 and called upon them to return the Zamindari share of the produce taken away by them, but the respondents maintained that the entire crop belonged to them and refused to return the same. In the aforesaid circumstances the appellant pleaded that the contract ceased to be enforceable as against him unless the respondents paid damages. He further contended that he was ready and willing to perform his part of the contract but owing to the misconduct of the respondents resulting in violation and breach of the terms of contract before the stipulated date for execution of the conveyance deed, the contract was rendered null and void. He, therefore, did not go to the appointed place for execution of the deed.
4. On 23rd January, 1968 the appellant also filed a suit bearing No, 19 of 1968 in the same Court for possession, mesne profits and damages on the same pleas as he had raised in his defence in the former suit. Additionally he also raised the plea that the agreement for sale was void being in violation of the restrictions imposed by the Land Reforms Regulation. The respondents resisted the suit and set up the same case in defence as was contained in their suit. By common judgment dated 4th May 1968 the learned District Judge decreed the suit of the respondents for specific performance of contract and dismissed the suit filed by the appellant.
5, Mr. S. A. Jamali first contended that the respondents by their own act in breach of the terms of contract disabled the appellant from performing his part of the contract and therefore, they were not entitled to a decree for specific performance. Now the agreement between the parties provided that the possession of the land would be handed over to the purchasers after receiving the full payment and that the standing crop of wheat was included in the transaction which will be appropriated by the purchasers and they will 'pay the land revenue. The case of the respondents in the plaint was that the possession was handed to them on the date of the agreement. In the evidence, however, respondent Khushi Mohammad stated that the respondents took the wheat crop in accordance with the terms of the contract. He stated that they took the wheat crop in April, 1967 by taking the zamindari share from Mohammad Ali, hqri of the appellant who reaped the crop.
He also categorically denied that the respondents had entered upon the land before April 1967. He admitted that the possession of the land was not given to them on the date of the agreement. He was contradicted with the plaint and notice dated 27th March 1967 given by them to the appellant through their counsel in which their case was that they were in possession on the date of notice. It is thus clear that the contract stipulated for transfer of possession on 27th March 1967 when the balance of consideration was to be paid and the conveyance deed to be registered. However, it is also clear from the agreement that the respondents were entitled to appropriate the wheat crop. It is in this context that the trial Court came to the conclusion that the respondents had entered upon the land only in order to take the wheat crop and did not dispossess the appellant. The Court below also disbelieved the contention 'of the appellant that the respondents had taken his sugarcane and other crops which according to the estimate of the Court would amount to about Rs, 500.
Learned counsel laid great stress on this point and contended that since the respondents had committed breach of contract by taking over possession and the other standing crops besides the wheat crop, the contract was not liable to be specifically enforced. There is no doubt, as found by the trial Court that the respondents had come with the balance of consideration amounting to Rs, 9,000 on the stipulated date, viz. 27th March, 1967 to the office of the scribe Mohammad Hashim Memon but the appellant failed to appear. Then they deposited this amount of Rs, 9,000 in the National Bank of Pakistan, Dadu Branch for which they have produced the receipts of the same date (Exhs. 14 and 15). They immediately gave notice on the same day through their counsel (Exh.
16) in which they called upon the appellant to honour his contract and execute the conveyance deed after receiving the balance of consideration. Mohammad Hashim, the scribe has also supported the respondents. On the other hand, the evidence of the appellant is that he went to Dadu on 27th March 1967 but did not go to the office of Mohammad Hashim for the purpose of execution and registration of the sale deed for the reason that "I had not to sell the land because of the breach of the agreement (Exh. 13)." His case is that on 24th March, 1967 the respondents told him that they prepared to pay the balance of the consideration amount but he refused to accept the same as the respondents had refused to pay the zamindari share of sugarcane, turia and barseem crop. It is, therefore, ar upon the evidence that the respondents were ready and willing perform their part of the contract and had taken all the steps necessary for completing the sole transaction. But it was the appellant who backed out of the contract on the plea that the respondents had refused to compensate him for the zamindari share of the crops which were not the subject-matter of transfer under the contract. It is clear from the evidence of the appellant, however, that he did not protest against the taking over of possession by the respondents although according to him they had done so in January, 1967, but his main grievance was the appropriation of the aforesaid crops by the respondents. Now the question is whether the appellant has established that there were other crops on the land besides the wheat crop and whether the respondents bad appropriated them. The only evidence on this point is the oral testimony of the appellant himself and his hari Mohammad Ali. The appellant has also produced the land revenue bill which shows that there was cultivation of sugarcane in about 52 acres, barseem (grass) over 4 acres and turia over one acre of land. This has been admitted by the respondents but respondent No. 1 stated in his evidence that these crops were realised by the appellant. Thus there is word against word and there is no reliable evidence that the respondents picked up a quarrel with the appellant over such a paltry matter. The trial Court rejected the evidence of Muhammad Arif, hari of the appellant as an interested witness who paid the land revenue on behalf of the appellant and did not realise the same from him. In his alleged notice dated 24th February 1967 the case of the appellant was that the respondents had taken away raw sugar of the zamindari share prepared by his hari Mohammad Ali. Receipt of this notice has been denied by the respondents and there is no evidence to prove that the same was served on them. The finding of the Court below is, therefore, not liable to be disturbed on this point.
6. Be that as it may, the question that arises for consideration is whether the acts attributed to the respondents are sufficient to disentitle them to the relief of specific performance when they have established that they were ready and willing to pay the balance of consideration on the appointed date and had in fact brought the money for this purpose. In other words, whether the appellant was justified in the circumstances of this case to refuse to perform the contract as stipulated. The Court below has taken the view that the misappropriation of other crops did not constitute the breach of any essential term of the contract so as to render the contract unenforceable. Reference has been made to the alleged notice dated 24th February, 1967 (Exh. 26) given by the appellant which clearly shows that even in spite of the knowledge that the respondents were unwilling to accept the claim of the appellant for compensation regarding other crops, he did not terminate the contract, but on the contrary, only requested the respondents to give him the said produce. He did not send any other notice repudiating the contract on the ground of alleged breach committed by the respondents. Thus the appellant himself kept the contract alive and cannot, therefore, be allowed to contend that the contract came to an end on account of breach committed by the respondents. In Haji Hashim Haji Ahmed & Bros. v. Trading Corporation of Pakistan (1) I had held that rescission of contract (except by mutual consent or by a competent Court) is the right of one party. Arising upon conduct by the other, by which he intimates his intention to abide by contract no longer. It is a right to treat the contract as at end if he chooses to claim damages for its total breach, but it is a right in his option. Section 39 of the Contract Act provides as under :- "When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance."
It is well established that the repudiation of the contract must be total abwlute and clear. There is no evidence in this case that the appellant {{FOOT NOTE}}
(1) PLD 1977 Kar. 48Q {{FOOT NOTE}} repudiated the contract for the alleged breach on the part of the respondents. The result is that the other party could still insist on the performance of the contract as the rights and liabilities of the party remained intact. There is nothing in the contract in the positive or the negative form which can be dgemed to be a term of contract that the other standing crops besides the wheat crop were to be appropriated by the appellant. There is no mention of an other crops in the contract. At best, therefore, the appellant is invoking an implied negative term of contract which does not necessarily follow from the positive term that the standing wheat crop will be the property of the respondents. The argument of Mr. Jamali that in terms of section 54 of the Contract Act the respondents could not claim performance without first performing their reciprocal promise, is without substance. There is in the first place no reciprocal promise in terms of the contract by the respondents that they will not appropriate the other crops and secondly even if such a promise can be inferred by implication, it cannot be said that the appellant could not perform his promise because of failure on the part of the respondents to give him compensation for the other crops.
Section 55 of the Transfer of Property Act does not spell out any such obligation on the part of the purchaser. I, therefore, agree with the Court below that it was the B appellant who committed the breach of contract and the respondents were entitled to specific performance. Nor is the conduct, even if it is assumed that the respondents took away the other crops, such as to disentitle them to the relief of the specific performance. The fact remains that the major crop, namely the wheat crop was their property and they had every right to enter upon the land to look after it and to remove it.
In Ramjanam Bharathi v. Dhurandhar Kuer (I) where the plaintiffs sought specific performance of an agreement to execute a deed of usufructuary mortgage and prepared a document on a stamp paper showing that it was executed by the defendant when it was not done so, it was held that since nothing in the document changed the original terms of contract between the parties, the fraud was not of such a grave nature so as to disentitle the plaintiffs to any relief.
7. The last submission of Mr. Jamali was that the agreement for sale sought to be enforced being in violation of the provisions of the Land Reforms Regulation No, 64 of 1959 was void and as such unenforceable. It was contended that at the time of the agreement in question the total holding of the appellant was 67'22 acres which was beyond the economic holding as defined in the said Regulation and, therefore under para. 25(1) of the said Regulation the appellants was not entitled to alienate by sale any portion of his holding which has the effect of reducing the size of his holding to an area below the limit of an economic holding. The land under the transaction in dispute consists of 20 acres and as such it was submitted that the area remaining after the aforesaid alienation would be less than 64 acres. Admittedly the appellant was finally allowed to retain 52- -03 acres under the Revivification Scheme. It is his contention that the surrendered land consisting of 15.19 acres was re-purchased by him which made up the area of his total holding to 67.22 acres.
However, in the evidence he failed to establish that the alleged area of 1522 acres was finally purchased by him and became his property. He placed reliance on allocation order passed by the Deputy Commissioner. {{FOOT NOTE}}
(1) AIR 1959 Pat. 506 {{FOOT NOTE}} lYadu which shows that 15'19 acres was the area ordered to be surrendered by the appellant and 52'03 acres were retained by him. The case of the appellant is that he had repurchased the surrendered land and in support of this he produced the challan for payment (Exh. 33) dated 14th July 1964 which shows that he paid 4th and 5th instalments in connection with the purchase of surrendered land under K.. L. R. No,
89. This document does not, however, prove that the appellant had by the relevant date paid all the instalments of the purchase price and became owner of the said land. Under the scheme for land surrendered under paragraph 8 of M. L. R. 89 proprietary rights in the land so repurchased on instalment basis were to vest in the purchaser only after the total purchase price had been paid and a regular deed a conveyance was executed. Besides paragraph 4 of the scheme provided that if the purchaser failed to pay two successive instalments the sale shall be liable to cancellation. It was admitted that the six years period for payment of all the instalments had not yet expired at the relevant time. Clearly, therefore, even if the appellant had repurchased the additional area he had not yet become the owner thereof. Further no evidence of final transfer of this area has been produced. Paragraph 25 of Land Reforms Regulation, 1959 clearly places embargo on a person "owning" more than the area of economic holding from alienating any portion of his holding which has the effect of reducing the size of his holding to an area below the limit of an economic holding. The appellant owned 52 acres at the relevant time which is below the limit of an economic holding and as such the restrictions contained in sub-para. (1) of para. 25 of Land Reforms Regulation were not attracted to the transaction in this case. No other provision of the said Regulation was attracted to nullify the transaction. This contention, therefore, fails. The only other submission of the learned counsel was that specific performance is a discretionary remedy and in the circumstances of this case the discretion should be exercised against the respondents. I have already given reasons in the foregoing part of this judgment that the respondents were not guilty of such conduct which may disentitle them to the equitable relief prayed for. Besides it has not been shown that the discretion exercised by the Court below in granting relief was in any way perverse or against judicial principles. No other argument was made by the learned counsel.
8. In the result, both appeals fail and are hereby dismissed with no order as to costs.