IJAZ AHMED CHAUDHRY, J. --- This petition for leave to appeal calls in question the validity of the judgment of the Lahore High Court, Lahore dated 15.12.2003 passed in Civil Revision No. 393/2002, whereby while accepting the same, the judgment of the Additional District Judge, Bhakkar dated 3.12.2001 has been set aside and the judgment of the Civil Judge dated 4.4.2002 decreeing the suit filed by respondent No. 1 has been restored.
2. Brief facts of the case are that respondent Habibullah filed a suit for specific performance on the basis of a registered agreement to sell dated 30.8.1988 through which petitioner and four others had agreed to sell the land allotted to them under Chashma Beraj Scheme for an amount of Rs.
5,00,000/- (Rupees five lakhs) tough their attorney Sufi Amir Abdullah on the basis of general power-of-attorney executed and registered on 8.4.1984, alleging therein that the possession of the land in question was handed over to him and he not only developed the said land by expending a huge amount out also paid the instalments under the allotment to petitioner No. 1. The suit was resisted by the petitioners/defendants by denying the execution of special power-of-attorney as well as agreement to sell. On the basis of the divergent proceedings of the parties, the learned Trial Court framed the following issues:---
(1) Whether defendant No. 2 attorney of defendant No. 1 vide an agreement to sell dated 30.8.1988 has agreed to sell the suit land with plaintiff? OPP.
(2) Whether plaintiff has paid the entire sale price or the suit land to defendant kb- 1 through his attorney defendant No. 2? OPP
(3) Whether defendant No. 2 has executed power- of-attorney in favour of plaintiff? OPP
(4) Whether plaintiff is entitled to get specific performance on an agreement to sell if so on what terms and conditions? OPP
(5) Whether plaintiff has got cause of action? OPP
(6) Whether suit is not maintainable in present form? OPD
(7) Whether description of the suit land in incorrect? OPD (7-A) Whether the suit is partial if so its effect? OPD.
(8) Whether the suit is time-barred? OPD
(9) Whether plaintiff is estopped to file the suit by his word and conduct? OPD
10. Relief
3. After recording oral as well as documentary evidence adduced by the parties, the learned Trial Court, vide judgment and decree dated 4.4.2000 decreed the suit in favour of the respondent Habibullah. Petitioners/defendants challenged the said judgment and decree in appeal before the Additional District Judge, Bhakkar, who, while accepting the same vide judgment dated 3.12.2001 set aside the judgment and decree dated 4.4.2000 and dismissed the suit filed by the respondent/plaintiff. Feeling dissatisfied with the aforesaid judgment and decree, the respondent filed Civil Revision No. 393 of 2002 before the Lahore High Court which was accepted vide judgment and decree dated 15.12.2003 whereby the judgment of the Appellate Court was set aside and that of the Civil Judge decreeing the suit of the respondent was restored.
4. Learned counsel for the petitioner contends that execution of agreement to sell, the receipt of payment of Rs. Five lakhs and execution of special power-of-attorney in favour of the respondent have been denied; that in the agreement to sell consideration amount has not been mentioned; that there are contradictions in the statements of the witnesses produced by the respondent to prove the execution of the agreement to sell; that under Section 17 of the Specific Relief Act partial decree for specific performance cannot be issued; and that the land was not yet allotted in the name of the petitioners and no suit for specific performance could be filed, thus on this score alone judgment and decree of the High Court is liable to be set aside. He has placed reliance upon Mian Muhammad Abdullah v. West Pakistan Road Transport Corporation Lahore (NLR 1987 SCJ 52).
5. On the other hand learned counsel for the respondent has contended that since agreement to sell and special power-of-attorney are registered documents, therefore, presumption of truth is attached to these documents; that Sufi Amir Abdullah, father of the petitioner Karim Nawaz was alive but he did not appear as a defence witness to deny the execution of the documents and no reason has been shown as to why he did not enter appearance as a defence witness; that no application was moved for comparison of the signatures of Amir Abdullah on the disputed documents; that the respondent, after execution of the agreement, had invested a huge amount the development of the land and the possession of the land was also delivered to the respondent which further fortifies the claim of the respondent, as such, the findings arrived at by the High Court are liable to be sustained.
6. We have heard the arguments of the learned counsel for the parties and have gone through the evidence available on record.
7. Claim of the respondent is that father of the petitioner Amir Abdullah was attorney of the petitioners and all of then were affectees of Chashma Barrage Scheme. The Government under the Scheme of affectees of Chashma Barrage had allotted the land in their favour, the amount of which was vet to be paid. The petitioners who are sons, daughters and were of Amir Abdullah had executed a general power-of-attorney in favour of Amir Abdullah on 8.4.1984 which is a registered document and has been placed on record as Ex.P-4. This fact has not been denied by the petitioners. After obtaining general power-of-attorney the said Sufi Amir Abdullah entered into an agreement to sell with the respondent on 30.8.1988. According to contents of the said agreement to sell the petitioner and other family members of Amir Abdullah on the basis of general power-of- attorney, referred above, had fully authorized Sufi Amir Abdullah to enter into an agreement to sell for the land, proposed to be allotted to the effectees of Chashma Barrage in the village Naro, Tehsil and District Mianwali as the entitlement certificate No. 156-162-157-159-164 for the year 1987 (Ex.P- 13) had already been handed over to them. It is also mentioned in the said agreement to sell that the application for allotment of land measuring 12% acres per *chi (entitlement certificate) in Rakh Maujgarh, Tehsil Mankera, District Bhakkar, had been given to them by the concerned department.
The petitioners and their other family members through their general attorney, Amir Abdullah entered into an agreement with the respondent Habibullah to the effect that all the rights of the entitlement certificate of the allotment of the land have been transferred to Habibullah in the presence of marginal witnesses. It is also mentioned in the agreement to sell that heirs of the executants will have no concern with the said right of allotment and respondent Habibullah will be entitled to all rights on the said land. He was also given the authority to pay the outstanding amount, if any, and to obtain allotment rights in his favour in which the petitioner and other family members would have no objections. This agreement was presented before the Sub-Registrar Mianwali. General attorney of the petitioners admitted the execution of the documents before the Sub-Registrar Mianwali on 30.8.1988 (Ex.P-1) showing payment of an amount of Rs. Five Lakhs by the respondent which was also signed by Sufi Amir Abdullah in the presence of the witnesses. Similarly a special power-of-attorney in favour of the respondent was also executed by Sufi Amir Abdullah on the same day regarding the suit land which was also registered before the Sub-Registrar Mianwali on 30th August, 1988. These three documents are registered documents and presumption of truth is attached to these documents. The scribe of the aforesaid documents, namely, Muhammad Hafeez Khan appeared as PW-1 and admitted that he had written the said documents and had put his signatures thereon. These were got written by Sufi Amir Abdullah in favour of respondent Habibullah and Sufi Amir Abdullah and others had put their signatures on the said documents. Two marginal witnesses PW-2 Muhammad Naseem Khan and PW-3 Sher Muhammad were also produced by the respondent who had fully proved the execution of the documents. In the above circumstances, on the denial of the petitioners regarding execution of the aforesaid document, onus had shifted to the petitioners but they badly failed to discharge the said onus.
Admittedly, Amir Abdullah who had executed the said documents was alive but he was not produced in the Court to nullify the execution of documents in question. Even no application was ever moved for the signatures on the said relied upon the said documents for restoration of the judgment of the Civil Court whereby the suit filed by the respondent stood decreed.
8. As far as the contention of the learned counsel for the petitioners that the rights had not yet been fully transferred in favour of the petitioners and no agreement to sell could be relied upon and the agreement was not enforceable in view of the case titled Mian Muhammad Abdullah v. West Pakistan Road Transport Corporation Lahore (NLR SCJ 52) is concerned, it is observed that the facts and circumstances of the cited case are different and distinguishable from the facts and circumstances of the instant case. In the cited case the claim of the petitioner was based on an endorsement issued by the Chairman of the respondent Board to the effect that the property was to be transferred in the name of the petitioner as soon as the sanction of the Chief Settlement Commissioner is received and on the condition that he will charge the same rent from the Board which is being paid at present to the Settlement Department. Subsequently, on refusal of the Board to transfer the property in the name of the petitioner, he approached the Civil Court on the basis of the said endorsement. The learned Civil Judge observed that the endorsement was not was not signed by the Chairman himself and that it was not addressed to the petitioner by name, hence, on the basis of these findings, the Civil Court 'held that there was no valid agreement to sell existed between the parties for the sale of land and dismissed the suit, which findings were upheld by the learned High Court as well as by this Court, whereas the case in hand is entirely on different footings. In the instant case the allotment certificates had "already been issued in favour of the petitioners, total area of land was also disclosed in the agreement and only formalities were left to be performed, agreement to sell was arrived at between the petitioners and the respondent which was duly presented before the Sub-Registrar Mianwali on 30.8.1988 where the general attorney of the petitioners admitted the execution of the documents and put his signature on agreement to sell which was exhibited and proved by producing marginal witnesses before the Civil Court. Even the land in question was allotted in favour of the petitioners in the year 1987, one year prior to the agreement and the respondent also proved his possession over the said land by producing Ex.P.15, a copy of the daily diary of the Patwari concerned.
9. As far as the contention of learned counsel for the petitioners that under Section 17 of the Specific Relief Act partial decree for specific performance cannot be issued, is concerned, it observed that a specific issue No. 7-A was framed in this regard which was duly dealt with by the learned Trial Court by deciding the same in respondent's favour and the learned High Court has also dealt with the same as under:- "8. Allotment in favour of respondent No. 1 is not joint with the other co-vendors, as is evident from Ex. P.13. Allotment in question of 100 kanals of land in the name of Karim Nawaz Khan is Ex.P.12, which was exclusively in his name. All the five vendors, on whose behalf respondent No. 2 agreed to sell their allotted land, were given entitlement certificates on different occasions. Price of lot of each vendor is mentioned as Rs. 1,00 Lac each in the receipt (Ex.P.3). Now under Section 17 of the Specific Relief Act, 1877 it is provided that part performance of a contract cannot be allowed except in case mentioned in sections 14, 15 and 16 of this Act. Section 16 of the Specific Relief Act reads as under:- "S.16. Specific performance of independent part of contract. When a part of a contract which taken by itself, can ought to be specifically performed stand on a separate and independent footing from another part of the same contract which cannot or ought not be specifically performed, the Court may direct specific performance of the former part."
9. From the language of provisions of law above produced, it is clear that in the situation of the case, like the one in hand, part performance is permissible, because it provides that if the contract is severable then specific performance may be granted for that part which ought to be performed.
Besides it, I find that agreement of the petitioner with each of the vendor is independent because their allotment took place on different occasions and all these stands on a separate and independent footing from one and another part of Me agreement so it cannot be said that decree passed by the Trial Court were in part performance of the agreement."
The above findings of fact recorded by the learned High Court are based on proper appreciation of evidence on record which warrant no interference by this Court in exercise of its Constitutional jurisdiction under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973.
10. For what has been discussed above, we find no merit in this petition which is dismissed and leave is refused.