' MUHAMMAD KHALID MEHMOOD KHAN, J.---The respondents Nos.1 to 4 were the owners of land measuring 54 Kanals, 1 Marla more described in the plaint (hereinafter referred to as the suit-land).
The petitioner Khuda Bakhsh filed a suit for specific performance of an agreement to sell dated 7- 6-1988 against respondents Nos. 1 to 4 on 8-2-1988, the said suit was decreed in terms of EX C/I on 22-2-1990 in favour of petitioner. The respondent Nos. 5 and 6 on 19-10-1989 also filed a suit for possession through specific performance of an agreement dated 18-6-1988 against the same land, same owners. As the consent decree was passed on 22-2-1990 between the respondents Nos. 1 to 4 and petitioner, respondents Nos. 1 to 4 executed Sale-deed No, 2147 Book 1 Volume 3385 on 5-3-1990 in favour of petitioner.
2. The respondents Nos.5 and 6 filed an application under section 12(2), C.P.C. For setting aside consent decree dated 22-2-1990. The learned civil court dismissed the application on 11-5-1994, the respondents Nos.5 and 6 filed Civil Revision No,2178/1994 against order dated 11-5-1994. The parties in the said revision compromised the dispute and following order was passed on 22-6-1994:--
(a) That the judgment and decree passed by the court dated 22-2-1990 be set aside.
(b) That the suit for specific performance filed by the petitioners and the suit for specific performance filed by Khuda Bakhsh be consolidated and directed to be adjudicated by single judgment.
(c) That the suit for specific performance filed by Khuda Bakhsh be deemed to be still pending decision."
3. After remand the learned trial Court consolidated both suits and framed the following consolidated issues:- "ISSUES:
(1) Whether the agreement to sell was executed between Khuda Bakhsh, plaintiff and defendants Nos.1 to 4 on 7-6-1988 in respect of his land? OPP
(2) Whether the plaintiff had paid Rs,50,000 as advance money on 7-6-1988 and further amount of Rs,50,000 on 5-6-1988 to defendants No,1-4? OPP
(3) Whether the agreement of 7-6-1988 is false, forged and fabricated document and the plaintiff is liable to be prosecuted under section 476 of Cr.P.C? OPD 1 to 4.
(4) What is the effect of non-registration of agreement to sell dated 7-6-1988? OPD 1 to 4
(5) What is effect of the previous suit between plaintiff and defendants Nos.1 to 4? OPD 1 to 4.
(6) Whether the defendants are entitled to special costs? OPD
(7) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD 5 and 6.
(8) Whether the plaintiff and defendants Nos.1 to 4 have colluded with each other? OPD 5 & 6.
(9) Whether the sale-deed in respect of the suit-land executed and registered in favour of the plaintiff on behalf of the defendants Nos.1 to 4 is liable to be cancelled? OPD 5 and 6.
' Whether the plaintiff has come to the court with unclean hands? OPD 5 and 6.
(10) Whether the agreement of 16-6-1988 was executed between Shaukat Ali, Farzand Ali, plaintiffs in other suit with defendants Nos.1 to 4? OPD 5 to 6.
(11) Whether the defendants Nos.1 to 4 had received Rs,30,000 as earnest money in lieu of agreement of 16-6-1988? OPD 5 and 6.
(12) Whether the agreement of 16-6-1988 is based on mala fide? OP Khuda Baksh.
(13) Whether the agreement of 16-6-1988 can be specifically enforced after payment of remaining amount? OPD 5 & 6 Plfs.In other suit.
(14) Relief".
4. Both the parties adduced their respective evidence both oral as well as documentary and vide judgment and decree dated 29-2-1996 the learned trial Court dismissed the petitioner's suit and decreed the suit of respondents Nos.5 and 6 to the effect that these respondents are entitled to get double of the earnest money and specific performance of agreement is not possible hence refused.
5. The learned trial Court decided issue No,9 against the respondents Nos. 5 and 6. In view of the finding of issue No,9 the petitioner has not filed appeal against the judgment and decree dated 29-2-1996. It is pertinent to mention here that Shaukat Ali respondent No,5 died before passing the decree, hence the legal heirs of respondent No, 5 were impleaded as respondents on 4-12-1995.
The legal heirs of respondents No,5 and respondent No, 6 filed two appeals against the judgment and decree dated 29-2-1996, the two appeals were ultimately consolidated and was decreed on 10-3-2004 through a single judgment, hence the present civil revision.
6. The respondents Nos. 1 to 4 failed to appear even in response to publication in Daily Newspaper hence they were proceeded against ex parte on 27-1-2014.
7. Learned counsel for petitioner submits that during the pendency of petitioner's suit for specific performance of an agreement to sell the respondents Nos.1 to 4 executed sale-deed in favour of petitioner having No, 2147 Book 1, Volume 3385 registered on 5-3-1990 with the Sub-Registrar, Lahore, after setting aside decree dated 22-2-1990 on 22-6-1994, the petitioner's suit for specific performance become irrelevant as the sale-deed in favour of petitioner remains valid and operational. Learned counsel submits that the findings of issues Nos.8, 9, 11 and 12 are in petitioner's favour and the decree was passed in favour of respondents Nos.5 and 6 only to the extent of recovery of double of the earnest money paid to the seller/respondents No,1 to 4. Learned counsel submits that legal heirs of respondent No,5 Shaukat Ali and respondent No,6 filed two appeals against decree dated 22-2-1990, the Learned appeal court on 10-3-2004 through single judgment decided the appeals. As the decree is single hence the petitioner has rightly filed one Civil Revision by arraying the parties as detailed in the decree sheet.
8. Learned counsel submits that appeal or revision can only be filed against the decree and not the judgment. Learned counsel refers the decree sheet Shaukat and others v. Zakia Khatoon and others, and states as per the details of decree all names are mentioned in the decree sheet.
Learned counsel submits that before the Hon'ble Supreme Court of Pakistan the learned counsel for legal heirs of Shaukat Ali deceased continued to appear as is evident from the interim orders of the Hon'ble Supreme Court of Pakistan. Learned counsel has referred the order dated 27-11-2007 of Hon'ble Supreme Court of Pakistan which find mentioned that Mr. Ameer Alam Khan Advocate Supreme Court, for respondents Nos.5 and 6 obtained adjournment. Learned counsel for petitioner has also referred the Wakalat Nama of Mr. Mehmood A. Qureshi Advocate on record, the said power of attorney is duly signed by all the legal heirs of Shaukat Ali. Learned counsel submits that no doubt in C.P.L.A. No,407 of 2008 the array of respondents, respondent No,5 has been mentioned as Shaukat Ali through legal heirs and detail of legal heirs is not available but after the appearance of the legal heirs of Shaukat Ali this defect, if any, stands cured. Learned counsel points out the agreement to sell EX D/I is not a concluded agreement as the same is not signed and accepted by the purchasers i.e,, respondents Nos. 5 and 6. He submits that the learned first appellate court has failed to appreciate the statement of P.W.1 Mst. Zakia Khatoon who admitted that she made the statement on 22-2-1990 before court, she handed over the land to Khuda Bakhsh against consideration, the executed sale-deed in his favour, she has never entered into agreement with any other person, Shaukat Ali and Farzand Ali were not present at the time of execution of Exh.C-1, she received Rs,200,000 from Khuda Bakhsh at the time of registration of sale-deed, she never entered into any agreement with Shaukat and Farzand against Rs,260,000. Learned counsel further submits that learned appeal court has wrongly held that agreement EX D/I is proved, specially when one alleged marginal witnesses failed to appear in court. The learned appeal court erred in law while deciding issue No,9 in favour of petitioner. Learned counsel for petitioner has relied on Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241), Zafar Iqbal and others v. Mst. Nasim Akhtar and others (PLD 2012 Lahore 386), Muhammad Yousaf v. Muhammad Ramzan and another (2010 YLR 3222), Iftikhar Saleem v. Shafa-ul-Haq (2013 YLR 2345), Mst. Safia Begum v. Muhammad Ajmal (2007 YLR 3030), Tahir Hussain Malik v. Mst.
Najma Raft (1995 SCMR 1407), Abdul Hameed Khan and 2 others v. Mst. Fateh Bibi and 6 others (2003 MLD 410), Farman An v. Muhammad Ishaq and others (PLD 2013 Supreme Court 392), Province of Punjab through Collector Toba Tek Singh and others (2012 SCMR 1942), Hafeez Ahmad and others v. Civil Judge, Lahore and others (PLD 2012 Supreme Court 400), Basharat Ali and others v. Muhammad Anwar and others (2010 SCMR 1210), Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan (1993 SCMR 1137), an unreported judgment dated 13-6-2011 of this Court passed in Civil Revision No,1350/1991 titled Mst. Ashraf Bibi v. Muhammad Amin, and others and Kareeman through L.Rs, and others v. Sher Muhammad through L.Rs and others (2006 CLC 1165), Mst. Sardar Begum v. Muhammad Anwar Shah and others (1993 SCMR 363), Said Muhammad and others v. M. Sardar and others (PLD 1989 Supreme Court 532) and Rasool Bakhsh Naich through L.Rs and others v. Syed Rasool Bakhsh Shah through L.Rs, and others (2010 SCMR 988).
9. Learned counsel for respondent No,6 Farzand Ali submits that petitioner has not filed an appeal against the judgment and decree dated 29-2-1996 and as such the decree against the petitioner has attained finality and hence the petitioner's revision is not maintainable. Learned counsel submits that the petitioner has not arrayed the legal heirs of Shaukat Ali in the revision, admittedly Shaukat Ali died before passing the decree and his legal heirs were made party before the learned trial Court and as such in the absence of the legal heirs of Shaukat Ali as party, the revision is not maintainable. No revision or lis can be filed against a dead person.
10. Learned counsel submits that the learned appellate court decreed the respondent's suit after reappraising the evidence, the petitioner has failed to point out any misreading and non-reading of the record. Learned counsel submits that the sale-deed in favour of petitioner came in to an end on setting aside consent decree dated 22-2-1990 on 22-6-1994, suits of both the parties were consolidated and it was specifically ordered that the suit of Khuda Bakhsh will be deemed to be pending, hence the sale-deed in favour of appellant is a useless document unless authenticated by the court.
11. Learned counsel submits that the argument of learned counsel for petitioner that the legal heirs of Shaukat Ali appeared before the Hon'ble Supreme Court of Pakistan through their counsel has no force as it was the duty of the petitioner to implead the legal heirs of Shaukat Ali in original Civil Revision No,874 of 2004 which was dismissed in limine on 26-4-2004 and appeal thereagainst was filed before the Hon'ble Supreme Court of Pakistan. Civil Revision before this Court as well as appeal before the Hon'ble Supreme Court of Pakistan was not against the legal heirs of Shaukat Ali. Hence, the revision is liable to be dismissed being non-joinder of necessary parties. Learned counsel for respondents has relied on Muhammad and others v. Muhammad Hussain Shah and another (1994 MLD 1182), Mst. Barkat Bibi and others v. Muhammad Rafique and others (1990 SCMR 28), Messrs Jamal Jute Baling and Co., Dacca v. Messrs M. Sarkies and Sons, Dacca (PLD 1971 Supreme Court 784), Ch. Allah Bakhsh v. Karam Ellahi and 4 others (PLD 1988 Lahore 419), Abdul Ghafoor and another v. Zahoor Ahmad through legal heirs and 10 others (2011 YLR 2718), Atta-ur-Rehman v.
Muhammad Anwar Khan and others (2012 MLD 1282), Muhammad Suleman v. Abdul Rashid and 13 others (PLD 1987 Lahore 387), Sadiq Shah v. Ghulam Nabi (2012 YLR 2564), Mehndia v. Juma through L.Rs, (2011 MLD 1081), Capt. Shahid Saleem Lone and others v. Ata-UrRahman and others (1985 CLC 2555) and an unreported judgment dated 13-6-2011 of this Court passed in Civil Revision No,1350 of 1991 titled Mst. Ashraf Bibi v. Muhammad Amin, and others
12. Arguments heard. Record perused.
13. It is an admitted fact that respondents Nos.1 to 4 were the owners of suit-land. The petitioner claims that he purchased the property against consideration of Rs,200,000 as per contents of the plaint but when during the pendency of suit the petitioner and respondents Nos.1 to 4 agreed to settle the dispute the sale consideration was fixed Rs,400,000 and petitioner paid the said amount to respondents Nos.1 to 4. Respondent No,1 appeared as P.W-1, she specifically deposed that she made a statement on 22-2-1990, the land was with Khuda Bakhsh, she handed over the possession of suit-land to Khuda Bakhash after receipt of consideration amount of Rs,400,000, she also executed a settlement agreement which is already available, on record as Exli.C/1, she has executed sale-deed in favour of Khuda Bakhsh, she has not entered into any agreement with any other person. In cross-examination she specifically stated that she never entered into an agreement with Shaukat and Farzand, she also denied the receipt of Rs,30,000 the alleged earnest money, respondents No,5 and 6 suggested her that she has not received Rs,400,000 from the petitioner and she is deposing it wrong, her reply is as under:- {{URDU TEXT}}
14. After the admission of executant owner of land of agreement to sell and sale-deed in favour of Khuda Bakash, it is proved on record that petitioner become the absolute owner of property.
Photocopy of sale-deed is available on record and it is Exh.A-7 which clearly shows that the sale- deed is executed by all the four owners before the Sub-Registrar on 5-3-1990.The learned appeal court while deciding issue No, 9 by examining the evidence held that on 22-6-1994 when decree dated 22-2-1990 was set aside the sale-deed also comes to an end and the sale-deed has lost its existence, If for the sake of arguments it is admitted then what was the need to frame issue No,9:-- "Whether the sale-deed in respect of the suit-land executed and registered in favour of the plaintiff on behalf of the defendants No,1 to 4 is liable to be cancelled? OPD 5 to 6."
15. If we accept the findings of learned appeal court even then again when the owner/executant appeared as P.W.1 and admitted the execution of sale-deed and receipt of consideration, the onus of this issue was on the respondents and they failed to bring on record any evidence that sale- deed was not executed by the owners i.e, (respondents Nos. 1 to 4) specially when the executant is admitting it.
16. Now it has to be seen whether the agreement to sell in favour of the respondents Nos. 5 and 6 was proved or not?. The case of respondents Nos.5 and 6 is that they purchased the suit-land from respondents Nos.1 to 4 against consideration of Rs,260,000 and paid Rs,30,000 as earnest money.
The agreement to sell between respondents Nos.5 and 6 and respondents Nos.1 to 4 is available on record as Exh.D1, Mian Muhammad Hanif and Mian Aftab Ahmad are its marginal witnesses and admittedly purchasers' signatures are not available on this agreement. Mumtaz Ali is the stamp vendor, he appeared as D.W-1 and deposed that he knows respondent No,6, in the year 1988 he visited DW1 and informed that he wants to get an agreement to sell drafted on behalf of ladies as the ladies did not come to his office so he and respondent No,6 went to the house of ladies, he alongwith respondent No,6 went to Tezab Ahata in an old building, four ladies were present there they informed that they wanted to consult their lawyer and advised him to go to their lawyer's office which was one furlong away from that old building, he went the lawyer office, the lawyer came, four ladies also reached there, the agreement was written in the presence of lawyer, he checked identity cards of four ladies, two identity cards of out of four ladies were available and two were not available. In cross-examination he deposed that he is holding stamp vendor's licence, Exh.P-1 was written on the instructions of Zakia Khatoon, Zakia Khatoon purchased Exh.P-1 from him.
It is wrong to suggest that respondent No,1 has not purchased Exh.P-1. It is noteworthy that Zakia Kahtoon the old lady when appeared P.W.1 denied all the above said facts.
16. One of the marginal witnesses Mian Muhammad Hanif appeared and deposed that he knows the plaintiffs, approximately this incident is of 1988, we went to Tezab Ahata, there was an old building, he, Farzand, stamp vendor and Haji Aftab all went there, we talk to one old lady, she told we should approach her counsel and agreement to sell will be prepared there, we went to the lawyer's office, the old lady and three girls came along with stamp vendor, the stamp vendor scribed the agreement to sell, Rs,260,000 were agreed as consideration, Rs,30,000 were paid being earnest money, Exh.P-1 was signed by the old lady and three girls. He deposed that he signed Exh.P-1. He further deposed that Muhammad Haneef is the relative of Farzand, surprisingly the other independent witness was not present in spite of the fact that admittedly he was alive on the date of recording the evidence as no evidence is available on record that Mian Aftab had died or he has gone abroad.
18. Mian Farzand Ali appeared as P.W-3 and deposed that in the year 1988 he and others went to Tezab Ahata, Haji Aftab, Mumtaz Ali, Hanif etc. Were with him, we went there for execution of agreement to sell of land. This witness has not stated in his statement that Haji Aftab has signed agreement to sell, even otherwise out of two marginal witnesses only one witness has been produced. This issue has already been decided by the Hon'ble Supreme Court of Pakistan in a case reported as Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241) where in it has been held as under:-- "From the clear and unambiguous language of the Article, in order to bring a case within its purview in the context of present case, two ingredients must co-exist, firstly there must be an instrument, secondly it should pertain or relate to a matter either of a financial or future obligations. If the above two conditions are met, it is mandated that the instrument must be attested in terms of the Article. There can be no cudgel that an agreement of sale or to sell immovable property being a written document is an instrument within the meaning of law, however, to ascertain; its nature, the Black's Law Dictionary, fifth Edition defines it as under:-- "Agreement of sale; agreement to sell. ---An agreement of sale may imply not merely an obligation to sell, but an obligation on the part of the other party to purchase, while an agreement to sell is simply an obligation on the part of the vendor or promisor to complete his promise of sale.
Treat V. White, 181 U.S 264, 21 S.Ct. 611, 45 L.Ed.
853. It is a contract to be performed in future, and, if fulfilled, results in a sale; it is preliminary to sale and is not the sale."
' The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984.
(See Ram Samujh Singh v. Mst. Mainathkuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.
19. In the facts available on record it is proved that agreement to sell in favour of Shaukat Ali and Farzand Ali is not proved, as only one marginal witness has been produced and the statement of that witness is also shaky hence the finding of learned appeal court that agreement ED/I was proved is not legally correct.
20. The argument of learned counsel for respondents is that the petitioner has not filed appeal against the judgment and decree dated 29-2-1996 wherein the learned trial Court dismissed the petitioner's suit and the suit of respondents Nos.5 and 6 was decreed for payment of Rs,60,000 being the double amount of earnest money. Non-filing of appeal on the part of petitioner is sufficient to prove that the judgment and decree of learned trial Court dated 29-2-1996 against the petitioner stand finalized. This argument of learned counsel for respondents has no force for the simple reason that petitioner filed a suit for specific performance of agreement to sell and during pendency of suit the respondents Nos.1 to 4 executed sale-deed in favour of the petitioner and the learned trial Court affirmed the sale-deed in favour of petitioner in the following words:-- {{URDU TEXT}}
21. The learned appellate court when accepted the appeal and decreed the suit of respondents Nos.5 and 6 by cancelling the sale-deed of petitioner the petitioner become aggrieved and he rightly filed the present Civil Revision. Further the findings of learned appellate court decreeing the suit against respondents Nos. 1 to 4 qua the suit property is not correct for the simple reason that on the date of decree of learned appellate court i.e, 10-3-2004 respondents Nos.1 to 4 were not the owners of the suit-land, they have executed sale-deed in favour of petitioner Khuda Bakhsh on 5- 3-1990. The learned appellate court has fallen in error while holding that the execution of sale-deed was hit by principle of lis pendene. The principle of lis pendense is not applicable in the present case as the respondents Nos.1 to 4 executed sale-deed in favour of petitioner when a valid decree was existing in favour of petitioner and against the respondents Nos.1 to 4. After setting aside consent decree an issue was framed on the objection of respondents Nos. 5 and 6 the issue No,9 regarding the validity of sale-deed, the executant appeared as P.W.1 admitted the execution of sale-deed, receipt of consideration and handing over the possession of the suit-land to petitioner.
The learned trial Court held that agreement to sell in favour of respondents Nos. 5 and 6 is not capable of performance however the respondents are entitled to recover double of the Rs,30,000 hence in these circumstances no question of applicability of principle of lis pendense arose.
22. Even one of the marginal witness and the counsel/lawyer in whose office the alleged entire transaction took place has not been produced. Even the name of that lawyer has not been disclosed by any of the respondent or their witnesses. These facts are sufficient to prove that agreement to sell in favour of respondents Nos.5 and 6 was not proved, hence the findings of learned appellate court on this issue is against facts and law.
23. Another argument of learned counsel for respondents is that petitioner has not filed Civil Revision against legal heirs of Shaukat Ali who died admittedly before passing the decree. Copy of amended plaint titled Khuda Bakhsh v. Mst. Zakia Khatoon, etc. Is available on record at page 53 which clearly shows that legal heirs of Shaukat Ali were added in the plaint on 4-12-1992. When the court passed the consolidated judgment, the decree sheet was prepared. In the decree the learned trial Court has not mentioned the names of legal heirs of deceased Shaukat Ali. The legal heirs of respondent No, 5 filed appeal against the judgment and decree of learned trial Court along with Farzand Ali. After the judgment of the learned appellate court the decree-sheet under Order XII, Rule 35, C.P.C. Was prepared, the decree sheet shows the title of appeal as Aziz Begum v. Zakia Begum and Shaukat Ali through L.Rs, v. Zakia Khatoon. No detail of legal heirs is mentioned in the decree sheet. The appellant has filed the present revision against the four owners, Shaukat Ali (through his legal heirs) and respondent No,6 Farzand Ali. No doubt the names of legal heirs of Shaukat Ali are not mentioned, the petitioner's Civil Revision was dismissed by this Court in limine vide order dated 26-4-2004. The petitioner filed a C.P.S.L.A. No,1977 of 2004 and Mr. Ameer Alam Khan Advocate. Supreme Court, counsel for respondents Nos.5 and 6 appeared. C.P.S.L.A. Ultimately converted into appeal. On 27-11-2007 Mr. Ameer Alam Khan Advocate Supreme Court moved an application on behalf of respondents Nos.5 and 6 for adjournment. Respondents filed power of attorney on behalf of legal heirs of respondent No,5 which are available on record along with C.M.
No,1-C/2013. This power of attorney is also on behalf of Farzand Ali and all legal heirs of Shaukat Ali, this means that legal heirs of respondent No,5 were duly represented before this Court as well as before the Hon'ble Supreme Court of Pakistan. It is also an admitted fact that the objection of non- impleading the legal heirs of deceased Shaukat Ali was not raised before this Court as well as before the Hon'ble Supreme Court of Pakistan prior to this time. The. Hon'ble Supreme Court of Pakistan remanded the case on 10-10-2012 with the consent of both the counsel which is read as under:-- "Having argued the case at some length, on Court query, both the learned counsel agree that there are fundamental questions of law and fact involved in this case and since the learned High Court had dismissed Civil Revision No,874 of 2004 in limni without notice to the respondents and detailed hearing, it would be proper and in the interest of justice if this case is remanded to the learned High Court to decide the said revision afresh".
24. This consent is sufficient to prove that the objection of non-impleading the legal heirs of respondent No,5, if any, has been waived as Mr. Ameer Alam Khan Advocate Supreme Court was representing respondent No,5 through his legal heirs. Further the suit was against six persons and as such even if for the sake of argument it is admitted that the legal heirs of deceased respondent No,5 were not made party the Civil Revision will not be abated. The guidance may be taken from Mst. Sardar Begum v. Muhammad Anwar Shah and others (1993 SCMR 363) and Said Muhammad and others v. M. Sardar and others (PLD 1989 Supreme Court 532).
25. In the present case the sale-deed has been executed in favour of petitioner, the petitioner is in possession of the land, the petitioner has developed the same by investing huge amount, whereas the respondents Nos. 5 and 6 are only claiming that respondents Nos. 1 to 4 entered in an agreement with them and they paid only 30,000 as earnest money and they are not in possession of any inch of the land. The respondents Nos. 5 and 6 have not signed the agreement, the respondents Nos.1 to 4 are denying the execution of the agreement, hence if the court exercise its discretion in favour of respondents Nos. 5 and 6 it will cause loss to petitioner whereas the learned Civil Court has passed the decree in favour of respondents Nos. 5 and 6 declaring that their agreement is not capable to perform hence they are entitled double of the amount paid to respondents Nos.1 to 4. The learned Civil Judge has exercised the discretion under section 22 of the Specific Relief Act, 1877 judicially and properly
26. The upshot of the above said discussion is that this Civil Revision is allowed, the impugned judgment and decree of learned appellate court is set aside and the judgment and decree of learned trial Court is restored.