' CH. MUHAMMAD IQBAL, J.---Through this civil revision, the petitioners have challenged the judgment and decree dated 5-10-1996 passed by learned District Judge Lodhran whereby the appeal of the present petitioners against the judgment and decree dated 6-11-1995 passed by learned Civil Judge was dismissed.
2. Brief facts of the case are that the respondents/plaintiffs filed a suit for specific performance of agreement to sell dated 16-7-1981 (Ex.P.1) in respect of land measuring 26-Kanals 18 Marlas bearing khewat No, 136/120 khasra Nos.150/20/1, 21, 22, 151/16, 17, 18/1, 23/1, 24/25, 166/4/1 4/2, 5,167/20, 1, 10, 11, 21/1, 2 situated in Mauza Kotha Auttera Tehsil and District Lodhran for a total consideration of Rs, 38500 which according to respondents/ plaintiffs Mst. Ghulam Ruqiya received the total consideration amount and executed agreement to sell dated 16-7-1981 in their favour. The petitioners/defendants appeared before the learned trial Court, filed-contesting written statement and raised several preliminary objections. The learned trial Court from the divergent pleadings of the parties framed the following issues.
(1) Whether the defendant No,1 agreed to sell the disputed property to the plaintiffs at a cost of Rs, 38,500? OPP
(2) Whether the defendant No,1 received Rs, 38500 as sale price of the disputed property under the impugned contract from the plaintiffs and executed impugned agreement to sell in favour of plaintiffs? OPP
(3) Whether the impugned mutation is illegal, fraudulent, fictitious and in-operative against the rights of the defendant? OPP
(4) Whether the suit is barred by limitation? OPD
(5) Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD
(6) Whether the plaintiffs are estopped from filing this suit by their word and conduct? OPD
(7) Whether the description of the disputed property has been mentioned incorrectly in the plaint?
If so, what is the correct description and its effect? OPD.
(8) Whether the defendants Nos.2 to 13 are bona fide purchasers of disputed property? If so, its effect? OPD
(9) Whether the defendants are entitled to recover special cost from the plaintiffs? If so, to what extent? OPD.
(10) Relief.
' Both the parties in support of their respective stance, recorded their evidence. Thereafter, the learned trial Court decreed the suit of the respondents/plaintiffs vide judgment and decree dated 6-11-1995. Later on, the petitioners filed an appeal against the said judgment and decree before the learned District Judge, Lodhran which was dismissed on 5-10-1996. Hence this civil revision.
3. Learned counsel for the petitioners submits that while passing the judgment and decree dated 6-11-1995, the learned trial Court ignored the evidence brought on record. The impugned judgment and decree resulted into grave miscarriage of justice, illegal and void ab initio. The learned appellate Court while passing the impugned judgment and decree dated 5-10-1996 has also miserably failed to adjudge or resolve the real controversy between the parties and passed the impugned judgment and decree in hasty manner. Therefore, both the judgments and decrees are liable to be set aside.
4. On 1-5-2000, the respondents were proceeded ex parte due to their nonappearance.
5. Heard. Record perused.
6. It is an admitted fact that Mst. Ghulam Ruqia respondent No,4 sold a parcel of land measuring 26-kanals 18-Marlas through Mutation No, 8585 dated 21-1-1986 to the petitioners and in this respect the transaction was recorded in rapat roznamcha on 11-1-1986 which is still -in field and nobody alleged the same.
' The respondents Rehmat Ullah etc; filed a suit for specific performance of agreement to sell dated 16-7-1981 against Mst. Ghulam Ruqiya regarding the property measuring 26-Kanals 18 Marlas bearing khewat No, 136/120 khasra Nos.150/20/1, 21, 22, 151/16, 17, 18/1, 23/1, 24/25, 166/4/1, 4/2, 5,167/20, 1, 10, 11, 21/1, 2 situated in Mauza Kotha Auttera Tehsil and District Lodhran. The learned trial Court on the basis of conceding written statement filed by Mst. Ghulam Ruqiya on 6-7-1987, without considering that said lady transferred the suit land in favour of present petitioners on 21-1- 1986 through mutation No, 858. Mst. Ghulam Ruqiya on 6-7-1987 also recorded her statement and supported her conceding written statement but she never appeared before the learned trial Court as witness, Muhammad Siraj Din has appeared as PW-1 and stated that he is witness of agreement to sell (Ex.P.1) and Muhammad Abdul Malik appeared as PW-2 who is also marginal witness of the alleged agreement to sell dated 16-7-1981 (Ex P.1) . It is important to mention here that there are no signatures of Rehmat Ullah, Asmat Ullah and Nemat Ullah on the agreement to sell dated 16-7-1981 (Exh.P.1), therefore, the agreement to sell is a unilateral agreement and under the law it is not enforceable. Reliance is placed on the cases reported as Mst. Barkat Bibi and others v. Muhammad Rafique and others (1990 SCM R 28), Munir Ahmad v. Muhammad Ramzan Sheikh and another (2014 YLR 191) and Sher Shah v. Muhammad Suleman and 2 others (2013 YLR 1017) and Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187) which is as under:-- ' And where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the contract by both the contracting parties i,e, by signing or affixing their thumb impression. So that it should reflect and establish their "consensus ad idem", which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto. In particular it refers to the situation where there is a common understanding of the parties in the formation of the contract in the absence of which there is neither a concept nor the possibility of a valid contract. But in this case this is conspicuously lacking by virtue of non- execution (non-signing) of the agreement by the appellants, therefore in law and fact it is no Contract (agreement). The argument that the agreement to sell in favour of the appellants has been admitted by the vendors and, therefore, is valid and the non-signing has lost its efficacy, suffice it to say that despite the above, the respondent has joined issue with the appellants vis-a-vis the validity and valid execution of the agreement, therefore, the appellants cannot rely upon and take advantage of any admission made by the vendors, because of the law, that an admission made by a co defendant is not binding on the other even if made in the written statement.' and further reliance is placed on Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCM R 334) and the relevant portion there from is reproduced as under:- "6. A perusal of the deed would indicate that it was signed by the appellant Mst. Gulshan Hamid alone and not by any of the three vendees. As evident from the contents of the deed, it created rights and liabilities on both sides. Had there been an occasion for the owner-lady to bring a suit for specific performance, she would not have succeeded because the vendee had not signed the deed so as to accept any of the liabilities. The circumstances under which the contract is made are such that the present plaintiffs are given an unfair advantage over the defendant. Section 22 of the Specific Relief Act, 1877 clearly provides that in such circumstances, the discretion is not to be exercised in favour of the plaintiffs. For ready reference section 22 (clause-I) is reproduced as follows: "22. Discretion as to decreeing specific performance.---The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
' The following are cases in which the Court may properly exercise a discretion not to decree specific performance:
(1) Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part."
7. This Court in Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905 held that the illustrations, given in S.22 are a few instances where discretion should not be exercised in favour of specific performance. Rather, these, illustrations were held to be not exhaustive and the Courts were at liberty, in the circumstances of each case, to visualize any other circumstances as falling within the purview of S.22 of Specific Relief Act. So far as the case in hand is concerned, it is directly and squarely hit by illustration I of 22.
8. The evidence shows that the three plaintiffs belonging to Sialkot, and having the blessings of local property dealers brought a lady-owner around in such a manner so as to take unfair advantage. They kept themselves immune from any future claim of the opposite party by not signing the deal at all. It is admitted in the evidence that the plaintiffs had tampered with the document. It is admitted that the evidence that the document was executed by the lady at Islamabad. It is surprising to observe that it was attested on 18-6-1986 by an Oath Commissioner at Sialkot, in the absence of the deponent executant. The plaintiffs have, thereby, restored to forgery as well. We are of the firm view that in the very construction of the agreement, it was not mutually enforceable and hence no decree of specific performance could be granted."
8. The agreement to sell is a unilateral agreement and under the law unilateral agreement is not an agreement, so it cannot be enforced despite its admission by the co-defendants. The Courts below did not consider the above mentioned dictums laid down by the Hon'ble Supreme Court of Pakistan and erroneously, illegally passed the judgments and decree.
9. In view of above, this civil revision is allowed. The judgment and decree dated 6-11-1995 passed by learned trial Court and judgment and decree dated 5-10-1996 passed by learned appellate court are hereby set aside and suit of the respondents/plaintiffs is dismissed.