Shahid Karim, J:- This is an application under section 115 of the Code of Civil Procedure (CPC) by way of revision petition against the concurrent findings of fact vide judgment and decree dated 31.1.1993 passed by Civil Judge, Layyah and affirmed in appeal on 18.9.2000 by Addl. District Judge, Layyah.
2. The cause of action for the instant revision petition is an agreement to sell dated 8.9.76. A suit was filed by the respondent/plaintiff for specific performance of the agreement to sell on 13.9.88.
The said suit was with regard to the land measuring 21 Acres, 16 Marlas situated in Chak No.369-II, TDA, Tehsil & Distt. Layyah. It was alleged in the plaint that the date of performance of agreement was 01.12.1976 and that the petitioners/defendants had failed to perform their part of the agreement and thus the instant suit.
3. Written statement was filed by the petitioners/defendants in which the averments made in the plaint were denied. It was also denied that the petitioners had ever entered into any agreement to sell of any property. There were other preliminary objections taken with regard to the maintainability of the suit.
4. The trial court framed the following issues out of the pleadings of the parties:
1. Whether the plaintiff has no cause of action and locus-standi to file this suit? OPD.
2. Whether the plaintiff is estopped by his words and conduct to file this suit? OPD.
3. Whether the suit of the plaintiff is defective due to non-joinder of necessary parties? OPD.
4. Whether the suit of the plaintiff is barred by time? OPD.
5. Whether the suit property is mis-described? If so, what is the correct description? OPD.
6. Whether genuinely an agreement to sell was made of the disputed property vide Iqrarnama dated. 8.9.76 by the predecessor of the present defendants No.2 to 5 in his own capacity and general attorney of the defendant No.1 and in furtherance thereof received sum of Rs.4900/- and delivered the possession? OPP.
7. If above issue is proved, as to whether the plaintiff is entitled to specific performance of the contract? If so, on what terms and conditions? OPP.
8. Relief.
5. The respondent was served personally on 02.10.2009 yet no one has appeared on his behalf today. The respondent is thus proceeded against ex-parte.
6. The learned counsel for the petitioners has submitted that the agreement to sell Ex.P.1 does not describe or gives forth any detail of the purported property which was the subject matter of the sale. He further submits that Ex.P.1 does not contain the signatures of Muhammad Inayat, the alleged vendee and the respondent/plaintiff of the suit. Further pointed out that major contradictions in the depositions of PW.1 and PW.2. He has also referred to the illegality which has crept in the judgments of courts below on account of Section 21(C) and Section 14, 15, 16, 17 of the Specific Relief Act, 1877.
7. It is relevant to mention that the courts below have passed a decree of specific performance of a part of an agreement. In this regard, the trial court as well as the lower appellate court by strange reasoning have proceeded to hold that the contract cannot be performed with regard to legal heirs of Anwar Majeed and shall only be performed with regard to the part of property belonging to Akram Majeed and Mumtaz Majeed. In this manner, the suit was decreed to the extent of 3/5 share of 169-Kanals. This has been done while deciding the issue No.6 and 7. It is not clear how the courts below have embarked upon such an exercise. It seems that this was triggered from the words "Akram Majeed etc" used in the agreement to sell as also because the land in question which was alleged to be the subject matter of sale was the joint property of the legal heirs of M.A Majeed.
However, while doing so, the courts below have lost sight of section 14, 15, 16 and 17 of the Specific Relief Act, 1877 (Act, 1877). These sections are reproduced as under:
14. Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.
15. Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.
16. When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part.
17. The Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections"
8. It is clear from a reading of section 17 of the Act, 1877 that the court cannot direct the specific performance of a part of a contract except in cases coming under one or the other of the three last preceding sections. It is important to bear in mind that the suit for specific performance was for the entire property which belonged to M.A Majeed the predecessor-ininterest of the petitioners/defendants. It was in respect of the land measuring 21 Acres, 16 Marlas. Without going into question whether the claim in the plaint for the specific performance of the entire land holding could have been granted, the courts have dilated upon the question of part performance of the said agreement and have thereby passed a decree to the extent of the share falling to Akram and Mumtaz. This was not an issue before the courts below and no issue was framed with regard thereto. The mandate of section 15 and 16 of the Act, 1877 does not admit of the part performance in the manner in which it has been done by the courts below. By section 14, the court may direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. This is where the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money. Similarly, section 15 relates to a situation where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole or does not admit compensation in money. Section 16 is to the effect that where part of a contract, which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part.
9. An analysis of sections 14, 15, 16, and 17 of the Act, 1877 makes it evident that the present case does not come within the ambit of any of these provisions. More importantly, the courts below have not adverted, at all, to the provisions of section 14 and thus, have fallen in palpable error of law as well as misreading of evidence. They have not, while doing so, dilated upon the terms of the agreement to sell Ex.P.1 nor have they discussed the proposition as to how the said agreement Ex.P.1 can be split up and partly performed. A reading of the agreement Ex.P.1 makes it evident that the said document does not contain full particulars of the property which is sought to be sold and the only description that has been given, is simply a land measuring 21 acres, 16 Marlas, situated in Chak No.369-A/TDA, Tehsil & Distt. Layyah. This, I am afraid, offends the provisions of section 21 (c) of the Act, 1877, which is reproduced as under: "21. The following contracts cannot be specifically enforced:- (a)......
(b)......
(c) a contract the terms of which the Court cannot find with reasonable certainty."
10. According to section 21 (c) of the Act, 1877, a contract, the terms of which, the court cannot find with reasonable certainty, cannot be specifically enforced. Once again, the courts below have not had their attention drawn to this aspect of the matter. It is anybody's guess as to which land forms the subject of sale agreement when no description, at all, was given in the agreement to sell Ex.P.1.
Merely stating the name of the village in which the land is situated does not satisfy the requirements regarding certainty and exactitude of the description of property which was sought to be alienated. This would bring the case within the mischief of section 21(c) of the Act, 1877. The observations made in Fida Hussain v. Jalal Khan (2002 CLC 1339) shed some light on the proposition in hand and are to the following effect: "It is difficult to lay down any general rule as to what is sufficient certainty in a contract but it can be safely stated that the certainty required must be responsible one being regard to subject matter of the contract. The principle is that description must be such as to enable the court to determine with certainty the subject matter of the contract. In the instant case in the absence of any particular of Killa number or any other definable particulars, it was not possible for the court to determine that what 8 Kanals of land out of 86 Kanals 8 Marlas was subject matter of the agreement to sell. I therefore, uphold the finding of the first appellate court on this score."
11. The courts below have misread the evidence of PW.1 Farooq Haider. He is the marginal witness of Ex.P.1 produced by the respondent/plaintiff. Although in his examination in chief he does not state that Akram Majeed put his signatures in his view and, therefore, he was also the witness to the attestation of the said document. However, in his cross examination, he clearly admits that no one signed the said document in his presence and then recovered to say that only Faiz Bukhsh had signed it in his presence. Therefore, in this regard, there is a serious contradiction in his statement which has not been noticed by the courts below and they have only relied upon the statement made in his examination-in-chief. He also admits that at the place where the name of the respondent/plaintiff was written on Ex.P.1, there are no signatures and, in fact, it has not been signed by the respondent/plaintiff Muhammad Inayat, the alleged vendee. Also that there was no thumb impressions as well. He also admits that the purported signatures of Akram Majeed, the alleged vendor is also not clear and seems to be put like a blot. Faiz Bukhsh was produced as PW.2 and claimed to be the second marginal witness of Ex.P.1. He states in his cross examination that he did not know the person in whose favour the agreement to sell was being executed. He further states that he has no knowledge whether the person in whose favour Ex.P.1 was being written, was or was not present at that time. He is a complete stranger and does not know the parties and states in his cross examination that he signed the said document on the asking of one Ghulam Sarwar. He further states that he did not ask Akram Majeed regarding his identity card or whether he had the documents of the property on him or not. More importantly, he states that he had not seen the power of attorney in favour of Akram Majeed. It is evident that there are serious contradictions in the statements of the witnesses produced by the respondent/plaintiff.
12. An important aspect of the instant matter to which the courts below have not adverted to is that there are no signatures of Muhammad Inayat on Ex.P.1. Therefore, the question would necessarily arise as to whether the proposal, if at all made, had converted into a promise and thus a valid contract had come into existence. According to section 7 of the Contract Act, 1872, in order to convert a proposal into a promise, the acceptance must be absolute and unqualified and must be expressed in some usual and reasonable manner. Further, by section 3 of the Contract Act, 1872, the communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it. It is, therefore, highly doubtful whether a valid contract came into existence since Ex.P.2 is not signed by the alleged vendee. The possibility cannot be ruled out that this document was got prepared but the parties did not act upon it and has been later on used for this purpose.
13. For what has been stated above, this revision petition is accepted and the judgments and decrees of the courts below are set aside.