ZAFARULLAH KHAN KHAKWANI, J.- By means of this civil revision filed under Section 115 of the Code of Civil Procedure, 1908 (V of 1908) the judgment and decree dated 22.06.2004 passed by learned appellate Court/Addl. District Judge, Khanpur in civil appeal No.70 of 2004 has been brought under impeachment, whereby the appeal filed by the plaintiff/respondent No.1 was accepted by setting aside the judgment and decree dated 14.11.2002 passed by the learned trial Court/Civil Judge, Khanpur, resultantly, the suit filed by him for specific performance of agreement to sell was decreed.
2. Briefly the facts of instant civil revision are that plaintiff/respondent No.1 filed a suit for specific performance of agreement to sell dated 29.05.1997 regarding agricultural land measuring 33 kanals 10 marlas situated in Khata No.95, Khatoni No.168 to 176 at Mauza Ahmad Kudan, Tehsil Khanpur, District Rahim Yar Khan by contending therein that the defendant/petitioner was owner of the above said property whereas the defendant /respondent No.2 was his general attorney through power of attorney bearing No.273/4, Bahi No.4, Jild No.11 dated 05.07.1987 through which all rights were given to him to dispose of the property in question. The defendant/petitioner through defendant No.2/respondent No.2 entered into an agreement to sell regarding the suit land with the plaintiff/respondent No.1 for a consideration of Rs.20,000/-, which was received by him and he executed the agreement to sell dated 29.05.1997 in his favour and possession of the suit property was also given to him. Despite payment of whole consideration, agreement could not be completed because due to increase in value of the property in the vicinity the intention of the petitioners/respondents was changed and they refused to execute the sale deed in his favour and on their refusal plaintiff/respondent No.1 was constrained to file the suit.
3. The defendant No.2/respondent No.2 filed consenting written statement whereas defendant No.1/petitioner defended the suit by filing contested written statement in which he maintained that plaintiff/respondent No.1 has filed suit in collusion with defendant No.2/respondent No.2 and impugned agreement to sell is false, forged and has been made with collusiveness of defendant No.2/respondent No.2 in order to cause him financial loss. The main plank of his challenge was that in fact defendant No.2 /respondent No.2 was appointed as attorney by him for arrangement of his property and the said general power of attorney was not read over to him at the time of execution and he had not given any authority to defendant No.2/respondent No.2 to sale, exchange or gift etc. of property. The defendant No.2/ respondent No.2 without his permission entered into exchange mutation with plaintiff/respondent No.1 and exchange mutation No.502 dated 04.03.1996 which the plaintiff/respondent No.1 has challenged in civil Court at Khanpur, Rahim Yar Khan. The defendant No.2/respondent No.2 entered into agreement to sell with the plaintiff/respondent No.1 his close relatives at very low sale price and deprived him of the valuable rights. He had already got cancelled the general power of attorney.
4. The learned trial Court on the basis of divergent adjuration of the parties to capture the disputed area of the lis framed following issues.
1. Whether there exist valid agreement dated 29.05.1997 between plaintiff and defendants and what are its terms and conditions? OPP.
2. If the above issue is proved in affirmative whether plaintiff is entitled to get specific performance of said agreement and on what terms and conditions? OPP.
3. Whether plaintiff has no cause of action and suit is collusive? OPD.
4. Whether plaintiff has approached the Court with unclean hands? OPD
5. Whether defendant No.1 has not authorized defendant No.2 to transfer the suit land? OPD
6. What is the effect of cancellation of general power of attorney in favour of defendant No.2 on 29.11.1997? OPD
7. Whether this Court has no jurisdiction to entertain the suit? OPD.
8. Whether plaintiff has incorrectly valued for the purpose of Court fee and jurisdiction? OPD.
9. Relief.
5. After framing of issues learned trial Court recorded evidence of both the parties heard arguments in detail and vide judgment and decree dated 14.11.2002 dismissed the suit of the plaintiff. The plaintiff/respondent No.1 assailed the said judgment and decree before the learned appellate Court in Civil Appeal No.70 of 2004 which was accepted by the learned appellate Court vide impugned judgment and decree dated 22.06.2004, hence, this civil revision.
6. Arguments heard. Record perused.
7. The plaintiff/respondent No.1 to prove his stance before the learned trial Court appeared as PW-1 and deposed that defendant No.1/petitioner entered into a deal of sale of 33 kanals and 10 marlas of land (disputed land) through his general attorney i.e. defendant No.2/respondent No.2 and the said deal was finalized with the consent of defendant No.1/petitioner. The agreement to sell Ex-P3 was read over to defendant No.2/respondent No.2/vendor and Nabi Bakhsh, Ghulam Nazak and Fareed Bakhsh marked their thumb impressions being witnesses on the said document and same was written by Rehmat Ullah defendant No.2/respondent No.2. It was further deposed that payment was received by said defendant No.2/respondent No.2 on the asking of the defendant No.1/petitioner and possession was also delivered by defendant No.2/respondent No.2 to him. PW-1 categorically admitted that at the time of writing of agreement Ex-P3, defendant No.1/petitioner was not present. He while appearing in witness box also admitted that defendant No.2/respondent No.2 is his maternal cousin (Khala Zad) and house of defendant No.1/petitioner is at distance of three acres away from his house. He further admitted that witness Ghulam Nazak is his maternal cousin (Khala Zad) and Nabi Bakhsh is his uncle. PW-2 Nabi Bakhsh and PW-3 Ghulam Nazak also deposed in lines with PW1. Both the witnesses admitted that at the time of agreement to sell Ex-P3 and payment of amount the defendant No.1/ petitioner was not present.
8. Defendant No.1/petitioner in order to disprove and rebut the stance of the plaintiff/respondent No.1 presented himself before the learned trial Court as DW-1. He deposed that plaintiff/respondent No.1, defendant No.2/respondent No.2, witnesses of the disputed agreement Ex-P3 and stamp vendor all are close relatives. Further deposed that he has neither sold the land in question nor received any sale price nor delivered its possession to the plaintiff/respondent No.1. DW-2 also deposed in lines with DW-1 but DW-3 deposed in favour of the plaintiff/respondent No.1.
9. From scanning of evidence available on record, it is very much evident like daylight that all the parties and witnesses of the agreement to sell Ex-P3 are close relatives except defendant No.1/petitioner, who while appearing in witness box as DW-1 categorically deposed in unequivocal terms that neither he had bestowed any authority to defendant No.2/respondent No.2 for sale of disputed property nor consented for the said sale or received any amount. All the PWs admitted that at the time of righting of Ex-P3 neither defendant No.1/petitioner was present nor he received any payment. Although, defendant No.2/respondent No.2 deposed that after receiving amount from the plaintiff/respondent No.1 he had handed over the same to defendant No.1/petitioner but he failed to establish this fact before the learned trial Court. It has been established from the evidence that at the time of execution of agreement Ex-P3 the defendant No.1/petitioner was not present.
10. There is another aspect of the case that defendant No.2/respondent No.2 was general attorney of defendant No.1/petitioner and his act of transferring the disputed land which had directly affected the right of defendant No.1/petitioner, his consent was not obtained because the disputed land was being transferred in the name of defendant No.2/agent's close relatives. Guidelines in this regard can be gathered from the case of Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCM R 1811) & Fida Muhammad v. Pir Muhammad Khan (Deceased) through Legal Heirs and others (PLD 1985 SC 341)
11. It is crystal clear from perusal of Ex-P3 that it was signed by defendant No.2/respondent No.2 only but not signed by vendee/plaintiff/respondent No.1, so, it was a unilateral document which in the eyes of law was not an agreement and also not mutually enforceable. So, suit of the plaintiff/respondent No.1 was not maintainable. Reference in this regard can be made from the case of Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCM R 334) & Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187).
12. There is no room to depart from the celebrated principle of law that in term of Section 22 of Specific Relief Act, 1870 grant of specific enforcement of an agreement to sell pertaining to an immoveable property was a discretionary relief and even in case where the agreement to sell was proved, the courts may refuse to accept the stance of the plaintiff claiming that relief. Steering thought in this context can be grasped from the case of Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), Liaqat Ali Khan and others v. Falak Sher and others (PLD 2014 SC 506) & Mst. Mehmooda Begum v. Syed Hassan Saijad and 2 others (PLD 2010 SC 952). In Liaqat Ali Khan and others v. Falak Sher and others referred supra the Hon'ble Supreme Court held as under:- "A plain reading of above reproduced statutory provision leads to a definite conclusion that the relief of specific performance claimed by respondents Nos.1 to 4 in their suit is, purely discretionary in nature and the Court is not bound to grant such relief merely as it is lawful to do so. At the same time, the discretion to be exercised by the Court shall not be arbitrary, but it should be based on sound and reasonable analysis of the relevant facts of each case, guided by judicial principles............ it will be the peculiar facts and circumstances of each case, particularly, the terms of the agreement between the parties, its language, their subsequent conduct and other surrounding circumstances, which will enable the Court to decide whether the discretion in terms of section 22 (ibid) ought to be exercised in favour of specific performance or not."
13. In another case of Shakeel Ahmad v. Mst. Shaheen Kausar (2010 SCM R 1507) the Hon'ble Supreme Court has been held as under:- "Such discretion must be exercised on sound judicial principles of equity, fairness and good conscious and not on erroneous assumption or presumption---Court is not bound to grant relief merely because it is lawful to do so irrespective of the conduct of contracting parties and no unfair advantage to be given to a party or to the other in the suit for specific performance---Relief can be refused though there may not be any fraud or misrepresentation on the part of plaintiff.
14. In Muhammad Sharif and others v. Nabi Bakhsh and others (2012 SCM R 900) the Hon'ble Supreme Court while considering the remedy in the cases suit for specific performance held as under:- "Remedy by way of specific performance for being an equitable relief and discretionary could not be claimed as of right---Court would not be bound to grant such relief merely because doing so would be lawful."
15. As a sequel to the above, this Court is of the considered opinion that the plaintiff/respondent No.1 with the help of defendant No.2/respondent No.2 and others who are his close relatives manipulated the agreement by hatching a conspiracy to divest the petitioner/defendant No.1 from the rights of ownership of his land.
16. In culmination of the discussion supra, this Court believes that plaintiff/respondent No.1 had failed to prove his case before learned trial Court and the agreement to sell Ex-P3 being unilateral agreement not signed by defendant No.1/petitioner was not mutually enforceable, resultantly, the instant civil revision is accepted. The judgment and decree dated 22.06.2004 passed by learned appellate Court/Addl. District Judge, Khanpur, District Rahim Yar Khan in civil appeal No.70 of 2004 is set aside and the judgment and decree dated 14.11.2002 passed by learned trial Court/Civil Judge, Khanpur, District Rahim Yar Khan is restored, consequently, the suit filed by the plaintiff/respondent No.1 is dismissed with costs through out.