' By filing the instant appeal the appellants have challenged the judgment and decree dated 30.5.1978 passed by the learned Civil Judge, Sialkot whereby the suit for specific performance of agreement to sell filed by the appellants was dismissed and the judgment and decree dated 20.9.2003 delivered by the learned Additional District Judge, Sialkot by virtue of which the appeal filed by the appellants was also dismissed.
2. The precise facts of the case are that Mst. Hajra Begum the predecessor-in-interest of the present appellants filed a suit for specific performance regarding a house and plot fully mentioned in the body of the plaint on the basis of agreements dated 11.7.1969 and 7.5.1970 (Exh.P1 & P2). The said suit was resisted by the respondents/ defendants with the assertions that no agreement of sale was executed between the parties and agreement referred in the plaint were based on fraud and misrepresentation. The learned trial Court after capturing the disputed area of facts framed the issues, collected stock of evidence led by the parties and after appreciating the same dismissed the said suit whereas the appeal filed by the appellants was also dismissed by the learned lower Appellate Court through the impugned judgments and decrees referred in Para-1 ante. Hence the instant appeal.
2. Arguments heard and record perused.
3. There is no cavil with the preposition that grant of a decree for specific performance of an agreements to sell regarding immoveable property is a discretionary relief. The language of Section 22 of Specific Relief Act 1877 affirms the same. Even in the judgments reported as (2010 SCM R 1217), (2007 SCM R 1047) and (1994 SCM R 111), the said view has further been affirmed.
4. In a suit for specific performance of agreement, the petitioner/plaintiff has to assert that a contract existed between him and defendant/respondent. The petitioner/plaintiff was also bound to plead the facts regarding the contract, which he desired to be specifically performed and where pre-requisite of a contract are found, to be missing, the petitioner/plaintiff is not entitled for a decree of specific performance of contract. The intention of the parties to a contract must be looked to determine that whether a contract had been executed or not and where they did not intend to enter into a contract, there can be no contract. A contract for the sale of immovable property .Is a contract that a sale of such property shall take place on the terms settled between the parties. It is clear from the above proposition of law that the essential terms of the sale of immovable property are --
(a) Payment of the sale price of property or promise to pay the same by the purchaser to the seller; and
(b) The delivery of possession of the property sold by the seller to the purchaser.
'If these two essential terms of sale of the immovable property are determinable in the agreement between the parties with certainty, it may constitute a valid agreement of sale between the parties as laid down in the case of Messrs Karachi Gas Company Ltd. v. Messrs Fancy Foundation (PLD 1984 KAR. 233)
5. In the above context the only requirement is, whether the agreement to sell of the appellants was valid because if it is not valid the question of its enforcement through the process of law and the exercise of discretion does not arise. There is no denial that the above referred agreements Exh.P1 & P2 were not signed by the appellants and such an agreement is not enforceable as per law. In forming such view, this Court is fortified by the judgment delivered by the august Supreme Court of Pakistan reported as Mst. Barkat Bibi and others vs. Muhammad Rafique and others (1990 SCM R 28) and the operative Para of the said judgment is reproduced hereunder: "A perusal of the above "Iqrarnama" shows that there is no reference made therein specifically to the exact consideration for the agreement. Moreover, we observe that it is a unilateral offer made by Muhammad Din to recovery the land as soon as they (the vendors) themselves have raised the money. No indication is to be found in the document that this offer was accepted by the respondents for no one on the side of the respondents has signed this "Iqrarnama" in token of its acceptance. It was no more than a proposal because unless the person to whom the offer is made signifies his willingness to accept it, the proposal does not, in law, ripen into an agreement. Now it is only an "agreement", as the term is understood in law, which can be enforced by a suit for specific performance. Accordingly, it is only if the so-called "Iqrarnama" qualified as an agreement would it have the effect of creating a legal relationship between the pm-ties so as to give rise to jural, as opposed to moral, obligations and then only would a suit for specific performance be maintainable on its basis. The so-called "Iqrarnama" dated 24-7-1953, on close examination, however, does not qualify to be an "agreement". Hence a suit to specifically enforce it was not competent."
' This view has also been strengthened by the judgments reported as Mst. Gul shun Hameed vs. Abdu 1 Rehman and others (2010 SCM R 334). In the said authoritative judgments delivered by the Superior Court, it has been held that an agreement was required to be singed by both the parties and if it was not signed by any one of the parties (vendee), then the same cannot be enforced as per law. On the touchstone of said discussion the agreement Exh.P1 and Exh.P2 were not enforceable even if it is presumed that those were got executed.
6. Moreover, in a recent judgment dated 1.1.2015 passed in C.A. No, 261-L of 2014 titled Farzand Ali and another vs. Khuda Bakhsh and others authored by his Lordship Mian Saqib Nisar, J, the apex Court has authoritatively clinched the instant controversy and after thrashing the plethora of judgments on the subject rendered by the superior Courts hold that the unilateral agreement not signed by the vendee, if is denied and not acted upon by the vendor is not enforceable in the eye of law and request for granting leave on the ground that in some other cases leave was granted was declined on the ground that judgment (PLD 1971 SC 784) was not attracted Para-9 of the said judgment is relevant which is reproduced hereunder:- "9. In the above context, the first and the foremost aspect of the case is, if the agreement to sell of the appellants was valid because if it is not valid the question of its enforcement through the process of law and the exercise of discretion does not arise. It is an undisputed fact that appellants agreement has not been signed by them. And an agreement to sell immovable property is not a "deed poll", unlike e.g. a power of attorney which is only executed by the principal and the agent's execution is neither required nor expedient. Rather in law such an agreement (of immovable property) is a contract (note; may be executory in nature) and the first, and the foremost requisite of a contract, (agreement) is that the parties should have reached agreement, which unmistakably means, that, an agreement is founded upon offer and acceptance. Thus for the purposes of a valid contract (agreement) there should. Be the meeting of minds of the contracting parties (who are competent in law to contract). 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 is a common understanding of the parties in neither 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 favor 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 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 other even if made in the written statement. Reliance in this regard can be placed on the judgments reported as Shah Muhammad and 2 others vs. Dulla qnd 2 others (2000 SCM R 1588). Allah Rakha through L.Rs, vs. Nasir Khan and 4 others (2007 CLC 154), and Zeeshan Bhatti vs. Maqbool Bhatti and another (PLD 2001 SC 79). Besides the above, in the judgment reported as Mst.
Gulshan Hamid vs. Kh. Abdul Rahman and others (2010 SCMR 434) (three members bench of this Court) while considering the specific proposition, whether the plaintiffs in a suit for specific performance was entitled to enforce the agreement which was not signed by them (the vendee), it has been categorically held that "Such unilateral agreement not signed by plaintiff-vendee was not mutually enforceable, whereupon no decree could be passed. The arguments of the learned counsel for the appellants that in some case(s), leave has been granted, therefore, leave on this account should also be allowed in the present matter, we are not persuaded to grant leave in this case on that account alone; learned counsel for the appellants has relied upon the judgment reported as Messrs Jamal Jute Baling & Co., Dacca vs. Messrs M. Sarkies & Sorts, Dacca (PLD 1971 SC 784) to argue to the contrary, wherein it has been held that "terms of agreement reduced into writing and proved to have been accepted and acted upon by both parties--Agreement, proper and valid even if one party had not signed such agreement"
' However the conditions are that the agreement should be accepted by the parties who are actually in dispute qua the validity thereof, and the agreement should have been acted upon. In this case as explained earlier in the light of the facts of the case the real dispute is between the appellants and the respondent, who (respondent) has never admitted the agreement and it has also not been acted upon. It may be even relevant to reiterate here that Mst. Zakia even denied the agreement when she appeared as PW-1, however, she was never even cross-examined by the appellants. Resultantly the judgment supra relied upon by the learned counsel for the appellant is not attracted."
7. On the touchstone of above discussion it can safely be concluded that both the disputed agreements being unilateral are not enforceable as per law and both the Courts below, have rightly non- r suited the appellants through the impugned judgments and decrees on the valid grounds. The learned counsel for the appellant has failed to point out any illegality, perversity or jurisdictional defect in the impugned judgments and decrees, which are also not tainted with any misreading or non-roading of the evidence available on the record calling for any interference by this Court in the exercise of revisional jurisdiction, the scope whereof is narrower and restricted only to the extent of correcting errors of law and facts, if are found to have been committed by the subordinate Courts in the discharge of judicial functions. Resultantly, the instant appeal being devoid of any merit is dismissed.