' SHUJAAT ALI KHAN, J. -- Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed order, dated 30.06,2014, passed by the Member (Judicial-Ill), Board of Revenue, Punjab, Lahore (respondent No, 1).
2. Briefly put the facts, as spelt out in this petition, are that Hashmat Ullah son of Qadir Nawaz (predecessor-ininterest of the petitioner and respondents No, 7 to 9) executed general power-of- attorney, in favour of his real brother namely Habib Ullah son of Qadir Nawaz (predecessor-in- interest of respondents No, 3 to 6), on '24.04.1971, in respect of two chunks of land allotted to him in Chak No, 165/WB and 170/WB Mailsi, District Vehari under Gujranwala Oustee Scheme, on the basis whereof the latter entered into an agreement to sell with respondents No, 3 to 6 on 13.09.1974.
Respondents No, 3 to 6, on the basis of said agreement to sell, filed a suit for permanent injunction which was decreed vide judgment & decree, dated 20.07.1976 on the statement made by predecessor-in-interest of the petitioner and respondents No, 7 to 9. Subsequently, predecessor- in-interest of the petitioner and respondents No, 7 to 9 got cancelled the said general power-of- attorney on 01.09.1976. On the basis of judgment & decree, dated 20.07.1976, respondents No, 3 to 6 filed an application before the Commissioner, Multan Division, Multan for transfer of tenancy rights under Section 19 of the Colonization of Government Lands (Punjab) Act, 1912, who accepted the same vide order dated 02.04.1979 which was challenged by the petitioner before the Member (Colonies) Board of Revenue, Punjab, by filing revision petition which was allowed through order dated 16.09.1980. Later on respondents No, 7 to 9 filed Review Petition No, 56/1982 against aforesaid order, dated 16.09.1980, which was dismissed through order dated 24.08.1982. Thereafter, respondents No, 7 to 9 filed an appeal (R.O.A. No, 69/1982) before the Member (Colonies), Board of Revenue, Punjab, against order dated 02.04.1979 passed by the Commissioner, MuItan Division, Multan which was dismissed through order dated 23.11.1982. On 29.11.1976, predecessor-in-interest of the petitioner and respondents No, 7 to 9 filed a declaratory suit challenging agreement to sell and judgment & decree, dated 20.07.1976 on the ground that the same were result of collusiveness which was decreed, through judgment & decree, dated 29.10.1985 against which respondents No, 3 to 6 filed an appeal which was allowed by the learned Additional District Judge, vide judgment & decree, dated 17.11.1986. Besides that on 02.11.1980 respondents No, 3 to 6 also filed a declaratory suit seeking setting aside of order dated 16.09.1980 passed by the Member (Colonies), Board of Revenue, Punjab, which was subsequently dismissed as withdrawn, vide order dated 01.07.1985. On revenue side, respondents No, 3 to 6 filed an application before the Deputy Commissioner, Vehari, on 10.03.1996 seeking permission to deposit the sale price who accepted the same vide order dated 28.08.1996. Additionally, respondent No, 8, on 05.10.2009, filed an application before the District Officer (Revenue) Vehari for execution of sale-deed whereas the petitioner filed an application for implementation of order dated 16.09.1980 passed by the Member Board of Revenue Punjab, Lahore. Both these applications were dismissed, by the District Officer (Revenue) Vehari through orders dated 08.03.2011 against which the petitioner filed an appeal before the Executive District Officer (Revenue) Vehari who allowed the same vide order dated 25.10.2012 against which respondents No, 3 to 6 filed ROR No, 2749/2012 before respondent No, 1 who accepted the same vide order dated 30.06.2014; hence this petition.
3. Learned counsel for the petitioner submits that if for the sake of arguments, it is admitted that the suit filed by respondents No, 3 to 6 was decreed on the statement of predecessor-in-interest of the petitioner and respondents No, 7 to 9, even then that decree could not be executed till the grant of proprietary rights in favour of the petitioner and others legal heirs of Hashmat Ali that while conceding the claim of respondents No, 3 to 6 the original allottee covenanted that he would not alienate the land in favour of anybody else except respondents No, 3 to 6; that as the land has not been alienated by the original allottee and after his death by his legal heirs in favour of anybody else, respondents No, 3 to 6 have no cause of action to move different fora; that in presence of clear cut order dated 16.09.1990 passed by the Member, Board of Revenue, against which respondent No, 3 also filed a declaratory suit which he withdrew subsequently, the orders passed by respondent No, 1 cannot sustain; that respondent No, 1, while passing the impugned order has misconstrued the decree passed by the learned Civil Judge in the suit filed by respondents No, 3 to 6 in the year 1976 and considered it as that for specific performance; that as on the basis of agreement to sell predecessor-in-interest of respondents No, 3 to 6 covenanted to transfer the land in favour of his own blood relations the transaction has no sanctity in the eye of law.
4. Learned counsel representing respondents No, 3 to 6, while defending the impugned orders states that execution of general power-of-attorney alongwith agreement to sell in favour of respondents No, 3 to 6 is admitted, thus, the said transaction is covered under Section 202 of the Contract Act; that as the petitioner has not challenged certain orders, in particular judgment & decree, dated 07.11.1986 passed by the learned Appellate Court, whereby the findings of the learned Civil Judge regarding acceptance of the suit filed by the present petitioner were reversed and his suit was dismissed, is not entitled for any equitable relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; that after passing of judgment & decree, dated 20.07.1976, rights of respondents No, 3 to 6 stood established; that sale price has already been deposited by respondents No, 3 to 6 pursuant to the orders passed by. The competent authority; that though decree was passed on 20.07.1976 but Hashmat Ullah did not challenge the decree in his life time though he remained alive till 08.03.1980 meaning thereby that the suit filed by respondents No, 3 to 6 was decreed on the basis of valid statement made by predecessor-in-interest of the petitioner and respondents No, 7 to 9; that after deposit of sale price the revenue authorities have become functus officio and they are bound to issue Conveyance Deed in favour of respondents No, 3 to 6; that as a matter of fact, due to escalation in price of the landed property the petitioner is clamoring to dislodge the claim of respondents No, 3 to 6 just to blackmail them; that at the time of agreement to sell as well as the statement made before the Court on the basis whereof decree dated 20.07.1976 was passed, the general power-of-attorney executed by predecessor-in-interest of respondents No, 3 to 6 was intact, thus, the acts undertaken by the attorney during the said period are not open to interference by this Court; that revocation of general power-of-attorney on 01.09.1976 was result of influence exerted by the petitioner on his father; that the other legal heirs of original allottee are supporting the version of respondents No, 3 to 6, thus, they are in possession of land in question on the basis of valid documents. In support of his submissions, learned counsel has relied upon the cases reported as Province of the Punjab through Collector district Khushab, Jauharabad and Others v. Hall Yaqoob Khan and others (2007 SCMR 554) Abdul Rahim v. Mukhtar Ahmed and 6 others (2001 SCMR 1488), M/s Business Computing International (Pvt.) Ltd. V. IBM World Trade Corporation (1997 CLC 1903), M/s Word Wide Trading Co. v. Sanyo Electric Trading Co.
Ltd. And another (PLD 1986 Karachi 234) and Syed Shafique Hussain v. Syed Abdul Qasim (PLD 1979 Karachi 22).
5. Since respondents No, 7 to 9 failed to enter appearance despite substituted service by way of proclamation in daily Nawa-e-Waqt, dated 26.02.2016, they were proceeded against ex parte, vide order dated 28.03.2016.
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition well as the case-law cited at the bar.
7. A bird's eye view of the agreement to sell, being relied upon by the respondents No, 3 to 6 shows that the same was subject to conferment of proprietary rights in favour of predecessor-in-interest of petitioners and respondents No, 7 to 9 meaning thereby that the same was a contingent contract. The enforcement of a contingent contract is governed under sections 31 & 32 of the Contract Act, 1872. The apex Court of the country while discussing a question regarding enforcement of a contingent contract in the case of Muhammad Anwar v. Muhammad Aslam and others (2012 SCMR 345) has inter-alia observed as under:- "15. We are not impressed by the contention of the learned counsel. We have noticed that contract of such a nature is covered by the definition of 'contingent contract' in terms of Section 31 of the Contract Act, 1872. Section 32 of the said Act provides how contingent contracts are enforceable in law. The law allows enforcement of a contingent contract, after the event upon which it was contingent, has happened. In order to seek enforcement of a contingent contract, the party suing to enforce an obligation, which is conditioned upon the occurrence of an event, has to only establish that the event has occurred in a manner contemplated by the contract for the obligation to arise. "
' Further, the High Court AJ&K in the case of Ashfaq Ahmed and 6 others v. Ch. Maqbool Raza and 4 others (2008 CLC 1340) while highlighting the consequences of a contingent contract in absence of fulfillment of the condition inter alia held as under-- ' After perusal of Section 31 of the Contract Act, in light of the above precedents, I am of the considered view that the test to determine as to whether a contract is 'contingent' or 'absolute' is that if there is mere stipulation in the agreement-to-sell that the sale-deed would be executed after obtaining permission from any public functionary then such a condition is not collateral to the contract and the contract cannot be construed as a 'contingent' contract because the condition was forming the part of the consideration. However, where vendor is not in possession of the absolute title and execution of the sale-deed depends upon the grant of proprietary rights by the Government then such a contract could be declared as 'conditional' or 'contingent as has been opined in the Tribhuban Parkash Nayyar v. The Union of India AIR 1970 SC 540. "
' If the case of the respondents is considered on the touchstone of afore-quoted judgment there leaves no ambiguity that till the time the proprietary rights were granted in favour of the original allottee or after his death in favour of his legal heirs, the respondents could not sue him/them for enforcement of the conditional agreement to sell.
8. It is well established by now that when a vendee executes general power-of-attorney alongwith an agreement to sell upon payment of consideration, the transaction it fully covered under Section 202 ibid. Insofar as the case in hand is concerned, admittedly the general power-of-attorney was executed in favour of predecessor-in-interest of respondents No, 3 to 6 whereas the agreement to sell was executed by the attorney in favour of respondents No, 3 to 6 who are from his progeny. In this backdrop, Section 202 ibid is not applicable.
9. It is admitted position that on the basis of general power-of-attorney, the attorney executed agreement to sell in favour of his own kids i.e, respondents No, 3 to 6. It is well-settled by now that without seeking specific prior permission in that regard, an attorney cannot not enter into an agreement to sell with his near and dear ones. Reliance in this regard is placed on Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCMR 1811), Fida Muhammad v.
Muhammad Khan (PLD 1985 Sc 341), Muhammad Yousaf v. Muhammad Ramzan and another (2010 YLR 3222), Ghulam Sarwar and 6 others v. Mushtaq Ahmad and others (2006 YLR 1019). In the case of Fida Muhammad (Supra) the apex Court of the country has interalia observed as under:--- "The second aspect which needs caution on question of validity of acts under a Power-of-Attorney is that notwithstanding an authority to alienate principal's property, the Attorney is not absolved from his two essential obligations, amongst others firstly in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction. "
10. Learned counsel for respondents No, 3 to 6 has ,put much emphasis on the fact that after deposit of sale price by respondents No 3.0 they are entitled for issuance of Conveyance Deed In this regard, I am of the view that when such action is completed 'by the original allottee pursuant to valid orders passed by the revenue authorities, his right is covered under that principle. Since respondents No, 3 to 6 are basing their claim on the agreement to sell which was only effective after grant of proprietary rights in the name of original allottee or after his death in favour of his legal heirs, the said principle is not, applicable. Admittedly, the petitioner, despite repeated efforts failed to get upset the findings of the Board of Revenue recorded in its order dated 16.09.1980, therefore, respondent No, 1 proceeded on wrong track while holding that he is entitled for issuance of Conveyance Deed.
11. Learned counsel for the petitioner has rightly pointed out that while dealing with the matter respondent No, 1 has considered decree, dated 20.07.1976, as that passed in suit for specific performance whereas as a matter of record the same was passed in suit for permanent injunction.
To substantiate the said fact the following lines from Para No, 5 of the impugned order are relevant:- "The present petitioners on the basis of such agreement to sell filed a civil suit for specific performance, which was decreed by the Civil Judge, Mails! On 20.07.1976".
' Likewise, in Para .No, 17 of the impugned order respondent No 1 has inter-alia observed as under:- "In this particular case the tenancy rights have been sold to the predecessor-in-interest of the present petitioners through a private treaty, the possession was handed over in the year 1974 and the Civil Court has passed the decree upon a suit for specific performance. " (emphasis provided).
' In presence of such findings which runs contrary to the record, the order passed by respondent No 1 Cannot be allowed to remain in field even for a moment.
12. Learned counsel for respondents No, 3 to 6 has repeatedly argued that as the petitioner has not assailed certain orders including decree, dated 20.07.1976. Ant 07.11.1986, thus, he is not entitled for any relief in this petition. Though learned counsel for the petitioner has admitted that those orders have not been assailed any further by the petitioner but as a matter of fact challenging of of said order does not render the instant petition as ineffective inasmuch as decree dated 20.07.1976 having been passed in a suit for permanent injunction could operate against the petitioner in the eventuality of alienation of the suit property to somebody else in violation of said decree. Likewise, the appellate decree, does not operate as an impediment in the way of the petitioner as dismissal of suit of the petitioner does not confer any right upon respondents No, 3 to 6 rather they are bound to get enforced agreement to sell through process of law.
13. It is very interesting to note that respondents No, 3 to 6 are basing their claim on the agreement to sell and in case of non-fulfillment of his part, by the vendor they could only file a suit seeking specific performance thereof. There is nothing on record to show that respondents No, 3 to 6 ever approached in that regard. In this scenario, the approach of respondent No, 1 treating the decree passed in a suit for permanent injunction filed by respondents No, 3 to 6, as that of specific performance, is misconceived and deserves to be brushed aside.
14. So far as the case-law relied upon by learned counsel for respondents No, 3 to 6 is concerned, suffice it to observe that the same is not applicable to the facts and circumstances of instant case inasmuch as in the case of Abdul Rahim (Supra), the apex Court of the country has held that when a power-of-attorney is executed against a consideration, the sale of the property by the attorney in token of a sale receipt is permissible whereas in the instant case in the power-of-attorney there is no mention of payment of consideration amount. Further, when the authenticity of the agreement to sell executed by the attorney in favour of respondent No, 3 to 6 (his own children) is under shadow, the said case is of no help to the petitioner. Now coming to the case of M/s. Business Computing International (Pvt.) Ltd. (Supra), I have noted that the Sindh High Court has held that any investment by the attorney in the business is fully covered under Section 202 ibid whereas no question of investment is involved in the present case rather the conduct of predecessor-in-interest of respondents No, 3 to 6 is dubious on account of transfer of property to his own children through agreement to sell. So far as the case of M/s Word Wide Trading Co.
(Supra) is concerned, the Sindh High Court has discussed that how an agency created with interest can be terminated whereas in the instant case the power-of-attorney executed in favour of predecessor-ininterest of respondents No, 3 to 6 was got cancelled by the principal way back in the year 1976, thus, the said case is not applicable. Insofar as the case of Syed Shafique Hussain (Supra) is concerned, suffice it to note that in the said case the Sindh High Court has held that when there exists an interest in the attorney, the power-of-attorney executed in his favour cannot be revoked but in the instant case the power-of-attorney executed in favour of predecessor-in- interest of respondents No, 3 to 6 having been revoked in the year 1976, the present case stands distinguished. Now coming to case of Province of Punjab and others (Supra) I have observed that apex Court of the country has resolved that revenue authorities are bound to act within four corners of their jurisdiction but when they exceed their jurisdiction the bar contained under the Colonization of Government Lands (Punjab) Act, 1912 does not remain operative.
15. For what has been discussed above, instant petition is accepted and the matter, is remanded to respondent No, 1 for decision afresh.