' ATIR MAHMOOD, J.---By way of filing the instant RSA, the appellants have assailed judgment and decree dated 28.11.2008 passed by learned Additional District Judge, Shorkot who dismissed appeal of the appellants and upheld judgment and decree dated 15.03.2007 passed by learned Civil Judge Class-I, Shorkot whereby suit of the appellant was decreed.
2. Briefly stated the facts leading to filing of this Regular Second Appeal are that the respondent filed a suit for specific performance of agreement to sell dated 25.02.2004 against one Munshi, appellant-defendant No,1 on 04.03.2004. Since the property was later on transferred in favour of appellant-defendant No,2, she was also impleaded in the suit. The plaintiff asserted that he purchased the suit property from appellant No,1 vide agreement to sell dated 25.02.2004 for consideration of Rs,13,50,000/- out of which a sum of Rs,8,00,000/- was paid whereas the target date for payment of rest of the amount was 21.05.2004; that partial possession of the property was also handed over to the plaintiff; that during the pendency of the suit, defendant No,1 transferred the suit property in favour of defendant No,2 vide mutation No,378; that the plaintiff asked the defendants to receive the remaining amount and transfer the suit land in his favour but they refused.
3. The suit was contested by the appellants-defendants. Out of divergent pleadings of the parties, issues were framed, evidence led by the parties was recorded, whereafter learned Civil Judge 1st Class, Shorkot decreed the suit vide judgment and decree dated 15.03.2007.
' Feeling aggrieved, the appellants preferred appeal which was dismissed by learned Additional District Judge, Shorkot vide judgment and decree dated 28.11.2008. The appellants have preferred this appeal against both judgments and decrees of learned trial court as well as learned lower appellate court.
4. Learned counsel for the appellants, at the very outset, submits that in view of the law laid down by the august Supreme Court in cases titled Farzand Ali and others v. Khuda Bakhsh and others (PLD 2015 SC 187) and Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCM R 334), a unilaterally signed document is neither an agreement/contract nor it can specifically be enforced.
5. On the other learned counsel for the respondent submits that there are concurrent findings of law and fact against the appellants, which are immune from interference by this Court; that judgments supra are not applicable to the case of the respondent being covered under Section 53A of the Transfer of Property Act, 1882 as possession of the suit property was handed over to the respondent. He contends that applicability of Section 53-A of the. Act ibid has not been discussed by the august Supreme Court in the afore-referred judgments.
6. In rebuttal, learned counsel for the appellants submits that respondent cannot take benefit of Section 53-A as the entire payment was not made to the appellant/vendor. He has relied upon the judgment of the Hon'ble Supreme Court titled Rashid Ahmad v. Messrs Friends Match Works (PLD 1989 SC 503).
7. Arguments heard. Record perused.
8. Both the parties have confined themselves to the legal questions enumerated as under:-- 1) Whether or not a unilateral agreement is specifically enforceable 2) Whether or not case of respondent-plaintiff is protected under section 53-A of The Transfer of Property Act, 1882?
3) Whether or not the concurrent findings are immune from interference by this Court?
9. The first point which is to be deliberated upon is whether a unilaterally signed agreement is enforceable or not. A similar point came before the Hon'ble Supreme Court in case titled Farzand and others v. Khuda Bakhsh and others (PLD 2015 SC 187) wherein it was held that:-- "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 agents 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 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 appellants, therefore in law and fact it is no contract (agreement)."
(underline is mine)
Perusal of above paragraph makes it crystal clear that until and unless a document is signed by both the parties, it cannot be termed as even an agreement/contract. Admittedly, the alleged agreement to sell on the basis of which the suit has been decreed by learned courts below is not signed by the appellants, as such, neither it can be said an agreement nor could be enforced. The case of the present appellants is even on better footing than those in judgment titled Farzand Ali and others v. Khuda Bakhsh and others (PLD 2015 SC 187) because the agreement to sell in the said case was admitted by the vendors but in this case, the appellants have denied having executed any agreement to sell in favour of the respondent.
10. Regarding protection of section 53A of the Transfer of Property Act, 1882, the contention of learned counsel for the respondent is that since part possession of the property has been handed over to the respondent, his case is protected under the aforesaid provision of law. It is observed that even if the part possession of the property lies with the respondent, he cannot be benefited on this score as the condition for protection imposed by said provision of law, i,e, Section 53-A of the Transfer of Property Act, 1882, is that there should be a contract. Admittedly, the respondent/ Ikhlaq Ahmed, vendee, has not signed the alleged agreement to sell, as such, this, as discussed hereinabove, is not a contract. I am of the firm view that when there is no contract, there is no protection under Section 53-A of the Transfer of Property Act, 1882. The argument of learned counsel for the respondent is accordingly repelled.
11. Another contention of learned counsel for the respondent is that since there are concurrent findings, this Court has no jurisdiction to interfere therewith. There is a plethora of judgments holding that where there is an illegality, irregularity, mis-reading or non-reading of evidence in the judgments resulting in miscarriage of justice, this Court has ample powers to interfere therewith.
Since the above-noted legal aspects of the case have altogether been ignored by learned courts below, I am inclined to exercise my jurisdiction. Accordingly, this appeal is allowed, the impugned judgments and decrees passed by both the learned courts below are set aside and the suit of the respondent is dismissed.