' QALANDAR ALI KHAN, J.---This revision petition and Revision Petition No,352-A/2009, both by Taj Muhammad (petitioner), arise out of two suits, one by Mubashir Ahmed (respondent) for declaration, specific performance of the agreement dated 07.03.2000, perpetual injunction and in the alternative, for possession in respect of land measuring 10 Marlas situated in Mansehra, (Suit No, 183/1), and the other by the petitioner, Taj Muhammad against the respondent, Mubashir Ahmed, for cancellation of the agreement deed dated 07.03.2000 (Suit No, 184/1), therefore, this single judgment shall also dispose of the connected C.R. No .352-A/2009 .
2. Mubashir Ahmed, respondent lodged suit for declaration therein claiming ownership and possession in respect of land measuring 10 Marlas situated in village Mansehra along with prayer for specific performance of the agreement dated 07.03.2000 through attestation of mutation/ registered deed, perpetual injunction thereby restraining the petitioner/defendant from transferring the suit property on the basis of wrong entries in the revenue record or interfering in the possession of the respondent/plaintiff and also for possession of the property, in the alternative, if his possession is either not proved or he is dispossessed during pendency of the suit.
3. The respondent/plaintiff averred, in his plaint, that petitioner/defendant was owner in possession of the suit property who transferred the same by way of sale in his favour vide agreement dated 07.03.2000 for sale consideration of Rs,450,000/- and transferred possession in his favour whereafter the respondent/plaintiff was in possession of the property as owner, and that out of total sale consideration of Rs,450,000/-, the respondent/plaintiff paid Rs,200000/- to the petitioner/defendant and an agreement to sell was executed in this respect whereby the petitioner/defendant undertook to redeem the property mortgaged with House Building Finance Corporation in the Month of August 2000 and then to either get the mutation attested or transfer the property through registered deed in favour of respondent/plaintiff. It was stated by the respondent/plaintiff that he had to pay the remaining sale consideration of Rs,250000/- to the petitioner/defendant at the time of attestation of mutation or registered sale deed and that he was ready to fulfill his part of the agreement but the petitioner/ defendant had not entered mutation or executed registered sale deed, therefore, the respondent/plaintiff had to register a criminal case against the petitioner/ defendant under Sections 420/418/468, P.P.C., leading to arrest of the petitioner/ defendant and later on his release on bail. The suit was instituted by the respondent/ plaintiff on 09.04.2001, and on the following day i,e, 10.04.2001; the petitioner. Instituted rival suit against the respondent for cancellation of the agreement dated 07.03.2000 on the ground of the same being based on fraud and misrepresentation.
4. In his suit, the petitioner, though, admitted execution of the agreement deed in .Respect of the suit property measuring 10 Marla for sale consideration of Rs,450,000/-, yet claimed that the respondent was to make payment 'of Rs,200000/- immediately and remaining sale consideration amounting to Rs,250,000/- in the month of October, 2000, whereafter the petitioner was to redeem the property from House Building Finance Corporation and then transfer the land in favour of the respondent through Mutation or registered sale deed and also transfer possession in his favour and further that in case of non-payment of the remaining sale consideration in the Month of October, 2000, the agreement to sell was to be deemed as cancelled. The petitioner further claimed that after execution of the agreement deed, which was signed by him, the respondent left the country for abroad and did not make payment of the remaining sale consideration in the Month of October, 2000, neither made the remaining payment on his return from abroad, therefore, the amount of Rs,200000/- received by the petitioner from the respondent was returned by him to the latter through his cousin Muhammad Riaz. The petitioner also admitted that he was arrested by the local police in the Month of March 2001, whereupon he came to know that the agreement deed was not entered in accordance with the terms, and conditions of agreement to sell, and that the respondent had concealed this fact from the local police at the time of registration of FIR against the petitioner that the agreement to sell was already cancelled and the amount returned by him to the petitioner had been received back by him. The petitioner, therefore, prayed for a decree in his favour against the respondent for cancellation of the agreement on the grounds of non-payment of the remaining sale consideration in the month of October, 2000, receiving back the amount of Rs,2000001- by the respondent, the agreement being based on fraud and misrepresentation and no delivery of possession by him to the respondent.
5. The parties submitted their written statements to the suits against them, whereupon the following consolidated issues were framed by the learned trial Court/Civil Judge, Mansehra.
1. Whether plaintiffs have got cause of action in their respective Suits Nos. 183/1 and 184/1?
2. Whether plaintiffs in their respective suits are estopped to sue?
3. Whether the Suits Nos.183/1 and 184/1 are bad in their present forms?
4. Whether defendant of Suit No,183/1 (Taj Muhammad) had repaid/returned Rs,2,00,000/- (two lac) as partial sale consideration to plaintiff (Mubashir)?
5. Whether due to non-payment of remaining sale consideration of Rs 2 ,50,000/- within stipulated time by Mubashir to Taj Mohammad, the agreement to sell becomes void?
6. Whether defendant of suit No, 183/1 (Taj Mohammad) is bound to fulfill the terms and condition of agreement dated 7.3.2000?
7. Whether the agreement to sell dated 7.3.2000 is a result of fraud of Mubashir and is against actual facts, as such same is liable to cancellation being void?
8. Relief?
9. The parties adduced their respective, evidence, and after they had closed their evidence, a local commission was appointed to furnish his report. He furnished report and his statement was also recorded; and the commission report was accepted by both the parties vide their joint statement dated 16.01.2004. Thereafter, the learned trial Court/Civil Judge, Mansehra, heard arguments of learned counsel for the parties and rendered consolidated judgment on 20.03.2008; whereby, a decree for declaration, specific performance of the agreement and perpetual injunction was granted in favour of the respondent against the petitioner whereas alternate relief for possession was dismissed for having become infructuous; and suit of the petitioner was dismissed vide the same consolidated judgment dated 20.03.2008; which was assailed by the petitioner through two separate appeals, one against dismissal of suit and the other against decree in favour of the respondent, before the District Judge, Mansehra; and both the appeals were disposed of through consolidated judgment dated 16.02.2009, whereby decree in favour of the respondent to the extent of declaration was set aside, while rest of the judgment/decree of the learned trial Court was' maintained; hence these two separate revision petitions against the same impugned consolidated judgment dated 16.02.2009.
7. Arguments of Mr. Muhammad Rafique Yusuf, Advocate, counsel for the petitioner, and Syed Sajjad Hassan Shah, Advocate, counsel for the respondent, heard; and record perused.
8. The learned counsel for the petitioner assailed the impugned judgment and decree of the learned appellate Court/District Judge, Mansehra, dated 16.02.2009 on the following grounds:-
(i) That suit for specific performance of the agreement was not sustainable as suit for specific performance was maintainable only in respect of contract duly signed by both the parties which was not the case here as the respondent had not signed the agreement;
(ii) That the agreement was contingent upon redemption of mortgage, which was not fulfilled therefore the agreement was rendered void;
(iii) That the corpus constituting the agreement was not existent as the land was already mortgaged with the House Building Finance Corporation to the knowledge of the respondent;
(iv) That time was essence of the agreement and non-performance of his part of the agreement by the respondent within speculated time rendered the agreement void;
(v) That there was only recital of delivery of possession in the agreement deed but the possession was, in fact, not delivered to the respondent under the agreement, which was still with the petitioner;
(vi) That the earnest money amounting to Rs,200000/- received by the petitioner was returned, and that the respondent had received the same therefore he had no locus standi to lodge suit for specific performance of the agreement; and
(vii) That the agreement deed was based on fraud and misrepresentation, ' The learned counsel for the petitioner also referred to judgment of the learned Civil Judge-VI', Mansehra, dated 11.05.2011 in Civil Suit No,261/1 titled Mubashir Ahmed' Khan v. Taj Muhammad and another, whereby, the Igrar-Nama/agreement deed was held non-existent, beside holding that the petitioner had not delivered possession to the respondent and that the suit property was still in the possession of the petitioner. The learned counsel further pointed out that the revision petition against that judgment was withdrawn by the counsel for the respondent, which was dismissed, as such, by the learned Additional District Judge-IV, Mansehra vide order dated 04.09.2012.
9. In support of his submissions at the bar, the learned counsel for the petitioner placed reliance on the judgments in cases reported as follows:- {2006 SCMR 340, 2010 SCMR 334, 2002 SCMR 134, 2000 SCMR 780, 1999 SCMR 2874, 1992 SCMR 1629, 1994 SCMR 111, 1985 SCMR 1966, 2006 CLC 1110 (Lahore), 2005 MLD 283 (Lahore), 1991 CLC 104 (Lahore), 2005 YLR 2456 (Lahore), PLD 1996 Lahore 99, 2004 CLC 1229 (Peshawar), 1996 CLC 1708 (Peshawar), 2010 CLC 1879 (Karachi), 1988 MLD 2159 (Karachi), 1987 CLC 798 (Karachi) and PLD 1993 Quetta 121.)
10. The learned counsel for the respondent, on the other hand, defended the impugned judgment and decree in favour of the respondent on the grounds that the judgment/decree was based on proper. Appreciation of evidence produced by the parties, which proved execution of the genuine agreement to sell between the parties, containing the terms and conditions that Rs,200000/- were received by the petitioner/vendor who delivered possession to the respondent/vendee in March 1999 and undertook to get the property redeemed from House Building Finance Corporation in the Month of August 2000 and then get mutation/registered deed attested in favour of the respondent/vendee, who shall be bound to pay the outstanding amount at the time of attestation of mutation. The learned counsel further contended that there was no element of fraud and misrepresentation in the execution of the agreement deed as alleged by the petitioner, as genuineness of the agreement deed was proved through cogent and confidence inspiring evidence. Having admitted his signature on the agreement deed and receipt of Rs,200000/- from the respondent and also having already delivered possession of the suit property, which fact was also proved on record in, the light of report of the local commission proving possession of the respondent, the petitioner could not wriggle out of the agreement on false pretexts. The learned counsel vehemently argued that the aforementioned questions were being raised for the first time by the petitioner during proceedings in his revision petitions, which was not permissible in law. The learned counsel disputed claim of the petitioner with regard to return of Rs,200000/- by him to the respondent. The learned- counsel contended that it was further held in the judgment dated 11.05.2011 of the learned Civil Judge-VII, Mansehra, that suit of the respondent was still pending between the parties and that in that suit the relief of recovery of suit property was present, therefore, the plaintiff/respondent could get relief if succeeded in that particular Suit No, 18371 instituted on 09.04.2001 decided on 20.03.2008 by the Civil Court Mansehra, and pending in appeal.
It was further held that during pendency of civil suit with the same relief another suit was barred by law. It was also pointed by the learned counsel that the judgment of the learned Civil Judge dated 11.05.2011 was in the suit of the respondent against petitioner under Section 9 of the Specific Relief Act, which was disposed of during pendency of these revision petitions on 11.05.2001, thus having no bearing on the fate of these revision petitions, moreso, when the matter in issue in the suit was not the existence or execution of the agreement deed, which already stood adjudicated upon in favour of the respondent even by the learned appellate Court/District Judge Mansehra on 16.02.2009, prior to the judgment dated 11.05.2011. In order to further augment his arguments, the learned counsel referred to judgments in cases reported as:-- ' {2015 SCMR 21, 2014 SCMR 161, 2010 SCMR 1116, 2006 SCMR 901, 1997 SCMR 837, 1989 SCMR 455, 1987 SCMR 1005, PLD 1993 SC 292, 1991 CLC 2056 (Lahore), 2005 MLD 283 (Lahore), PLD 1992 Lahore 366, 1989 MLD 4633 (Lahore),1990 CLC 718 (Lahore), PLD 1983 Peshawar 225, PLD 1990 Peshawar 100 and 2005 CLC 1251 (Karachi)}
11. The agreement deed in question dated 07.03.2000 is available on record as EXPW1/1, showing sale transaction between the parties in respect of property measuring 10 Marla for 'sale consideration of Rs,450,000/- out of which Rs,200000/- was received by the petitioner/vendor from the respondent/vendee in March 1999 when poisession was also delivered to the latter with a stipulation in the agreement that the petitioner/vendor would get the mutation or registered sale deed attested in favour of respondent/vendee after redeeming the property from House Building Finance Corporation in the Month of August 2000 and the respondent/vendee would also pay the remaining sale consideration at the time of attestation of the mutation. The agreement to sell was signed by the petitioner, who admitted his signature on the agreement to sell. The agreement to sell was signed by the petitioner/vendor in the presence of two marginal witnesses namely Muhammad Ishaq son of Gohar Rehman and Muzaffar Ahmed son of Abdul Hameed who appeared as PW.4 and PW.5 and fully supported execution of the agreement to sell. In support of agreement deed, the deed writer, Muhammad Younas Khan, appeared as PW.1 and Nisar Muhammad Swati, Notary. Public, as PW.2, besides the respondent as PW.3. As such, not only execution of the agreement to sell with the free will and consent of the petitioner, without an element of fraud and misrepresentation, was proved through overwhelming and cogent evidence by the respondent, but delivery of possession and condition of payment of remaining sale consideration by the respondent/vendee after redemption of the suit property from House Building Finance Corporation by the petitioner in the month of August 2000 was also proved on record.
12. In order to answer the objection of learned counsel for the petitioner with regard to non- maintainably of a suit for specific performance of the agreement signed only by the vendor without signature of the vendee, instead of a contract enforceable under the Specific Relief Act, 1877, it would be relevant to refer to definitions of both "agreement" and "contract" in the Contract Act 1872.
(e) "Agreement". Every promise and every set of promises, forming the consideration for each other, is an agreement;
(h) "Contract". An agreement enforceable by law is a contract.
13. Having failed to prove that the agreement was not enforceable in law, the agreement fell in the definition of contract, which was enforceable under the Specific Relief Act, 1877. The objection of the petitioner in this regard is, therefore, without substance. The contents of the agreement deed would also belie assertion of the petitioner to the effect that the agreement was contingent upon redemption of the property from. House Building Finance Corporation or time was essence of the agreement, as it was the petitioner who undertook to get the property redeemed from House Building Finance Corporation in the Month of August 2000 and then get the sale mutation or sale deed registered and attested in favour of the respondent/ vendee. It was also clearly laid down in the agreement deed that the remaining sale consideration would be paid to the petitioner/vendor by the respondent/vendee at the time of attestation of the sale mutation, thus also falsifying this assertion of the petitioner that the agreement was rendered void due to non-payment of the remaining sale consideration in the Month of October 2000, which condition, indeed, nowhere finds mention in the agreement deed. The allegation of return of Rs.200000/- by the petitioner and its receipt back by the respondent is not proved on record, rather the petitioner himself admitted that the respondent refused to receive back the amount. Likewise, the corpus constituting the agreement was very much in existence and only mortgaged with the House Building Finance Corporation which could not make the same non- existent. Here it may also be pointed out that there was not only recital in the agreement deed with regard to delivery of possession by the petitioner to the respondent but the report of local commission, accepted by both the parties, also proved delivery of possession under the agreement to sell. Last but not the least, there can be no cavil to the proposition that fraud is not only to be specifically alleged but also proved on record, but nothing is discernable from the record to suggest even remotely, much-less proved, even an element of fraud or mis-representation in the agreement deed on the part of the respondent, which was executed with free will of the parties for consideration of Rs.450,000/- for property measuring 10 Marla, in the year 2000.
14. As such nothing was pointed out on behalf of the petitioner in the concurrent findings of the two Courts below to warrant interference by this Court in its revisional jurisdiction, rather judgments and decrees of both the learned trial Court as well as learned appellate Court were found based on proper appreciation of material available on record, thus making findings in favour of the respondent not open to exception. It may be added here that when concluding his arguments, the learned counsel for the respondent made an offer on behalf of the respondent to also pay for redemption of the suit property while having already paid/deposited the entire sale consideration of Rs.450,000/-
15. As a sequal to the foregoing discussion, both the revision petitions are dismissed with costs, for being without merit and substance.