This Civil Revision is directed against judgment dated 18.06.201 1 by learned District Judge, Khanewal, whereby appeal of the petitioner was dismissed and the judgment and decree dated 10.01.201 1 of learned Civil Judge was upheld, which rejected petitioner 's plaint in exercise of power under order VII rule 11 Civil Procedure Code 1908
(CPC) by invoking provisions of Order II rule 2 CPC.
2. Briefly the facts, necessary for adjudication of lis at hand, are that petitione r claimed to have entered into agreement to sell dated 24.07.1984 ('agreement') with the respondent No.2, alleged allottee of land granted in terms of Grow More Fruit Scheme, enforcement thereof was contingent upon the grant of propriety rights by respondent No.1 to respondent No.2 (deceased and represented through legal heirs). Later on, petitioner , who claimed possession of the land, apprehended further sale of property by respondent No.2, filed suit for seeking injunction against alienation, which suit was decreed on 17.06.1985 - apparently on conceding statement of the respondent No.2 [whose counsel has denied the execution of the agreement during the course of hearing of the matter]. Petitioner , basing its claim on the agreement and earlier decree passed, filed suit for declaration on 4.01.201 1, wherein relief in the nature of injunction and, in the alternate, specific performance of agreement was sought. The critical part was admission on the part of the petitioner that no proprietary rights were extended or conferred upon the respondent No.2, till the time of filing of subsequent suit. In brief, the plaint was rejected upon invoking embargo in terms of Order II Rule 2 of CPC, which judgment was upheld in appeal. Hence, this Civil Revision.
3. Learned counsel, representing petitioner , submits that suit is maintainable and plaint was not liable to be rejected in view of the rights extended to the petitioner , in view of continued imperfect title of the respondent No.2, under section 18 of the Specific Relief Act, 1877 (Act of 1877). While responding to the arguments, learned counsel for the respondent No.2 denied execution of the agreement and emphasized that suit was not maintainable.
4. Arguments heard. Available record perused.
5. The answers to the questions raised herein are in fact, embedded in the construction of section 18 of Act of 1877, applicability thereof and the relevancy of Order II rule 2 CPC - invocation whereof led to the rejection of the plaint. There is no cavil to the applicability of rigours of Order II rule 2 CPC, as the situation which existed at the time of the filing of the first suit - absen ce of proprietary rights - remained unchanged till the time of filling of subsequent suit. Therefore, the petitioner is not entitled to sue afterwards in respect of alleged claim - when facts, circumstances and ground realities, at the time of filling of first suit and later at the filing of another suit remained unchanged - hence, orders of rejection of plaint are unexceptionable.
6. The matter does not end here; rather calls for determination of an equally critical question that whether suit / action can be initiated by the petitioner in terms of section 18 of Act of 1877, on the basis of agreement to sell in view of continued imperfect title of the respondent No.2. It is expedient to reproduce the section 18 of Specific Relief Act:- "18. Purchaser 's right against vendor with imperfect title. Where a person contracts to sell or let certain property having only an imperfect title thereto, the purchaser or lessee (except as otherwise provided by this Chapter) has the following rights: (a). If vendor or lessor has subsequently to the sale or lease acquired any interest in the property , the purchase or lessee may compel him to make good the contract out of the such interest; (b). where the concurrence of other persons is necessar y to validate the title, and they are bound to convey at the vendor 's or lessor 's request , the purchaser or lessee may compel him to procure such concurrence;
(c) where the vendor professes to sell unencumbered property , but the property is mortgaged for an amount not exceeding the purchase-money , and the vendor has in fact only a right to redeem it, the purchase may compel him to redeem the mortgagee and to obtain a conveyance from the mortgagee; (d). where the vendor or lessor sues for specific performance of the contract, and the suit is dismissed on the ground of his imperfect title, the defendant has a right to a return of his deposit (if any) with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest of the vendor or lessor in the property agreed to be sold or let.
[Emphasis supplied]
7. There is consensus that propriety rights are not granted to respondent No.2, till to-date. Whether enforcement of agreement can be sought under section 18 of Act of 1877 when the title continues to be imperfect. To my mind, in case the title of the vendor continues to be imperfect, no right to seek enforcement of agreement can be claimed in terms of section 18(1)(a) of Act of 1877 . Whether the claim falls within the scope of section 18(1)(b). Is the respondent No.1 obligated to extend validation of the title at the request of the respondent No.2. Nothing has been placed on record to affirm any such obligation of the respondent No.1. A reference to Office Memorandum No.2096-201 1/824-CL-III by Board of Revenue, Punjab, Lahore dated 25th May, 2011 is apt, which is reproduced hereunder for convenience; No.2096-201 1/824-CL-III, Board of Revenue, Punjab, Lahore dated the 25th May , 201 1.
To 1) All the Divisional Commissioners, in Punjab.
2) All the District Collectors, in the Punjab.
Subject:- Advice for grant of proprietary rights of state land under Grow More Food Scheme and Ejected Tenants Scheme.
Memorandum : In supersession of this office memorandu m No. 1758-2009/ 1953-CL-III, dated 07.07.2010 and in supersession of all previous policy memorandums, on the subject cited above.
2. The policy matter regarding the conferment of proprietary rights in the subject schemes has been re-considered in the Board of Revenue, Punjab and observed that no promise regarding the conferment of the proprietary rights was made while making original allotmen ts. The proprietary rights were conferred subsequently from time to time through separate nonfictions with cut of dates. The alternate land was provided in both these schemes in cases wherein the allotted land had fallen within the prohibited zone. The alternate land was also provided only outside prohibited zone on applications to be filed within certain cut of dates. While issuing notifications regarding conferment of proprietary rights in both these schemes relaxation in prohibited zone was never granted. If is, therefore, decided as under:- "In Grow More Food Scheme and in Ejected Tenants Scheme, the District Collectors will determine the limits of prohibited zone at the time of making proprietary rights and the proprietary rights will be granted only in cases wherein the state land in these schemes is outside prohibited zone and Charagah at present. In addition to this, all other legal requirements regarding the fulfillment of conditions and submission of application before the cut o dates etc., should also be kept under consideration. This policy decision will be applicable in both the original and alternate allotment".
3. Previous policy instructions/ clarification issued on 07th July , 2010, stands withdrawn.
Sd/- Secretary (Colonies) Board of Revenue, Punjab.
8. It is evident that no representation or promise was made by the respondent No.1 to extend propriety rights to the respondent No.2, hence no advantage can be claimed under section 18(1)(b) of Act of 1877. Now the question of alleged entitlement of the petitioner under section 18 of Act of 1877 is examined in the light of judicial pronouncements on the issue. Lack of entitlement of the petitioner to seek protection of section 18, ibid, as long as imperfect title continues stood affirmed in terms of the ratio decidendi of decision in case reported as "Ismat Ara Begum through Legal heirs and anot her Vs. Malik Iftikharuddin and anoth er" (2002 YLR 2865 ), relevant portion whereof is reproduced as; "In view thereof we have no doubt that a transferable title does not presently vest in the respondents enabling them to transfer the suit-land to the appellants through execution and registration of a sale-deed. As such refusal of the learned Civil Judge to grant appellants a decree for specific performance of the agreement to sell through judgment and decree dated 19.12.2000 is unexceptionable."
[Emphasis supplied]
9. This legal position is affirmed in view of the judgment reported as "Shamoon and others Vs. Ahmad and others" ( 1986 SCMR 888 ), relevant part thereof is reproduced as under; "The reliance by the learned Single Judge on section 18 of the Specific Relief Act is also unexceptionable. It provides that a person entering into an agreement for sale of a property having imperfect title, but subsequently acquiring interest in the property , is bound to make good the contract, out of such interest. The finding that at the time the petitioner side entered into agreement, they had intention to transfer their interest in the land after they become proprietors thereof, is well-founded."
10. The rights of the vendee, in terms of agreement or enforceable understanding, were only acknowledged in terms of section 18 of Act of 1877 and section 43 of the Transfer of Property Act 1882 - where applicable - provided the title of the vendor has beco me perfect, subsequent to the arrangement entered or executed. In the case of "Government of Punjab through Minister for Revenue, Board of Revenue, Lahore and others Vs. Messrs Crescent Textile Mills Limited" (PLD 2004 S.C 108), the principle embodied in section 43 of Transfer of Property Act and section 18 of Act of 1877 was affirmed and claim was held enforceable once title was conferred unto provincial government with respect to the property , subject matter of the noted case. Likewise, in the judgment reported as "Ziauddin Rafi Vs. Muhammad Khan and others" (PLD 1962 West Pakistan 321), the right of vendee was acknowledged once property devolved on the seller , upon opening of inheritance - at which point in time the seller can be compelled to make the contract good. A reference to a celebrated judgment would be apt to elucidate the scope of section 18 of Act of 1877, which case is reported as "Sayyed Ghulam Muhammad Shah Vs. Sayyed Fateh Muhammad Shah" (PLD 1955 FC 1) , relevant portion whereof is reproduced as; "It is true that the Transfer of Property Act, 1882 is not in force in the Punjab and such transfers are not void in that Province by reason of any statutory rule. But the principle on which such transfers are held to be void is of wider application and rests on the rule, also recognized by English Law, that an expectancy is not property which can be assigned. There is, however , one exception to this principle, which has been enforced by the Courts in England, and here in the Provinces where the Transfer of Property Act is not in force. That exception was stated by Buckley , J. in re. Ellenborough ((1903) 1 Ch. 697) at p. 700 where he said, "if value be given , it is immaterial what is the form of assurance by which the disposition is made, or whether the subject of the disposition is capable of being thereby disposed of or not. An assignment for value binds the conscience of the assignor . A Court of Equity as against him will compel him to that which ex hypothesis he has not yet effectually done. Future property , possibilities and expectancies are all assignable in equity for value: Taiby v. Official Receiver ((1888) 13 A C 523 at p. 543). But when the assurance is not for value, a Court of Equity will not assist a volunteer ." The exception has received statutory recognition here in section 43 of the Transfer of Property Act, section 115 of the Evidence Act and section 18 of the Specific Relief Act. The doctrine of feeding the grant by estoppel which appears as the solitary illustration to section 115 of the Evidence Act and in section 43 of the Transfer of Property Act is based on the ground that if a person, for value received, conveys what he does not own but subsequently he acquires the title which he conveyed, then the transferee can enforce the conveyance against him. A Court of Equity in such cases will not only actively assist the person paying the value but will also repel, the transferor's plea based on the invalidity of the transfer in law. Similarly section 18 of the Specific Relief Act recognizes as enforceable at law the right of a person contracting to purchase or to take in lease property from a person who at the time of the contract does not own it but who subsequently acquires it. This rule, being founded on equity , has been applied in the Punjab, where the T ransfer of Property Act is not in force."
11. I lay my hands on a judgment reported as "Muhammad Aslam and 4 others Vs. Ghulam Rasool and 6 others" (2002 MLD 1860 ), where suit for declaration was allowed to be amended into a suit for specific performance - notwithstanding continuing imperfect title -, which judgment is per-incuriam and, humbly submitted, has not correctly interpreted section 18 of Act of 1877.
12. The decision of rejection of plaint in wake embargo / limitations provided under Order II rule 2 CPC does not suffer from any illegality , perversity or irregularity in the exercise of jurisdiction by the courts below . Even otherwise, in the exercise of revisional jurisdiction extended under section 115 CPC and elucidated by the Honourable Supreme Court of Pakistan in judgment reported as "Hafeez Ahmad and others Vs. Civil Judge, Lahore and others" (2012 Supreme Court 400), I hold that the petitioner has no right to, otherwise, file subsequent suit in the wake of continued disability - imperfect title of the respondent No.2 and no protec tion can be claimed or extended in terms of section 18 of Act of 1877.
13. In view of above, this petition is without any merit, therefore, same is dismissed .