1. CHAUDHARY KHALID RASHEED, J. The captioned appeal has been filed against the judgment and decree passed by the learned District Judge Jhelum Valley dated 29.04.2019.
2. Precise facts giving rise to this appeal are plaintiff/appellant herein filed a suit for specific performance of agreements, possession and perpetual injunction against respondents herein before District Judge Jhelum Valley stating therein that land comprising khewat No.25 Khasra Nos.
3. 483 and 484, renumbered as 1913 min measuring 2 kanal along with house and khasra Nos.481 and 480 renumbered as 1920 measuring 4 kanal 10 marla total measuring 6 kanal 10 marlas situated at village Khanda Bela Tehsil and District Hattian Bala was in the ownership of Matwali Khan father of defendants Nos.1 and 2 and after his death defendants Nos.1 and 2 were the owners of the said land who agreed to sell land comprising khasra No.1920 measuring 4 kanal 10 marla in favour of the plaint tiffs vide agreement to sell dated 26.03.2000 for the consideration of Rs.50,000/-, which was received by them and possession of the land was handed over to the plaintiffs. Thereafter the defendants also agreed to sell land comprising khasra No.1913 measuring 2 kanal along with house in lieu of Rs.275,000/- in favour of the plaintiffs and in this regard an agreement was handed down on 05.03.2011, however, the defendants after receiving the consideration amount Rs.3,25,000/- refused to execute the sale deed in favour of the plaintiffs. The suit was contested by the defendants by filing written statement wherein it was submitted that defendants Nos.1 and 2 have already alienated their shares, therefore, the agreements sought to be implemented are illegal for having been executed in excess of shares. It is also stated that land in question is in possession of defendant No.3 as owner of the land and never remained in possession of the plaintiffs. The learned trial Court framed issues in light of pleadings of the parties on 07.05.2015, provided the parties an opportunity to lead evidence and after hearing the parties pro and contra dismissed the suit to the extent of respondents Nos.2 and 3 but decreed the same in the terms that the plaintiffs are entitled to receive Rs.6,95,000/- from defendant No.1 as paid amount and other miscellaneous expenses but dismissed the suit to the extent of specific performance of agreements, possession and perpetual injunction for want to proof. Feeling aggrieved the plaintiffs/appellants have preferred the captioned appeal to challenge the legality and validity of the Impugned judgment and decree dated 29.04.2019.
4. Arguments were heard on appeal pro and contra with utmost care and caution and the learned counsel for the appellants reiterated the grounds already taken in the pleadings and zealously submitted that the plaintiffs proved the execution of the agreements dated 26.03.2000 and 05.03.2011 by producing cogent and convincing evidence, the said agreements were not denied by the defendants, hence, it was enjoined upon the trial Court to decree the suit as was prayed by the plaintiffs but the learned lower Court erred in law while dismissing the suit for want of proof. The learned Advocate also zealously argued that agreements were executed after obtaining NOC from the relevant departments, hence, it could not be presumed that the agreements were executed in excess of shares, he proceeded with the stance that possession of the plaintiffs over the suit land is also proved through un-rebuttable documentary as well as oral evidence. In alternative be prayed that the plaintiffs may be awarded the consideration amount as per recent market value of the land.
5. The learned counsel for respondents Nos.1 and 2 submitted that earlier the plaintiffs filed suit for specific performance of agreement to sell dated 26.03.2000 but the said suit filed before the Civil Judge Hattian Bala on 20.10.2019 was dismissed on 15.12.2009, hence, the plaintiffs are estopped by their conduct to file subsequent suit regarding the same subject particularly when it was suppressed. The learned Advocate further argued that agreement dated 05.03.2011 is fake, forged and frivolous and has not been executed by defendant No.1. The learned Advocate contended that no illegality has been committed by the Court below while disallowing the suit to the extent to specific performance of contract and possession of the suit land, hence, the appeal is liable to be dismissed.
6. The learned counsel for respondent No.3 owned the arguments advanced by the learned counsel for respondents Nos.1 and 2 and submitted that respondent No.3 is bona fide purchaser of the land from owners who are not before the Court, therefore the plaintiffs/appellants have no right to sue against him. He also prayed, for dismissal of the appeal.
7. I have heard the learned counsel for the parties and gone through the record of the case with care and caution.
8. At the very outset it may be stated that this is a first appeal and this Court being Court of first appeal is duty bound under Order XLI, Rule 31 Code of Civil Procedure to decide it issue-wise or to formulate points for resolution of the Court. A perusal of the impugned judgment reveals that in light of pleadings of the parties 7 issues were framed by the trial Court. Issues Nos. 1 to 5 have been decided in favour of the plaintiffs/appellants and the defendants/respondents did not challenge the judgment, thus, no deliberation is required to the extent of issues Nos.1 to 5. The core issue which required judgment by this Court is issue No.6 that whether the plaintiffs are entitled to get a decree for specific performance of contract and perpetual injunction on the basis of agreements dated 26.03.2000 and 05.03.2011 or not? A perusal of agreements dated 21.03.2000 and 05.03.2011 on the basis of which the suit was filed reveals that the same have neither been executed on behalf of Muhammad Altaf, defendant No.2 nor the signature of Muhammad Altaf have been put on the said agreements, thus, the plaintiff has no right to file suit against defendant No.2. Raza Khan and Munshi Rehmatullah, witnesses produced by the plaintiffs deposed in their statements that Muhammad Sagheer put his signature and the impression on the agreements and it is further stated that Muhammad Sagheer received consideration amount. The witnesses produced by the plaintiff did not utter any word regarding defendant No.2 Muhammad Altaf, thus, the Court below rightly dismissed the suit to the extent of defendant No.2. Defendant No.3 Abdul Hafeez took a categoric stand that the land in question was alienated to him by Mst. Rukhsana Bibi and Mst.
9. Naheeda Bibi through gift deed dated 05.06.2013 and the land in question is in his possession. The plaintiff did not challenge the gift deed dated 05.06.2013. It is also pertinent to note here that the plaintiff filed an application for grant of amendment in the suit in the terms that he wants to challenge the gift deed dated 05.06.2013, to array donee as party and for correction in the revenue record, however, after having objections from the other side and hearing the parties, the same was rejected by the trial Court vide order dated 03.04.2018 and the plaintiff failed to challenge order dated 03.04.2018 before the next higher forum, hence, the same has attained finality. It also transpires from the record that along with the appeal an application for 'grant of amendment was also filed by the appellant before this Court, however, when the learned counsel for the appellants was confronted with this situation, he failed to satisfy the Court regarding filing of fresh application before this Court which was rejected by the trial Court, and he did not press the application, so the same is rejected for having not been pressed. In this state of affairs no case of the plaintiffs/appellants remains against defendant No.3, thus, the finding of the Court below regarding dismissal of suit to the extent of defendant No.3 are also justified and hardly requires any indulgence by this Court.
10. So far as case against defendant No.1 is concerned, it is pertinent to mention here that a person cannot transfer a title better than he himself owns. The defendants took a categoric stance in their pleadings that defendant No.1 through agreements dated Exh.PA and Exh.PB agreed to transfer the land in excess of his share. In this regard the trial. Court obtained detailed report from Tehsildar Revenue Haitian who reported that share of defendant No.1 Muhammad Sagheer In Khewat No.25 is 1 kanal, 13 marla and 20 feet, thus, the execution of agreements by defendant No.1 measuring 6 kanal 10 marla was in excess of his share, thus, no effective decree can be passed in favour of the plaintiffs, hence, dismissal of suit to the extent of specific performance of contract and perpetual injunction is also justified from the record of the case.
11. It is also not out of context to mark here that as per claim of the plaintiffs the entire consideration amount had been paid and nothing was left to do in future, thus, it was enjoined upon the plaintiffs to obtain sale deed forthwith and there is no explanation that which factor barred the execution of sale deeds in light of agreements.. Thus, being a defective sale deed the same cannot be ordered to be implemented.
12. It is also relevant to mention here that earlier the plaintiff filed suit for specific performance of contract on the basis of agreement dated 26.03.2000 which was dismissed on 15.12.2009 which was accepted by the appellant No.1 in his Court statement but this fact has been suppressed from the Court and thereafter claimed the execution of another agreement Exh.PB, which was denied by the defendants and is also beyond the share of vendor, so the suit of the plaintiff to the extent of agreement dated 26.03.2000 is also time barred.
13. The contention of the learned counsel for the appellants that in alternative the appellants may be granted consideration amount as per recent market value of the land, is sine any substance because the appellants have not placed any evidence to prove the present market value of the land. Furthermore, it was also not mentioned in the agreements that if the sale deed is not executed the plaintiffs will be entitled to receive consideration amount as per present market price of the land and plaintiffs cannot proceed beyond the contents of the agreements on the basis of which they have filed the suit.
14. The sum and substance of the above discussion is that finding no substance in this appeal it is hereby dismissed. The parties shall bear their own costs.