1. MUHAMMAD AFZAL ZULLAH, J.-- Leave to appeal has been sought from judgment dated 7-6-1981 of the Lahore High Court; whereby respondents' regular second appeal arising out of a decree for specific performance passed in favour of the petitioners, was allowed.
2. According to the petitioners, Muhammad Azad Khan (now deceased) predecessor-in-interest of the respondents was allotted about 100 Kanals of State land as an ousty of Islamabad. He was not able to pay the Government dues or to develop the land so as to get the proprietary rights.
3. Accordingly, on 18-8-1969 he executed a power of attorney (Exh_ P.1) in favour of Syed Amir Hussain Shah (now deceased) the predecessor-in-interest of the petitioners. This document authorised Syed Amir Hussain Shah to make the payment of the instalments of the price of land and to get the sale-deed executed as also further authority to sell the land to any one and do other necessary acts. Azad Khan also executed document described as Iqrar Nama (Exh.P.2) in which he stated that he had given full power to his attorney for selling the land and also that he himself would not sell it to anybody. It is further alleged that Syed Amir Hussain Shah made payment of Government dues. Before Azad Khan could fulfil the agreement. He died and the respondents, contrary to the agreement made by their predecessor-in---interest, got mutation of inheritance in their favour. The petitioners then instituted suit for specific performance of the contract. It was contested by the respondents. They denied the execution of the "Agreement" and the "power of attorney" by Muhammad Azad Khan deceased on the ground that he had died prior to the alleged date of execution i.e., 18-8-1969. They also took up the plea that Muhammad Azad Khan being only an allottee of the State land at the time of the execution o: the agreement and the power of attorney he was not legally competent to execute those documents. On the pleadings of the parties following issues were framed:- (1)Whether the predecessor-in-interest of the defendants agreed to sell the suit land to the predecessor-in-interest of the plaintiffs? O. P. P.
4. (2)Whether Muhammad Azad Khan deceased could not execute the agreement deed and power of attorney dated 18-8-1969 for legal bar?
5. (3)Whether the suit property has not been properly described?
6. (4)Whether the suit has improperly valued for purpose of Court-fee?
7. (5)Relief."
8. The learned trial Court by judgment dated 31-7-1978 decided Issue No.1 in favour of the petitioners while Issue No.2 was found against them on account of the bar contained in section 19 of the Colonization of Government Lands (Punjab) Act. However, Issues Nos. 3 and 4 were decided against the respondents but the suit was dismissed on the finding on Issue No.2. The petitioners' First Appeal was allowed on 18-2-1979 on the finding that the documents Exh. P.1 and Exh.P.2 did not create any immediate right in the land in suit as the proprietary rights of the land were also to be acquired in the name of the allottee and it was after the acquisition of such rights that the attorney was given the right to transfer the land. The provisions of section 19 were, it was held, not attracted to the present case. Accordingly, the findings on Issue No.2 were altered and the petitioners' suit was decreed.
9. The respondents second appeal having been allowed by the High l Court on the finding that section 19 was a bar to the grant of decree l for specific performance, the plaintiffs/ petitioners have now sought leave to appeal.
10. Learned counsel for the petitioners has, inter alia, contended that the documents Exh.P.1 and Exh.P.2 have not been correctly read; that section 19 was no bar to the grant of decree for specific performance' particularly when the findings of fact otherwise with regard to the agreement between the parties are in favour of the petitioners.
11. Learned counsel for the caveators/respondents has opposed the grant of leave to appeal, inter alia, on the ground that the language used in the plaint, regardless of that used in the documents EXh.P.I and Exh.P.2 as also the written statements filed by the respondents, is such that the transaction relied upon could not be treated as otherwise than a completed sale particularly when the price had also been received by Muhammad Azad Khan. The following cases have been relied upon in the petition of leave to appeal: - Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SCMR 690; Ghulam Rasul and others v. Muhammad Anwar and others 1969 SCMR 254; Abdul Shakoor and 2 others v.
12. A.S. Tasneem and 2 others 1974 SCMR 463; Mst. Sardara and another v. Hanifullah and 15 others 1970 SCMR 508 and Murli Mall Kapur v. Lakshmi Commercial Bank Ltd. And 2 others 1970 SCMR 544.
13. The learned Judges in the High Court referred to--Ghulam Rasul and others v. Muhammad Anwar and others 1969 SCMR 254; Mst. Hawa v. Muhammad Yousuf and others PLD 1969 Kar. 324 and Mirza Muhammad Ahmad v. Mirza Amjad Beg PLD 1979 Lah. 865.
14. The Research Assistant of the Court has brought to our notice: Muhammad Iqbal and others v.
15. Mirza Muhammad Hussain and others PLD 1986 SC 70.
16. After hearing both the learned counsel we consider it a fit case to examine the questions raised in this petition as also the question whether the petitioners, in the circumstances of this case, could not have been granted any relief.
17. Leave to appeal is accordingly granted. Security Rs. 2,500 The interim order passed on 24-6-1981 shall remain in operation