' By an agreement to sell dated 3-3-1983, Sheikh Allah Rakha defendant (herein petitioner) agreed to sell 1 kanal of land situated in Saddar Bazar, Sialkot Cantt. For consideration of Rs,1,00,000 in favour of Muhammad Yousuf (herein respondent/plaintiff) on following terms:--
(i) The price of the plot was fixed at the rate of Rs,5,000 per marla i,e, Rs,1,00,000.
(ii) Muhammad Yousuf paid earnest money of Rs,25,000 as agreed in the agreement and undertook to get the document registered within 7 months of the execution of agreement to sell.
(iii) That the balance of price was agreed to be, payable before the Registrar or Joint Registrar. In case the vendee failed to get the sale-deed completed and registered within the specified time, the earnest money was agreed to be forfeited.
(iv) It was recited in the agreement that Allah Rakha had become owner of plot by virtue of a decree of the Civil Court in Civil Suit No 31 of 1982.
2. On 5-9-1983 Muhammad Yousuf instituted a suit for declaration and permanent injunction against the defendant stating that amount of Rs,75,000 stood paid to Allah Rakha. This suit was withdrawn with the permission to lodge a fresh suit. On 1-4-1984 Muhammad Yousuf filed a suit for the recovery of Rs,25,000 as earnest money on the ground that Allah Rakha the vendor did not possess marketable title in the plot in dispute on account of absence of entries in the record of Cantonment Board, Sialkot and that he could not sell it without the permission of the Cantonment Board. The suit was resisted. Objection was taken in the written statement that Allah Rakha was the owner of 50 marlas of land; that Muhammad Yousuf--plaintiff had committed breach of contract by not enforcing the contract with ulterior motives; that earnest money on account of breach on the part of Muhammad Yousuf stood forfeited; that the defendant had always been ready and willing to complete his part of the contract; that no sanction was necessary for the completion of agreement to sell.
3. On the pleadings of the parties, the original Court framed following issues:-
(1) Whether the defendant failed to perform his part of contract dated 3-3-1983 while plaintiff was willing to perform the same? OPP.
(2) Whether the suit has been filed with mala fide intentions? OPD.
(2-A) Whether the defendant was not competent to sell the disputed property? If so its effect? OPP.
(2-B) Whether the plaintiff is entitled to recover the suit amount?
OPP.
4. The learned Civil Judge, Sialkot vide judgment and decree dated 19-3-1988 decreed the suit by holding that the proprietary rights of the vendor were not incorporated in the record of Cantonment Board and so the vendor had no marketable title in the land in dispute; that sanction was essential for the purpose of effecting transfer by vendor in favour of intending vendee. This finding was affirmed by the first Court of appeal. Allah Rakha defendant has brought this revision petition against these two decisions of the subordinate Courts.
5. Learned counsel for the petitioner assailed the findings of two Courts below on issues No,1 and 2- A.
6. It was urged in the first instance that the title of the petitioner rested upon the decree of the Court, therefore, any objection with respect to the sanction of the Cantonment Board was misconceived. Reliance was placed on Sagar Mal and another v. Parsotam Das and another AIR 1942 All. 36, Arvi Cooperative Credit Society, Ltd. v. Dhondiram Navalchand and another AIR 1940 Bom. 289 and Munshi Tajammul Husain v. Cantonment Board, Lucknow and another AIR 1943 Oudh 99.
7. In the second instance it was suggested that both the Courts below have committed error of law to hold that since the name of the vendor was not recorded in the record of the Cantonment Board, therefore, he had no transferable title in him. It was argued with emphasis that the record of the Cantonment Board relating to property of private persons was meant for the purpose of collection of tax and had no restrictive value on the right of the owners to make the sale. Reliance was placed on the express language of section 73 of the Cantonments Act (II of 1924). It was stressed that there was no provision in the Cantonments Act which can curtail the rights of owners of immovable property within the Cantonment area to transfer it onward. Strength was sought from the rule laid down in Mst. Bhaghan and 2 others v. Sh. Muhammad Latif and 2 others PLD 1981 Lah.
146.
8. In the third instance the finding of the subordinate Courts was impeached on the ground that the conduct of Muhammad Yousuf from the start was not clear. It was clear from the record that agreement to sell was executed on 3-8-1983. It was on 5-9-1983 when Muhammad Yousuf filed a suit for permanent injunction restraining Allah Rakha from further alienating the land and it was stated that Rs,75,000 stood paid. It was on 1-4-1984 when he took the somersault and brought out the present suit claiming refund of earnest money.
9. On the other hand the learned counsel for the respondent vehemently supported the impugned decisions. A preliminary objection was taken that the suit was concluded by concurrent finding of fact which was not open to scrutiny under section 115 of the Code of Civil Procedure.
10. In the second instance it was contended that under Rule 10 of the Cantonment Land Administration Rules, 1937 no sale or transfer can be made without the sanction of the Cantonment Authorities. It was contended that the sanction from the Cantonment Authorities was a condition precedent for the purpose of making any transaction of transfer with respect to land situated within the Cantonment boundary. It was stated with emphasis that the vendor had not obtained the requisite sanction from the Cantonment Authorities before executing agreement to sell and so the agreement was void ab initio and was not capable of specific performance. On the basis of this argument it was urged that the plaintiff/respondent was entitled to the recovery of earnest money under section 65 of the Contract Act. Reliance was placed on the Commissioner of Income Tax v.
M/s. The Engineers Ltd. Dacca PLD 1976 SC 524, Muhammad Ilyas Hussain v. Cantonment Board Rawalpindi PLD 1976 SC 785 and Mansoor Hasan and another v. Abbas Ali Khan 1981 CLC 669.
11. It was lastly argued that the Cantonments Act was a special law which was intended to lay down the law relating to administration of Cantonment. The word "Cantonment" means that "it is a place where regular forces are quartered". According to the learned counsel the provision of sanction had to be noticed in view of this definition of the word 'Cantonment'. According to him, therefore, the provision of sanction is of mandatory nature and no agreement to sell without sanction is of any legal consequences.
12. I have heard the arguments of both the parties and perused the record annexed with this revision petition.
13. The questions calling for consideration are:--
(i) Whether absence of entries in respect of title of Allah Rakha in the record of Cantonment Board debarred him from his right to transfer his land by any means of transfer?
(ii) Whether the condition of sanction under the provisions of Land Administration Rules is a condition precedent for the purpose of effecting transfer?
(iii) Whether the defendant was entitled to refund of the earnest money? I will take up questions No,
(i) and (iii) first.
14. It is quite clear from the agreement to sell that Allah Rakha was the owner of 50 marlas of land out of which he executed agreement to sell in respect of 20 marlas. It is also clear from the record that Allah Rakha acquired his title on the basis of a decree of the Court in which an arbitration award was made rule of the Court with the consent of the parties. As regards his title, I entertain no doubt in my mind that he was the owner of 50 marlas of land and was completely entitled to transfer it in any manner he liked. A stranger has no right to object to the title of a person on the basis that the title was based upon unstamped arbitration award or invalid decree by the Court.
These objections can only be taken by the parties to the decree. I am, therefore, clear in my mind that Allah Rakha was the owner of transferable rights under section 6 of the Transfer of Property Act and was completely competent to further transfer it. The finding of both the subordinate Courts in this respect is totally illegal and has hardly any ground to be sustained.
15. Having concluded about the ownership rights of Allah Rakha the next question worth notice is as to whether the provisions of Cantonments Act or Rules can be construed having force of embargo on the right of Allah Rakha to make further transfer. The contracts are formed under the provisions of the Contract Act. Section 10 of the Contract Act states that all agreements are contracts if they are made with the free consent of the parties competent to contract for lawful consideration and with a lawful object and are not expressly declared in the Act to be void. Section 23 bid provides inter alia that the consideration or object of an agreement is lawful unless it is forbidden by law or is of such nature that if permitted it would defeat the provisions of any law.
16. Neither such an objection was taken that the consideration was unlawful nor object was unlawful in the impugned agreement to sell. As regards the 2nd contention that the agreement was hit by the provisions of the Cantonments Act and Rules, I have not been able to notice any provision in the Cantonments Act declaring such agreement to be forbidden. As already noticed that section 73 of the Cantonments Act is for the purpose of fixing liability of the previous owner who has made the transfer without the sanction of the Court. This is the intent and purpose of section 73 of the Cantonments Act.
17. This proposition came up for consideration in Munshi Tajammul Hussain v. Cantonment Board, Lucknow and another AIR 1943 Oudh 99. In this case it was held that the contract of sale of land within Cantonment area without the permission of Cantonment Authorities was neither opposed to any law nor to public policy within the meaning of section 23 of the Contract Act. This rule was followed in Mst. Bhaghan and 2 others v. Sh. Muhammad Latif and 2 others PLD 1981 Lahore 146.
Mst. Bhaghan's case related to sale of land without the sanction of Cantonment Authorities of Sialkot. The rule laid down in Munshi Tajammul Hussain's case was followed in Mst. Bhaghan's case and it was held that the sale was not illegal.
18. I am in respectful agreement with the aforesaid enunciation of law and, therefore, have come to a definite opinion that the findings of both the Courts on these questions were clearly contrary to law and cannot be sustained.
19. The question remains as to whether in such a circumstance the respondent/plaintiff was entitled to refund of the earnest money. There is no dispute with the proposition that earnest money is the part of purchase price when the transactions move on. It is forfeited when the contract is breached by reason of fault or failure on the part of vendee. (Kunwar) Chiranjit Singh v.
Har Swarup AIR 1926 P C 1 is authority for the affronted proposition. The same rule was followed in the Trustees of the Karachi v. Ghulamali Habib Rawjee PLD 1961 Kar.
625.
20. Applying this proposition to the facts of the present case, I am very clear in my mind that in the present case it was Muhammad Yousuf who breached the terms of agreement to sell. He was required to get the agreement to sell completed within 7 months of the date of execution i,e, 3-3- 1983. Instead he filed a suit on 5-9-1983 with clearly erroneous statement of fact that he had paid Rs,75,000 to the vendor and so wanted to seek permanent injunction restraining Allah Rakha from making a second sale. On 18-2-1984 he withdrew the suit and filed a suit for the recovery of the earnest money. His anchor-sheet has been the absence of entries in the record of Cantonment Board. Nowhere he has stated that he made any endeavor to perform his part of the contract. He neither approached the vendor for the payment of balance of price nor he asked him to get the deed registered before the Registrar.
21. On the other hand Allah Rakha (herein petitioner) clearly and expressly stated that he was willing to complete the contract; that suit has been filed with ulterior purposes to get the value of land reduced.
22. In face of these uncontrovertible statements I am very clear in my mind that the breach of the agreement to sell was committed by Muhammad Yousuf and he was, therefore, not entitled to the refund of the earnest money.
23. As regards the contention that the agreement was void and he was entitled to refund of the amount under section 65 of the Contract Act, I find no merit in the submission. It is clear that the agreement to sell was legal and was enforceable.
24. In the light of foregoing analysis, I have no hesitation in my mind that the decisions of both the Courts below are contrary to law cited above and cannot be sustained. Revisional jurisdiction is intended to do the complete justice between the parties and can be exercised wherever the Court comes to the conclusion that the decisions of subordinate Courts are in defiance of patent provisions of law. In this case, I have come to the conclusion that the decisions of the two Courts below are in patent contravention of law and cannot be sustained.
25. In result, this revision petition succeeds, the judgments and decrees passed by the learned Additional District Judge as well as by the learned first Court are set aside. The suit filed by Muhammad Yousuf for refund of earnest money is dismissed, leaving the parties to bear their now costs.
Revision .