ALI HUSSAIN QAZILBASH, J.---This is an appeal from the judgment and decree of a learned Division Bench of the Lahore High Court dated 6-8-1988.
2. The dispute is with regard to a bungalow known as 45, Mozang Road, Lahore. It was an evacuee property and is transferred do the appellants. The respondent, a practising Advocate of Lahore, had long-standing cordial family relations with the appellants. In 1968, the respondent took on rent the southern front portion of the said bungalow which lie still occupies. In December, 1972, he came to know that the appellants ;mend to sell the bungalow, so the respondent expressed his desire to purchase only that portion which is m his possession in view of the heavy investment he had made in effecting repairs and improvements. The appellants, however insisted that the respondent should purchase the entire bungalow and thus a package deal was made at the rate of Rs.3,000 per marla for the land and Rs.10 per sq. Ft. For the built up area. Pursuant to the oral agreement to sell, the respondent paid a sum of Rs.10,000 as earnest money on 6-1-1973 and thereafter he had been paying to the appellants various amounts at various times towards the sale consideration of the said house the detail of which has been given in the judgments of the two Courts.
3. On 24-12-1973, in part performance of the agreement the respondent got executed a sale-deed (copy Ex.P.30) touching the sale of about half of the bungalow (back portion) for a consideration of Rs.1,16,000 wherein a sum of Rs.5,000 out of the earnest money of Rs.10,000 sent on 8-1-1973, was adjusted towards the part of the price of the back portion and the balance of Rs.5,000 was to be adjusted at the time of execution of sale-deed of the remaining (front) portion of the property in July, 1974. In March 1974, the appellants demanded some more money towards the price of the remaining portion of the property, whereupon the respondent sent a sum of Rs.10,000 by bank draft under registered letter dated 28-3-1974. This was followed by another sum of.Rs.40,000 by bank draft towards the price of front portion of the bungalow under registered letter dated 30-9-1974.
4. On 5-11-1974 the respondent demanded of the appellants for the execution of sale-deed. The appellants expressed their willingness to execute the sale-deed provided the respondent was to pay an additional amount of Rs.40,000 to cover the losses incurred by the appellants, demanded the rate of the sale of property to be Rs.5,000 per marla of land and Rs.15 per square foot for the built up area. The respondent, however, on 28-12-1974 issued a telegraphic notice to the appellants to execute a sale-deed at the rate of Rs.3,000 per marla for land and Rs.10 per square foot for constructed area by 31-12-1974, the agreed last date. This notice was replied to on 15-1-1975 by the appellants incorporating certain other conditions which led to the filing of the present suit. In their written statement the appellants did not deny the negotiation for the sale but have raised objection that the negotiation was not for any package deal and it was in fact for the sale of the property at the rate of Rs.3,000 per marla for land and Rs.10 per square foot for the constructed area of that portion which was actually purchased by the respondent vide sale-deed dated 24-12- 1973. As regards the remaining area their plea was that the rate agreed upon was at Rs:5.000 per marla for land and Rs.15 per square foot for the built up area because that portion of the property has approach through the main road and a private passage. In reply to para-4 of the plaint the appellants admitted the receipt of draft of Rs.10,000 sent by the respondent but they denied any letter accompanying it. The appellants had denied the receipt of letter dated 8-1-1973.
5. The learned trial Court after the receipt of written statement and replication, framed as many as seven issues on the strength of the pleadings of the parties and almost all of them were decided in favour of the respondent and thus decreed his suit for specific performance of contract dated 6-1- 1973 subject to the payment of Rs.88,047.90 the balance of the sale consideration.
6. The appellants filed an appeal in the High Court from the judgment and decree of the Civil Judge Ist Class, Lahore which was partially accepted vide the impugned judgment and the decree of the trial Court modified to the extent that the respondent would pay Rs.1,16,487.90 instead of Rs.88,047.90.
7. Learned counsel for the parties heard. The office has reported that the appeal was barred by time by 18 days. Taking benefit of tie above report the learned counsel for the respondent vehemently contended that the appeal could be dismissed on this score alone. This would, however, not prevail and the delay in filing the appeal is condoned as per reasons given in the application for condonation of delay submitted by the appellants.
8. As for the merit, the fate of this appeal hinges on the decision to be recorded on issue No.1 which is to the effect:--
(1) Whether the parties entered into an oral agreement on 6-1-1973? If so, at what rate the property in dispute was agreed to be sold to the plaintiff? OPP The findings of the trial Court on this issue that the entire property was agreed to be sold in a package deal at Rs.3,000 per marla for land and Rs.10 per square foot for built up area was confirmed by the learned Judges in the High Court in the following manner:-- "The document, Ex.P.44, which purports to be memorandum of agreement of sale of the property between the parties is of some help to resolve the issue. It was typed by the respondent. Both appellant 2 and the respondent made corrections therein at no fewer than thirteen places with their hands in the presence of appellant 1 in June, 1973. Corrections Exhs. A.1 to A.7 are in the hand of the respondent and those Exhs. B.1 to B.6 are in the hand of appellant 2. The contents of the document after corrections so made read as follows:-- This Memo of Agreement of Sale made at Lahore this -- day of June, 1973 between Amatullah Begum (hereinafter called the Vendor) which expression shall include her heirs, administrators, executors and assignees of the one part, and Mr. Munawar Akhtar, Advocate resident of 45, Mozang Road, Lahore, hereinafter called the Vendee which term shall include his heirs, administrators, executors and assignees of the second part, in respect of sale of the entire property known as No.45, Mozang Road, Lahore, part of which is presently in occupation of the vendee.
Whereas the vendor is the absolute owner of premises known and numbered as 45, Mozang Road, Lahore more particularly described hereinafter and has agreed to sell the same alongwith all building, fixtures, fittings and appurtenances whatsoever.
And where the vendee has agreed to purchase the same premises and has made an offer to the vendor who has accepted the same.
NOW THIS AGREEMENT WITNESSETH:--.
(1) That the land of the entire property mentioned above has been agreed to be sold at the rate of Rs.3,000 per marla. Another Rs.10 per square foot has been agreed upon as price for the constructed area.
(2) That the vendee undertakes not to claim any expenditure he has incurred or may incur for adjustment against the agreed price.
(3) That the vendee will pay half the entire sale price in December, 1973, and the remaining half in July, 1974, and get the sale-deed registered.
(4) That the vendee has paid to the vender a sum of Rs.---------as advance in the following manner: Bank draft dated for_____ a sum of Rs.______ in favour of the vendor drawn on United Bank Ltd., Abpara Branch, Islamabad. Another Bank draft of Rs.______ dated ____drawn on_____.
(5) The vendor hereby acknowledges the receipt of the aforesaid amount of Rs.___.
(6) [Scored out].
(7) That during the period the sale-deed is not registered any additions/alterations/construction raised by the vendee will be at his own risk and cost and the vendor will not be responsible for reimbursing costs thereof."
Condition No. 6, which was scored out by appellant 2 vide correction, Exh B-6, runs as follows:-- "6. That on payment of Rs. The vendee will have the right to receive rents from all the tenants and stop payment of his own rent to the vendor."
It is significant to note that corrections in condition No. 1 mentioning that the property had been agreed to be sold at the rate of Rs.3,000 per marla of land and Rs.10 per square foot of constructed area were made both by appellant 2 and the respondent but none of them touched the figures representing the rate which were kept intact. This was as a matter of fact the most important condition and if the rate agreed upon Were to be different from the one set out therein appellant 2 would have certainly made necessary alteration and substituted the rate which according to him was the agreed one. Absence of any change made by appellant 2 in the rate is indicative of the fact that the agreed rate was Rs3,000 per marla of land and Rs-10 per square foot of constructed area. The appellants' version of the rate is falsified by this document. The finding of the learned trial Court touching the rate cannot but be affirmed."
9. The learned counsel for the appellants though tried his best to persuade us to come to a finding other than the given by the two Courts but we are afraid, that he was unable to create any dent in the concurrent findings of the two Courts. The above findings are based on correct appraisal of evidence in this case. Besides the oral evidence in this case which has come from independent responsible witnesses the case of the respondent is fully supported by the documentary evidence which has made it manifestly clear that the parties had agreed to sell the entire bungalow at Rs.3,000 per marla for land and Rs.10 per square foot for the built up area. The most important document in this regard is Exh.P-44 which has been quoted by the High Court and by us as well in the earlier part of the judgment in extenso. This document could not at all be denied by the appellants because the corrections/alterations made or suggested in this document carry the signatures of the parties. Had there been no agreement between the parties as to the rate, agreed rates would have been so incorporated, but it is not so. This document also speaks of the sale of entire property known as 45, Mozang Road, Lahore part of which is presently in occupation of the vendee. Further the fact that the appellants have been receiving substantial amount from the respondent has also not been denied. The amounts, the detail of which have been given in the judgments of the two Courts, were accepted by the appellants without any demur. Obviously these amounts were remitted by the respondent to the appellants towards the sale consideration of the disputed house because there existed no other business transaction between the parties.
10. The view, therefore, we take in the matter, is that the appeal has no merit and is dismissed.