' This judgment will dispose of two Regular Second Appeals R.S.As. 764 and 765 of 1975--as the land in dispute in both the matters is one and the same.
2. The facts, briefly stated, are that Muhammad Ibrahim, allottee of plot No,47, measuring 120 Kanals, situate in Chak No,43/TDA, Tehsil and District Bhakkar, executed a receipt (Exh.P-3) acknowledging the receipt of Rs,17,000 from Khurshid Ahmad son of Muhammad Ismail appellant.
This receipt also makes mention of the General Power of Attorney executed on the same day i,e.
24-8-1963, by Muhammad Ibrahim in favour of Khurshid Ahmad appellant. This General Power of Attorney (Exh.P.2) conferred power of sale and management etc. On Khusrhid Ahmad appellant, and is irrevocable as per covenant contained therein. The Power of Attorney was, however, cancelled vide revocation deed dated 14-11-1968 (Exh. D.3) by Muhammad Ibrahim. On 11-3-1971 Irshad Ali son of Muhammad Ibrahim received Rs,20,000 vide agreement Exh. P.1 whereunder he bound Muhammad Ibrahim, his father, the allottee, to execute sale-deed after receiving proprietary rights of the lot in question. The receipt of Rs,17,000 by Muhammad Ibrahim in the year 1963 was acknowledged. Earlier, Irshad Ali acting as attorney under general Power of Attorney dated 12-1-1960 (Exh. D.2) also executed an agreement to sell (Exh. D.1) on 28-11-1970 in favour of Ghulam Muhammad and Nawaz Din respondents, after receiving Rs,17,000 as sale consideration of lot No,47, i,e. The land in dispute.
3. Ghulam Muhammad and Nawab Din respondents filed suit for possession on 18-10-1972 against Muhammad Ibrahim. Another suit was filed by Khurshid Ahmad and Abdul Hamid for permanent injunction against Muhammad Ibrahim, Irshad Ali, Ghulam Muhammad and Nawab Din restraining them from interfering in their possession. Is pertinent to note that after receiving Rs,17,000 vide receipt Exh. P.3 and after executing the Power of Attorney (Exh. P.2) the possession of the land in dispute was also delivered to Khurshid Ahmad appellant. Muhammad Ibrahhn died 2/3 months prior to the filing of the suit by Khurshid Ahmad and Abdul Hamid. Both these suits were consolidated by the learned Civil Judge and after framing necessary issues arising out of the pleadings of the parties and recording their didence; he decreed the suit for permanent injunction of Khurshid Ahmad and Abdul Hamid returning the finding that the transaction in favour of Khurshid Ahmad etc., the appellants, was prior in time and was also in the knowledge of Ghulam Muhammad one of the plaintiffs in the other suit, as he was admittedly an attesting witness of the receipt Exh. P.3 and General Power of Attorney Exh. P.2. The learned Civil Judge resultantly dismissed the suit of Ghulam Muhammad and Nawab Din. This was done vide judgment and decree dated 30th July, 1974 by the learned trial Court.
3. Ghulam Muhammad and Nawab Din filed two appeals assailing both the decrees, and the learned first appellate Court reversing the finding of the learned trial Court, dismissed the suit of Abdul Hamid and Khurshid Ahmad and decreed that of Ghulam Muhammad and Nawab Din. The finding returned by the first appellate Court was that the first transaction of 24th August, 1963 was that of lease and the transaction of sale dated 11-3-1971 (Exh. P.1) was later in time than the agreement to sell (xh. D.1) dated 28-11-1970 executed in favour of Ghulam Muhammad and Nawab Din. This led to the filing of the present two appeals by Khurshid Ahmad and Abdul Hamid.
4. Irshad Ali, the sole heir and attorney of Muhammad Ibrahim, the original allottee of the land in dispute, died in the meanwhile and his legal heirs were brought on the record and were represented by Mr. Faiz Muhammad Sadiq, Advocate. The said learned counsel neither opposed nor supported the appeals.
5. Learned counsel for the appellants argued that the theory of lease propounded by the first appellate Court is not based on the record; rather it stands contradicted by the evidence on record. He pointed out that had the land been leased in 1963 by Muhammad Ibrahim, he would not have executed the General Power of Attorney in favour of Khurshid Ahmad conferring the power to manage, mortgage and to sell the property to whomsoever he liked. Again, this General Power of Attorney would not have been agreed to be irrevocable and the receipt (Exh. P.3) would not have also mentioned specifically the fact of execution of irrevocable Power of Attorney in favour of Khurshid Ahmad. It was argued that in the circumstances established on the record, the burden shifted on to the respondents-defendants to produce cogent evidence to establish the so-called lease arrangement, but no evidence worth the name was produced. Moreover, no proceedings were taken to retrieve possession of the land from the appellants. It was also contended that the agreement (Exh. D.1) for Rs,17,000 only, executed by Irshad Ali on 28-11-1970 was, on the face of it, a procured document with a view to create obstacle in the smooth transfer of proprietary rights to the appellants. Irshad Ali executed this document to grab more money. It was pointed out that the recital of delivery of possession contained in the document further showed that the document did not reflect the true state of affairs to the very knowledge of Ghulam Muhammad and Nawab Din.
This conduct of Ghulam Muhammad and Nawab Din itself belies the truthfulness of the document.
The learned counsel finally supported the findings of the learned trial Court.
6. Mr. Shahzad Shaukat, Advocate, learned counsel for Ghulam Muhammad and Nawab Din, respondents, argued that payment of instalments was made by the respondents and Irshad Ali deceased also supported the respondents and as such they have the right to receive possession through specific performance of agreement to sell. He supported the finding of the first appellate Court and contended that the agreement dated 28-11-1970 (Exh. D.1) being prior in time from the agreement dated 11-3-1971 (Exh. P.1) in favour of the appellants, Ghulam Muhammad and Nawab Din respondents were entitled to receive possession of the land.
7. While the appeals were being argued, the appellants moved C.M. No,1058-C of 1989 seeking amendment of their plaint so as to convert the suit for mandatory injunction into a suit for specific performance. Ghulam Muhammad and Nawab Din respondents also filed C.M. No,1071-C of 1989 seeking permission to amend their suit so as to convert it into a suit for specific performance and possession. The order dated 1-4-1991 passed on these applications reads as under:- "These applications were moved for permission to convert the two suits filed by the two parties into suits for specific performance. Abdul Hamid had filed a suit for permanent injunction restraining Ghulam Muhammad and Nawab Din from interfering in his possession over the land in dispute while Ghulam Muhammad and Nawab Din had filed suit for possession. Both of them by moving these petitions seek permission to convert their suits into suits for specific performance of agreement to sell statedly executed in their favour by Irshad Ali, son of Muhammad Ibrahim the original allottee of the lot in dispute. Mr. Faiz Muhammad Sadiq, Advocate, represents the legal heirs of Irshad Ali after his death. Learned counsel for the respective parties have no objection to the grant of the request of conversion of the suits. They further add that these suits so converted can be decided on the basis of the issues already framed and the evidence produced by the parties on the record. They, therefore, request that the amended suits may be decided by this Court itself on the basis of the present record as there is no need to remand these suits. With the consent of the parties let the amended plaints be filed after fixing proper court-fee within ten days.
Meanwhile let the arguments on merits proceed."
' It is apparent that the learned counsel for the parties did not want fresh trial of the amended suits, and by agreement they sought decision thereof on the basis of the evidence already produced on record.
8. The two questions pressed before me by the learned counsel for the parties were: (a) whether the transaction entered into by Muhammad Ibrahim, the original allottee on 24-8-1963 evidenced by General Power of Attorney (Exh. P.2) and receipt (Exh. P.3) was an agreement to sell, or a transaction of lease and (2) whether Ghulam Muhammad and Nawab Din were bona fide purchasers for value. These questions encompass issues Nos.1, 2, 3 and 5-A. The facts which emerge from the record are that Rs,17,000 were received by Muhammad Ibrahim vide receipt Exh.
P3, which receipt makes mention of the General Power of Attorney executed by Muhammad Ibrahim on the same day in favour of Khurshid Ahmad appellant. The General Power of Attorney (Exh. P.2) executed on 24-8-1963 and registered on 6-9-1963 conferred power on Khurshid Ahmad appellant to whom the possession of the land was also delivered to cultivate the land himself or through others, to mortgage it or to sell it to anyone. There is also, a recital that this Power of Attorney is irrevocable, meaning thereby that interest in the land itself had been created in favour of the Attorney. The agreement (Exh. P.1) executed on 11-3-1971 by Irshad Ali, the son and Attorney of Milian mad Ibrahim allottee, despite cancellation of the Power of Attorney vide cancellation deed dated 14-11-1968 (Exh.D.3) confirmed the transaction dated 24-8-1963 as sale arrangement.
Ghulam Muhammad respondent (plaintiff in the other suit) appeared as D.W.6 and admitted his signatures on the Power of Attorney (Exh. P.2) and receipt (Exh. P.3), but added that this was lease arrangement. These documents belie the assertion of Ghulam Muhammad as lease arrangement cannot be spelt out in the presence of the recital of both these documents (Exhs. P.2 and P.3).
Moreover, Muhammad Ibrahim or Irshad Ali would have taken steps to recover the possession of the land in dispute had the same been given on lease to Khurshid Ahmad, specially when the Power of Attorney was cancelled on 14-11-1968 (vide Exh. D.3) Again, the said cancellation was illegal for the reason that the covenant contained in the Power of Attorney (Exh. P.2) was to the effect that the same was irrevocable. It is also pertinent to note that Ghulam Muhammad, co- plaintiff of Nawab Din, had the knowledge of the said arrangement as he was the attesting witness of the documents (Exhs. P.2 and P.3) and as such his assertion that he had signed the blank documents cannot be believed. They, therefore, cannot claim to be bona fide purchasers for value.
As against them, the appellants received the possession in pursuance of the agreed arrangement after making part payment of the consideration. The balance of the conHeration was then received on 11-3-1971. The appellants, as such, are entitled to the protection of section 53-A of Transfer of Property Act. It was held in Rashid Ahmad v. Friends Match Works PLD 1989 SC 503 that if the entire payment is made and the party is in possession pursuant to the agreement, it is entitled to the protection of section 53-A of the Transfer of Property Act. The appellants thus having established the agreement of sale entered into between them and Muhammad Ibrahim, the allottee, in 1963 and having received the possession in lieu thereof and having paid the entire price, are entitled to the performance of the agreement. The issues Nos. 1, 2, 3 & 5-A are decided accordingly.
9. Learned counsel for the respondents then argued that the proprietary rights having not yet been conferred, the agreement in question is hit by section 19 of the Colonization of Government Lands Act, 1936. This plea is not available to the respondents as they are themselves seeking performance of the agreement dated 28-11-1970 (Exh. D.1) obtained by them from Irshad Ali. In any case, the agreement Exh. P.1 read with receipt Exh. P.3 and General Power of Attorney Exh. P.2 is not hit by section 19 of the Colonization of Government Lands Act, as what was agreed to in the said agreement was that the proprietary rights in the land would be conveyed after the same are obtained from the Government. It is, therefore, apparent that the conditions of the allotment were agreed to be fulfilled and complied with. The attack on the agreement for sale on the basis of the provisions of section 19 of the Colonization of Government Lands Act can only succeed if it is shown that the intention of the agreement was to defeat the law. In similar situation, it was held in Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 that if the parties that enter into an agreement for sale contemplate only a sale with the requisite sanction they are not making any effort to defeat the law.
10. For the reasons given above, the fmdings returned by the first appellate Court on issues Nos, 1, 2, 3 and 5-A are hereby set aside. Issue No,4 was not at all touched and the same was thus abandoned. The appellants are entitled to have the agreement specifically performed as and when the proprietary rights are conveyed to the heirs of Muhammad Ibrahim deceased, the allottee. They will tlien be entitled to have the rights conveyed through the execution of the decree passed in the suit. The suit of the appellants thus succeeds. As regards the suit of the respondents, it will be seen that the same is liable to be dismissed as against Abdul Hamid and Khurshid Ahmad appellants (defendants in the said suit) but they are, however, entitled to the refund of Rs,17,000 received by Irshad Ali deceased. The suit in these terms is decreed as against the heirs of the deceased, and the sun of Rs,17,000 shall be recoverable from the estate of Irshad All deceased, if any, in the hands of his legal representatives, the respondents.
11. Both the appeals and the amended suits stand disposed of accordingly, with no order as to costs.