' The suit filed by the petitioners for a decree for permanent injunction was dismissed b; the trial Court through judgment dated 16-11-1987 which has been upheld in appeal filed by the petitioners by the learned Additional District Judge, Mianwali through judgment dated 10-4-1988 by which the appeal was dismissed.
2. The dispute relates to land measuring 15 acres which was allotted to Muhammad Shafi deceased predecessor-in-interest of respondents under the Colonization of Government Lands Act, 1912 on whom proprietary rights had not yet been conferred. The case of the petitioners was that on 23-8-1969 Muhammad Shafi deceased executed an agreement of sale in favour of Muhammad Ramzan petitioner No,4 through which he agreed to sell the said land after conferment of proprietary rights for an amount of Rs,16,500 out of which an amount of Rs,5,000 was paid as earnest money at the time of execution of the said agreement of sale. According to the petitioners they deposited an amount of Rs,49.47 on 30-4-1970 in the Government treasury on behalf of Muhammad Shafi deceased in respect of this land which was evidenced by bank challan (Exh.P.13). According to him on 5-8-1970 Muhammad Shafi executed receipt (Exh.P2) after receipt of an amount of Rs,11,000 in toto and on the same date he executed power of attorney (Exh.P.3). He also allegedly swore an affidavit on the same date (Mark 'A). According to the petitioners an amount of Rs,1,900.25 was deposited in the Government treasury which was due from Muhammad Shafi as Government dues on 8-8-1970 through bank challan (Exh.P.12). He also deposited an amount of Rs,1,546.00 on 22-3-1981 the remaining Government dues through bank challan (Exh.P.14). Since Muhammad Shafi was also the allottee of Ihata, according to the petitioner he sold the said Ihata through different sale-deeds Exh.P.4 to Exh.P.11 which were executed on the same date when power of attorney Exh.P.3 and affidavit (mark 'A') was executed i,e, 5-8-1970. There is no dispute regarding these sale-deeds (Exh.P.4 to P.11) regarding sale of Ihata.
3. The case of the petitioners was that apart from the said different amounts paid to Muhammad Shafi or deposited on his behalf he was also paid an amount of Rs,500 as such the total consideration had been paid to him.
4. The petitioners filed suit for permanent injunction. The suit was dismissed by the trial Court on the sole ground that agreement of sale dated 23-8-1969 (Exh.P1) was void being violative of the provisions of section 19 of the Colonization of Government Lands Act, 1958 having been executed without the prior permission of the Collector. The execution of the agreement of sale, the power of attorney, affidavit and the receipt was denied and though issues were framed but no findings were recorded on these issues as according to the trial Court the suit was liable to be dismissed on the ground of the agreement being void.
5. In appeal however, learned lower Appellate Court after examining the evidence on the record held that execution of the abovementioned documents by Muhammad Shafi deceased in favour of Muhammad Ramzan had not been established as the evidence produced by the petitioners was not consistent and trustworthy for reasons recorded by it therefore it was held that though the agreement was not void being violative of section 19 of the Colonization of Government Lands Act but since the execution of the same had not been established therefore, the suit was liable to be dismissed. It was also held that the remedy of the petitioners was to file suit for specific performance of agreement and the suit in the form of permanent injunction was not maintainable.
Through judgment dated 10-4-1988 the appeal of the petitioners was dismissed.
6. Learned counsel for the petitioners argued that the evidence of the petitioner regarding execution of agreement of sale in dispute, the receipt, the power of attorney has been excluded from consideration for reasons not sustainable under the law. I have examined the findings recorded by the lower Appellate Court and also the evidence produced by the parties in this case.
It may be pointed out that it was not the case of respondents that Muhammad Shafi thumb- marked any document under duress or the documents in dispute were got executed from him through misrepresentation or fraud. It was a case of denial simpliciter of execution of the said documents by him.
7. Exh.P1 is the agreement of sale in dispute dated 23-8-1969. Habib Ullah, Muhammad Boota and Malik Sultan are the marginal witnesses of this document. Habib Ullah was examined as P.W.1 who categorically stated that Muhammad Shafi thumb-marked in his presence, the said agreement.
According to his evidence Muhammad Boota and Malik Sultan also put their thumb-impressions on it. He is also marginal witness of receipt Exh.P.2 and stated that the same was also thumb- marked by Muhammad Shafi in his presence and Muhammad Boota and Sultan also put their thumb-impressions. It is in his evidence that in addition to an amount of Rs,5,000 paid to Muhammad Shafi at the time of execution of the said agreement he was also paid an amount of Rs,500 a week thereafter about which no writing was obtained. He also stated that on the date when receipts Exh.P.2 regarding payment of Rs,11,000 was executed Muhammad Shafi also got prepared an affidavit (mark 'A') and also executed a general power of attorney in favour of Muhammad Ramzan petitioner No,4 the vendee which was produced in evidence as Exh.P.3. This document is a registered document and P.W.1 stated that Muhammad Shafi executant appeared before the Sub-Registrar alongwith him who was identified by Sardar All Lambardar. He also stated that on the same date when Exh.P.3 was executed Muhammad Shafi executed sale-deeds Exh.P.4 to Exh.P.11 regarding sale of Ihata which price was received by him in his presence. The evidence of this witness has been discarded by the lower Appellate Court on the ground that he put his signatures in English on Exh.P1 at two places but thumb-marked on the receipt Exh.P.2, the general power of attorney Exh.P.3 and sale-deed Exh.P.4 to Exh.P.11 relating to Ihata on the ground that it did not sound to reason that a person who could sign in English would have thumb-marked the other documents and it was held on this account that Habib Ullah who put his signatures in English on Exh.P1 could not be the same person who thumb marked the other documents Exh.P.2 to Exh.P.11. I am afraid, if this could be the reason to hold that Habib Ullah who put his signatures as witness on Exh.P.1 in English was different person merely because on the other documents he put his thumb- impressions particularly when Habib Ullah did not deny his signatures on Exh.P.1 as also his thumb- impressions on other documents. On no ground his evidence could be excluded from consideration merely because he did not put his signatures on the other documents. Sardar Muhammad Lambardar who identified Muhammad Shafi at the time of registration of power of attorney Exh.P.3 was examined as P.W.2. He stated that he identified Muhammad Shafi before the Sub-Registrar to whom the said power of attorney was read over and he admitted the same as correct and put his thumb-impressions in his presence. A suggestion was put to him that the said document was a forged one which he categorically denied. The learned lower appellate Court appears to have not considered the evidence of P.W.2. Sultan the other marginal witness of Exh.P.1 and other documents was examined as P.W.3. He also corroborated the evidence of P.W.1 regarding execution of documents by Muhammad Shafi. His evidence has been excluded by the lower Appellate Court mainly off the ground that he was an illiterate person therefore the said agreement shall be deemed to have not been formally proved through his evidence unless there scribe was examined. Merely because a witness was illiterate, his evidence could not be brushed aside or ignored on that score unless there was any law or the rule which provided that no illiterate person could be a witness in any transaction. He was a witness of the fact that Muhammad Shafi executed agreement of sale and other documents in his presence and put his thumb-impressions and it was not necessary that only an educated person could only be the witness of such an event.
The other ground for holding that the evidence of this witness was inconsistent with the evidence of P.W.1 was that P.W.1 stated that an amount of Rs,5,000 was paid at the time of execution of agreement of sale whereas according to him he did not see the payment of the said amount and stated that the said amount was paid to him by Muhammad Shafi who told him that he had received the same from Muhammad Ramzan for surrendering possession in his favour of the land in dispute. The agreement of sale was executed in the year 1969 and the suit was filed on 6-2-1982 and evidence of this witness was recorded on 4-9-1984. There was no discrepancy of material nature which could be made basis for exclusion of his evidence from consideration. Exh.P.3 which was a registered document and endorsement made by the Sub-Registrar about the appearance of Muhammad Shafi before him and admission of execution of the same carried presumption of truth which was rebuttable and it was for Muhammad Shafi and his heirs to produce evidence to rebut the same which has not been done. There is no ground to disbelieve evidence of P.W.2 Sardar Muhammad Lambardar who identified Muhammad Shafi at the time of registration of power of attorney. In this power of attorney it has been expressly mentioned that Muhammad Shall had already executed an agreement of sale of land in dispute in favour of Muhammad Ramzan. The possession of original bank challans with the petitioners i,e, Exhs.P.12, P.13 and P.14 for deposit of an amount of Rs,1,900.25, 49.47 and Rs,1,540.00 respectively on different dates furnishes strong evidence that it was the petitioners who in pursuance of the said agreement of sale being interested person deposited the said amounts so that after conferment of proprietary rights he could get the sale-deed executed as per terms of the agreement otherwise there is no explanation from respondent as to when he deposited the amounts.
8. The learned lower Appellate Court has also held that in the receipt Exh.P.2 there was mention of an amount of Rs,9,099.75 having been paid in cash and an amount of Rs,1,900.25 which was deposited through bank challan Exh.P.12 on 8-8-1970 therefore, the entire amount of Rs,11,000 was not paid in cash whereas according to the witnesses at the time of execution of the said receipt an amount of Rs,11,000 was paid in cash which was not true. I am afraid, the reasoning is wholly untenable. Receipt was executed on 5-8-1970. An amount of Rs,1,900.25 was deposited. On 8-8- 1970 from which it appears that the entire amount of Rs,11,000.00 was shown to have been paid with the understanding that out of the said amount an amount of Rs,9,099.75 would be retained by Muhammad Shafi and the remaining would be deposited in the Government Treasury on account of Government charges by the petitioneRs, Any amount which was to be deposited on behalf of Muhammad Shafi by the vendee could very well be held to have been paid to Muhammad Shafi and no adverse inference could be raised from the said fact as observed by the lower Appellate Court which inference could not have been raised by any stretch of imagination.
9. Learned counsel for the respondents when questioned as to how in view of the above discussion the findings recorded by the. Lower Appellate Court regarding execution of all these documents in particular when execution of sale-deeds regarding Ihata Exh.P.4 to Exh.P.11 had not been challenged by Muhammad Shafi during his lifetime uptil today or by his heirs which were executed on the same date when power of attorney Exh.P.3 was executed are sustainable, submitted that inaction on the part of Muhammad Ramzan respondent for a long time as the suit was filed as late as 6-2- 1982 was sufficient to prove that the documents were not genuine. I am afraid, the argument is devoid of any force. It was stipulated in the agreement that sale-deed would be executed on the conferment of proprietary rights on Muhammad Shafi which had not been conferred expressly uptil today and he shall be deemed to have become owner of land on 22-3-1981 when the remaining amount of Government dues amounting to Rs,1,546.00 was deposited through Exh.P.14 in view of judgment reported as Mst. Khurshid Begum and 7 others v. Inam Rabbani and another (1979 CLC 570) according to which the execution of formal sale-deed by Government in favour of allottee after clearance of all the dues was formality and he becomes the owner on the date when the dues had been cleared. Apart from this admittedly Muhammad Ramzan had throughout been in possession of land therefore he was not to worry for this delay as he was enjoying the fruits of the land.
10. Learned counsel for the respondents submitted that the agreement of sale was in favour of Muhammad Ramzan alone whereas the payments were shown to have been made by his sons i,e, petitioners 1 to 3 but no rights could be claimed by them. The argument to the extent that by mere making payments of certain amounts under agreement of sale executed in favour of their father they could not claim any right in their favour independently from Muhammad Ramzan but the payments made by them on behalf of their father Muhammad Ramzan could very safely be construed to be valid discharge of liability of Muhammad Ramzan under the agreement of sale.
They were impleaded as plaintiffs in the suit but it would not adversely affect the maintainability of the same as regards Muhammad Ramzan himself who was also one of the plaintiff'. It was a case of mere misjoinder of respondents 1 to 3. Nothing turn on this as no suit could fail because of misjoinder of any party in the suit alongwith the person who could maintain the suit in his own rights.
11. The learned lower Appellate Court has also taken note of the fact that Muhammad Ramzan himself did not appear as witness to support his case. Nasir Ahmad one of the sons of Muhammad Ramzan appeared as P.W.4 who stated that Muhammad Ramzan was an old man of the age of about 85 years on account of which he was unable to walk about and was not in a position to make statement. This was not challenged in the cross-examination nor any evidence to the contrary was produced therefore, non-appearance of Muhammad Ramzan was not fatal to his case as P.W.4 had given cogent reasons for his non-appearance, as such the learned lower Appellate Court did not exercise discretion of raising adverse inference properly against the petitioneRs,
12. Learned counsel for the respondent submitted that the age of Muhammad Shafi in the general power of attorney (Exh.P.3) was shown as 46 years and the same was also mentioned in affidavit mark 'A' but the Sub-Registrar at the time of registration of the said document mentioned his age as 60/61 years as such the person who executed Exh.P.3 and the other who appeared before Sub- Registrar were rightly held by the lower Appellate Court to be different persons. This argument too has no substance for, the mention of age in the documents must have been made as stated by Muhammad Shafi which was not sufficient to hold that both were different persons particularly in view of the evidence of Lambardar Sardar Muhammad P.W.2 who identify Muhammad Shafi before the Sub-Registrar.
13. The findings recorded by the learned lower Appellate Court regarding execution of all these documents against the petitioners are based on acute misreading, misconstruction and non- reading of evidence. The execution of disputed agreement of sale Exh.P.1, receipt Exh.P2 and power of attorney Exh.P.3 has been established through cogent evidence.
14. It has been held in judgments reported as Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others (1992 SCM R 1510) and Shamir through Legal Heirs v. Faiz Elahi through Legal Heirs (1993 SCM R 145) that agreement of sale executed by the allottee could not be avoided by him on the ground of being violative of section 19 of the Colonization of Government Lands Act, 1958.
15. The learned lower Appellate Court dismissed the suit on the ground that the same was not proper in form as the remedy of the petitioner/plaintiff Muhammad Ramzan was to seek decree for specific performance of the same. In my view the suit could not have been dismissed on this technical ground. The relief of specific performance could be granted to the plaintiff if the evidence on record had established execution of the same, performance of his part of agreement and the question of limitation was not involved. In my view it was eminently a fit case for exercise of jurisdiction under Order 41, Rule 33, C.P.C. For passing decree for specific performance of agreement of sale as all the ingredients entitling Muhammad Ramzan to seek specific performance were established. He had paid the entire consideration price and even deposited the Government dues excepting Rs,500.00 which was allegedly paid in cash without obtaining any receipt. According to agreement of sale the sale-deed was to be executed after conferment of proprietary rights on Muhammad Shafi who shall be deemed to have owner of land without formal execution of sale-deed in his favour by the Government on 22-3-1981 when the Government dues in toto stood cleared when amount of Rs,1,546.00 was deposited therefore the limitation for filing suit for specific performance could not start prior to the said date i,e, 22-3-1981 as such the same when filed on 6-2-1982 was within limitation. It was provided in agreement that the remaining sale price was to be paid at the time of registration of sale-deed but Muhammad Shall received further amounts as evidenced by abovementioned documents and even if the payment of an amount of Rs,500 held to have not been proved, Muhammad Ramzan could pay the said amount at the time of registration of sale-deed therefore non-payment of the same prior thereto does not disentitle him to a decree for specific performance of agreement of sale.
16. For the foregoing reasons, this revision petition is accepted. The judgments and decrees of both the Courts below are set aside. A decree for specific performance of agreement of sale dated 23- 8-1969 (Exh.P.1) is passed in favour of Muhammad Ramzan petitioner No,4 and against the respondent subject to payment of an amount of Rs,500. Since the valuation of the suit for purposes of court-fee and jurisdiction in such a suit was to be the amount of consideration settled in the agreement of sale which was Rs,16,500 therefore Muhammad Ramzan plaintiff was required to affix court-fee of the value of an amount of Rs,1,238 on the plaint. He has already affixed court-fee of the value of Rs,30, the deficiency in the court-fee to the tune of Rs,1,208 shall be made good within two months from today i,e, up to 28-5-1993 before the trial Court failing which the suit shall stand dismissed. The parties are left to bear their own costs.