' This judgment will govern two Regular Second Appeals bearing Nos.31 of 1971 and 99 of 1971.
Although both of these have arisen out of two separate decisions, yet these have emanated from similar factual background and involve examination of similar questions of law and facts. These R.SAs. Were heard together. These are, therefore, 'being disposed of by a single judgment.
2. The dispute in these appeals relates to two parcels of agricultural land: one measuring 5 Kanals while the other measuring 11 Kanals. Both of the parcels of the land are situated in Chak No,28, Tehsil Phalia, District Mandi Bahauddin. These pieces of land were allotted to non-Muslims before the establishment of Pakistan. Mehr Din, respondent in R.SA. No,31 of 1971 and Taj Din, respondent in R.SA. No,99 of 1971, came to Pakistan as displaced persons from India. They were allotted these lands in lieu of their verified claims. By means of agreement of sale dated 13-10-1966, Mehr Din, agreed to sell his piece of land measuring 5 Kanals in consideration of Rs,2,500 to the appellant, received an amount of Rs,1,250 as earnest money from the appellant and covenanted to receive the. Balance at the time of finalization of the sale. Taj Din, respondent in R.SA. 99 of 1971, agreed to sell his piece of land for Rs,5,500 by means of an agreement to sell dated 13-10-1966 to the appellant. He received an amount of Rs,2,750 as earnest money from the appellant and covenanted to receive balance of price at the time of completion of sale. As the respondents were reluctant to perform their part of the contract, Nathey Khan/appellant brought two separate actions for enforcement of agreements to sell noted above. The suits were filed on 24-5-1967, in the Court of Civil Judge, Mandi Bahauddin.
3. The suits were contested. Mehr Din and Taj Din, in their written statements, took up number of pleas, including that the suit lands were situated in revenue estate which was subject to provisions of Colonization of Government Lands (Punjab) Act, 1912 (hereinafter shortly stated as 'Act'); that agreements to sell, noted above, were executed without obtaining permission from the Collector under section 19 of the Act and so these agreements to sell, were unenforceable under the law. On facts, the execution of agreements and receipt of the earnest money by both the respondents, was denied. On the divergent pleadings of the parties, the learned trial Court framed the following issues:
(1) Whether the plaintiff is estopped by his conduct to file the present suit? OPD.
(2) Whether the suit land is a colony area, if so, with what effect? OPD.
(3) Whether the defendant executed any agreement in favour of the plaintiff? OPP.
(4) Whether the defendant has received an earnest money? OPP.
(5) Whether the suit land is evacuee property, if so with what effect? OPP.
(6) Relief.
' The oral as well as documentary evidence was led by the parties in support of their respective pleas. Upon the consideration of the material on record, the learned trial Judge decided all the issues against Mehr Din and Taj Din. The learned trial Judge found that agreements to sell executed by the respondents and receipt of earnest money was proved by the appellant; that the agreements to sell noted above, were not hit by prohibition contained in section 19 of the Act. On this conclusion the learned trial Judge decreed the suits vide decision dated 2-6-1970. Feeling dissatisfied, Mehr Din and Taj Din filed two separate appeals which were accepted by the learned Additional District Judge, Gujrat vide two separate decisions dated 3-10-1970. The learned first Court of appeal, while accepting the appeals, found that issues Nos.3 and 4 in favour of appellant and decided issues Nos.2 and 5 in favour of respondents. It was held that the suit land was situated in revenue estate which was subject to provisions of the Act; that the name of Provincial Government was recorded in the record-of-rights as an owner and the Central Government was recorded as tenant at will. On this finding it was concluded that the sanction under section 19 of the Act was a condition precedent for the validity of the agreements to sell. On these premises, it was found that the agreements to sell executed by Mehr Din and Taj Din in favour of the appellant were invalid and were not enforceable. On this conclusion the appeals filed by Mehr Din and Taj Din were accepted; the judgments and decrees passed by the learned trial Court were set aside and the suits filed by the appellant were dismissed. This is how these second appeals have come to this Court.
4. The learned counsel for the appellant, in support of these appeals, raised the following points: Firstly; that both the parcels of land were treated as evacuee property and allotted to Mehr Din and Taj Din in lieu of their verified claims. On these premises, it was suggested that both pieces of land had become part and parcel of compensation pool and were permanently settled on respondents under section 16 of Displaced Persons (Land Settlement) Act, free from all encumbrances. On the strength of this aspect of the case; it was suggested that the sale of these properties was not hit by section 19 of the Act. .Secondly: that no evidence was led by the respondents to prove that non- Muslims-allotters of the land had not paid the entire price of the suit lands to the Government of Punjab before migrating to India. According to the learned counsel, from the record it was clearly discernible that non- Muslims had paid the whole price of the suit land and had become full owner of it under section 15 of the Act.
Thirdly: that on the principle of equity and good conscience the appellant was prepared to pay more money in addition to the price of the land, which was agreed between the parties.
5. On the contrary, the learned counsel for the respondents vigorously supported the impugned decision. He fiercely contended that both the properties were situated in the revenue estate which was admittedly subject to the Act; that the agreements to sell noted above, were executed by the respondents without securing necessary sanction under section 19 of the Act and so the agreements to sell suffered from inherent invalidity and were not enforceable under the equitable jurisdiction of this Court. No other point was urged.
6. From the foregoing narration, the only question falling for decision is whether the agreement to sell executed by Mehr Din dated 13-10-1966 and the agreement to sell executed by Taj Din dated 13- 10-1966 are hit by section 19 of the Act? If not to what relief the appellant is entitled?
7. Before I proceed to determine the question falling for decision, I find it expedient to reiterate four well known and well settled principles of law having decisive bearing upon the fate of the case:- ' Firstly; it is now settled that agreements to sell pertaining to agricultural land/immovable property, do not create any vested right of executant in the property. These do not even create any charge in the property. It creates a right in favour of executant to get the sale finalized, in consonance with the terms of the agreements to sell. From the bare language of section 19 of the Act, it is clear that it restrains the tenant/allottee of the Crown land from transferring or charging the tenancy in a manner except with permission of the Collector/authorized officer. The agreements to sell of colony land are, therefore, not violate of section 19 of the Act. See Muhammad Ahmad Beg v. Amjad Beg PLD 1978 Lah. 421; Khurshid Begum v. Inam Rabbani 1979 CLC 570; Hakim Ali v. Atta Muhammad 1981 SCMR 993 and Begum Bibi v. Abdul Sattar 1987 SCMR 1.
' Secondly; an allottee/tenant of the Crown's land becomes owner of the land when he makes the payment of entire price of the suit land under section 15 of the Act. The date of the payment of price is effective date for passing of title in favour of grantee/notwithstanding that B conveyance- deed is not executed in his favour. See Ilam Din v. Muhammad Din PLD 1964 SC 842 and Ali Muhammad v. Rabia Bibi PLD 1971 BJ 38.
' Thirdly; if the appellant/his counsel, does not press any ground incorporated in the memorandum of appeal before the first Court of appeal, then such ground is deemed to have been abandoned by that party and resultantly that party is not entitled to raise that question before the second appellate Court. Reference be made to Karim Bakhsh v. Qadir Bakhsh PLD 1950 Lah. 143; Mehr Bakhsh v. Maula Dad PLD 1951 Lah. 113; Abid. Hussain v. Afsar Jahan Begum PLD 1972 Kar. 54 and Noor Muhammad v. Din Muhammad 1986 CLC 2337.
' Fourthly; the Court, while assuming --- jurisdiction in case of specific performance of "contract, because a Court of law giving damages only for the non-performance of the contract, in many cases, does not afford an adequate remedy. But in equity as well at law, the contract constitutes the right, and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining, as nearly as possible, in the same situation as the defendant had agreed that he should be placed in. It is obvious, that persons, strangers to the contract and, therefore, neither entitled to the rights nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it. See Tasker v. Small (3 Mylne & Craig 69).
' And lastly it was urged that the jurisdiction of the Court to decree specific performance being discretionary under section 22 of the Specific Relief Act, the Court ought not to have, considering the plaintiffs conduct granted such relief. The jurisdiction under section 22 is discretionary only in the sense that it cannot be claimed as a matter of right. As enjoined by the section itself, the exercise of the discretion is not to be arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. The exercise of the discretion to grant or refuse to grant relief will, therefore, depend upon the circumstances of the case and the conduct of the parties. The Courts below have not found the circumstances of mthe case or the conduct of the plaintiff to justify a denial of the relief to him, and we see no reasons to hold otherwise." See Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344 and Syed Arif Shah v.
Abdul Hakim Qureshi PLD 1991 SC 905.
8. Guided by the above enunciation, I herein proceed to determine the point in dispute in these appeals. From the above narration, I find that issues Nos.3 and 4 related to execution of aforesaid agreements to sell. The learned trial Court, on the examination of the evidence of the parties, found that afore-noted agreements to sell were executed by Mehar Din and Taj Din who had received earnest money as recited in the agreements. It is further clear that the learned counsel for the appellant did not assail the finding of the first Court on the above issues before the first Court of appeal. The learned first appellate Court, accordingly affirmed the finding of the first Court on issues Nos. 3 and 4. On the above circumstances, the respondents are now precluded to challenge the concurrent finding of the two Courts below on these issues before me. Having held so, the only question is "whether the non-Muslim allotters of the suit land had not paid the price of the land to the Province of Punjab/owners and so the agreements to sell executed by Taj Din and Mehr Din were hit by section 19 of the Act." From the consideration of the material on record, it becomes crystal clear that no evidence was led by the respondents to substantiate that non- Muslims/allottees of the suit land, before migration to India, had not paid the price of the suit land to the Province of Punjab. Ghulam Ali Patwari entered into the witness-box and stated that Chak No,28, Tehsil Phalia was a colony Chak; that the evacuee allottees of the land in this revenue estate had made the sale of the land allotted to them without seeking permission from the Collector; that he gave the full detail of sales made by the evacuee allottees of the land in this Chak. The respondents did not venture to put any question to him regarding the non-payment of any part of price by the non-Muslim allottees before their migration to India. Further, it seems that even Government of Punjab never took any exception to the rights of the allottees to make the sale of land so allotted to them within the terms of section 19 of the Act. The respondents have taken the objection in their written statements in indefinite terms. The cumulative effect of above examination is that non-Muslim allottees of the suit land must have paid the price of the lands allotted to them before migrating to India. Had the position been otherwise, the respondents must have brought something to prove their crucial objection and Government of Punjab/owner in the first instance must not have hesitated to allow the allottees to make sales without seeking permission under section 19 of the Act. The Government of Punjab must have issued them notices for the payment of remaining prices. On this analysis, I have no difficulty in holding that the respondents were permanently settled on suit lands by the Settlement Authorities as full owners and they were competent to execute the aforesaid agreements to sell without seeking permission from the Collector under section 19 of the Act. This being the position, the decision rendered by the first appellate Court on issues Nos.2 and 5, is clearly erroneous and cannot be sustained. The finding of the appellate Court on these issues is, therefore, set aside.
9. Now the question remaining for examination is "as to on what terms the appellant is entitled to get the decrees for the performance of afore-noted agreements to sell. Undisputedly the price of the legal estates has gone high according to the prevailing inflationary trends in the country. With the passage of time, the value of our currency has eroded and the values of agricultural land have soared up. The jurisdiction under section 12 of the Specific Relief Act, is discretionary and equitable in nature. This Court, while deciding such cases, is entitled to take into consideration the socio- economic condition prevailing in the country and decree the actions of performance on just terms.
These appeals had been pending adjudication for more than a decade. Taking the above circumstances into consideration, I am of the view that it will be in the fitness of things to decree specific performance of the aforesaid agreements at five times the prices mentioned in the agreements.
10. Resultantly Civil Suit No,616 of 1%7 titled "Nathey Khan v. Mehr Din" is hereby decreed subject to payment of Rs,6,250 to Mehr Din/respondent. Civil Suit No,613 of 1967 titled "Nathey Khan v. Taj Din" is hereby decreed subject to payment of Rs,13,750 to Taj Din/respondent. The appellant Nathey Khan shall deposit/pay the above prices of the suit lands, assessed by this Court, on or before 11th of July, 1994 in the Original Court. The office shall communicate this order to the parties without any loss of time. There shall be no order as to costs.