JUDGMENTCH. MUSHTAQ AHMAD KHAN, J. - Briefly stated facts of the case out of which, this Regular Second Appeal has arisen are that the plaintiff-appellant Mehr Sultan purchased land measuring 124 kanals and 11 marlas situate in die revenue estate of Kot Lah Tehsil Shorkot vide1 a registered sale deed dated13.5.1961 from the defendant for a consideration of Rs. 30,000/-. 4s & result of the suit tiled by the sisters of the defendant-respondent out of the afore-mentioned land, measuring 17 kanals and 14 marlas equal to the share of the sisters was taken away from the-plaintiff-appellant as the sale being void to the above extent. Consequently io honour the implied warranty of title, the respondent vide an agreement for sale dated 28.8.1968 agreed to sell/surrender land measuring 17 kanals and 14 marlas which he will get as a result of the consolidation proceedings in lieu of the land which was owned by him in the estate. This document is Ex. P.I on the record of the case and description thereof is an affidavit, although for all intents and purposes, it is an agreement for sale.
AFFIDAVIT 1, SHEIKH MUZAFFAR AHMED son of Sh. Ghulam Yasin, aged 66 years, occupation retired Government Officer, resident of 23/E/6. P.E.C.H.S. Karachi, make oath and say as follows:- That I sold my 3/8th share (approximately 17 kanals, 14 marlas) of the total area of about 47 kanals covering the following khasras in Mauza Kot Lai, Tehsil Shorkot Distt. Jhang, to Mehar Sultan son of Lakha, caste Jat Sipra of Mauza Kot Lai, Tehsil Shorkot, Distt. Jhang on or about May, 1961 :- Khasras Nos. 2121, 2242. 2234, 2235, 2126, 2127, 2128, 2375. 2250,2251.(2) As this was a jointly owned land received against my claims for evacuee property, its ownership was later on disputed, and I was ordered to surrender this part of the land.
(3) That I further own about 2/l 1th share in the one half of share of land apportionable to the heirs of Sh. Ghulam Yasin, in Mauza Kot Lai, Tehsil Shorkot, Distt. Jhang, which is under a consolidation Scheme and respective shares are being apportioned among the heirs.
K I R. Rev. C.(4) That I further agree that out of the area being allotted to me in the distribution under the Consolidation Scheme to transfer are of same or equivalent marlas previously sold.
(5) That I have no objection to mutation of such exchange area beingentered in favour of Mehar Sultan. After the consolidation, proceedings, when the respondent was allotted land in lieu of his entitlement, the appellant approached the respondent to execute a sale deed in terms of the agreement for sale but he refused and resultantly a suit for specific performance of the contract was find by the appellant. This suit has been contested by the defendant respondent on the ground that document Ex.PU is not an agreement for sale and therefore on the basis thereof no decree can &e passed and that the suit is barred by time and the plaintiff has no locus standi to file the suit. It may be mentioned here that execution of the document Ex.PI was admitted by the respondent in his statement made by him before framing of issues recorded -on 3.6.1969. Plea of the respondent however is that the document is an affidavit and therefore no decree can be passed on the face thereof. On the basis of the pleadings of the parties, learned trial Court framed the following issues:-
(1) Whether Ex. PI is an agreement to sell and the plaintiff is entitled to a decree for specific performance of the agreement(2) Whether the plaintiff's suit is barred by time?(3) Whether the plaintiff has no locus standi to bring this suit?(4) Relief.3- A. Whether the alleged agreement is not enforceable on account of preliminary objections Nos. 1 & 2?3-B. Whether the suit is not competent in view of preliminary objectionsNos. 3 and 6. Alter recording of evidence, learned trial Court vide judgment and decree dated 16.7.1971 decreed the suit in favour of the appellant and directed the respondent to execute a deed of sale of land measuring 17 kanals and 14 marlas out of his adjacent to the plot of the plaintiff. Learned trial Court held that the document Ex. P.I is an enforceable deed of agreement for sale and that the suit is within time, It is also held by the learned trial Court that the plaintiff has a locus standi to file the suit.Aggrieved of the above said judgment and decree, the respondent find regular first appeal in the district Court of Jhang which has been accepted by the learned District Judge vide judgment and decree dated 29.7.1972. It has been held by the learned District Judge that the agreement Ex. P.! Is uncertain and therefore it cannot be enforced. Resultantly the suit find by the plaintiff appellant was dismissed by the learned District Judge, It may be mentioned here that the learned District Judge however upheld the finding of the learned trial Court on other issues and also finding of the learned trial Court to the effect that the document Ex. P.I is an agreement for sale. This judgment and decree of the variance has been challenged by the plaintiff in this appeal.
2. Mr. Shamim Abbas Bokhari, Advocate learned counsel for the appellant has argued that the document Ex. P.I has been misinterpreted by the learned first Appellate Court and there is absolutely no uncertainty in the document and the property can well be identified regarding which the agreement was entered into and merely because the land has been changed due to the Consolidation proceedings will not be ground for holding that the document is uncertain. Learned counsel relies upon the case of Mian Muhammad Saleem and others v. Mst. Hameeda Begum and others (1987 SCMR 624)Amatullah Begum and another v. Munawar Akhtar (1988 CLC 2095)
3. Syed Laqa Haider Zaidi Advocate assisted by Mr. Naghman Haider Zaidi Advocate has appeared on behalf of respondent and has argued that the agreement for sale is not enforceable inasmuch as admittedly the village was under consolidation on the date on which the document was executed and therefore without obtaining permission in writing from the Consolidation Authorities as per provisions of S. 24 of the West Pakistan Consolidation of Holdings Ordinance, 1960 and Rule 27 of the Rules framed thereunder, no agreement for sale could have been executed. Resultantly the agreement for sale being illegal, no decree can be passed on the basis thereof in favour of the plaintiff appellant. Learned counsel has further argued that due tp the commencement of the consolidation proceedings, the respondent has ceased to be the owner of the property and therefore he could not have entered into an agreement for sale and at any rate the agreement for sale was executed in relation to contingent rights which were not certain inasmuch as both the parties never knew as to what land shall be allotted in lieu of the land owned by the respondent and therefore the agreement for sale being uncertajn in nature is not enforceable. Reliance in this behalf is placed on 1987 SCMR 624 supra, Mian Muhammad Abdul v. West Pak, Road Transport Corporation Lah. (1982 SCMR 378) and Agha Sikandar Ali Khan v. Mst. Nawab Bibi and others (1971 Law Notes 792). Learned counsel has further contended that oral evidence with regard to the contents of the document Ex. P.I is relevant to determine its terms in the light of the law laid down in case of Mst. Saeeda Akhtar and others v. Lai Khan and others (PLD 1981 Lah. 623) and therefore evidence produced in the case in relation to the terms of agreement for sale is irrelevant and inadmissible in evidence.
4. I have considered the arguments addressed by both the learned counsel for the parties and have also perused the record. Admittedly the respondent sold land measuring 124 kanals 11 marlas in favour of the appellant vide registered sale deed dated 13.5.1961 for a consideration of Rs.
30,000/- which included land measuring 17 kanals and 14 marlas which belonged to his sisters and the sale was declared to be void ab initio to that extent in the suit find by the sisters. It is also admitted that the respondent did execute the document Ex. P.I and was owner of the land mentioned in the deed at the time of its execution although the village was under consolidation. It is also admitted that at the time of filing of the suit, consolidation proceedings had been finalized and the respondent owned the land in question regarding which the suit for specific performance has been find. I have gone through the document. To me there does not appear to be any uncertainty in the document. It is a document which has been written in the most natural manner.
Consolidation proceedings do not take away the.
Ownership right of the owners in the village. Purpose of the consolidation is to consolidate the land and not to extinguish the rights of the land owners. It is an established law that even an executing Court while executing a decree in relation to per-consolidation land can follow the land which has been allotted during the course of consolidation in lieu of the land which is mentioned in the decree. Reference in this behalf can be made to the case of Qasim Din v. Said Ahmad and another (PLD 1967 Lahore 1171) Resultantly merely because the village was under consolidation will not be a circumstance to hold that the agreement was uncertain and cannot be enforced. Their Lordships of the Supreme Court of Pakistan, in case of Muhammad Aslam v. Muhammad Hayat (Civil Appeal No. 726/1984) decided on 19.4.1992, have held as under:- "The contention raised in support of this appeal is entirely misconceived. As noticed above, the decree of the trial Court which hjis been affirmed by the High Court provides for the enforcement of the agreement to sell strictly in accordance with its terms. However, that may be, the land which Syed Tajamal Haider Shah agreed to sell to Muhammad Hayat, respondent No. 1, is part of a joint khata. Even though, in the agreement deed (Ex. P.I) only square No. 6 is mentioned, in the even of the partition of the joint khata, he will be in a position to claim land equal to the area agreed to be sold to him out of the total share of the vendor in the khata."
It is clear from the above dictum that if the share agreed to be sold can be identified, it cannot be said that the document is uncertain and in unenforceable. Consequently I hold that the document Ex.PI which is an agreement for sale is not uncertain and is enforceable in law. Argument of the learned counsel for the respondent to the effect .That the agreement having been executed without obtaining prior permission from the consolidation authorities is void and hence no decree can be passed on the basis thereof, is also not tenable. Firstly because the respondent himself being a party to the document cannot raise this objection in view of law laid down in cases of Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others (1980 SCMR 314) and secondly such an agreement is not void and the decree can be passed on the basis of the agreement when the same is to be implemented after the consolidation proceedings are over. Reliance can be placed on the cases of Muhammad Iqbal & others v. Mirza Muhammad Hussain and others (PLD 1986 S.C. 70) and Mst. Begum Bibi and others v. Abdul Sattar (1987 SCMR 1) Consequently arguments of the learned counsel in this behalf is also repelled.Argument of the learned counsel to the effect that the evidence cannot be led proof of the contents of the document is also mis- conceived firstly because the execution of the document itself is admitted and contents thereof hence stand proved which clearly show that there is qp uncertainty in terms of the agreement for sale. The evidence produced in the case to prove the intention of the document and certain missing details is also admissible in evidence in view of the law laid down in case of Muhammad Shaft and others v. Allah Dad Khan (PLD 1986 Supreme Court 519). Consequently the objection of the learned counsel with regard to the admissibility of evidence is also misconceived. Argument of the learned counsel for the respondent to the effect that the relief of a decree for specific performance is discretionary in nature, therefore cannot be granted is also not valid inasmuch as the one basis of an admitted agreement for sale, a decree for specific performance of the contract was passed by the learned trial Court. Learned appellate Court has set aside that decree on the basis of surmises and conjectures and for illegal considerations. There is absolutely no uncertainty in the document, enforcement whereof is being sought in the suit. Discretion has'to be exercised judiciously and this exercise has to be between both the parties to the lis and if a plaintiff is entitled to a decree otherwise, it cannot be refused merely because the Court has discretion to pass a decree. Consequently it is not fit case where the plaintiff appellant should be refused the grant of decree for specific performance of the contract. Judgments cited at the bar by the learned counsel for the respondent referred to above are distinguishable on facts and are of no help to the respondent. Case of Mian Muhammad Saleem rather supports the appellant.
In view of the above, I accept the appeal, set aside the judgment and decree passed by the learned first appellate Court and restore the judgment and decree passed by the learned trial Court and the suit is decreed in favour of the plaintiff against the respondent in terms of the decree passed by the learned trial Court. Costs to follow the event. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.