JUDGMENT MALIK MUHAMMAD QAYYUM J.- The appellants' suit for specific performance of an agreement to sell dated 4-7-1993 in respect of land measuring 48 kanals 8 marlas situate in Chak Khalil Tehsil and District Gujranwala was decreed by the trial Court, on 4-1-1994, subject to deposit of J balance consideration amounting to Rs. 3,22,760/- till 22-2-1994, failing which the suit was to be deemed to have been dismissed with costs.
2. In this appeal filed by the plaintiffs, their grievance is that the trial Court has erred in refusing to allow adjustment of Rs. 80,000/- already paid by the appellants to the son of the respondent while decreeing the suit.
3. Mr. Tafazal H. Rizvi, the learned counsel for the appellants submits that the appellants having specifically pleaded that the son of the respondent had received Rs. 80,000/- from the appellants, adjustment of this amount could not be refused at least without framing an issue arid allowing an opportunity to the appellants to prove this fact.
4. It is common ground that an agreement for the sale of the land in question for total consideration of Rs. 3,32,760/- was entered into between the parties. It is also admitted that a sum of Rs. 10,000/- was paid by the appellants as earnest money to the respondent at the time of the execution of A the agreement and they were to continue to ramin in possession of the land previously occupied by them as tenants. The controversy in this appeal is that according to the appellants, after the agreement, the son of the respondent/defendant received a further sum of Rs. 80,000/- out of the balance amount of consideration due to some dire need in presence of some witnesses but without any receipt. It was so asserted in the plaint. In the written statement filed by the respondent, the averments regarding further payment of Rs. 80.000/- to the son of respondent were false and had been made to prolong the litigation so that the appellants could remain, in possession of land without payment of balance amount of consideration.
5. On 30-11-1993, learned trial Court recorded the better statements of the parties and their counsel.
In his statement, learned counsel for the defendant/respondent denied that the son of the respondent/defendant had received the amount of Rs. 80,000/-. Mirza Ayub Baig, plaintiff No. 1, stated that Rs. 80,000/- were paid to the son of the respondent/defendant which ^ were liable to be adjusted out of the balance amount of consideration.
6. After hearing the arguments of the learned counsel for the parties, the trial Court disallowed the adjustment of Rs. 80,000/- claimed by the appellants and decreed the suit subject to the payment of Rs. 3,22,760/-. The trial Court did not-fact any necessity of framing any issue as in its opinion the plea regarding payment of Rs. 80,000/- had been raised only to prolong the litigation so that the plaintiffs/appellants could continue reaping the benefits out of the land in their possession without payment of the remaining amount of consideration.
7. The insistence of the learned counsel for the appellants that in the circumstances of the case an issue should have been \ framed on the question of payment of Rs. 80,000/- received by the son of the respondent and the appellants should have been granted opportunity to prove this fact by leading evidence has not impressed us inasmuch as even if the averment in , - the plaint in this respect is deemed to be correct, adjustment of-the amount paid to the son of the respondent cannot be allowed. Our reason for saying so is that it was not the case of the appellants in the plaint that the son of the respondent who received that amount was attorney of the respondent or had otherwise been authorised by her to do so. Even before us, this position has not been taken.
Consequently, even if it be assumed that an amount of Rs. 80.000/- was paid to the son of the respondent, we are unable to see how the payment would bind the respondent in the absence of any authority by her. It is also surprising that neither in the plaint nor in the better statement of appellant No. 1; the name of the son of the respondent who had received the payment had been disclosed nor any document evidencing payment of that amount had been produced. The impression formed by the trial Court that the plea was frivolous and had been raised with a view to prolong the litigation so as to perpetuate the appellants' possession over the land without making payment of balance amount of consideration was correct.
In the view of the above, we do not find any force in this appeal which is dismissed with costs.