' SALEEM DIL KHAN, J.---This regular first appeal has called in question the correctness in law and facts of the judgment and decree dated 20-5-1989 passed by Senior Civil Judge, Abbottabad whereby a decree for specific performance on the basis of agreement dated 19-4-1983 was passed in favour of respondents/plaintiffs.
2. The relevant facts giving rise to the present lis are that Muhammad Rafique respondent No,1 brought a suit in the Court of Senior Civil Judge, Abbottabad which was registered as No, 215/1 of 1984 against Mst. Noor Jehan and 8 others being the successors of one Lal Khan who had died by then. The prayer made in the said suit was for possession through specific performance of contract dated 19:4-1983 in respect of a piece of land comprising of 1 Kanal 16 Marlas situate in Khasra No, 3495 which was previously numbered as 1613 in the local limits of Revenue Estate Sheikhul Bandi, Tehsil Abbottabad. The plaintiff had averred in his pliant that Lal Khan (deceased) predecessor-in- interest of defendants/appellants had executed an agreement with him to sell the aforesaid landed property to him and that a sum of Rs, 15,000 was also received by the said Lal Khan (deceased) in shape of earnest money. It was further alleged in the plaint that the said property was under a clog in shape of injunction issued by civil Court; whereby the alienation of the land was prohibited and, therefore, it was also mutually agreed that the requisite alienation in accordance with law would be affected after the clog is removed by way of vacation of the injunction. The plaintiff also based his claim on the written deed dated 19-4-1983 which was scribed in favour of the plaintiff/respondent by Lal Khan (deceased) predecessor-in-interest of the defendants/appellants. In the meantime the said Lal Khan passed away and could not complete the formalities of alienation of land. The plaintiff/respondent further alleged that the legal heirs of said Lal Khan have refused to accomplish the job left by their predecessor and, therefore, a decree be passed for specific performance of the contract executed by the predecessor of the defendants/appellants. The defendants were summoned by the learned trial Court; who controverted the claim of the plaintiff and submitted their written statement. The averments of the parties were reduced into the following issues:-
(1) Whether the document in question is fictitious one?
(2) Whether proper court-fee has not been affixed over the plaint?
(3) Whether the document is inadmissible in evidence?
(4) Whether the suit is liable to be dismissed under Order 7, R. 11, C.P.C.?
(5) Whether the plaintiff is entitled to the decree prayed for?
(6) Relief.
3. The parties were asked to adduce evidence in support of their respective stands which they did accordingly and the same was duly recorded. After hearing both the parties and scrutinizing the record the learned Senior Civil Judge passed a preliminary decree in favour of the plaintiff/respondent as against the defendants to the effect that the plaintiff had successfully proved the payment of Rs,15,000 as earnest money to the predecessor of the defendants and, therefore, he was directed to deposit the balance amount at the time of applying for final decree.
However, the parties were left to bear their own costs. Having been aggrieved by the said judgment and decree, and defendants have preferred the present appeal for setting aside the impugned judgment and decree.
4. Syed Abbus Salam Sarwar, learned counsel for the appellants, argued that the learned trial Court has erred in law by not framing an issue in accordance with the preliminary objection taken by the appellants in para 1 of the preliminary objections of their written statement and that the other issues, framed by the learned trial Court, are of omnibus nature which practice has always been depricated by the superior Courts.. He further stressed that the learned trial Court has also committed the illegality of non-reading of evidence by ignoring very pertinent documents such as Exh. D.W. 1/4, Exh. D.W.1/5, Exh.D.W.1/6, Exh. D.W. 1/7 and also the grounds of appeal and judgment of the appellate Court in civil appeal No, 15/13. It was also stated that discretion has not been properly exercised by the learned trial Court under section 12 and section 21 of the Specific Relief Act. The learned counsel for the appellants vehemently argued that the learned trial Court has not compared the signature of deceased Lal Khan with his admitted signatures available on the other documents present on the file and has, therefore, acted in a manner prejudicial to the interest of the appellants. He relied on. PLD 1983 Karachi 431, PLD 1958 SC (India)) 116 and also 1985 SCMR 214.
5. While repelling the aforesaid arguments, it was argued by Mr. Muhammad Younas Khan Tanoli, learned counsel for the respondents that the grant of decree for specific performance of the agreement was in full conformity with law and facts of the case and the explanation of section 12 of the Specific Relief Act fully empowers the Court to pass the present decree in its present form. He further addressed that the execution of the agreement dated 19-4-1983 has been properly proved and that the suit was fully competent in accordance with section 20 of the Specific Relief Act. He further stated that the issues were properly framed and the parties were fully aware of the respective stand of each other and had also led evidence in line therewith and that the appellants have not been able to prove any fraud on the part of the defendants/respondents.
6. After hearing the learned counsel for the contesting parties, and, scrutinizing the entire record with discerning eyes, we find that the grievance of the learned counsel for the appellants inasmuch as the issues were not properly framed does not appear to be well founded. His assertion that no issue was framed with regard to his preliminary objection to the effect that the agreement deed is fake is negated by the record because issue No, 1 quite vividly deals with this question and we also find that the learned trial Court has dealt at length with this question. Similarly, we do not find any force in his second objection that the issues were framed in an omni-bus fashion. The relevant law on this subject contained in Order IV Rule 2 does not prescribe any specific language or wordings for framing issues and, therefore, no party can take exception to the words used by the Court in framing certain issue. The requirement of law is that the Court should frame the issues by keeping in view pleadings of the parties in such a manner that the parties should understand as to what is the essence of the controversy. In the present case, we find that both the parties had fully understood the case of one another and had, therefore, produced large number of witnesses together with a volume of documents to prove their respective pleas. Once we are convinced that the parties were fully cognizant of the questions which really arose out of their pleadings and they had also put-in full labour to prove their respective stands then we cannot persuade ourselves to agree with the proposition that the appellants were prejudiced in, their defence. Reference may be made to 1985 SCMR 1. The judgment relied upon by the learned counsel for the appellants cited as 1992 SCMR 2375 is distinguishable because in that case issues in suit were not properly framed by the trial Court: question of impleadment was not properly determined: copies of Revenue Record were not properly proved and parties had not appeared as their own witness, but, in the present case the facts of the case are quite different from the facts of the judgment referred to above.
7. The learned trial Court has jointly discussed issues Nos. 1, 3 and 5 and has dealt with all the documents placed on record and has also discussed the entire oral evidence. The grievance of the learned counsel for the appellants that the learned trial Court has ignored the documents placed on record by the appellants and that the learned trial Court has not compared, inter se, the signatures of Lal Khan deceased available on the said documents is not correct because on page 6 of the judgment of the trial Court we find that the learned trial Court has made reference to all the documents and has finally observed in the following words "I have gone through the entire signatures of Lal Khan deceased available on the file, No doubt there is a little difference between the same but the flow of hand of all the signatures seems to me as that of the same person i,e. Of Lal Khan deceased. This being the position, I turn down the objection of the learned counsel for the defendants pertaining to the signatures of Lal Khan deceased".
8. Besides the observations of the trial Court, we have also examined the signatures of Lai Khan on all these documents which were referred to, at the Bar. We find that Lal Khan deceased was not literate and, therefore, he could not affix proper signature. Admittedly, his signatures fall in the category of shaky signature' but the close scrutiny of all these signatures reveals, prima facie, that these are the signatures of one and the same person and, therefore, we do not come to a different conclusion than the one arrived at by the trial Court. Similarly, we hold that the learned trial Court has also discharged its duty of making comparison of the signatures of Lal Khan deceased affixed on various documents. Reference with advantage can be made in this behalf to 1985 SCMR 214 (a) and also 1985 SCMR 359 (a).
9. The execution of the agreement dated 19-4-1983 has also been successfully proved by the plaintiffs/respondents by producing the marginal witnesses of the said deed together with Abdul Khaliq, Petition-Writer who scribed the agreement. The objection of the learned counsel for the appellants that the said Petition-Writer was found involved in some malpractices and his licence was suspended and, therefore, his credentials were doubtful, was also fully considered by us.
Without dilating upon the credentials of Abdul Khaliq, Petition-Writer, we propose to advert to other evidence produced in this behalf. Besides the signatures of Lal Khan, the plaintiffs had also produced Khair Muhammad and Muhammad Rashid who were the'marginal witnesses of the deed in question. When we read the statements of these two witnesses we do not find any lacuna or mis-statement which should lead us to discredit the veracity of these witnesses. Both these witnesses, ostensibly, appear as natural and confidence inspiring and nothing material has been pointed out as to why the testimoney of these witnesses should not be relied upon. Even if we ignore the statement of Abdul Khaliq, Petition-Writer it would be enough to prove the execution of the deed through these two marginal witnesses. Reference may be made to 1992 MLD 860.
10. The contention of the learned counsel for the appellants that the discretion has not been properly exercised by ignoring the extent of share of Lal Khan deceased is without force because Lal Khan had sold an area of 1 Kanal and 16 Marlas by way of Hissadari in the column of cultivation.
The agreement deed does not carry any mention of the other co-owners nor we find any other evidence which may suggest that the other co-owner had any concern with the Hissadari ownership of Lal Khan deceased as recorded in the column of cultivation. This fact also brushes aside the objection of the learned counsel with regard to the impleadment of necessary parties.
11. We have already discussed the documents referred to by learned counsel for the appellants as Exh. D.W.1/4 to Exh. D.W. 1/7 and now we propose to discuss the judgment given in appeal No,15/13 of 1984, Exh.D.W.8/2. In this context, we intend to discuss another aspect of this case also. It was contended by the learned counsel for the appellants that the agreement in question was the result of fraud and collusion and conspiracy hatched at the instance of Mst. Zuria Jan, Khair Muhammad and respondent No,1. There was filed a civil suit by Mst. Zuria Jan against Khair Muhammad, Lal Khan deceased and others, wherein she had prayed for issuance of a permanent injunction restraining the defendants (Lal Khan and others) from erecting any construction in the suit Khasra number which was then numbered as 1613. Mst. Zuria Jan emerged successfully hi that litigation from the trial Court and obtained the decree she had prayed for, and, a permanent injunction was issued in her favour by the learned Civil Judge. An appeal was filed by Khair Muhammad and Lal Khan in the Court of District Judge, Abbottabad which was numbered as 15/13 of 1984, copy whereof has been placed and exhibited in evidence in this case as Exh. D.W.8/2. The said appeal was allowed and the judgment and decree of the learned lower Court was set aside through the judgment and decree to the appellate Court dated 25-9-1984.
12: A perusal of these documents indicates that Muhammad Rafique respondent No,1 was not a party to this litigation. Mst. Zuria Jan on one side and Lal Khan with Khair Muhammad on the other side; were on 'the loggers-head in the aforesaid litigation. We, therefore, could not be convinced to agree with the learned counsel for the appellants that all these belligerent parties had subsequently conspired together to play a fraud in preparing the agreement deed which is the subject-matter of present controversy. On the other hand, these documents indicate that Khair Muhammad and Lal Khan were having joint interest and were pursuing the litigation jointly.
13. In this case, specific performance of an agreement has been sought which was executed by a parson who was dead earlier than the filing of the suit for specific performance. But, we find that section 27 of the Specific Relief Act allows issuance of decree for specific performance against the legal heirs of a person who has executed an agreement. We propose to reproduce the relevant part of section 27 in the following lines:-
27. Relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by this chapter, specific performance of a contract may be enforced against---
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c)
(d)
(e)
' In view of above provision of law the contention of the learned counsel of the appellants that decree for specific performance could not be passed against the legal heirs of Lal Khan has, therefore, got no force.
14. A legal controversy was also addressed at the Bar with regard to the form and maintainability of the present suit. Admittedly, certain provisions of section 12 indicate that when the act agreed to be done is such that pecuniary compensation for its non-performance would serve as adequate relief then the contract shall not be specifically enforced. But, we also find that in the explanation of section 12 it is provided that unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the 13: each of a contract to transfer movable property can be thus relieved. In view of this legal position, a decree for specific performance can be granted because the property involved is landed property and, therefore, the return of the earnest money alone would not be an adequate relief in this case.
15. Furthermore, section 20 of the Specific Relief Act further provides that contract, otherwise proper to be specifically enforced, may be thus enforced, through a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same. We find that the F provisions of Specific Relief Act have got a vivid learning in favour of the respondents in this case because the appellants have not placed any evidence on record to prove to the satisfaction of the judicial conscience of this Court as to why the agreement should not be specifically enforced.
Similarly, we have not been satisfied by the appellants as to why we should exercise our discretion against the grant of specific performance of agreement and set aside the decree passed by the trial Court.
16. There is yet another very important factor that only defendants Nos.1 to 3, present appellants, have contested the suit of Muhammad Rafique plaintiff/respondent while other legal heirs of Lal Khan deceased have refused to join the proceedings in the trial Court as well as in this Court. It may be pointed out that there are six other heirs of Lal Khan, besides the present three appellants.
It is further interesting to note that Mst. Noor Jehan and Dilawar defendants Nos.1 and 3 have also not appeared in the trial Court in support of their claim but, instead, Duran Khan defendant No,2 only has appeared in the witness box on behalf of the other two defendants/appellants. This circumstance gives rise to a presumption that the other legal heirs have admitted the claim of the plaintiffs/respondents. The logic of Duran Khan that the other legal heirs did not appear in the trial because they were against him does not stand the test of reason because they may be against Duran Khan but, to utter certainty, they will not act against their own interests. We find ourselves in agreement with the contention of the learned counsel for the plaintiffs/respondents that if Lal Khan deceased had not executed the agreement the other legal heirs would have certainly defended the suit to protest their interests.
17. The upshot of the aforesaid discussion is that this appeal fails and, therefore, dismissed with no order as to costs.