' The relevant facts for the decision of this revision petition are that the petitioner filed a suit for specific performance against the respondents wherein it was pleaded that respondent No,1 was allotted Lot No,9 measuring 151 Kanals, 6 Marlas of agricultural land of the Provincial Government situated in Squares Nos.44 and 45 of Chak No,3/4-L, Tehsil Shorkot, District Jhang, on 11-1-1962 under Bara Reclamation Scheme. Respondent No,1 feeling himself unable to cultivate the land agreed to take respondent No,2 as co-tenant. They moved the Collector for the necessary permission which was granted on 14-1-1963. It was added that both. The respondents failed to cultivate the land in terms of the scheme of the Government. They accordingly requested the petitioner to take over the venture, put in the labour and make investment to cultivate the lot in accordance with terms and conditions of its lease so at the end they should get the proprietary rights and in return they agreed to give, him 15th/16th share of the land while the remaining 1/16th share was to be equally shared by the respondents. They put the petitioner in possession of the lot and accordingly moved the Colony Authorities for grant of necessary permission but the Commissioner in spite of recommendation of Colony Assistant and District Collector did not approve this arrangement between the parties. However, the petitioner continued in possession in accordance with the agreement with the respondents. He proceeded to sink a well and brought the land under cultivation. Ultimately he moved for grant of proprietary rights, paid the dues and bore expenses of sale-deed which was ultimately executed on 19-2-1980. It was added that thereafter the petitioner asked for his share in accordance with the agreement with the respondents but they did not pay any heed to his requests, therefore, he proceeded to file suit for specific performance which was contested by respondent No,2 only. Respondent No,1 submitted the concessional written statement but in spite of this the trial Court proceeded to dismiss the entire suit vide judgment and decree dated 17-7-1982 which was assailed by the petitioner through an appeal in the first Appellate Court but the same was dismissed by the Additional District Judge vide judgment and decree dated 13-6-1984. Thereafter, the petitioner filed the present revision petition. The same was admitted to hearing and notice was issued to the respondents. It is again respondent No,2 alone who has appeared and contested the revision.
2. Learned counsel for the petitioner argued that the admitted position is that respondent No,1 was owner of one-half of the land and since he admitted the claim of the petitioner, therefore, suit to that extent was liable to be decreed straightway. In this behalf, the learned counsel referred to Order XII, rule 6, Order IX, rule 8, Order XV, rule 2 and Order XXIII, rule 3, C.P.C. And placed reliance on the judgment in the case of Salamat Ali Khan v. A.R. Muhammad Siddique PLD 1952 Dacca 137. It is, therefore, ,maintained that the judgments and decrees of the two Courts below are patently illegal.
It is added that during the pendency of the appeal respondent No,1 filed application under Order XXIII, rule 3, C.P.C. But the same was not considered by the Additional District Judge. It is, therefore, concluded that as the claim of the petitioner was at least liable to be decreed to the extent of share of respondent No,1 while in respect of respondent No,2 it is argued that the agreement was proved by the application (Exh.P1), witness was also produced as Exh.D3 by the said respondent, the statements of the parties Exh.P2, order of the Collector dated 1-11-1968 coupled with Khasra Girdawari Exh.P4, receipts of payment of Lagan Exhs.P8 to P12, receipts of payment of land revenue Exhs.P16 to P31, purchase of stamp papers Exhs. P5 and P6, receipt of district council fee Exh.P7, possession of sale-deed in favour of respondents and possession of the land fully proved the agreement between the parties. It is added that the implied contract is also enforceable through suit for specific performance. In this behalf reference is made to Imam Din v. Dittu AIR 1925 Lahore 174 and Arif v. Jadunath Majumdar (1931) 58 Indian Appeals 91. It is argued that all the essential terms and conditions namely: cultivation and improvement of the land by the petitioner at his expense, procurement of proprietary rights, payment of due expenses etc. And the ratio in which the parties were to share the land after the grant of proprietary' rights are absolutely clear from the oral as well as overwhelming documentary evidence on record. It is added that respondent No,2 did not appear as his own witness and instead his attorney appeared. He stated that he had no knowledge of facts prior to his appointment as attorney. It is, therefore, argued that this would give rise to an adverse presumption against respondent No,2. In this behalf, the learned counsel has relied on Mst. Khair-un-Nisa v. Malik Muhammad Ishaque PLD 1972 SC 25 and Abdul Ahad v. Roshan Din PLD 1979 SC 890. It is submitted that this being a civil suit and according to the standard of proof laid by the superior Courts the petitioner has proved his case to the hilt. In this behalf the learned counsel has referred to Mst. Zainab Bibi v. Mst Bilqis Bibi PLD 1981 SC 56 and Mst. Taj Bibi v.
Syed Ahmad Shah 1989 SCM R 1001. It is argued that in face of this clear and unrebutted evidence the petitioner clearly had a case for specific performance. In this behalf reliance is placed on Shankarlal Narayandas Mundada v. The New Mofussil Co. Ltd. And others AIR (33) 1946 PC 97 and Bashir Ahmad v. Muhammad Yousaf through Legal Heir 1993 SCM R 183. The next argument is that the petitioner is in possession of agreement, therefore, he can defend his possession against the respondents. Moreover, possession of the petitioner is strong piece of evidence to prove the existence of agreement between the parties. In this . Behalf the learned counsel has again referred to the case of Ariff (supra). It is argued that sanction, in the circumstances of the case, was immaterial because in spite of full knowledge of the possession of the petitioner the Revenue Authorities did not take any action for violation of the terms and conditions. Of the allotment. In this behalf, reference is made to Agha Sikandar Ali Khan v. Mst. Nawab Bibi and 11 others PLD 1973 Lah.
77. The arguments are summed up with the submission that agreement between the parties was legal and enforceable. The learned counsel in this behalf has referred to Hakim Ali and another v.
Atta Muhammad and others 1981 SCM R 993, Muhammad Iqbal and others v. Mirza Muhammad Hussain and others PLD 1986 SC 70, Mst. Begum Bibi and others v. Abdul Sattar 1987 SCM R 1, Muhammad Afzal and another v. Rehmat Ali and others 1991 SCM R 1785 and Sher Muhammad Khan and others v. Ilam Din and others 1994 SCM R 470.
3. On the other hand, the learned counsel for respondent No,2 argued that Code of Civil Procedure is a procedural law, therefore, the argument that the suit to the extent of respondent No,1 should have been decreed after he had accepted claim of the plaintiff is misconceived. It is added that section 17 gives the list of the agreements which are to be specifically performed and the present case is not covered by the three provisions, namely, sections 14, 15 and 16 of the Specific Relief Act. It is argued with reference to section 23 (a) that the defendants were one party, therefore, according to the provisions of Specific Relief Act the suit could be decreed as a whole. It is added that the contract is to be seen as one. It is, therefore, argued that the contract is to be performed in to and all the parties are to be treated as one. It is added that the alleged agreement was not valid because one of the three major ingredients of a valid contract, namely, consideration was lacking in this case altogether. It is maintained that there cannot be a valid agreement until there is consideration for the same. It is added that the trial Court while deciding Issue No,3 has held that the agreement was not proved, therefore, question of its specific performance did not arise. It is added that there is nothing wrong with these findings, which were upheld by the first Appellate Court. It is added that the application made to the Collector for joining the petitioner stated incorrect facts. P.W.5 clearly admitted in his cross-examination that the respondents neither signed nor thumb-marked the statement Exh.P.2 in his presence. Therefore, the alleged statement was not proved. The arguments were summed up with submission that it is a case of concurrent findings of fact recorded by the two Courts below and there is no scope for interference in the revision. In this behalf, reliance is placed on S. Zafar Ahmed v. Abdul Khaliq PLD 1964 (W.V.) Kar. 149, Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97, Umar Dad Khan and another v. Tila Muhammad Khan and 14 others PLD 1970 SC 288 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and other PLD 1973 SC 236.
4. The learned counsel for the petitioner while summing up the arguments submitted that the share of the respondents in the lot was 50:50 and proprietary rights were also granted to them in the same ratio. It is added that with the grant of proprietary rights and execution of sale-deed each one of theni became owner of his share to the exclusion of -all. It is added that in the written statement submitted by respondent No,1 no issue for trial arose between him and the petitioner, therefore, in terms of Order XV, rule 2, C.P.C. The suit should have been decreed. In this behalf, reliance is placed on Mst. Begum Bibi and others v. Abdul Sattar 1987 SCM R 1. It is added that the judgments of the two Courts below being perverse, against law and evidence on record are not sacrosanct and this Court is fully competent to set aside such illegal and unjust findings. In this behalf, the learned counsel has referred to Muhibullah Khan v. Sadiq Khan 1986 SCM R 270, Muhammad Aslam v. Jalal Din and another 1987 SCM R 168, Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Shah Gul and others v. Mst Shamim Akhtar and others 1990 SCM R 110. It is argued that the case of the petitioners is fully covered by section 16 which is an exception to section 17, therefore, suit was legally liable to be decreed. The learned counsel in this behalf has referred to Honshang and others v. Dr. Eddie P. Bharucha and others PLD 1968 Kar.
723.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record, relevant provisions of law and the precedents. The admitted position on record is that the respondents were allottees of the lot in the equal share and they have been granted proprietary rights accordingly and after grant of proprietary rights, execution and registration of the sale deed they became owners in the same ratio, therefore, each one of them can deal with his share of the land in any manner he liked. Respondent No,1 submitted the written statement which is available at page 37 of the paper book. He admitted all the averments in the plaint. In this view of the matter he was not at issue with the plaintiff on any question of law and fact, therefore, to his extent the trial Court should have at once pronounced the judgment. This was fairly and squarely covered by the provisions of rule 2 of Order XV, .C.P.C. Which reads as under:--- "2. One of several defendants not at issue. Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants."
' The other provisions of the C.P.C. Referred to by the learned counsel for the petitioner are not relevant.
6. Now coming to the argument of the learned counsel for respondent No,2 that the alleged agreement was one and the defendants were to be deemed as one party. The learned counsel in this behalf has placed reliance on section 17 of the Specific Relief Act, which reads as under:--- "17. Bar in other cases of specific performance of part of contract, the Courts shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections."
It is, therefore, clear that this provision is not absolute but this is subject to exceptions as contained in sections 14, 15 and 16. For the purposes of this judgment section 16 is relevant. The same reads as under:--- "16. Specific performance of independent part of contract.--- When a part of a contract which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part."
The general rule is that contract of sale of property through one agreement would be considered indivisible but this is not inflexible and admits of exceptions and this is clear from section 17 of Act I of 1877 which bars part performance but this is subject to the provisions of sections 14, 15 and 16 of Act I of 1877. The respondents being owners of specific shares the contract was clearly divisible. It would be deemed one contract in respect of each respondent. Therefore, there is no merit in the argument raised on behalf of respondent No,2. The judgment should have been pronounced straightway in respect of respondent No, 1 . This is not all. Even he made an application in the first Appellate Court under Order XXIII, rule 3, C.P.C. During the pendency of the appeal but the same was also not decided. The Court in fact had no discretion in the matter after clear admission of the claim of the petitioner by respondent No,1 but to decree the suit to that extent.
7. Now coming to the share of respondent No,2. The main defence is that the petitioner failed to prove agreement. In this behalf, his learned counsel has referred to the judgment of the trial Court.
The argument again has no merit because the agreement was proved by the application Exh.P1 moved to the Collector by the respondents. The same was also produced by respondent No,2 as Exh.D3. Their statements Exh.P2 coupled with the copy of Khasra Girdawari, receipts of Lagan, land revenue, purchase of stamp, payment of district council fee and above all the possession of land and title deed thereto clearly prove the agreement between the parties. It was a simple agreement. The terms and conditions are absolutely clear. As against this respondent No,2 did not appear himself. This also not only leads to adverse possession against him but due to his absence the evidence of the petitioner also remained un-rebutted. The defence of respondent No,2 remained un-established and following factors dealt a fatal blow to his case:---
(i) His non-appearance as witness;
(ii) failure to summon the Revenue Officer who recorded the statements of the parties;
(iii) failure to refer the documents to the Handwriting Expert; and
(iv) the statement of attorney D.W.1 that he was not aware of the facts earlier to his appointment as attorney .
This way, there was no defence worth the name. There is marked difference in the nature of proof in civil and criminal cases. It is only in the criminal cases that the prosecution. Is required to prove the guilt of the accused beyond reasonable doubt but in the civil cases proof adduced in support of a fact is to be such as to make a prudent man except the same. In this behalf, the following passage from Law of Evidence by Monir makes the things clear:--- "There is, however, a marked difference as to the effect of evidence in civil and criminal cases. Thus, whereas in a civil case a mere, preponderance of probability is a sufficient basis of decision, in a criminal case persuasion of guilt must amount to ' such a moral certainty as convinces the minds of the tribunal as reasonable men beyond all reasonable doubt.' In a criminal case before the Court is called upon to convict a person it has to satisfy itself that possibility of his innocence is ruled out, in a civil case all that is necessary to insist upon is that the proof adduced in support of a fact is such that should make a prudent man to act upon the supposition that it exists."
' Therefore, the findings of the Courts below on issue No,3 that the agreement was not proved are illegal, against record and liable to be set aside.
8. The learned counsel for the petitioner argued that, assuming and not conceding, there was no written agreement between the parties then the oral agreement, which was proved by the documentary and oral evidence, was sufficient to decree his suit. There is merit in the argument especially because in the Specific Relief Act no specific form of the agreement has been prescribed. In the present case terms and conditions are clear from the documents Exhs.P1 and P2.
It is also established on record that the same was acted upon by the parties, therefore, the suit was liable to be decreed even if it is held that there was no contract in writing as such. Respondent No,2 has failed to explain how the petitioner was in possession of the land and title deed,' receipts for payment of all sorts.
9. Now coming to the legal objection that there was no consideration for the agreement. Before proceeding we have to refer to the definition of consideration as contained in the Contract Act. The same reads as under:--- "2(d). When, at the desire of the promisor, the promise or any other person who has done or abstained from doing, or does or abstains from doing, or promises to do or td abstain from doing, something, such act or abstinence or promise is called a consideration for the promise."
' Now in the present case it is clear from the documentary evidence on record that the respondents failed to cultivate the land. In the first instance respondent No,1 joined respondent No,2 with him but this arrangement also did not work, therefore, they joined the petitioner with them. The petitioner put in both money and labour to develop the land, paid the dues of the Government and district council fee and as a result thereof the proprietary rights were granted. The respondent in lieu of his investments, money and labour-wise,. Had agreed to give him 15/16th share of the land. It is admitted position that even the defendants were not the owners of the land. They have only a right to cultivate it in accordance with the terms of the grant and if successful then they were to get the proprietary rights. The investment finance and labour put by the petitioner is a valid consideration, therefore, there is no merit in the, argument of the learned counsel for the respondent that the agreement was void for want of consideration.
10. This is not all. The respondents got 1/16th share in the land in accordance with the agreement to sell without any investment. This also formed part of the consideration. It is worthwhile to mention here that such agreements are in vogue and not illegal. In this behalf the learned counsel for the petitioner has rightly referred to the judgments in the cases of Hakim Ali and another, Muhammad Iqbal and others, Mst. Begum Bibi and others, Muhammad Afzal and another and Sher Muhammad Khan and others (supra).
11. The upshot of this discussion is that the impugned judgments and decrees, of the trial Court, dated 17th of July, 1982 and of the first Appellate Court, dated 13th of June, 1984 are hereby set aside by accepting this civil revision. The result is that suit of the petitioner is decreed with costs throughout.