RAJA MUHAMMAD SABIR, J.---The present appeal arises out of judgment and decree of the learned Civil Judge 1st Class, Gujranwala dated 14-5-1992, whereby the suit of the appellants for specific performance of contract was dismissed.
2. Brief facts of the case are that appellants filed a suit for specific performance of contract executed by the respondent on 7-9-1987 Exh:Pl. By the said agreement the respondent agreed to sell 120 Kanals of land at the rate of Rs.32,000 per acre. The details of agricultural land sold through the . Said agreement are given in paras. 1 and 3 of the plaint. Appellants paid Rs.1,50,000 to the respondent as earnest money. The remaining sale price of Rs.3,30,000 was agreed to be paid at the time of execution of the sale-deed on 7-7-1988. The appellants alleged in the plaint that several times respondent was requested to execute the sale-deed in their favour but respondent has refused to do so. Respondent also issued notice through a counsel Mian Shuja-ud-Din, Advocate to the appellants and took the plea that he was not competent to execute the sale-- deed under the law as the same was against para. 24(3) of the M.L.R.
115. It was also stated that appellants replied to the said notice through their counsel Ch. Aman Ullah, Advocate. It was prayed at the end that decree for specific performance of agreement be passed in favour of the appellants against the respondent on payment of balance amount of Rs.3,30,000 in accordance with the terms and conditions of the agreement dated 7-9-1987. It was also prayed that in case it was found that the suit for specific performance cannot be decreed, then in the alternative a sum of Rs.3,30,000 as double the earnest money be decreed in their favour.
3. Respondent in written statement took up the plea that 'the agreement dated 7-9-1987 was between the appellants and one Abdul Hameed Khan and not between the appellants and the respondent, and the said Abdul Hameed Khan has not been impleaded as party. The agreement is with reference to Khewat No. 146, whereas in the suit Khewat No. 147 has been mentioned, that since the appellants have asked for double the amount of earnest money, as pet: terms of the agreement; therefore, decree for specific performance of contract cannot be passed; that in the suit different types of reliefs have been-claimed, therefore, the suit suffers from misjoinder of causes of action and that para. 24(3) of M.L.R. 115 was also urged to be hitting the agreement to sell, the same being against the express provisions of the said Regulation and as such the suit is ineffective and illegal. The execution of agreement to sell as well as receipt of earnest money of Rs.1,50;000 was admitted by respondent who was owner of 204 Kanals of agricultural land on '7-9- 1987 and he could sell only that much ,land. The appellants through Exh.Pl purchased 120 Kanals whereas the above said Abdul Hameed Khan purchased 37 Kanals through the same agreement to sell and as such the agreement to sell is completely in violation of the M.L.R. 115 and legally untenable. On the abovesaid grounds respondent prayed for dismissal of the suit.
4. On the basis of the pleadings of the parties following 8 issues were framed:--- (1)Whether the suit is bad due to non-joinder of necessary party? OPD (2)Whether the suit is not maintainable in its present form? OPD.
(3)Whether the suit is bad due to misjoinder of causes of action? OPD.
(4)Whether the disputed agreement to sell dated 7-9-19.87 'is illegal, void and was executed in contravention of para. 24(3) of Martial Law Regulation No. 115? If so, with what effect? OPD.
(5)Whether the suit is false and frivolous and the defendant is entitled to special costs? OPD.
(6)Whether the parties entered into an agreement to sell the disputed land and an agreement to sell was validly executed on 7-8-1987? OPD.
(7)Whether the plaintiffs are entitled to a decree for specific performance of contract for the disputed land or in alternate for recovery of Rs.3,00,000? If so, on what terms and conditions? OPP.
(8)Relief. , The parties have contested the appeal on issue No.4 only. It was contended by the learned counsel for the appellants that it has been established on the record that respondent was owner of 204 Kanals in Khata No. 147 at the time of execution of agreement to sell Exh.PI i.e. 7-9-1987 as is evident from the documents Exh.D.6 and Exh.D7. It is true that respondent could not sell 100 Kanals of land but to the extent of 104 Kanals he was entitled to execute the sale-deed as stated in the plaint being above subsisting holding and the appellants have agreed to purchase 104 Kanals against the same price of 4,80,000 agreed to be paid for the entire land mentioned in agreement i.e. 120 Kanals. Although the area is reduced to the extent of 16 Kanals but the appellants have to get 104 Kanals against the entire consideration of Rs.4,80,000. Execution of agreement is admitted. Hence, the only question which needs determination is whether respondent could sell the land to the extent of 104 Kanals out of 204 Kanals.
5. Learned counsel for the respondent has contended that the agreement was in violation of para. 24(3) of M.L.R. No.115, therefore, no decree for specific performance of the agreement could be passed and the trial Court, was justified in dismissing the suit.
6: We have gone through the record and heard the learned counsel for the parties at some length.
It is clear from the record that respondent was owner of 204 Kanals in Khewat No. 147 and the agreement for the sale of land above 100 Kanals was in accordance with law. Respondent will retain the subsisting holding of 100 Kanals in case the decree for specific performance of contract for remaining 104, Kanals is passed. Relevant portion of para. 24 of Martial Law Regulation No. 115 is reproduced for facility of reference:--- "24. Restrictions on alienation of holdinss.---No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding: Provided that such a person may alienate his entire holding.
(2) No person owning an economic holding should .Be allowed to alienate by sale, mortgage, gift or otherwise' any portion of his holdings: Provided that such a person may alienate his entire holding.
(3) No person owning more than the area of a. Subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding: Provided that such a person may alienate-his entire holding.
(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding: Provided that he may alienate his entire holding or, in the case of a holding which is less than a subsistence holding sell any part of his holding to other owners of the same village, deh or mauza.
(5) Any alienation made in contravention of the provisions of this paragraph shall be void ......
Since after the exclusion of 104 Kanals from total holding of 204 Kanals still 100 Kanals remain with the respondent which is subsisting holding. Grant of decree to the extent of 104 Kanals is permissible under para. 24(3). Of Martial Law Regulation No. 115 and as such the judgment of the trial Judge in treating the transaction in violation of the above said Martial Law Regulation is unsustainable. Learned trial Judge was not justified in dismissing the suit of the appellants for specific performance holding it barred under Martial Law Regulation No. 115.
In view of the reasons stated above we decree the suit of the appellants for specific performance as prayed in the plaint subject to the payment of balance amount of.Rs.3,30,000. The balance amount shall be paid by the appellant to the respondents within a period of two months and. The respondents shall get the sale-deed executed in favour of the appellants within the said period.
This appeal is accordingly allowed with no order as to costs.