' Through this regular second appeal, the appellants have challenged the judgment and decree dated 1-9-1987 vide which, respondent's suit for specific performance was decreed as also the judgment and decree dated 31-7-1997 passed by learned Additional District Judge, whereby appellant's appeal against the judgment and decree of the trial Court was dismissed.
2. Facts in brief are that predecessor-in-interest of respondent Muhammad Sharif deceased filed a suit for specific performance qua suit property contending therein that Umer Din deceased the predecessor-in-interest of the appellants had agreed to sell the property in question for a consideration of Rs,8,000 vide registered agreement to sell, dated 23-10-1969; received Rs,4,000 as earnest money and undertook to complete the sale as soon as the latter gets permanent transfer deed from the Evacuee Department. It was further undertaken in the said agreement that if the upper storey of the house in question is not transferred to the appellants-defendants, he would transfer the lower portion of the said house against a consideration of Rs,6,000. Later on, as only the lower portion was transferred to Umer Din deceased, a new agreement, dated 6-5-1970 was written which was got registered on 7-5-1970 evidencing receipt of the remaining Rs,2,000. It was further alleged that litigation of the predecessor-in-interest of the appellant-defendant with other persons was concluded on 20-1-1977._After this, he did not obtain the P.T.D. From the department to frustrate the case of the respondents-plaintiffs. In terms of the conflicting pleas of the parties following issues were framed:---
(1) Whether the Civil Court has no jurisdiction to entertain and try this suit? OPD
(2) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction; if so, what is the correct valuation? OPD.
(3) Whether the suit merits dismissal in view of preliminary objection No,3? OPD
(4) Whether the suit is within time? OPD
(5) Whether the suit is vague and uncertain, if so, what is its effect? OPD (5-A) Whether the transaction in dispute is rescindable on account of being unconscionable and oppressive? OPP
(6) Whether the property in dispute has not so far been transferred to the plaintiff, if so, what is its effect? OPP
(7) Whether the defendants received a sum of Rs,6,000 as sale money from the plaintiff, if so, what is its effect? OPP
(8) Whether the plaintiff is entitled to the decree as prayed for? OPP
(9) Relief.
' Respondents-plaintiffs produced five witnesses, namely Abdul Rehman P.W.1 a petition-writer who scribed the written agreement; Mehmood-ul-Hassan P.W.2 a marginal witness of the agreement; Ghulam Qadir Lumberdar P.W.3, he identified the parties before the Registrar and Muhammad Hussain Special Attorney of Muhammad Sharif, deceased-plaintiff appeared as P.W.4. He stated that in the year, 1969 predecessor-in-interest of appellants-defendants, received Rs,4,000 whereafter agreement Exh.P1 was executed in the year 1974 and also received Rs,2,000 and executed second agreement Exh. P2. Only Rs,2,000 remained to be paid. The said agreement could not be given effect to as Umer Din deceased (predecessor-in-interest of appellants-defendants) had litigation over upper portion of the house in question with another party. He further stated in cross-examination that through his efforts P.T.D. Was got prepared but Umer Din deceased refused to collect it. Besides the afore-referred oral evidence, respondents-plaintiffs produced Exh. P3 which is an order of the Deputy Settlement Commissioner.
3. The appellants-defendants on the other hand, produced three witnesses. Shahid Rasul appeared as D.W.1 who stated that Umer Din had litigation with another party which had not as yet concluded and that P.T.D. Had not been issued in favour of Umer Din deceased. Muhammad Intizar appeared as D.W.2 who also stated that Umer Din had a dispute over the suit property and according to his information P.T.D. Had not been issued in his favour as yei. Muhammad Abdul Razzaq one of the appellants-defendants appeared as D.W.3. His statement is to the effect that litigation had not been concluded as yet qua the suit property and that P.T.D. Had not been issued in favour of Umer Din so far.
4. The learned trial Court vide the impugned judgment and decree, decreed the suit on the ground that the order, dated 10-9-1977 Exh. P3 passed by Deputy Settlement Commissioner, indicates that he had ordered issuance of P.T.D. In favour of Umer Din; that there is nothing on record to show that Umer Din was still engaged in litigation over the suit property with some other party which prevented him from obtaining the P.T.D.; that the appellants-defendant's predecessor-in-interest purposely avoided to get the P.T.D. To perpetuate possession over the property and further to avoid registration; that the prevailing market value of the suit property was between 20,000 to 25,000 and the price written in Exh. P1 was purposely written less; that D.W.3 has himself admitted that Rs,8,000 were entered into Exh. P1 and Exh. P2 although the bargain was struck off for Rs,20,000; that the respondents were entitled to the performance of the agreement embodied in Exh. P1 and that with a view to achieve the said objective, they may approach the Settlement Authorities to get the P.T.D.
Either in their name and if the registration is refused, they may approach the Civil Court for the said purpose.
5. Learned Additional District Judge affirmed the judgment and decree of the trial Court and dismissed the appeal by observing that litigation between Umer Din and another party qua the suit property was over in terms of which, the lower portion of the house in question transferred to Umer Din and under Exh.Pl and Exh. P2 he was bound to transfer the same to the respondents-plaintiffs and that after the winding up of the Settlement Department, the Additional Deputy Commissioner of the District, is a Notified Officer to work as Deputy Settlement Commissioner under section 9 of the Disabled Persons Settlement Act vide Notification, dated 29-6-1974.
6. Learned counsel for the appellants Mr. Abdul Qadir Hashmi with his usual eloquence laboured hard to argue that in terms of section 6(d) of the Transfer of Property Act, the property in question could not have been transferred and, therefore, the suit did not disclose any cause of action; that the plaint merited rejection; that no permanent transfer deed having been issued in the name of the appellants-defendants, he could not enter into the agreement and therefore, the contract was void; that Settlement Laws having been repealed in 1974, he could not get P.T.D. After that; that the respondents-plaintiffs should have first filed a suit for direction to the appellants-defendants to obtain P.T.D. And the suit for specific performance could only be filed later and that the two concurrent findings of the learned lower Courts have led to grave miscarriage of justice. In support of the afore-referred submissions, learned counsel for the appellants has relied on Pirzada Amir Hussain and another v. Mrs. Shamim Shah Nawaz and another (1987 SCM R 249); Abdul Aziz and another v. Abdul Rehman and others (1994 SCM R 111); Mst. Saleem Khatoon and another v. The Deputy Settlement Commissioner/Authorised Officer and 2 others (PLD 1994 Supreme Court 160); Mian Iqbal Mehmood Banday v. Muhammad Sadiq (PLD 1995 Supreme Court 351) and Muhammad Usman v. Abdul Razzak and 3 others (1997 M LD 472).
7. Learned counsel for the respondents-plaintiffs who was on watching brief, accepted notice and submitted that the Settlement Department had passed an order in favour of the appellants- defendants in the year, 1969; that the P.T.D. Could have been issued as the litigation was over in the year 1977 but the appellants-defendants purposely avoided obtaining P.T.D. With a view to prolong their possession over the suit property and to avoid execution of the same. Learned counsel has also referred to notification, dated 29-6-1974 to contend that after the repeal of the Settlement Laws, the Additional Deputy Commissioner (General) had been appointed as Notified Officer to pass appropriate orders of the kind mentioned there. Pursuant to the said notification, the competent Authority had prepared P.T.D. Which was lying in the office and it had not been collected purposely with a view to perpetuate possession and to avoid terms of the agreement enforcement of which was sought through the suit for specific performance. In support of the afore-referred submissions, learned counsel for the respondents-plaintiffs placed his reliance on Nasira Sultana v. Habib Bank Ltd. And others (PLD 1975 Karachi 608); Ghulam Hussain v. Mst.
Farzana (minor) (1981 SCM R 953); Hakeem Ali Muhammad deceased through Mst. Razia Sultana etc. v. Muhammad Sharif etc. 1990 ALD 398(2); Land Acquisition Collector and another v. Afzal Shah (1991 SCM R 1510); (Retd.) Group Capt. A.M. Morad v. Muhammad Azmatullah Siddiqui and 3 others (1991 SCM R 2415) and Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others (1992 SCM R 1510).
8. I have heard learned counsel for the parties and have also gone through the evidence certified copies of which have been appended with this appeal.
9. In none of the judgments to which reference has been made by learned counsel for the appellants, the issues which have been mooted in the instant case have been attended to. The case-law, therefore, is not of much help. For instance, in Pirzada Amir Hussain and another v. Mrs. Shamim Shah Nawaz and another (1987 SCM R 249), the facts in brief were that the respondents in that case catered into an agreement to sell with petitioners qua an evacuee property in which P.T.D. Had yet been issued. On refusal of the latter to carry out the agreement, she filed a suit for mandatory injunction seeking a direction to petitioners (before the Supreme Court) to obtain a Permanent Transfer Deed. While the suit was pending, the Permanent Transfer Deed was obtained whereafter, she filed a second suit for specific performance of the agreement in question. Both the suits were consolidated. The earlier suit was dismissed as having been infructuous (as P.T.D. Had been issued) but the latter suit was decreed against which petitioners filed regular first appeal in the High Court which was dismissed; they sought leave to appeal before the hon'ble Supreme Court and one of the main point urged there was that the first suit for mandatory injunction having been dismissed by the trial Court, the second suit could not be decreed on grounds of principles of res judicata. The leave was refused by the hon'ble Supreme Court and it was observed at page 252 as under:--- "It is correct that the first suit filed by the respondent side seemingly appeared to be for the enforcement of the agreement to sell but on deeper scrutiny it is observed that specific performance could not be asked by the plaintiff (of the agreement to sell) unless and until there would-be vendee had taken a particular step, namely, of obtaining the permanent transfer documents. It was in this context, therefore, that instead of seeking the specific performance the plaintiff justifiably sought the assistance of the Court to compel in the first instance the would be vendee to obtain transfer documents from the Settlement Department. Without that the plaintiff could have been advised that the suit for specific performance might not be competent. And when during the pendency of that suit, the defendant obtained the transfer deed the said suit fructified and had become infructuous. Therefore, the trial Court rightly held it so."
' The afore-referred observations of the Hon'ble Supreme Court were made while rejecting the plea of res judicata raised by the defendants in the suit (against whom suit for specific performance had been decreed) and the possible objection with which the plaintiff could have been confronted with had he not filed the earlier suit.
' In Abdul Aziz and another v. Abdul Rehman and others (1994 SCM R 111, the suit for specific performance was dismissed by the trial Court; the appeal met the same fate and even the High Court, also did not grant the leave whereafter a review application was filed which was dismissed with the observation, that--- "the grant of specific performance of agreement is a discretionary relief which can be refused even if the execution of agreement is proved. In the facts and circumstances of the case all the Courts have refused to exercise discretion in favour of the petitioners."
' In Mst. Saleem Khatoon and another v. The Deputy Settlement Commissioner/Authorised Officer and 2 others (PLD 1994 Supreme Court 160), the hon'ble Supreme Court refused to interfere where the High Court had dismissed appellant's writ petition against the order of the Deputy Commissioner (Authorised Officer under the Evacuee Laws) whereby he had cancelled the allotments made in favour of the appellants on the ground that the same had been obtained by fraudulent means and were based on forgery committed in record of rights among other reasons and it was observed at page 161:" This being the factual position learned counsel could not advance the case any further. We have no reason to differ with the High Court on the findings of fact in this behalf". The case referred to in Mian lqbal Mehmood Banday v. Muhammad Sadiq (PLD 1995 Supreme Court 351), has absolutely no nexus either on facts or on law to the present case. In Muhammad Usman v. Abdul Razzak and 3 others (1997 M LD 472), a declaration was sought through a civil suit that P.T.D. Issued in favour of defendant No,2 was void and fraudulent and the same had been filed after the repeal of the Evacuee and Settlement Laws without impleading the Provincial Government as a party. The suit was found to be incompetent by the learned Karachi High Court observing as under:--- "In view of the fact that the Evacuee and Settlement Laws were repealed on the 1st day of July, 1974 on the promulgation of the Evacuee Property and Disabled Persons Laws (Repeal) Act, 1975, I am of the view that for all intent and purpose Provincial Government was the necessary and proper party and that the defendant No,4, namely, the Deputy Settlement Commissioner, Karachi, had ceased to exist after Ist July, 1974, therefore, this suit is incompetent. It may be observed that no attempt was made by the plaintiff for all case numbers of years (from 1981 to 1969) to join the said necessary party. No effective or purposeful relief can be granted in its absence."
8. In the instant case, the facts are distinguishable. The appellants- defendants never denied having executed the agreement. In the written statement in preliminary objection No,6, it was pleaded as under:- "That actually prevailing market price of the suit house is no way less than 20,000; whereas plaintiff wants decree for specific performance of contract on payment of Rs,8,000. The transaction being unconscionable and oppressive is liable to be rescinded and the poor defendant be relieved of this oppression. In view of the above submissions plaintiff have neither locus standi nor any cause of action to institute the suit."
' D.W.3 who is son of Umer Din deceased admitted the agreements Exh.P1 and Exh.P2 and even conceded that the bargain was struck at Rs,20,000 although the amount written in the afore- referred agreement was Rs,8,000 and further that he never asked his father as to why lesser amount had been shown in the agreements. The execution of the agreements has therefore, not only been proved through the documentary evidence but also through the appearance of P.W.1, the scribe P.W.2 the marginal witness and P.W.3 who was present at the time of registration of the documents in question. So far as the question of pendency of the litigation between Umer Din deceased and another party to which reference has been made in the agreement is concerned, the Special Attorney of plaintiff appeared as P.W.4 and stated that the appellants-defendants could not succeed in the litigation against the other party, and therefore, the roof of the house in dispute was given to the other party. Respondents-plaintiffs also produced copy of the order of the Deputy Settlement Commissioner, dated 10-9-1977 as Exh. P3 which shows that in the presence of Umer Din deceased, it was directed that P.T.D. Be issued if there was no injunctive order passed by any Courts of competent jurisdiction. It was specifically pleaded in para. 5 of the plaint that the litigation between the parties was over. The statement of the Special Attorney as also the averments made in the plaint have not been controverted by bringing any material on record to show that the litigation was pending on account of which appellants-defendants could not obtain P.T.D. During the course of arguments, learned counsel for the appellant was specifically asked as to whether the permanent transfer deed is lying in the office of the Additional Deputy Commissioner (General)/Notified Officer under the relevant law as asserted by learned counsel for the respondents-plaintiffs to which he did not make any specific denial and merely submitted that he is not aware of this. Surprisingly, despite the finding to that effect in para. 8 of the judgment of the learned Appellate Court, there is no specific denial even in the body of the appeal.
In view of the foregoing analysis, this Court is of the considered view that the concurrent findings on Issue No,7 have been correctly arrived at and they are not against the weight of evidence. On Issues Nos.3 and 6, the stand of the appellants-defendants was rather evasive and it was proved in evidence that the litigation had concluded; that the upper portion of the house in question had gone to another party; that the permanent transfer deed is ready for delivery and that the same had not collected by the appellants-defendants with a view to avoid execution of the agreement in question. On Issue No,5-A, nothing was brought in evidence by the appellants-defendants to show that the transaction was unconscionable and oppressive. In fact, their own witness D.W.-3 admitted that the deed was struck at a greater price than shown in the agreement.
' The argument of the learned counsel for the appellants-defendants that in absence of P.T.D. And in view of section 6-D of the Transfer of Property Act, the suit was not maintainable, is devoid of force. In Nasira Sultana v. Habib Bank Ltd. And others (PLD 1975 Karachi 608), it was observed at page 616 as under:--- "In any event the plaintiff in that case was quite prepared to accept transfer of such right, title and interest as may have been possessed by the defendant and I am with great respect to the learned Judge, wholly unable to see reasonableness of the exercise of discretion against the grant of decree for specific performance against a defendant who had received full consideration, executed all and several documents including an irrevocable power of attorney to enable the plaintiff to have the plot transferred in his name either as purchaser or on behalf of the seller defendants."
' To say that, the agreement was void, ab initio is also against the law declared by the hon'ble Supreme Court in (Retd.) Group Capt. A.M. Morad v. Muhammad Azmatullah Siddiqui and 3 others (1991 SCM R 2415) wherein at page 2416 it was observed:" There is no bar to a person agreeing to transfer or acquire jointly proprietary rights." The afore-referred view was again reiterated in Mst.
Rehmat Bibi and others v. Mst. Jhandoo Bibi and others (1992 SCM R 1510) wherein at page 1513, it was held as under:--- "Otherwise too, he was unable to contest the proposition that the bar in section 19 is against the alienation and not against the agreement and that being so the agreement could be enforced through specific performance after the grant of proprietary rights and this is what has happened in this case."
For what has been discussed above, the two concurrent findings arrived at by the learned Courts below are well-reasoned, supported by the evidence on record and are not against the law declared, therefore, does not call for interference. There is no merit in this appeal which is dismissed.