' The respondents Nos. 1 to 7/plaintiffs filed a suit for possession through specific performance of contract dated 25-1-1975 relating to the agricultural land measuring 121 Kanals and 6 Marlas situated in. Khatuni Nos.12 to 15, Khata No,3 detailed in the register Haqdaran for the year 1969-70 in respect of village Waigal Tehsil and District, Lahore.
2. The Suit was decreed by the learned trial Court vide its judgment dated 4-6-1985. The present appellants/defendants filed an appeal to impeach the aforesaid judgment which was also dismissed on 12-11-1989 by Syed Hassan Ali Shah the then learned Additional District Judge, Lahore, hence this second appeal. It will be appropriate to give the brief history of the case to understand the real controversy between the parties. The plaintiffs/defendants Nos.2 to 6 had jointly entered into an agreement with defendant No,1 on 25-1-1975 in respect of land measuring 242 Kanals and 12 Marlas comprised in Khatuni Nos.12 to 15, Khata No,3 of the register Haqdaran for the year 1969- 70 situated in village Waigal Tehsil and District Lahore. The defendant No,1 had agreed to sell one half of the total land i,e, to the extent of 121 Kanals and 6 Marlas (hereinafter to be referred as suit land) to the plaintiffs. It was stipulated in the agreement that the land in question shall be sold for a consideration of Rs,1,81,950 to be shared equally by the two sets of purchasers. An earnest amount of Rs,20,000 each was paid by the two sets of vendees aforementioned. Since it was a land situated in the colony , area, therefore, the transfer of its ownership could be effected after obtaining the permission of the Collector under section 19 of the Colonization of Government Lands (Punjab) Act, 1912. It was agreed between the parties to the agreement that the original grantee i,e, defendant No,1 will make payment of all the instalments to the Government and after obtaining proprietary rights ,would transfer the same to the purchasers i,e, the plaintiffs and the defendants aforementioned. The instalments were accordingly paid by the vendees to the grantee-vendor who onward paid it to the Government and obtained the proprietary rights. The possession of the land in question was given to the plaintiffs to the extent of 121 Kanals and 6 Marlas whereas the possession of the remaining half of the land was given to the other set of the vendees in pursuance of the agreement to sell aforementioned. The detail of the land in possession of the plaintiffs was given at pages 6 and 7 of the plaint. The defendant No,1 obtained the proprietary rights in the land in question on 18-2-1978 but strangely enough instead of honouring the agreement dated 25-1- 1975, he hatched a conspiracy with the active collusion of defendants Nos.2 to 19 and entered into another agreement on 26-3-1978 thereby agreeing to convey the land in question in totality for a sum of Rs,2,19,000 and consequently got a sale-deed registered on 30-4-1978. The plaintiffs/ respondents feeling aggrieved of the subsequent agreement to sell and the registered sale-deed aforementioned filed a suit for specific performance of the earlier agreement dated 25-1-1975 which was decreed as aforementioned.
3. The suit was resisted in the Court below by the contesting respondents/ defendants on various grounds. It was contended inter alia that with the execution of the subsequent agreement of sale and the registered sale-deed, the previous agreement of sale dated 25-1-1975 stood cancelled and did not confer any right upon the plaintiffs so as to seek its specific performance in respect of the land over which they were allegedly in possession. The maintainability of the suit was also challenged inter alia on the ground that it was incompetent as the previous agreement was entered into without permission, of the Collector and, as such, was void ab initio. The possession of the plaintiffs was denied over the land in question, the plea of estoppel was also raised against the plaintiffs/respondents besides being taking the plea that the suit was time-barred. Listly a plea was taken that the agreement to sell was not capable of specific performance.
4. The learned trial Judge framed issues on the aforesaid controversial points and proceeded with the trial. The defendants Nos.1 to 3 out of whom defendant No,1 was the original vendor/grantee and defendants Nos.2 and 3 were the vendees under the first agreement did not file the written statement in the Court below whereupon the provisions contained in Order VIII, Rule 10, C.P.C were invoked and their defence was struck off on 10-7-1978 and the suit was decreed against them. That decree was not challenged in appeal by them or any of their successors-in-interest and, as such, had become final. The remaining contestants/appellants/defendants resisted the suit tooth and nail and also examined evidence at the trial but ultimately as pointed out above the suit was decreed in favour of the respondents/plaintiffs on the basis of the enforcement of the agreement dated 25-1-1975 with the direction that the remaining sale price of Rs,70,975 will be deposited by the respondents/plaintiffs. The decree passed by the learned Civil Judge was up-held and maintained by the learned first appellate Court.
5. I have heard the learned counsel for the parties at some length in this second appeal.
6. The learned counsel for the appellants has submitted that the first agreement between the parties entered on 25-1-1975 was a joint agreement out of which some of the parties are also beneficiaries under the subsequent agreement dated 26-3-1978 which ultimately ended into registered sale-deed on 30-4-1978 as per the pleadings. It was, therefore, contended that the first agreement had become incapable of specific performance as the second agreement amounts to its novation and, as such, first agreement could not be bifurcated nor it could be divided into parts as it was mutually entered between the parties and could not be splitted so as to allow its part performance being a composite contractual liability. In this regard reference as made to sections 15 to 17 read with section- 2u of the Specific Relief Act. In support reference was also made to Khalid Rashid and others v. Mst. Ajaib Khanum and others (1988 CLC, 1755 (Lahore), Atta Muhammad v. Ali Sher and others (1989 MLD 4504 (Lahore), (1) Wali, (2) Jahania and (3) Allah Dad v. (1) Manak Ali,
(2) Lal and (3) Mural (PLD 1965 Supreme Court 651), Bundoo Khan v. M. Arshad and another (1991 CLC Note 6 at p.4 (Karachi) and Abdul Rahim and others v. Tufan Gazi and others (AIR 1928 Calcutta 584). As such, it was urged that where mutuality of parties exist in an agreement, it cannot be splitted being a composite transaction entered into between the parties. Similarly the agreement has to be performed in entirety and not in parts particularly so when there has been a novation of the agreement by entering into a subsequent agreement changing the consideration of the land upward.
7. The second limb of the argument advanced by the learned counsel for the appellants was that the first agreement itself was bad in the eye of law as the donor was a grantee of colony land regulated by the provisions of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 which required previous permission of the Collector to convey and transfer the proprietary rights in such land. Admittedly no such permission was sought from the competent Authority for the transfer of the land. It was further contended that the agreement for sale for such land may be competent without delivery of possession but if the delivery has been made at the time of the execution of the agreement and before obtaining the necessary permission from the Collector, the agreement would become void and un-enforceable. In this context reliance is placed on Abdul Aziz and others v. Deputy Commissioner/Collector, Rahim Yar Khan and others (PLD 1981 Lahore 457) and Ghulam Rasul and others v. Muhammad Anwar and others (1969 SCMR 254). The learned counsel also submitted that the other party would take advantage from the rule laid down in Akhtar Ali and others v. Muhammad Hanif and another (1989 SCMR 604) and Allah Ditta and 2 others v. Taj Din and 3 others (1986 SCMR 267) to show that an agreement without the permission of the Collector would be competent and enforceable at law. However, the rule laid down in those authorities would not be allegedly attracted if the possession had been delivered to the proposed vendee by the vendor/grantee. It was, therefore, alleged that the agreement being void and legally incompetent could not be specifically enforced and, as such, both the Courts below had committed gross error to grant the impugned decree.
8. Similarly it was contended by the learned counsel for the appellants that as a registered sale- deed ensuing from the subsequent contract was in field, therefore, without its cancellation the suit for specific performance was not maintainable and since no prayer for the cancellation of the subsequent agreement and sale-deed has been made, therefore, the suit was misconceived.
Reliance was placed on Syed Mithal Shah v. Khawaja Rafiullah (represented by heirs) and another (PLD 1975 Karachi 930) and Muhammad Sharif v. Mst. Sughra Bano and others (1984 SCMR 1139).
Lastly it was contended that the first original agreement in question was never brought on record nor the same was proved through the requisite marginal witnesses under the Qanun-eShahadat Order, 1984. Reliance was placed on Karam (deceased) through Legal Heirs v. Raman and others (1993 MLD 2118) (Lahore) and Sana Ullah and another v. Muhammad Manzoor and another (PLD 1996 SC 256) (appellate jurisdiction).
9. In view of the above submissions, it was contended that the original agreement was never brought on record, nor it was proved in accordance with law. It was a composite agreement out of which some of the parties were also beneficiaries in the subsequent agreement, therefore, it amounted to its novation and could not be enforced specifically in the presence of the subsequent agreement which resulted into its registration as sale-deed, as such, it was prayed that the appeal be accepted and the impugned judgment and decree, being bad in the eye of law, be set aside.
10. The learned counsel for the respondents submitted that the agreement in question is an admitted document even according to the pleadings of the parties and any admitted document was not required to be proved as alleged by the learned counsel for the appellants. Even otherwise according to the evidence brought on record one of the beneficiaries of the agreement namely Haider Ali and a defendant/respondent had also stated that the original first agreement deed was with the other party but its photo copy was placed on record. Secondly it was alleged that the appellants had been Persistently advancing argument that without cancellation of the subsequent agreement and the sale-deed the first agreement could not be enforced but in the second appeal they have taken up a new plea regarding the novation of the agreement which was nowhere pleaded in the past. Even otherwise the subsequent agreement did not amount to the novation of the first agreement because it was altogether different and was entered into by the parties therein in order to defeat the rights of the respondents/plaintiffs accruing to them under the previous agreement, as such, it was contended that the plea of novation raised during the second appeal was nowhere found earlier although it was persisted in the past that without cancelling the previous agreement the first could not be enforced. Even the subsequent agreement was also not brought on record by the other party and, therefore, it cannot be said that actually it was the novation of the previous agreement. Similarly it was submitted that the provisions contained in section 19 of the Colonization of Government Lands (Punjab) Act, 1912 did not bar the delivery of possession to an intended buyer without permission of the Collector and if the possession is delivered at the time of the execution of the agreement after receiving the consideration by the vendor/grantee, it would not infringe any law nor it would make the agreement illegal or unenforceable. The position is rather allegedly different as would be clear from the principle laid down in Akhtar Ali and others v. Muhammad Hanif and another (1989 SCMR 604), Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others (1992 SCMR 1510) and Shamir through Legal Heirs v. Faiz Elahi through Legal Heirs (1993 SCMR 145). The matter was allegedly further clarified with the pronouncement made in Sher Muhammad Khan and others v. Ilam Din and others (1994 SCMR 470) whereby it was held that agreeing to sell corpus did not amount to sale-deed but could be termed as agreement to sell in spite of the fact that transferor had received full amount and had delivered possession thereof. It was further held that such transfer was not in violation of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. It was, therefore, submitted that the agreement has been rightly held to be enforceable by the Courts below as it was perfectly valid.
Likewise the agreement in question was also enforceable because in the case in hand the transferor/grantee/defendant had acquired proprietary rights in the land in question and, as such, there was no bar to transfer the same through the decree of the Court passed in a suit for specific performance. Reliance was placed on Abdul Ghani v. Mst. Fatima Bibi and 5 others (1994 SCMR 1786).
11. I have taken into consideration the above arguments advanced at the Bar from both the sides. It is clear from the pleadings of the parties that the first agreement was admittedly entered into between the parties though the permission of the Collector was not obtained by the grantee as required by section 19 of the Colonization of Government Lands (Punjab) Act, 1912. The question whether or not this agreement without such permission would be good in the eye of law would not call for any racking of mind after a decision given by the Supreme Court of Pakistan as reported in Sher Muhammad Khan and others v. Ilam Din and others (1994 SCMR 470) and Abdul Ghani v. Mst.
Fatima Bibi and 5 others (1994 SCMR 1786). After reviewing the whole situation it was held by the Hon'ble Supreme Court of Pakistan that an agreement for the transfer of the corpus along with transfer of possession would not amount to a sale nor would it render the agreement void if the permission required under section 19 of the Act ibid was not obtained. Likewise a decree for specific performance would be enforceable at law after the original transferor i,e, the grantee had been clothed with proprietary rights in the land in question by the Government. After clearing the above legal proposition there will be no difficulty to say that the first agreement between the parties had the sanctity of law and, as such, was legally valid and binding upon the parties. In the presence of that agreement the subsequent agreement and the sale-deed based on it would not, be valid particularly when some of the parties to the subsequent agreement were also party in the previous agreement and had full knowledge that an agreement for sale existed regarding the subject- matter of the suit. This would render them incapable of pleading that in fact they were the bona fide purchasers of the land in question under the second agreement by joining some of the strangers with them in subsequent agreement. In such a situation it does not lie in the mouth of the appellants/defendants that in fact there was a novation of the previous agreement and, as such, the same was not enforceable at law. It is all the more true because the original transferor/grantee and two other defendants who were party in the previous agreement did not contest the suit and failed to file their written statement for which a decree against them was passed under Order VIII, Rule 10, C.P.C. To which they never challenged in any forum and the same, still stands against them.
Under such a situation the principle of novation would in no way be attracted to the facts of this case so as to nullify the previous agreement in which admittedly the plaintiffs/respondents were the beneficiaries of the land in question whereas they were the losers in the subsequent agreement as they had not joined their hands with the subsequent transferees under the said agreement. As such, the parties to the subsequent agreement were different than the parties of the first agreement and, therefore, the principle of novation will in no way be applicable to the facts of the present case. It rather appears to be a clever device to deprive the lawful right holders of the disputed land by entering into a subsequent agreement by non joining all the parties of the previous agreement. The question that the original agreement was not produced during the trial would be of no consequence because it was admitted by both sides in pleadings that the agreement had been executed between the original parties to the suit. It has, therefore, been rightly argued that an admitted document need not be proved nor the principle of proof laid down in the Qanun-eShahadat Order, 1984 will be applicable to a document which stood admitted by the parties. The original agreement could not be produced because there was evidence on record as discussed by the Courts below that the same was in possession of the opposite party. However, a photo copy of the same was placed on record which was rightly looked into by the learned lower Courts being an admitted document. It clearly said that the grantee after obtaining proprietary rights in the land in question would convey the same to the beneficiaries of the agreement. It is also in the evidence that the plaintiffs/ respondents had been given possession of half of the property mentioned in the original agreement and, as such, proportionately had to pay .For it. The principle of split agreement would not be applicable to the facts of this case because immediately after the execution of the agreement the parties were put into the actual possession of the corpus and, as such, the party in possession could ask for the specific performance of the agreement after it has been partly acted upon with the delivery of possession. In such a situation the valid agreement being in field, the subsequent agreement, or the sale-deed based on it, would have no legal authority or sanctity so as to pray for its cancellation. Even the story of cancellation raised initially was changed into the story of novation perhaps realizing that the cancellation was not required if a validly executed agreement existed prior in time than the subsequent agreement followed by a sale-deed.
12. In view of my above discussion I do not find any good ground to interfere with the findings of the Courts below. The appeal is accordingly dismissed. Cost to follow the event.