The brief facts out of which the present second appeal arises are that contract was executed between Hakim Muhammad Younas and Sohan, the predecessor-in-interest of the appellants concerning 1/3rd share of land measuring 199 Kanals, 19 Marlas, situated at Chak No.135/16-L, Tehsil Khanewal, District Multan at the rate of Rs.800 per acre after getting the proprietary rights. The contents of the agreement to sell revealed that Sohan deceased got Rs.24,000 vide cheque No.141395, dated 1-7-1960. The outstanding mortgage amount of RS.2,40Q was also adjusted in the price of the suit land. Sohan deceased was to get Rs.1,865 at the time of the registration of the sale- deed. Before this, agreement was acted upon Sohan died, therefore. Respondent filed suit for specific performance of contract, dated 1-7-1960 with an alternative relief of a decree for recovery of Rs.4,800. The present appellants controverted the allegations. Levelled in the plaint in their written statement. From the pleadings of the parties, the trial Court framed the following issues:-- Issues (1)Weather the defendants are owners of the suit land, if so what is the effect? O. P. P.
(2)Whether the defendants were tenants under the Provincial Government at the time of institution of the suit and they continue to be tenants, what is its effect? O.P.P.
(3)Whether the agreement, dated 1-7-1960 is void and with what effect? O.P.D.
(4)If the suit in time? O.P.P.
(5)Whether Mst. Begum is a necessary party? O.P.D (6)Whether payment of consideration money has been made, if so, when and with what effect?
O.P.P.
(7)Whether the plaintiff is entitled to the specific performance of contract? O. P. P.
(8)On non-proof of issue No.7, whether the plaintiff is entitled to the refund of Rs.4,800? O.P.P.
(9)Relief.
2. The learned trial Court vide its judgment and decree, dated 24-1-1968 decided all the issues in favour of the plaintiff/respondent except issue No.7 and decree the suit in the following terms: -- "I decline to decree the suit of the plaintiff regarding the specific performance of a contract, dated 1-7-1960. Anyhow, I grant the plaintiff a decree for recovery of Rs.4,800 against the defendants, as an alternative relief. "
3. The respondent/plaintiff aggrieved by the judgment and decree of the trial Court, filed an appeal before the District Judge, Multan, which was subsequently, entrusted to Additional District Judge, Multan, who vide his judgment and decree, dated 26-6-1968 reversed the finding on issue No.7 in the following terms:-- "The judgment and decree of the lower Court are set aside and decree is passed in favour of the plaintiff against the defendant for specific performance of the contract on the condition that the plaintiff shall deposit an amount of Rs..1,865 on or before 26-9-1968."
Hence the present second appeal.
4. The learned counsel of the appellants argued that both the Courts below have overlooked Exh.P.3, which related to mortgage of the share before the grant of proprietary rights, as the land in question was held as a Government grant under Colonization of Government Lands Act by Sohan deceased, therefore, contract of mortgage was hit by the provisions of section 19 of the Colonization Act. He further argued that as the contract of mortgage was bad in law, therefore, subsequent transaction of agreement to sell based on such transaction is also illegal and void. He further, argued that agreement to sell, which is in fact a clog of equity on redemption cannot be legally enforced as an agreement to sell and relied upon Abdul Sattar v. Mst. Sardar Begum 1992 SCMR 417. He further relied upon section 21 of Specific Relief Act Clauses (b), (c), (d) and (g) and stated that contract was executed on 1st July, 1960, whereas it has to be finally acted upon within two years i.e. 1-7-1962 whereas the respondent/plaintiff filed suit on 30-9-1964 and money was paid in 1965 and suit was decreed in 1968 and relied upon sale certificate Exh.P.7, dated 11-10-1965.
Proprietary rights were given on 3-7-1965. He further argued that respondent himself violated the terms of agreement Exh.P.3 and he was liable to-- pay dues of the Government till 1-7-1962, but he failed to deposit the same till 11-10-1965, therefore, suit was not maintainable. He further, .Argued that contract was executed with the father of the minors and contract could be enforced against them at the time of attaining majority by the minors. He further argued that the time is the essence of the contract and relied upon section 12 of the Specific Relief Act.
5. The learned counsel of the respondent argued that violation of section 19 is not material as the contract was executed between Sohan and the respondent, therefore, Sohan and respondent are bound to honour the terms of the agreement. He relied upon Sher Muhammad Khan v. Ilam-ud-Din 1994 SCMR 470. He further argued that trial Court decided all issues except No.7 and the appellants/defendants did not file any appeal against the judgment and, decree of the trial Court and even the appellants/defendants did not file any cross-objection before the first appellate Court, therefore, the appellants/defendants are estopped to agitate the findings of both the Courts below on all the issues except issue No.7. He further, relied upon Exhs.P.5 and P.6, as the proprietary rights were given to him on 3-7-1965 and it was not brought on record by the appellants; when the balanced amount was paid to the Government and, learned counsel of the appellants relied upon Exh.P.7 which is a certificate and which was issued after the respondents obtained proprietary rights of the land in question. He further, argued that the grounds which are argued by the learned counsel of the appellants were neither taken in the pleadings nor in the evidence and both the Courts below did not give any findings regarding these pleas, therefore, the appellants cannot raise these pleas at this belated stage at the time of arguments. He further, argued that on account of the subsequent agreement to sell, the original contract was cancelled by virtue of conduct of the appellants/defendants and section 62 of the Contract Act. He further argued that the trial Court decided issue No.7 against the respondent/plaintiff on the ground of welfare of the minors i.e. Predecessor-in---interest of Sohan. The appellate Court reversed the finding on issue No.7 keeping in view all the legal principles, equity and law. He relied upon PLD 1983 SC 344, 1985 CLC 2994, 1984 CLC 2063 and 1987 SCMR 1211. He further argued that the appellants are now major.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself with the assistance of the learned counsel of the parties. The main contention of the learned counsel of the appellants that agreement to sell is hit by section 19 of the Colonization Act has no force. I am fortified by the judgment of the Supreme Court reported as Muhammad Iqbal and others v. Mirza Muhammad Hussain and others PLD 1986 SC 70 and the relevant observation is reproduced hereunder: -- "It was held by this Court in paragraph 12 of its judgment in that case a contract of this kind was not violative of the provision of section 19 of the Colonization of Government Land Act, 1912. Paragraph No. 12 may be reproduced here for facility of reference-- 'On the facts of the case we are clear that the document was merely an agreement to sell the specific performance of which was postponed to a date, when the grantees had acquired the proprietary rights. Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and an effort on the part of the contracting parties to keep themselves well within the confines of the law and to act in accordance with the requirements of the law. Such an agreement to sell cannot be said to be violative of either the express provisions of section 19 of the Act or of the public policy behind such a statutory provision'.
We respectfully follow the abovenoted view taken by a learned Full Bench of .This Court and held that the oral agreement of sale by Ghulam Rasool in favour of Mirza Muhammad Hussain (respondent No. 1) is not hit by the provisions of section 19 of the aforesaid Act. It may be mentioned that the same view has been taken in Mirza Muhammad Ahmad Beg v. Mirza Amjad Beg PLD 1978 Lah. 421, Ghulam Muhammad v. Lakha Singh v. Inam Rabbani 1979 CLC 570 on which the High Court has relied while delivering the impugned judgment. "
7. The abovementioned judgment was reaffirmed in the subsequent judgment of Supreme Court of Pakistan reported as Sher Muhammad Khan and others v. Ilam-ud-Din and others 1994 SCMR 470.
The contention of the learned counsel of the appellants that contract was revokable has no force.
Both the Courts below after proper appreciation of evidence gave concurrent findings of fact that agreement to sell was duly executed between the parties and the appellants failed to raise such plea before both the Courts below. The concurrent findings of fact could only be interfered with on the grounds mentioned in sub--clause (c) of subsection (1) of section 100, C.P.C. It is well-settled law that the A second appellate Court can only interfere with the concurrent findings of fact by the Courts below on the grounds that the decision is based on misreading of evidence or that it was the result of perverse appreciation of evidence on record or that the conclusions were arrived at after ignoring some important piece of 'evidence on the record. For ready reference, issues Nos.3 and 6 are reproduced hereunder:-- Issue No.3. Whether the agreement, dated 1-7-1960 is void and with what effect? O.P.D. issue No.6 Whether payment of consideration money has been made, . If so, when and with what effect? O.P.P.
8.The learned trial Court after proper appreciation of evidence on record gave finding on issue No.3 as follows:-- "As discussed above, the agreement in dispute cannot be treated as a sale of tenancy rights; hence is not covered by section 19 of the said Act. "
Finding on issue No.6 is as follows:-- "It is proved beyond any shadow of doubt that the payment of the consideration money was made to the deceased. Issue is answered in the affirmative. "
The learned first appellate Court gave findings on these issues as follows:-- "The findings on issues Nos.1, 2, 4, 5 and 6 have not been challenged before me by any party. These findings are confirmed."
9.In these circumstances, the findings of the trial Court and the first appellate Court that Exh.P,3 was executed by Sohan did not suffer from am, infirmity so as to justify interference by the second appellate Court. The trial court having reached the conclusion that the agreement to sell was duly executed by all the parties, could not refuse specific performance of the sale on equitable ground, therefore, the first appellate Court was justified to pass the decree in favour of the respondent. It is pertinent to mention here that appellant did not bring on record any cogent evidence that the respondent failed to perform his part of the contract in letter and spirit. I am also in agreement with. The learned counsel of the respondent that the appellants did not raise pleas which were not taken by them in the grounds of second appeal as well as in the pleadings at the time of arguments. Section 22 of the Specific Relief Act gives discretion to a Court to grant specific performance but the mandate of law is that this discretion must be exercised on sound judicial principles and not in an arbitrary manner. I am of the considered view that by allowing the appeal, the learned appellate Court exercised discretion, based on sound judicial principles without misreading of evidence and without ignoring some important piece of evidence 6 on record.
10. By setting aside the judgment and decree passed by the trial Court, the learned appellate Court did not commit any error of law affecting the jurisdiction of the Court in order to warrant any interference in the exercise of powers under section 100, C.P.C. I, therefore, see no merit in the second appear, which is liable to be dismissed and order accordingly. There will be no orders as to costs.