1. ' Brief facts giving rise to this revision petition are that land it question measuring 87 Kanal and 10 Marlas and portion of Ahata measuring 17-1/2 Marlas situated in Chak No,186-EB Tehsil and District Vehari was allotted to one Abdullah predecessor of respondents Nos.1 to 5/defendants Nos.2 to 6 in Attia Dari Scheme by the Government. After the death of aforesaid Ahdullah. The property was inherited by respondents Nos.1 to 5 as legal heirs. Respondent No,1 was appointed General Attorney by respondents Nos.2 to 5 on 19-11-1974. Resonant No, executed agreement to sell with petitioner on 10-3-1975 for a consideration of Rs,25,000 out of which Rs,21,000 was received by him from the petitioner at the time of registration of agreement to sell and Rs,4,000 to be received by him from the petitioner at the time of sale. The land in question was Government land, the propriety rights had not been conferred on respondents Nos.1 to 5 till 10-3-1975. The application was made for the transfer of propriety right to the District, Collector by respondent No,1, subsequently respondents Nos.2 to 5 revoked the authority of respondent No,2 by general attorney. The petitioner/plaintiff requested the respondents/ defendants to implement the agreement to sell, dated 10-3-1975 but respondents Nos.2 to 5 were bent upon selling the land in dispute to some third person; hence the petitioner filed suit for declaration with perpetual injunction against respondents/ defendants.
2. Respondents Nos.2 to 5 filed joint written statement and denied the contents of the plaint. Out of the pleadings of parties, the following issues were framed:--
(1) Whether the plaintiff has neither cause of action nor locus standi to bring this suit? O.P.D.
(2) Whether the suit is not maintainable in its present form? O.P.D.
(3) Whether the suit land was agreed to be sold vide registered Agreement to Sell, dated 10-3-1975 by the defendants Nos.2 to 6 to the plaintiff and hitters are not entitled to sell it further to anyone else except the plaintiff? 0.P . D.
3. (4). Relief.
4. ' The learned Civil Judge, 1st Class. Vehari, dismissed the suit vide judgment and decree, dated 15- 12-1986; the petitioner being aggrieved, filed appeal before the learned District Judge, Vehari, who entrusted the same to learned Additional District Judge, who also dismissed the same vide judgment and decree, dated 7-3-1980; hence the present revision petition.
2. The learned counsel for the petitioner stated that both the Courts below decided the case against the petitioner on the basis of the reported judgment PLD 1986 Lah. 399 and PLD 1982 BJ 33.
5. He further contended that both the judgments are distinguishable on facts and law. He further stated that the case of the petitioner is governed by the judgment of Honorable. Supreme Court reported as 1980 SCMR 314 and 1981 SCMR 993; that the petitioner being in possession and the vendor having received the consideration amount was bound by his agreement; that judgment relied by both the Courts below did not consider section 53-A of the Transfer of Property Act that case of the petitioner is governed by section 53-A of the Transfer of Property Act' and relied upon 1985 SCMR 1617; that although propriety rights have not been conferred upon respondent No,1, even the agreement to sell executed by responded No,1 with the petitioner is binding between the petitioner and respondents. He relied upon 1994 SCMR 470. He further stated the Agreement to Sell created right in favour of the petitioner but both the Courts below do not consider this aspect of the case at all. He summed up his arguments that the petition is in possession of the disputed land therefore, section 53-A of Transfer Property Act is attracted in full force but body the Courts below did not consider this appeal of the case.
3. Learned counsel for the respondents contended that section 53-A of Transfer of Property Act is not attracted at all as the averments of the plaint clearly reveal that the petitioner took the possession before the Agreement to Sell executed between the petitioner and respondent No,1, therefore, section 53-A of the Transfer of Property Act is not attracted at all; that both the Courts below rightly decided against the petitioner by virtue of section 42 of the Specific Relief Act; that Agreement to Sell does not create any title in favour of the petitioner and both the Courts below concurrently decided against the petitioner in accordance with law laid down by the Superior Courts and relied upon PLD 1986 Lah. 399; PLD 1982 BJ 33; that the propriety rights have not been conferred upon respondents, therefore, the petitioner has no right whatsoever to file present suit by virtue of section 19 of the Colonization Act and relied upon 1986 MLD 2074. He summed up his arguments that both the Courts below have concurrently decided against the petitioner and this Court has no jurisdiction to disturb the concurrent findings of facts given by both the Courts below unless and until the same is the result of misreading and non-reading of record or violation of any principle laid down by the Superior Courts.
4. I have given my anxious consideration to the contentions of learned counsel for the parties. It is admitted fact that both the Courts below have given concurrent findings of facts against respondents Nos.2 to 5; that respondent No,1 executed Agreement to Sell on behalf of himself and on behalf of respondents Nos.2 to 5 on 10-3-1972. Both the Courts below after proper appreciation of evidence on record gave findings of facts on Issue No,3. But both the Courts below have concurrently decided against the petitioner that Agreement to Sell does not create any title on the property, therefore, both on the principle and on authority an Agreement, to Sell, cannot create any interest in the property and such an Agreement even if presumed to be genuine and proved would fail to create any title in the property. The judgments of both the Courts below are in accordance with the provisions of section 42 of the Specific Relief Act which reads as under:-- "any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny his title to such character or right and the Court may in its discretion make therein a declaration that he so entitled, and the plaintiff need not in such suit asked for any further relief: ' Provided that no Court shall make any such declaration where- the plaintiff, being able to seek further relief than mere declaration of title omits to do so."
6. ' The simple reading of the aforesaid provisions would reveal that any person entitled to any legal character or to any right as to any property. May institute a suit against any person denying or interested to deny , his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief.
7. In the instant case even if it is admitted that respondent No,1 has transferred the land in question to petitioner on the basis of Agreement to Sell, it will only be presumed that petitioner has stepped into the shoes of respondents. They only promised to do so by way of another document and if the refused to do -so the suit for specific performance was the only remedy under the law. The petitioner has only remedy- to file suit for specific performance of contract as is envisaged by section 18 of Specific Relief Act. The aforesaid proposition of law was considered by the Honorable Supreme Court in Mst. Ghulam Bibi's case PLD 1985 SC 345 and observed as under:-- "The question for the examination of which Leave to Appeal was granted is whether in the facts and circumstances of the case the appellants (plaintiff's side) should have been permitted by the High Court to amend the plaint so as to convert the suit for declaration as to ownership of the suit land into a suit for specific performance of contract exchange involving the suit land."
8. ' The Honorable Supreme Court after detailed discussion allowed the appeal in the following terms:- "In the light of foregoing discussion, this appeal is allowed. The impugned judgment- is set aside.
9. The application made by the appellants in the High Court for amendment of their plaint is allowed subject to the payment of Rs,2,000 as costs of the amendment. The case is remanded to the trial Court with the direction that after the amendment of the plaint, the defendants shall also, if they so request, be allowed proper opportunity to amend their written statement."
10. The aforesaid proposition of law is also supported by the following judgments of the Honorable Supreme Court in Sustain Fazli's case PLD 1964 SC 337; Ahmed Din's case PLD 1971' SC 762. It is settled proposition of law that agreement to sell does not create any right on the property but at the same time it creates right in favour of the purchaser on the basis of the Agreement to Sell for the enforcement of the Agreement to Sell meaning thereby he is well within his right to compel the vendee for the enforcement of the Agreement but both the Courts below did not consider this aspect of case. The Honorable Supreme Court has considered this proposition of law in Abdul Hameed's case PLD 1962 SC I and observed as follows:-- "In conclusion I would like to add that the dominant principle in such cases has always been that equity will only grant specific performance, if under all the circumstances, it is just and equitable so to do."
11. ' As mentioned above both the Courts below have given concurrent findings of facts that Agreement was executed by respondent No,1 on behalf of himself and on behalf of respondents Nos.2 to 5 and received Rs,21,000, out of Rs,25,000 at the time of registration of Agreement to Sell.
12. This fact brings the case of the petitioner in the area of equity but both the Courts below did not consider this aspect of the case at all. It is well-known maxim that Judge must wear al' the law of the Country on the sleeves of his robe. It is also well-settled law that a Court is empowered to grant such relief as the justice of the case may demand and for the 'purpose of determining the relief asked for, the whole of the plaint must looked into. So that the substance rather than the form should be examined as is envisaged by Order 7, Rule 7, C.P.C. But both the Courts below did not give findings of fact on merit qua the specific performance of contract.
13. In view of what has been discussed above, this revision petition is allowed. The impugned judgments are set aside. The case is remanded to the trial Court with the direction that suit for declaration with permanent injunction be treated as suit for specific performance with permission to the petitioner to amend plaint accordingly subject to payment of Rs,10,000. The trial Court after receiving amended pleadings from the parties, additional issue, opportunities of evidence to the parties, decide the suit in accordance with law 'and its as a suit. For specific. Performance. Sine, the controversy between the parties is pending adjudication since 1986, therefore, trial Court shall decide the same as expeditiously possible. Revision allowed.