' Judgment of the learned Additional District Judge, Faisalabad, dated 15-2-1981 whereby the appeal filed by the respondents was accepted by him and the judgment of the learned trial Court, dismissing the suit of the respondents was set aside, is the subject-matter of present revision petition, which arises from the following circumstances.
2. Muhammad Boota the predecessor-in-interest of the respondents had filed a suit for declaration and injunction against Mst. Aisha, the predecessor-in-interest of the petitioners, on the basis of agreement, dated 20-8-1963 regarding 4 Kanals, 1 Marla situated in Chak No,51 J.B., Tehsil and District Faisalabad. It was the case of the respondents/plaintiffs that Mst. Aisha had agreed to sell the suit land for consideration of Rs,1,500 and possession of the same was also handed over. It was, therefore, prayed that a declaratory decree as to title may be granted as also permanent injunction. The suit was contested by the petitioners controverting the allegations of the plaint as also the competency and maintainability of the suit. The learned trial Court framed issues arising out of the same. Where after the parties produced evidence in support of their respective pleas. On consideration of the evidence produced by the parties the learned Trial Court recorded findings that an agreement was indeed executed by Mst. Aisha in favour of the plaintiff (Issue No,4). The finding on Issue No,5 was also recorded in favor of the plaintiffs whereas on Issues Nos.5-A and 5-B it was found that merely on the basis of an agreement to sell a suit for declaration was not maintainable, therefore, no declaratory decree could be granted. Issues Nos.1 to 3 were not pressed by the parties before the trial Court. The suit was accordingly dismissed vide judgment dated 11-7- 1979. An appeal was filed by the respondents there against whereas the petitioners also agitated the findings of the learned trial Court on Issue No,4. The learned Appellate Court upheld the said findings of the learned Trial Court and took the view that in pursuance of agreement Exh.P2/1 the entire consideration money of Rs,1,500 had been paid in part performance of the contract, the possession had been delivered to the respondents/plaintiffs, therefore, they were entitled to the protection of section 53-A of the Transfer of Property Act, 1882, and as the respondents were apprehending dispossession they were "within their rights to defend their title by filing a suit for declaration and permanent injunction". Accordingly the respondents were found entitled to the relief of declaration and injunction as prayed for. Thus, the appeal was accepted vide judgment, dated 15-2-1981. This revision petition has been filed against the same.
3. It is contended by the learned counsel for the petitioners that the learned Appellate Court has erred in law in reversing the findings of the learned trial Court as to the maintainability of the suit for declaration and injunction on the basis of so-called agreement to sell. It is further contended that the declaratory suit was not maintainable in view of Dr. Faqir Muhammad v. Haji Amir Muhammad and others (1982 SCM R 1178) and Muhammad Nawaz v. Mian Muhammad Anwar Abbasi and others (PLD 1982 BJ 33).
4. As against this the learned counsel for the respondents contends that agreement, dated 20-8- 1963 was in fact a "sale" as the entire consideration money had been paid and the possession delivered to the respondents in pursuance thereof. It is contended by him that in view thereof the respondents/plaintiffs were well within their rights to sue for declaration and were not obliged to seek specific performance of the same.
5. The perusal of the document Exh.D2/1, dated 20-8-1963 does not lead to the conclusion as has been drawn by the learned Appellate Court or has been interpreted by the learned counsel for the respondents. Although the consideration money is stated to have been received therein yet the execution of the sale-deed and registration was deferred to a future date. It was stipulated that in case she backs out of the transaction, Muhammad Boota the predecessor of the respondents would be within his right to file a suit for specific performance. This document is on stamp paper of Rs,2 only whereas the sale-deed would have been required to be executed on a stamp paper ad valorem. It was for a value of Rs,1,500 and required compulsory registration that is why it was stipulated that registered sale-deed would be executed. Even if it be assumed that the payment had been made by the respondents/plaintiffs and the possession also delivered yet it was not a complete sale as required by law. In the case of Dr. Faqir Muhammad (supra) it was held that:--- "It is well-settled that in a suit under section 42 of the Specific Relief Act declaration can be sought either regarding the plaintiffs right to any legal character or with respect to any right as to property claimed by him. In the present case the petitioner-plaintiff sought a declaration with regard to his legal character as owner of the plot in question, but as observed by the learned Judge in Chamber, a reading of agreement (Exh.P1) shows that it had not conferred any such right on the petitioner and that by the said agreement he had merely been permitted to enter the land and make construction thereon, provided the site-plan had been got approved. We are, therefore, of the view that the learned Judge in Chamber was justified in accepting the respondents' appeals on this ground alone. We also agree with the observation made by the learned Judge in Chamber that in a suit under section 42 of the Specific Relief Act the petitioner was required under law to ask for all other reliefs which were open to him. The relevant prayer for consequential relief in the present case, as rightly pointed out by the learned High Court Judge, would have been for specific performance of the agreement. But the petitioner had not asked for it."
' Similar view was taken in Zafar Ahmed v. Mst. Hajran Bibi (PLD 1986 Lahore 399). It was held that "only proper mode of redress for the petitioner could be suit for specific performance of the said agreement and not a suit or declaration on the basis of the same".
' Somewhat identical situation arises in this case in which the appropriate remedy for the respondents would have been to sue for specific performance and not for declaration.
5. The contention of the learned counsel for the respondents that the document Exh.P2/1 be treated as an outright sale cannot be accepted. No declaratory decree could be, thus, granted in favour of the respondents. The view taken by the learned Appellate Court in view of the above cannot be sustained.
6. As a result of the above, this petition is allowed. The judgment of the learned Appellate Court is set aside and that of the learned Trial Court is restored. No order as to costs.