MIAN NAZIR AKHTAR, J. -- This Constitutional petition arises out of a suit for specific performance of the contract filed by Zulqarnain, respondent No. 1 on 26.2.1979 in the Court of the Civil Judge, Pasrur District Sialkot. He claimed that the present petitioner had entered into an agreement with him for sale of the land measuring 91 kanals, 4 marlas through her husband Nazir Hussain, respondent No. 2 vide agreement dated 17.1.1978. It was averred in the plaint that the petitioner's attorney/husband had received a sum of Rs. 30,000/- as earnest money out of total amount Rs. 60,000/-. The suit was resisted by Mst. Khurshid Bihi petitioner who filed her written statement in the Court. On the pleadings of the parties, the Trial Court framed the necessary issues and recorded evidence of the parties. During the pendency of the suit, the petitioner gifted the disputed land in favour of her real brother Nazir Ahmad respondent No. 3 through a registered gift-deed dated 8.2.1978. The Trial Court fixed the case for recording the plaintiff's evidence on a number of dates. On 12.3.1983, Naazir Hussain, respondent No. 2 made an offer that in case Nazir Ahmad, respondent No. 3 surrenders land in favour of Mst. Khurshid Bihi, petitioner then the gift he cancelled, the petitioner be considered as owner of the land and will enjoy usufruct of the property during her life-time and will not alienate the land through sale, gift or exchange etc. And after her death the property will devolve on her legal heirs. This offer was accepted by the plaintiff/respondent No. 1 who withdrew the suit in view of the statement of respondent No. 3. The petitioner had also agreed with the statement made by respondent No. 3. She made a statement to the effect that she will not alienate the property during her life-time. Accordingly, the suit was dismissed as withdrawn in the light of the above-referred statements of the parties vide judgment and decree dated 12.3.1983.
2. On 28.6.1983 the petitioner filed an application under Section 12 (2) of the CPC for setting aside the judgment and decree of the Trial Court on the ground that she was all alone and did not understand the statement made by respondent No. 3 and was coerced to sign her statement; that she thought that she would get back the land and remain its owner in future.
3. The application was resisted by respondent No. 2 who filed his reply on which the Trial Court again framed the following issues:- "(1) Whether the application cannot proceed (based on preliminary objection of the written reply)?
O.P.R.
(2) Whether the petitioner is estopped to file this application by her act and conduct? O.P.R.
(3) Whether the petitioner has no locus standi? O.P.R.
(4) Whether the impugned order dated 12.3.1983 is result of undue influence, coercion, fraud and mis-representation, hence not binding to the extent of petitioner's right of alienation of her land in any manner? O.P.A.
5. Relief."
The parties were allowed to produce their evidence and after perusing the same the Trial Court dismissed the application vide order dated 31.1.1988. The petitioner tiled a revision petition before the learned District Judge, Sialkot which was rejected by the Addl. District Judge vide order dated 7.2.1989.
4. The petitioner's learned counsel submits that only a lawful agreement can be verified and approved by the Court under the provisions of Order XXIII, rule 3 of the CPC. The agreement dated 12.3.1983 whereby the suit was dismissed as withdrawn was not lawful. The agreement for deciding the suit on the basis of the above-referred compromise is not covered by any rule of morality. He relies on the judgment in the case of "Umar Bakhsh and 2 others Vs. Azim Khan and 12 others (1993 PSC 1397). He further submits that the compromise is against the pleadings and beyond the scope of the suit for performance of the contract; that the suit for specific performance is restricted to the agreement between the parties and a third party could not derive any benefit out of the same; that the impugned orders have been passed on the presumption that the petitioner had derived benefit as a result of the compromise. However, she has derived no benefit as a clog was put on her right of ownership and she was forbidden to alienate the property in any known legal mode; that the suit was collusive between respondents Nos. 1 and 2; that the power-of attorney was invalid and the alleged agreement to sell in favour of petitioner No. 1. Was fictitious; that no consideration had passed on the basis of the alleged compromise. Hence, the suit did not give rise to legitimate proceedings; that if at all the plaintiff/respondent No. 1 got benefit of the suit and not respondents Nos. 2 and 3; that had the suit been dismissed on merits then respondent No. 1 would not have derived any benefit that the petitioner is an illiterate lady who did not have advice of any other person and did not understand the true import of the compromise; that even her counsel was not present; that she had thumb marked the agreement on the presumption that she was being made full owner of the property; that on behalf of the petitioner AW- I Inayat AN and AW-2 Ghulam Haider were produced. She herself appeared as AW-3.
Revision No. 2677/96 is directed against order dated 19.3.1996 seeking review of judgment dated 7.2.1989. It is submitted that it was wrongly mentioned in the said judgment that Mst. Khurshid Bibi is issueless (para 5 of the judgment). However, the said application was dismissed on 19.3. I 996.
5. The learned counsel for respondent No. 2 submits that the points agitated before this Court are not even mentioned in the writ petition: that the only point agitated in the writ petition-is that under the Islamic Law no clog can he put on the ownership right of a person; that even it' the condition whereby the petitioner has been prohibited to alienate the land is a clog on ownership rights, the same was the result of voluntary and lawful agreement; that respondent No. 2 had divorced his wife during the pendency of the suit, therefore, he is no longer an heir of the petitioner. In case, the petitioner is held to he the owner of the property without any clog on her right of ownership then after her death the property will devolve on her children. Their names and ages are as under:- Manzoor Ahmad, son About 22/23 years Mst. Shahnaz Kausar, About 17/18 years daughter He further submits that AW-1 admitted in cross-examination that Mst. Khurshid Bihi was accompanied her brother Nazir Ahmad, respondent No,
3. The same is the statement of AW-2; that the acceptance of the condition that the property will not he further sold is valid and lawful as held in the case of "Muhammad Nazir and 3 others Vs. Mst:. Nasira Sultana and 5 others" (1995 CLC.
1745); that ingredients of fraud and misrepresentation etc. Were neither asserted in the petition nor proved at the trial, that the concurrent findings of fact recorded by the Courts below are based on proper appraisal of the material on the record; that no misreading or non-reading of evidence has been pointed out; that in exercise of Constitutional jurisdiction the re-appraisal of evidence cannot he done; that the revisional Court also found that there was no illegality in the order passed by the Trial Court; that the power-of-attorney dated 17.1.1977 was not cancelled in accordance with the law; that no notice as required u/S. 3 of the Power of-Attorneys Act, 1938 was issued to respondent No. 2 who had lawfully entered into agreement to sell with respondent No. 1, hence the suit could not fail on the ground that respondent No. 2 had no power-of-attorney in his favour; that the gift made during the pendency of the suit in favour of respondent No. 3 was hit by the rule of lis pendence.
6. There is considerable force in the arguments raised by the respondents ' learned counsel. The petitioner's case before the Courts below was not that she being an illiterate woman not having the advice of any near relative could not understand the true import of the offer made by Naazir Hussain, respondent No. 2. She had merely tried to show that her thumb impressions, were obtained before the Trial Court through coercion. This claim of coercion cannot he accepted because Mst. Khurshid Bibi was accompanied by her brother Nazir Ahmad, respondent No. 3. She had voluntarily accepted the offer which ensured to her benefit and for the benefit of her legal heirs. AW-1 lnayat A.I admitted in cross-examination that Nazir Ahmad, brother of Mst. Khurshid Bibi petitioner was present in the Court and that he remained with her when thumb impressions of Mst.
Khurshid Bibi were obtained in token of her acceptance of the offer made by Nazir Hussain, respondent No. 2. He also admitted that after having alienated the land in favour of her brother Nazir Ahmad, Mst. Khurshid Bibi had become a non-proprietor. The witness wrongly denied the suggestion that the Court got the land transferred hack to Mst. Khurshid Bibi from her brother Nazir Ahmad. AW-2 Ghulam Haider stated that he alongwith 9/10 other persons had come to the Court alongwith Mst. Khurshid Bihi; that when the case was called, all of them went inside but the Court turned out everybody except the parties to the suit. He again said that only the persons accompanying Mst. Khurshid Bihi were turned out but about five persons accompanying the other party were allowed to remain inside. He again said in examination-in-chief that the Court allowed Mst. Khurshid Bihi and her brother Nazir Ahmad to remain inside the Court Mst. Khurshid Bihi appeared as AW-3 and stated that a compromise was got effected by the Court but her thumb impressions were forcibly obtained. The claim of coercion was sought to he proved by Mst.
Khurshid Bibi by her assertion that Zafar son of Naazir Hussain,. Respondent No. 2 was holding a Danda and remained inside the Court room. It is not believable that anyone can he allowed to come in the Coda room with a weapon like a Danda. Moreover, it is not stated by AW-3 that Zafar had made any gesture to indicate that she would he beaten up or that he verbally said anything to force her to accept the compromise. She further stated that she had never executed any power- of-attorney in favour of Naazir Hussain; that she had gifted the land in favour of her brother to avoid the claim made in the suit tiled by Zulqarnain respondent No. 1; that she had transferred her entire land in favour of her brother; that in the civil suit her brother Nazir Ahmad used to appear in the Court on various dates of hearing and that her brother had specially accompanied her on the day when compromise was made. She further stated that the Civil Judge told her that if her brother took away her entire land then what would be her fate. She added that the learned Civil Judge suggested to her that she should transfer the land in the names of her children but she refused to do so. She further admitted that the Court told her that she should get rid of Naazir Hussain etc. (by accepting the compromise) and as a result the land would remain with her. Thus it is established on the record that Mst. Khurshid Bihi was accompanied by her real brother Nazir Ahmad who had no interest adverse to that of his sister and that the Court had fairly explained the object of compromise to her. Her claim that the compromise was the result of coercion is without any basis.
In her application tiled u/S. 12 (2) of the CPC it was not claimed by Mst. Khurshid Bibi that she was a "pardanasheen" and illiterate woman. She merely alleged that the respondent had obtained her statement on 12.3.1983 through coercion, fraud and misrepresentation. The details of the alleged coercion, fraud and misrepresentation have not been given. Hence the petitioner had failed to lay sound factual basis for her claim and was rightly non-suited by the Courts below.
7. It may be mentioned that Zulqarnain, respondent No. 1 had filed the suit on the basis of an agreement to sell executed in his favour by Naazir Hussain, respondent No. 2 (ex-husband) of Mst.
Khurshid Bihi) in his capacity as attorney of Mst. Khurshid Bihi. The power-of-attorney was not cancelled by Mst. Khurshid Bihi, therefore, the plaintiff/respondent No. I could have legitimately pressed his suit. Under these circumstances, the compromise was essentially in the interest of Mst.
Khurshid Bibi who on the one hand got rid of the civil suit filed by respondent No. 1 and the Hiha made by her in favour of her brother Nazir Ahmad, respondent No. 3 and on the other obtained the land to he used by her during her life-time. The condition that she will not alienate the land during her life-time is legal and otherwise justifiable in the circumstances of the case. It secures the interest of the petitioner as well as her legal heirs.
8. In the case of Muhammad Nazir and 3 others (relied upon by the respondent 's learned counsel) it was held that the compromise made by the transferee of the disputed house to the effect that he would not dispossess other parties and would not sell the house to any one without consent of the others was lawful and binding on the transferee.
9. There is no substance in the argument raised by the petitioner's learned counsel that the compromise arrived at between the parties is beyond the scope of the suit for specific performance of the contract. The suit pertained to the land which originally belonged to Mst.
Khurshid Bibi. The agreement to sell was made in favour of the plaintiff by Nazir Hussain, respondent No. 2, the ex-husband of Mst. Khurshid Bihi in his capacity as attorney of his wife. Mst.
Khurshid Bihi denied the validity of the power of-attorney. On her part she had gifted her entire land in favour of her brother Nazir Ahmad, respondent NO. 3. The compromise revolved around the title of the land forming subject-matter of the suit. It was squarely within the scope of the suit and was otherwise fair and reasonable as it shortened litigation and enabled Mst. Khurshid Bibi to enjoy usufruct of the land during her life-time. The compromise had put an end to the perils which had surrounded the real owner and by putting a clog on her right to alienate the land, the door of her future exploitation by interested parties was closed. The Courts below have properly appreciated the material on the record and rightly non-suited the petitioner. There is no jurisdictional detect in the judgments passed by the Courts below to justify interference in the exercise of Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.
10. For the foregoing discussion, I do not find any merit in this petition which is dismissed, leaving the parties to bear their own costs: