' This Judgment shall decide C.R. Nos. 113 of 1990 and 114 1990, as they proceed against a common judgment of learned Additional District Judge.
2. On 22-11-1981, the petitioners filed a suit for possession of the suit house against the respondent.
In the plaint, it was averred that she is the owner of the suit house and that the respondent is her brother who requested her that he be allowed to reside in the house for about 6 months; that she granted permission to him to reside in the house. After 6 months, she called upon the respondent to vacate the house "in fact a portion of the main house" as she had sold the other portion. The respondent, however, not only refused to vacate the house but also denied her title. In his written statement, the respondent took the plea that the petitioner through her husband (whose name also is Nisar Ahmad) agreed to sell the house to him for Rs,10,000 and received the entire amount and executed an agreement on 14-3-1981.
3. On 30-2-1982, the respondent filed a suit against the petitioners for the Specific Performance of the said agreement as pleaded by him in reply to the suit filed by his sister. The petitioners resisted the suit denying any agreement or receipt of money. Reference to the earlier filed suit for possession, was also made. Both the suits were consolidated and following issues were framed:-- Issues:-
(1) Whether the defendants entered any agreement to sell the dispute property in favour of the plaintiff, if so, whether the plaintiff is entitled to get the decree for the specific performance of the same? OPP
(2) Whether the defendants are owner of the disputed property. If so, whether the defendants are entitled to the possession thereof? OPD
(3) Whether the defendants have got neither cause of action nor locus standi to file their suit? OPP.
(4) Whether the defendants are estopped by their act and conduct to institute their suit? OPP
(5) Whether the suit of the defendants cannot proceed in its present form? OPP
(6) Whether the description of disputed property is incorrect. If so, its effect? OPP
(7) Whether the suit of the defendants is false, frivolous, if so, whether the plaintiff is entitled to special costs? OPP
(8) Relief.
' Evidence of the parties was recorded. The learned trial Court decreed the suit tiled by the petitioners and dismissed the suit filed by the respondent vide judgment and decree, dated 25-4- 1987. Feeling aggrieved, the respondent filed first appeals which were again taken up together by a learned Additional District Judge, Gujaranwala who proceeded to uphold the decree of dismissal of the suit for Specific Performance but at the same time proceeded to allow the appeal against decree in the suit for possession and dismissed the said suit vide judgment and decree, dated 18- 11-1987.
4. Learned counsel for the petitioners contends that the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction while holding that the petitioner lady had not executed any agreement in favour of the respondent, upholding the dismissal of a suit for Specific Performance and at the same time dismissing the suit for possession on the ground that the respondent is in possession in part performance of the agreement. The precise contention is that none of the conditions-precedent to attract the protection provided by section 53-A of the Transfer of Property Act, 1882 stands fulfilled in this case and as such the impugned Judgment and decree. Inasmuch as it dismisses the suit of the petitioners for possession, cannot be sustained. No one has turned up for the respondent. He is represented by Mr. M. Sharif Khokhar, Advocate whose name stands duly published in the cause list for today but he has not turned up despite several calls. The respondent is accordingly proceeded against ex parte.
5. I have gone through the copies of the records, appended with these Civil Revisions. A bare perusal of the pleadings of the parties in both the suits would reveal that it stands admitted on record that the house was in fact owned by the petitioner lady. It has not even been alleged by the respondent that she had authorised her husband to agree to sell her property. The learned Additional District Judge has not at all referred to any principle of Law, equity or personal Law and on my part, I have not been able to find one that a husband can deal with the property of 'his wife.
The impugned judgment of the learned Additional District Judge himself indicates that there is no such broad proposition available. It thus, goes without saying that no agreement was. Admittedly executed by the petitioner lady while her husband had no authority to enter into any agreement.
The very fact that the learned Additional District Judge has proceeded to uphold the dismissal of suit for Specific Performance, filed by the respondent and that the respondent has not challenged the two Judgment and decree any further, also points to the same conclusion.
6. Now what remains to be seen is, as to on what principle, could the learned Additional District Judge have, denied, the petitioner lady her right to get the possession of the house admittedly owned by her from', the respondent. Learned Additoinal District Judge has proceeded to hold that since her husband alsoexecuted an agreement in favour of another person regarding the other half of the house and that she proceeded to execute a sale-deed in his favour, she is estopped from claiming possession of her house. In my, humble opinion, the, said observation border on perverse. Under no principle of Law or Equity could a lawful owner be estopped' from claiming possession of his property on the said reasoning. It may be that the petitioner lady opted to honour the agreement made by her husband in favour of the said other person but it cannot be said that by corollary she can be forced to honour the agreement in favour of her brother by her husband if she does not consent to do so.
7. Thus, the only other provision under which such an extraordinary relief could have been granted to the respondent, is the one referred to by the learned counsel and that is section 53-A of the Transfer of Property. Act, 1882. This, provision of Law, although not applicable to this Province but the equitable principles underlining, have always, been applied by the Courts of the Province in appropriate cases. However, following conditions must be met before a person can be held entitled to protection of the said section 53-A.
(1) There should be a contract by a person to transfer for consideration of an immovable property.
(2) The contract must be in writing signed by him or on his behalf.
(3) The writing should be such from terms necessary to constitute, the' 'transfer can be ascertained with reasonable certainty; and
(4) The transferee' must have in part performance of the contract taken possession of the property or the transferee, being already in possession, continues in possession in part performance of the contractand has done some act in furtherance thereof.
' In, the present case, it is but evident on the face of the record that not even a single condition laid down above, stands fulfilled. Admittedly there is no contract' by the petitioner lady for the transfer of her house to the respondent. Admittedly there is no writing signed by the petitioner or, on her behalf and there is not even an allegation in response to the, suit for possession that the possession was delivered to the respondent under the agreement. This document is available on record as Exh.P-1 and there is no stipulation whatsoever that possession was delivered under the said agreement or that the respondent being already in possession is to continue in possession under the said agreement. I may here refer, to the following observations of Chief Justice Muhammad Haleem (as his lordship then was) made in the case of "Shamim Akhtar v. Muhammad Rasheed" (PLD 1989 Supreme Court 575 at page 578 of the report: "Section 53-A of the Transfer of ;:Property Act partially imports the English equitable doctrine of part performance. Apart from this section except as provided therein, the s doctrine of part performance is not applicable in Pakistan. The section does not give any right which the formal agreement does not give."
8. In view of the above discussion, I am in agreement with the learned counsel for the petitioner that the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction while passing the impugned Judgment and decree. Both the Civil Revisions are accordingly allowed. The impugned Judgment and decree, dated 18-11-1987 passed by learned Additional District Judge, Gujaranwala is set aside while the one passed by learned trial Court on 25-4-1987 dismissing the suit of the respondent for Specific Performance and decreeing her suit for possession of the suit premises against the respondent, is restored. No order as to costs.