' MAULVI ANWARUL HAQ, J.---On 27-7-1988 respondents Nos.1 and 2 filed a suit against the appellants and respondents Nos.3 to 10. In the plaint it was stated that the said defendants were owners of land measuring 163 Kanals, 5 Marlas comprised of Sq.No,31 in Chak No,118 Rakh Branch in the revenue estate of Chahoor Dikhan, District Sheikhupura (more particularly described in para. 1 of the plaint). Out of this land some land had been reserved for Mosque and graveyard after adjustment of this land an area measuring 162 Kanals, 11 Marlas, 236 Sq. Feet was agreed to be sold by the said defendants to respondents Nos.1 and 2 for consideration of Rs,18,50,000. A sum of Rs,4,00,000 was paid by way of earnest and possession was delivered. An agreement was accordingly executed on 3-8-1986. The land was purchased for purposes of setting up a housing scheme and the possession was delivered with authority to respondents Nos.1 and 2 to carve out plots, make roads and parks, etc., and to conduct all proceedings for setting up scheme. The understanding was that the area which comes under the roads, parks, etc., would not affect the payment of consideration at the rate agreed i,e, Rs,1,00,000 per acre. The time of performance was fixed as two years commencing from 3-8-1986 and ending on 3-8-1988. During this period respondents Nos.1 and 2 were also authorized to enter into agreements to sell the plots and to receive earnest money and the said defendants were to execute the sale-deeds accord;,igly. The payment was to be made to the said defendants by the respondents Nos.1 and 2 proportionate to the rate agreed in the agreement. It was further stated in the plaint that acting under the agreement the possession was taken over by the respondents Nos.1 and 2 and the plots were carved out and Pakka roads were also constructed. Further acting under the said agreement the said defendants executed relevant, sale-deeds in favour of the vendees covering four Kanals, five Marlas. These were pursuant to the agreements to sell executed by the said defendants through their attorney while one such agreement executed by the attorney of present respondent No,3 only as appellant No,2 had fallen seriously ill. Later three more sale-deeds were executed by all the said defendants in respect of 10 Marlas each. This leaves 156 Kanals, 16 Marlas and 236 Sq. Feet of land.
Which remains to be transferred to the respondents Nos.1 and 2; that a sum of Rs,74,375 was paid to the said defendants through the present respondent No,3 while executing 11 sale-deeds and a sum of Rs,26,250 was paid to all the said defendants while executing the said later three sale- deeds. Thus, including the said amount of Rs,4,00,000 the sum of Rs,5,00,625 stands paid to the said defendants; that notice was served on 6-6-1988 to the said defendants for execution and completion of sale-deeds on 10-6-1988 but without any response. Thereafter, a request was made for completion of the sales on 16-6-1988 but the present appellants did not appear and the matter could not be concluded; that the present respondents Nos.3 to 10 had received their share of the entire balance amount of consideration but at the instance of the present appellants they had also not executed sale-deed that respondents Nos.1 and 2 are ready and willing to perform their part of contract and were always so ready. With these averments the decree for specific performance of said agreement dated 3-8-1986 was sought. It appears that during the pendency of the suit respondents Nos.3 to 10 had in fact transferred their share of land agreed to be sold to respondents Nos.1 and 2 and the said respondents Nos.1 and 2 proceeded to transfer the same to present respondents Nos.11 to 13 who were accordingly impleaded as defendants Nos.11 to 13 in the suit land amended plaint was filed accordingly.
2. Suit was conceded by respondents Nos.3 to 10 on the one hand and respondents Nos.11 to 13 on the other. The appellants filed their written statement taking objections that the respondents Nos.1 and 2 are estopped by their words and conduct from filing the suit; that the suit in barred by time; that the value of the suit for the purposes of court-fee and jurisdiction is incorrect; that the agreement dated 3-8-1986 is void and is not specifically enforceable; that respondent No,6 is minor and has been sued without appointment of a guardian ad litem; that consideration has not been paid in terms of the agreement; that the suit is collusive; that the suit is mala fide. On merits an evasive reply was given to para. 2 containing allegations regarding the agreement, its execution payment of earnest money and delivery of possession. The sale of four Kanals, five Marlas of land pursuant to the agreement was admitted but receipt of consideration was denied. It was alleged in abstract that respondents Nos.1 and 2 have not complied with the terms of the agreement.
3. In view of the said state of pleadings, learned trial Court felt need to record better statements of the parties and these were so recorded on 21-3-1989. Ch.Muhammad Bukhsh, respondent No,2 stated that agreement dated 3-8-1986 was executed by the said defendants on 3-8-1986 and they had paid Rs,4,00,000 by way of earnest money; that the present appellants have 1/4th share each, respondent No,3 has 1/4th share while respondents Nos. 4 to 10-1/4th share in the suit land; that Rs,13,125 were paid on 8-7-1987 to all the co-sharers while Rs,74,375 were paid to respondent No,3; that respondents Nos.3 to 10 had been paid the entire due consideration proportionate to their share while the appellants have been paid Rs,2,00,000 by way of earnest and Rs,13,125 each; that the entire consideration was Rs,18,50,000 and the share of appellants is Rs,9,25,000 whereas they have paid them Rs,2,26,000; that balance amount was tendered within time stipulated but they did not receive while respondents Nos.3 to 10 did receive the balance amount; that they are ready to pay the balance to the appellants.
' Muhammad Hafeez, appellant No,1 stated that they had entered into an agreement with the respondents Nos.1 to 2 on 3-8-1986; that they had receive 2,00,000 as earnest money and apart from this amount a sum of Rs,13,125 was reviewed by the two brothers and thereafter no amount has been paid; that the balance amount payable to them by the respondents Nos.1 and 2 is Rs,7,25,000 which was to be paid till 3-8-1988 and they had to transfer the land but the amount had not been paid by them till 3-8-1988; that the land was jointly owned by the said defendants and the agreement was also joint but the consideration amount of eleven sale-deeds was not paid to them; that the respondent No,3 was not entitled to receive the amount of consideration for the said deeds; that they are not ready to execute a deed upon receipt of the balance amount, however, respondents Nos.1 and 2 should make the deposit and contest the suit on merits.
5. In the light of the pleadings and said better statements the following issues were framed by the learned trial Court:
(1) Whether the plaintiffs are estopped by their words and conduct from filing this suit?
(2) Whether the suit has been filed with mala fide intention?
(3) Whether the alleged agreement dated 3-8-1986 is void document and cannot be specifically enforced?
(4) Whether the suit is not maintainable?
(5) Whether the sale consideration in view of agreement dated 3-8-1986 has not been paid to be defendants, therefore, the agreement dated 3-8-1986 has got no value?
(6) Whether the suit has been filed in connivance with defendants Nos.3 to 10 and first of all the plaintiffs should deposit the sale price in the Court in order to show their bona fide?
(7) Whether the suit is barred by time?
(8) Whether the defendant No,6 is minor and no guardian has been appointed, therefore, the suit is not maintainable?
(9) Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction, if so, what is the correct valuation and its effect?
(10) Whether the plaintiffs are entitled to the specific performance of the agreement dated 3-8- 1986?
(10-A) Whether the instant suit is liable to be stayed under section 10 of
(11) Relief.
The evidence of the parties was recorded, Issues Nos.1 to 9 and 10-A were decided against the appellants while issue No,10 was found in favour of the respondents Nos.1 and 2. The suit was accordingly decreed vide judgment and decree dated 12-9-2000 and special costs in the sum of Rs,25,000 were imposed on the appellants under section 35-A of C.P.C. Respondents Nos.1 and 2 were directed to deposit Rs,7,25,000 within one month as a term of the decree failing which the suit was to stand dismissed.
6. N.A. Butt, Advocate, the learned counsel for the appellants argues that respondents Nos.1 and 2 had committed breach of contract inasmuch as the consideration amount pertaining to the said eleven sale-deeds executed in terms of the agreement had not been paid to his clients. According to the learned counsel because of the said breach the respondents Nos.1 and 2 were not entitled to claim specific performance. Also complains that the imposition of special costs on his client was not justified.
7. Mr. Najam-ul-Hassan Kazmi, Advocate, learned counsel for the respondents on the other hand, argued that it is an admitted position that the consideration amount pertaining to the said eleven sale-deeds was in fact paid by respondents Nos.1 and 2 to respondent No,3. The precise contention is that the area covered by the said sale-deeds was well within the share of the said respondent No,3 and the amount was ultimately adjusted against this share, according to the learned counsel, neither does it constitute a breach nor can the appellants claim any prejudice caused by the same.
8. We have gone through the trial Court records with the assistance of the learned counsel for the parties. We find in the light of the pleadings and the said better statements of the respective parties, admitted facts of the case are that the appellants and respondents Nos.3 to 10 did agree to sell 162 Kanals, 11 Marlas and 236 Sq. Feet of land to respondents Nos.1 and 2 for consideration of Rs,18,50,000 vide agreement Exh.D.W.1/1; that a sum of Rs,4,00,000 was paid as earnest money out of which an amount of Rs,2,00,000 was received by the appellants; possession was delivered and was taken over by respondents Nos.1 and 2 who did set up a housing scheme by carving out plots and constructed roads, etc. At their own expense, that 14 transactions covering the entire area of five Kanals, fifteen Marlas were entered into by or on behalf of the appellants and respondents Nos.3 to 10. Out of these, eleven transactions are agreements to sell which are on record as Exh.P.1 to Exh.P.11. These agreements have been executed by Ch. Shahab Din, attorney of the appellants and said respondents Nos.3 to 10 (power-of attorney Exh.D.W.1/2). As per the contents of these agreements the amount of earnest money/consideration was received by the said executant namely Ch. Shahab Din, attorney. Vide receipt Exh.D.W.1/3. Ch. Muhammad Munir, respondent No,3 had received the amount of Rs,74,375 from the said executant. This Ch. Shahab Din is respondent No,l. It is this payment which is being termed as violative of the agreement inasmuch as the appellants did not receive their proportionate share in the same. Regarding the later three sale transactions covering an area of 30 Marlas, there is no dispute that the appellants had got their share of the consideration regarding the same. It is also an admitted fact on record that the said amount was adjusted against the share of consideration to be paid to respondents Nos.3 to 10 by the appellants while the former transferred their share of the land to the appellants.
8. Coming to the said contention of the learned counsel for the appellants as to nonpayment of the share of the appellants in the consideration mentioned in Exh.P.1 to Exh.P.11 and received by respondent No,3 vide Exh.D.W.1/3. The relevant term of agreement is reproduced as under:- {{URDU TEXT}} ' It is true that the first party was all the transferors i,e, the appellants and respondents Nos.3 to 10.
However, the fact remains that the agreement does not spell out the mode in which the payment was to be made i,e, the agreement does not appear to state that the valid discharge would be a receipt by all the 10 persons. Admittedly, the promisers are Cuheirs/co-sharers in the suit land, they had agreed to sell the land jointly. Admittedly; respondent No,3 is a co-sharer having I, with share in the suit land agreed to be sold. It is also apparent on the face of record that the land covered by Exh.P.l to Exh.P.11, i,e, four Kanals, five Marlas was well within the share of said respondent No,3. Now this payment to respondent No,3 was made vide ' Exh.D.W.1/3 on 4-12-1986. The suit was filed on 27- 7-1988 while the appellants filed their written statement on 25-11-1988. There is nothing on the record that the appellants at any time raised objection to 'the payment made in the said manner by respondent No,1 acting as attorney of the promisers to the respondent No,3. To our mind, the said payment made to respondent No,3 constitutes a valid discharge and it was for the promiser/co-sharer to make or seek adjustment of the said amount with their co-sharer namely respondent No,3. By no stretch, the payment in the said manner by respondents Nos. 1 to 2 to respondent No,3 constitutes a breach of agreement, particularly when the payment has in fact been adjusted against the share of respondents Nos. 3 to 10. Needless to add that the appellant No,1 in his better statement dated 21-3-1989 has categorically stated that in the balance amount of consideration the share of appellant comes to Rs,7,25,000 and the learned trial Court, notwithstanding the fact that the said appellant had admitted the, receipt of Rs,13,125 apart from Rs,2,00,000 as earnest, had directed the respondents Nos.1 and 2 to pay the said amount to the appellant.
10. So far as imposition of special costs is concerned, the learned counsel for the respondents has no objection if the said order is set aside. Learned counsel for the appellants has also tried to press issue No,7 pertaining to limitation. According to the learned counsel since the share of his clients in the consideration pertaining to the said eleven transactions had not been paid within the time stipulated i,e, 3-8-1988, the suit is barred by time. Agrument, to say least is preposterous. Limitation in a suit of the instant nature is governed by Article 113 of the Limitation Actand the suit having been filed on 27-7-1988 is well within time under any of the two parts of the said Article.
11. In view of the above discussion the findings of the trial Court on issues Nos.7 and 10 are upheld.
Findings on the other issues have not been questioned. The order of imposition of costs under section 35-A, of C.P.C. Is set aside on concession of the learned counsel for the respondents.
12. Regular First Appeal is accordingly dismissed leaving the parties to bear their own costs.