' Brief facts out of which present revision petition arises are that Plot No,6 measuring 1200 Kanals situated in Chak No,4, Rakh Haider Abad, Tehsil and District Bhakkar which was allotted under the Tubewell Sinking Scheme in the year 1953 to the following persons:--
(i) Ghulam Rasool, respondent No,1 measuring 5 Kanals.
(ii) Sardar Khan predecessor-in-interest of respondents Nos.2 to 6 measuring 5 Kanals, and
(iii) Hassan Din son of Muhammad Din, measuring 200 Kanals. The possession of the land in- question was delivered to them. It is pertinent to mention here that there is no dispute about the share of Hassan Din son of Muhammad Din in the present case.
2. Respondent No,1 executed an agreement to sell in favour of the petitioners on 28-8-1991, and received all the consideration. Respondent No,1 also executed an irrevocable general power of attorney in favour of respondent No,7 Ghulam Muhammad, who was authorised to make sure the performance of the agreement to sell executed between respondent No,1 and the petitioners. The possession of the land in-question was delivered to the petitioners. Similarly another agreement to sell was also executed by respondents Nos.2 to 6 successors-in-interest of Sardar Khan in favour of the petitioner in respect of qua their shares measuring 500 Kanals on 26-2-1992. Respondents Nos.2 to 6 also executed irrevocable general power of attorney in favour of Ghulam Muhammad- respondent No,7, to make sure the performance of the agreement to sell. The possession of the land was allegedly delivered to the petitioners. The respondents allegedly planned to alienate the land in-question to some one else and the petitioners being aggrieved, filed a suit for permanent injunction against the respondents Nos.1 to 7 alongwith application for temporary injunction before the Civil Judge 2nd Class, Bhakkar. The learned Civil Judge dismissed the application for temporary injunction and also rejected that plaint vide order dated 12-1-1993. The petitioners being aggrieved filed an appeal before the learned District Judge, Bhakkar, who also dismissed the same vide judgment and decree dated 24-5-1993. Hence, the present revision petition.
3. The learned counsel of the petitioners submits that till the confirmation of proprietary rights on the respondents/allottees, the petitioners were legally in position to file a suit for specific performance of the agreement to sell as observed by the learned Appellate Court and at present, they were entitled to seek the decree for permanent injunction restraining the respondents from transferring the property to any other person. In support of his contention, he relied upon a case "Mst. Akhtar Begum v. Mian Aziz and others (1985 SCMR 1617). He further submits that irrevocable general power of attorney executed by respondents Nos.1 to 6 in favour of respondent No,7 for consideration, therefore, the respondents Nos. 1 to 6 have no authority under the law to cancel irrevocable general power of attorney as is envisaged by section 202 of the Contract Act but this fact was not considered by both the Courts below in its true perspective. The judgments of both the Courts below are in violation of law laid down by the Superior Courts. In support of his contention, he relied upon the following judgments:- "M/s. Al-Farooq Builders v. Federation of Pakistan" (1992 CLC 2131).
"Syed Shafique Hussain v. Syed Abdul Qasim" (PLD 1979 Karachi 22).
He further submits that, both the Courts below were erred in jaw to declare the agreement executed between the respondents Nos'.1 to 6 in favour of the petitioners, as void in view of section 19 of Colonization Act. He further submits that section 19 of the Colonization of the Government Lands Act, does not debar respondents Nos.1 to 6 execute the agreement to sell with the petitioners.
He further submits that judgments of both the Courts below are in violation of law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- "Muhammad Iqbal and others v. Mirza Muhammad Hussain and others" (PLD 1986 SC 70,).
"Akhtar Ali and others V. Muhammad Hanif and others" (1989 SCMR 604).
"Ghulam Muhammad v. Maula Dad and 6 others" (1980 SCMR 314).
"Sher Muhammad Khan and others v. Ilam Din and others" (1994 SCMR 470).
' He further submits that proprietary rights of the petitioners should be protected by the Courts below in view of agreement executed between the petitioners and respondents. In support of his contention, he relied upon a case "Abdul Salam through Legal Heirs and 3 others v. District Collector, Muzaffargarh and 4 others" (2001 CLC 1673). He further submits that as observed by the First Appellate Court, the petitioners should be allowed to amend the plaint, therefore, the judgments of both the Courts below are not in accordance with law laid down by the superior Courts. In support of his contention, he relied upon a case "Mumtaz Hussain v. Faizullah and 5 others" (1999 YLR 981).
4. Learned counsel of the respondents submits that both the Courts below have given their concurrent findings of facts against the petitioners, therefore, the revision petition is not maintainable. He further submits that both the Courts below have decided the case against the petitioners in view of law laid down by the superior Courts. In supports of his contention, he relied upon the following judgments:-- "Allah Dad v. Mehr Khan and 2 others" (PLD 1992 Lah. 437).
"Nazar Muhammad and others v. Farid" (1986 MLD 2074).
' He further submits that agreement to sell was denied by the respondents and possession of the petitioners was not approved on the record, therefore, both the Courts below were justified that the suit for permanent injunction tiled by the petitioners was not competent. He summed up his arguments that agreement to sell executed between the parties is hit by section 19 of the Colonization of Government Lands Act, 1912.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. The observations of both the Courts below that permission from the Collector under section 19 of the Colonization of Government Lands Act is mandatory, has no force as per principle laid down by this Court in case Mubarik All v. Muhammad Anwar" (2000 .YLR 652). The aforesaid proposition of law is also supported by the following judgments:- "Mushtaq Hussain and others v. Mukhtar Ahmad" (1999 MLD 3384).
"Daulat Ali v Legal Heirs of Ahmad Ali" (PLD 2000 SC 792).
"Mst. Khann-ad-Din and others v. Government of Sindh and others" (2000 SCMR 1252).
' It is better and appropriate to reproduce the following operative part of the judgment of the First Appellate Court to resolve the controversy between the parties:- "They have brought a suit for perpetual injunction on the basis of the agreement to sell about a property that is still owned by the Provincial Government and the proprietary rights have not been conferred upon the respondents. So the learned trial Court rightly rejected the plaint and also dismissed the application for temporary injunction."
7. It is settled principle of law that agreement to sell does not create any vested right, therefore, both the Courts below are justified to reject the plaint of the petitioners as is envisaged by section 42 of the Specific Relief Act. In the case, even if it is admitted that respondents Nos.1 to 6 have transferred their land to the petitioners on the basis of agreement to sell executed between the parties, it will only to be presumed that the petitioners had stepped into shoes of the respondents.
They only promised to do so by way of another document, and if they refuse to do so, the suit for specific performance was the only remedy under the law. The petitioners have only remedy to file a suit for specific performance of the contract as is envisaged by section 18 of the Specific Relief Act.
The aforesaid proposition of law was considered by the Hon'ble Supreme Court in Mst. Ghulam Bibi's case (PLD 1985 SC 354) and relevant observation is 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."
' The Hon'ble 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.
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."
8. The aforesaid proposition of law is also supported by the following judgments of the Hon'ble Supreme Court in 'Subtain Fazli's case (PLD 1964 SC 337) Ahmad 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 vendor for the enforcement of the agreement but both the Courts below did not consider this aspect of the case. The Honourable Supreme Court has considered this proposition of law in Abdul Hameed's case (PLD 1962 SC 1) 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 2nd equitable so to do."
9. It is pertinent to mention here that the contents of the agreement to sell executed between the parties, reveal that respondents Nos.1 to 6 allegedly had received total consideration at the time of execution of the agreement to sell with the petitioners. This fact brings the case of the petitioners in the area of equity but both the Courts below did not consider this aspect of case at all. It is well- known maxim that Judge must wear all the law of country on the sleeves of his robe. It is also well- settled law that Court is empowered to grant such relief as justice of the case may demand and for the purpose of determining the relief asked for, the whole of the plaint must be 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.
10. 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 learned trial Court with the direction that suit for declaration with permanent injunction be treated as suit for specific performance with permission to the petitioners to amend the plaint accordingly subject to payment of Rs,10,000. The learned trial Court after receiving the amended pleadings from the parties, framing additional issue, opportunities of evidence to the parties, decide the suit in accordance with law and merit as a suit for specific performance. Since the controversy between the parties is pending adjudication, since 1993, therefore, trial Court shall decide the same as expeditiously as possible.
' The revision petition is allowed, with no order as to costs.