On 23-8-1990 the appellant tiled a suit against the respondents. In the plaint it was stated that respondent No,1 was an oustee of Islamabad Capital and was issued a permit on 28-12-1980 for allotment of alternate land.On 22-3-1982 respondent No,1 entered into an agreement with the appellant whereunder he received a such of Rs,1,50,000 from him vide receipt of an even date and also executed a general power of attorney in his favour and got the same registered. The effect of the three documents was that the appellant was to get the allotment of land, to obtain the possession. to pay the Government dues. According to the appellant, acting under the said agreement and the power of attorney, he got the land allotted and ultimately proprietary rights were conferred upon respondent No, 1 vide sale-deed dated 8-11-1989. However, instead of transferring the land to the appellant as promised, respondent No,1 proceeded to sell the land to respondent No,2 vide Mutations Nos, 1364 and 1365 attested on 7-2-1990. With these averments a decree for a specific performance of the said agreement was sought. In his written statement respondent No,1 proceeded to state that since the appellant did not take any steps to get the land allotted or to get the proprietary rights conferred, he cancelled the power of attorney on 29-10- 1990. The other allegations were not denied. However, it was objected that the agreement is void.
Receipt of consideration was also denied. Respondent No,2 in his written statement denied the said allegations. raised the same objection and claimed himself to be a bona fide purchaser. Issues were framed. Evidence of the parties was recorded. The learned Trial Court decreed the suit vide judgment and decree dated 21-12-1992. A first appeal was filed by the respondents which was heard by a learned Additional District Judge, Jhang who allowed the same and dismissed the suit filed by the appellant on 30-4-1997.
2. Learned counsel for the appellant contends that the findings recorded by the learned Additional District Judge that the agreement was void is a result of material irregularity in the exercise of his jurisdiction by the learned Additional District Judge. Further complains that the evidence has been misread and the entire matter has not been decided, including the effect of the payment proved to have been made by the appellant to respondent No,l. Learned counsel for respondent No,1, on the other hand, supports the impugned judgment and decree of the learned Additional District Judge by stating that otherwise as well the agreement or the general power of attorney had not been proved.
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. I find that the appeal was allowed at an early' stage by the learned Additional District Judge on the ground that the evidence had not been recorded on oath. The case was remanded back. The remand order was challenged by filing Civil Revision No,1297 of 1996 in this Court which was allowed on 3-7-1996 and the learned Additional District Judge was directed to decide the appeal on merits. I further find that the learned Additional District Judge has decided on the entire appeal and has reversed the findings of the learned Trial Court on the other issues by concluding that the agreement was void as it was for sale of the permit. He has relied upon a judgment in the case of Maulvi Abdul Aziz Khan v. Nawabzada Sarfraz Ali and others (1985 SCM R 98) and Ch. Nasrullah Khan v. Muhammad Ramzan and others (1991 C.L.C. 104). In the former case the agreement was for the sale of units against a claim for evacuee property while in the latter case it was of course a case of sale agreement by an Islamabad oustee. In my humble opinion the facts and circumstances of the present case do not attract the dictum laid down in the said two judgments. In the first mentioned case the Honourable Supreme Court held that sale of units would not be tantamount to sale of land ultimately allotted against the units. In the latter case this Court found as a fact that the agreement to sell had not been proved and it was further found that at the time the agreement was entered into the allotment stood cancelled.
4. In the present case, on the other hand, there is a finding recorded by the learned Trial Court that the agreement was executed. There is no denial of the execution of the power of attorney. There is a finding that the consideration was paid. This is prima facie a case of an agency coupled with interest which makes the agency irrevocable in terms of section 202 of the Contract Act. 1872. The agreement Exh.P.1 narrates that an entitlement permit for allotment of 21/2 acres of land stands issued by the C.D.A. against which the land is to be allotted in District Jhang and for this purpose all the efforts will be put in by the appellant and all expenses will be borne by him and the said land has been agreed to be sold for Rs,1,50,000 and the land will be transferred after the conferment of proprietary rights. On the same date power of attorney Exh.P.2 was executed conferring powers on the appellant with reference to the said agreement undertaking that the power of attorney will be irrevocable. Thus the matter has to be decided with reference to the entire evidence in the case.
The learned Additional District Judge has not taken care to read the entire evidence. He has avoided to discuss the other issues by simply stating that since the agreement is void, other issues have become redundant. The impugned judgment, therefore, decides nothing in this view of the matter. I have no option but to order a rehearing of the first appeal and a fresh decision on all the matters as reflected by the issues by the learned Court of first appeal which is the last Court of fact.
This Regular Second Appeal accordingly is allowed. The impugned judgment and decree dated 30-4-1997 of learned Additional District Judge, Jhang is set aside. The result would be that the first appeal tiled by the respondents shall be deemed to be pending before the learned District Judge.
Jhang where the parties shall appear on 30-5-2002. The learned District Judge shall requisition the records and thereafter proceed to decide the entire appeal on its merits in the light of the evidence on record. No orders as to costs.