MANSOOR AHMAD, J.--- The present civil revision arises out of a judgment and decree dated 19.12.2000 passed by the Additional District Judge, Rawalpindi whereby the appeal filed by the petitioner was dismissed and the judgment and decree domed 15.6.1998 awarded by the Senior Civil Judge, Rawalpindi was upheld.
2. The plaintiff/petitioner filed a suit for specific performance of contract in respect of House No. DD-634/841-ACB situated in Jhanda Chichi, Rawalpindi. The suit was based on agreement to sell dated 18.12.1982 purported to have been executed on behalf of respondent No. 1 (Sufi Allah Ditta) for a consideration. of Rs.1,10,000,00/- out of which Rs.85,000/- was stated to have been paid. It was also pleaded that defendant No. 1 and defendants Nos. 3 to 5 executed a sale-deed, dated 15.12.1984 in favour of defendant No. 2 (Muhammad Khalil) and cancellation of sale-deed was also sought by the plaintiff/petitioner.
3. The suit was resisted by the defendants and inter alia it was pleaded that the agreement to sell was forged and fabricated. Defendant No. 2 was a bona fide purchaser without notice for consideration. The plaintiff was tenant in the house under defendant No. 1 and he was defaulter in the payment of rent. Further it was stated that defendant No. 1 was residing out of Pakistan and taking undue advantage of his absence, the plaintiff did not pay rent for the last More than five years. Consequently an ejectment application was filed by defendant No. 2 against the plaintiff in the Court of Rent Controller Rawalpindi Cantt. The receipt of a part of consideration was denied in the written statement and it was submitted that plaintiff has issued a cheque in the year 1982 for the payment of rent, which was dishonoured. Further that there were other co-owners of the house who were legally competent to sell the house of defendant No. 2.
4. From the pleadings of the parties the Trial Court settled the issues in the following terms:
(1) Whether agreement dated 18.12.1982 cannot be enforced by law? OPD
(2) Whether defendant No. 2 is bona fide purchaser for value without notice of the house in dispute? OPD
(3) Whether defendants are entitled to special costs under section 35-A of CPC? If so to what extent? OPD
(4) Whether the plaint is liable to be rejected u/O. VII, Rule 11, CPC? OPD
(5) Whether agreement dated 18.12.1982 was executed by defendant No. 1 in favour of the plaintiff and received earnest money? OPP
(6) Whether the plaintiff came into possession of disputed house as in part performance of agreement in question? OPP
(7) Whether plaintiff is entitled to specific performance of agreement dated 18.12.1982? If so, on what terms and conditions? OPP.
(8) Relief.
5. In support and rebuttal of above-mentioned issues the parties had produced oral as well as documentary evidence. After recording the evidence and completion of hearing of the case, the Trial Court vide its judgment and decree dated 1.3.1990 dismissed the suit. The petitioner preferred an appeal which was allowed by the Appellate Court and after framing two additional issues in the following terms remanded the case for decision afresh: (5-A) If issue No. 5 is proved in the affirmative, whether the plaintiff has performed his part of the contract? OPP (5-B) Whether the house in dispute was exclusively owned by the defendant No. 1? OPP and directed the Trial Court to record evidence on the issues and decide the suit afresh vide judgment dated 12.11.1992.
6. The Trial Court after recording the evidence on additional issues dismissed the suit of the plaintiff in ,respect of defendants. Nos. 2 to 5 and decreed against defendant No 1 to the extent of return of earnest money amounting to Rs. 85,000/- alongwith surcharge at the rate of 13% per annum from 18.12.1982 till its recovery.
7. The petitioner filed an appeal challenging the judgment and decree of the Trial Court which was dismissed by the Additional District Judge, Rawalpindi vide its judgment dated 19.12.2000. Being aggrieved from the judgment and decree of two Courts below the petitioner has preferred the present revision petition.
8. The petitioner who is a Senior Advocate has appeared himself and argued that two. Courts below have acted in utter disregard of law and facts of the case and that judgment suffers with material irregularity and inter alia raised the following contentions:
(i) That Exh.D1 was exhibited subject to objection and the objections were not disposed of by both the Courts. It was contended that D1 although a registered sale-deed but it was required to be proved by producing two marginal witnesses and in the absence of such proof it was not admissible in' evidence. In support 'of his contention case of Muhammad Sharif and others v. Mst.
Nazir-Begum, etc. (NLR 1984 SCJ 32) was relied.
(ii) That Exh.D1 was produced by Allah Ditta appearing as DW1 and its contents were clearly in conflict with Exh.P1, wherein Allah Ditta DW1 styled himself as exclusive owner of the property. The document Exh.D1 was required to be construed keeping in view the contents of Exh.P1. Accordingly learned counsel argued that both the Courts in construing these documents committed a material irregularity.
(iii) It was next contended that keeping in view the contents of Exh.P1, defendant No. 1 (Allah Ditta) was estopped to state that the property was co-owned by other persons and in this behalf reference was invited to Article 114 of the Qanun-e-Shahadat and reference was also made to case of 1991 M LD 344, 1990 M LD 112 Lahore, 1989 CLC 1547 Peshawar.
(iv) Further it was contended that the written statement was not signed by defendant No. 3 as such there was no pleading, on their behalf. Two Courts below have not adverted to this legal aspect of the case.
(v) It was argued that defendant Nos. 3 to 5 did not come forward to claim the ownership of the property and none of them appeared in the Court in support of their claim as such two Courts were not legally justified to hold them as co-owner.
(vi) That the exclusive ownership of defendant No. 1 was established and proved through Ex.P2 and P15 and two Courts below have misread these documents.
(vii) Lastly it was contended that the power-of-attorney Exh.D2 was not properly construed. There was no specific power given in the power-of-attorney by defendant No. 1 and defendant No. 3 to Ziaul Haq son of Soofi Allah Ditta to sign written statement. Therefore, no proper written statement on behalf of defendants Nos. 1 and 3 was before the Court. Case of Muhammad Mehrban v. Sadrud Din, etc. (1995 CLC 1541 SC (AJ&K)), case of Qadir Bakhsh, etc. v. Kh. Nizam-ud-Din, etc. (1997 SCM R 1267) was relied by the petitioner in support of his contention.
9. On the other learned counsel representing the respondents controverted the arguments of the petitioner and inter alia raised the following contentions:
(a) That Ex.2 to P15 are merely the record relating to payment of property tax and bills issued by Wapda for electricity. These documents per se do not prove that the property was exclusively owned by defendant No. 1 and these documents would not be construed as document proving the title or ownership of the property. Reference was made to a case 1986 M.L.D. 1 169.
(b) It was contended that even if one of the co-sharer agreed to the sale which according to the learned counsel even was not proved, in such like cases the rights of other co-sharer could not be militated and the agreement to sell could not hind other co-owner and the specific performance of the agreement to sell for the entire property was not tenable qua defendants Nos. 2 to 5 thus it was rightly refused. Reference was made to a case of Mrs. Anwara Choudhary v. M. Majid and others (PLD 1964 SC 807).
(c) It was submitted that partial specific performance of the contract is not tenable particularly when there was no divisibility of contract. Support for this contention was sought from the case of Wali v. Manak Ali (PLD 1965 SC 651) and Abdul Aziz Sahib v. M. Abdul Sammad Sahib, etc. (AIR 1937 Madras 596).
Lastly it was submitted that failure to sign written statement on behalf of one or two defendants was not fatal and it has not caused any prejudice to the plaintiff. Reliance was placed to case of Ismail and another v. Mst. Razia Begum, etc. (1987 SCM R 687)..
10. I have considered the arguments advanced by the parties and perused the second. Issue No. 5 was whetter agreement dated 18.12.1982 was executed by defendant No. 1 in favour of the plaintiff on receipt of earnest money. The. Trial Court after appraising and analyzing the evidence on record reached to the conclusion that the agreement to sell dated 18.12.1982 was executed by defendant No. 1 and he received earnest money amounting to Rs.85,000/-. The judgment rendered by the Trial Court was not assailed by defendants through an appeal or cross-objections, therefore, it had attained finality. Therefore, one of the stepping stone for getting a decree of specific performance of the agreement was established.
11-, But the journey of the specific performance in the completion of the right in the form of a decree is faced with the stumbling block through Ex.D1 which is registered sale-deed dated 29.1.1963. It is proved that a plot of land whereupon the property was later constructed was sold by one Ch. Walayat Khan in favour of (1) Soofi Allah Ditta (2) Khudadad and Muhammad Ahmad sons of Abdul Ghani. This title deed shows that defendant No. 1 was not the exclusive owner of the property. On the contrary his two other brothers were also co-owners and agreement to sell could only be confined to the extent of the share of Soofi Allah Ditta one of the brother. The right and title of the other brother under agreement to sell could not be acquired by the plaintiff under an agreement to sell which was found to have been executed only by one of the co-sharer enjoying his title of right to the extent of 1/3rd share of the property. The documents Ex.P2 to P5 comprised of a notice- and payment- of property tax in respect of the house in question to the Cantonment Board. These documents merely shows that the property in question was entered in the name of Allah Ditta. Similarly Ex.P6 to P15 are electricity bill issued by the Rawalpindi Electric Power Company and the Wapda. Although these shows the name of Allah Ditta but these are merely entries made by the Cantonment Board, Wapda for the purpose of taxation and installation of electric meter in the name of defendant No. 1. The permanent title of other could not be rebutted by these tax receipts and bill. Entries in various public department for collateral purposes like property tax and the electric connection bills etc. are not the substantive proof of the title. They merely furnish corroboratory evidence. These documents merely shows that the name of Allah Ditta defendant No. 1 was entered as owners for the purpose of property tax. ' Neither these documents are sufficient to 'rebut the title of the other co-owners nor these could be construed as documents of 'title. These entries may have the presumption of correctness but these are rebuttable presumption which are sufficiently rebutted by Ex.D1, the sale-deed showing title of two other brothers. Therefore, the exclusive title of Allah' Ditta in respect of suit property is not proved.
11. Admittedly the other co-owners of the property were not privy to the agreement to sell dated 18.12.1982, therefore, it was not binding upon them and their rights to the property could not be made subject to agreement to sell. The question which directly flows from these established facts is whether in such a case where the agreement to sell is by one of the co-owners, the entire property could be made subject-matter of the specific performance in agreement to sell by one of the co-owners logically and legally the answer is in the negative. The right and ownership of the other co-sharer cannot be made subject and subservient to the agreement to sell by one of the co-owner. I accordingly hold that this agreement is ineffective to the extent of the right and share of the other co-sharer in the property.
12. The plaintiff/petitioner contended that as the agreement to sell dated 18.12.1982 was proved, the specific performance of the agreement to the extent of the share of defendant No, 1 was his legal rights and two Courts- below were not legally justified to decline this relief to the petitioner. On considering the facts-and circumstances of the case I find that the suit property is a residential house constructed on a plot of land measuring 48 ft. x 24 ft. It is not a divisible property and the agreement to sell is also not,divisible. Construing it for the purpose of specific performance it would not be possible to clearly ascertain as to which part of property belonged to defendant No. 1 as 1/3rd share. Therefore, the agreement to sell is incapable of defining with reasonable certainty the specified portion of the property thus it is not specifically enforcible. As the majority of the share in the property was not subject-matter of sale, therefore, it would be to the disadvantage of other co- sharer and it would cause serious prejudice to their rights. Accordingly I hold that the specific performance of the agreement to sell even to the extent of share of Allah Ditta, defendant No. 1 is neither possible nor it would be in-consonance with the principle of equity. The relief of specific performance is discretionary and it is also be viewed from the principle of equity and even in the case where the Court reaches to the conclusion that specific performance of a contract would not advance the cause of justice rather than it would defy principle of equity, the Courts have the discretion to decline the relief. in the present case I am of the view that the ground of specific relief even to the extent of 1/3rd share of Allah Dittawould defy the, principle of equity, therefore, two 'Courts below have rightly held that the plaintiff/petitioner is only entitled to the refund of Rs.
85,000/- which he paid as an earnest money alongwith the payment of surcharge.
15. I now take-up the contentions and pleas raised by the petitioner. Firstly dealing with the plea that Ex.D1 was required to be proved by producing two marginal witness is not tenable. Ex.D1 is a registered sale-deed which was executed on 29.1.1963. It is a registered document and it is a public document Within the contemplation of the Article 85(5) of the Qanun-e-Shahadat. This document was not a questioned document, therefore, it could be produced by producing, the certified copies of the same. At the time 'of raising objections the petitioner has not clearly spelled out the nature of his objection in particular. Even before this Court the petitioner objected tot his document merely on the ground that because two marginal witnesses were not produced, therefore, the document was not proved according to law. I am afraid this. objection of the learned counsel is not tenable.
The questioned document is one which is challenged on the very first occasion on the ground that it is false, fabricated and forged. Even today this was not the objection of the petitioner to the document. The objection related to mode of proof is not sustainable because under Article 76 of the Qanun-e-Shahadat, the certified copy of a public document is admissible which is not a questioned document. Therefore, the objection of the petitioner is repelled and argument that the two Courts below have not Properly appreciated the document and the law is devoid of any force.
16. The next argument of the petitioner that defendants Nos.1 and 3 did not sign the written statement is technical in nature. It is admitted fact that the written statement was filed by other defendants. The written statement filed by the counsel on behalf of the defendants is neither disowned by either of the defendant nor there is any such circumstance existing on the record.
Mere lack of signature on behalf of two defendants would not make the written statement redundant. The objection of the petitioner being technical is accordingly repelled. Similarly the plea of the petitioner that defendants Nos. 3 to 5 did not come forward to claim any right of the property is not of any substance for the reason that they have already alienated their rights in favour of defendant No. 2 before filing the suit and defendant No. 2 who has stepped into the shoes not only signed the written statement but has contested a suit all through. Therefore, defendants Nos. 3 to 5 were not required to come forward and claim their right in the property. After alienation the rights in the property were claimed by defendant No. 2. Therefore, precedents cited by the petitioner are distinguishable on the facts and circumstances of those cases.
In view of my finding hereinbefore 1 do not find any material irregularity or legal infirmity in the judgment of the two Courts below, accordingly the revision petition is dismissed.