' I intend to decide Regular Second Appeal No,46 of 1994 and Regular Second Appeal No, 47 of 1994 by one consolidate judgment having similar facts and law.
2. The brief facts out of which the present appeals arise are that Lot No,269 situated in Chak No,3 Rakh Mankera District Bhakkar measuring land 1200 Kanals which was allo.Ted to Nathu Khan son of Sher Muhammad Khan and his wife Mst. Rukia Begum by the competent Authority under the provisions of the T.D.A. Act, 1949. Nathu Khan and Mst. Rukia Begum executed an agreement to sell qua the land in question to Rao Aqeel Ahmad on 11-3-1986. The contents of the agreement to sell reveals that Nathu Khan and Mst. Rukia Begum had obtained Rs,2,00,000 from Rao ,Aqeel Ahmad as earnest money. The total consideration agreed between, the parties is amounting to Rs,3,00,000.
Rs,1,00,000 had to be paid to the original owners by Rao Aqeel Ahmad at the time of registration of the sale-deed in favour of him. The sale-deed had to be executed till 10th August, 1987. Allegedly Nathu Khan and Mst. Rukia Begum failed to execute the sale-deed in favour of Rao Aqeel Ahmad.
Rao Aqeel Ahmad being aggrieved filed a suit for specific performance before the Civil Judge Ist.
Class, Bakhar on 24-6-1987. The respondents/defendants filed written statement, 'controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues`:-
(1) Whether the suit is not maintainable? OPD
(2) Whether the plaintiff has no cause of action to bring the present suit? OPD
(3) Whether the defendants are entitled to special costs under section 35-A, C.P.C., if so to what extent? OPD
(4) Whether the defendants executed an agreement to sell in favour of the plaintiff in respect of disputed property for a consideration of Rs,3,00,000? OPP
(5) Whether the plaintiff paid Rs,2,00,000 towards consideration of the disputed property to the defendants? OPP (5-A) Whether the suit is not maintainable and cannot proceed under section 10, C.P.C. ? OPD (5-B) Whether the plaintiffs are stopped to bring the present suit by their act and conduct? OPD (5-C) Whether the plaintiffs have no cause of action to bring the present suit? OPD (5-D) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?
If so its effect? OPD (5-E) Whether the defendant is entitled to special cost under section 35-A, C.P.C.? If so to what extent? OPD (5-F) Whether an agreement to sell dated 11-3-1989 and receipt of consideration is fictitious, forged, without consideration, based on fraud, against law and facts and ineffective upon the rights of the plaintiffs? OPP
(6) Relief.
' The trial Court partly decreed the suit of Rao Aqeel Ahmad vide judgment and decree dated 29-9- 1992 to the extent of half of the land agreed between the parties through the aforesaid agreement to sell. The respondents being aggrieved filed appeal before the Additional District Judge, Bhakkar who modified the judgment and decree of the trial Court and dismissed the suit of Rao Aqeel Ahmad and respondents/defendants were directed to pay Rs,2,00,000 to Rao Aqeel Ahmad vide judgment and decree dated 5-7-1994. Both the parties being aggrieved filed aforesaid regular second appeals before this Court.
3. .Kanwar Hassan Ahmad, Advocate in Regular Second Appeal No,47 of 1994 submits that the learned First Appellate Court mis-interpreted the provisions of section 15 of the Specific Relief Act while dismissing the same. He further submits that learned First Appellate Court was erred in law to decide the case against the appellant and modified the decree passed in favour of the appellant in violation of the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:- ' M. Majid v. Mrs. Anwara Chowdhry and others. (PLD 1964 S.0 807), Haji Abdul Ghaffar v. Haji Rauf (1991 CLC 734) and Din Muhammad v. Bashir Ahmad and 5 others (1979 CLC 734).
' He further submits that decree can be passed in favour of the appellant in view of section 15 of the Specific Relief Act without impleading the other party. In support of his contention, he relied upon the case of Ghulam Nabi v. Kishen Chand Shivaldas (PLD 1950 Sindh 126). He further submits that suit can be decreed partly in view of section 15 of the Specific Relief Act. In support of his contention, he relied upon the case of Eskandar Ali v. Mst. Alhamra Begum and others (PLD 1969 Dacca 214).
' He further submits that section 102 C.P.C. Was amended in the year 1986 and the Additional District Judge had only jurisdiction to decide the cases of the value amounting to Rs,2,50,000 whereas in the present case the value of the suit is amounting to Rs,3,00,000, therefore, judgment of the First Appellate Court is without lawful authority. He further submits that amendment in section 102, C.P.C.
Was made by the competent Authority in Clause-b of section 102-b by Ordinance No,12 of 1972.
4. The learned counsel of the respondents submits that Trial Court was failed to decide the issue No,5-F with reasons and did not discuss the evidence on record. Whereas the learned First Appellate Court reversed the findings of the trial Court with content reasons. He further submits that First Appellate Court reversed the findings of the trial Court with cogent reasons as is evident from paras. 11 and 12 of the impugned judgment of the First Appellate Court. He further submits that First Appellate Court was erred in law to direct the respondents/defendants to repay Rs,2,00,000 to the present appellant 'which was not claimed by the appellant/plaintiff in the plaint. He further submits that First Appellate Court has jurisdiction to take cognizance of the matter and rightly entertained the appeal and decided the same. In support of his contention, he relied upon the case of Haji Gul and another v. Mst. Aisha (PLD 1973 Karachi 653). He further urges that part of the agreement to sell is void. The whole agreement to sell is void by virtue of section 24 of the Contract Act. He further submits that considerable part of the agreement to sell is not sustainable in the eyes of law than the whole agreement to sell be declared as void, in view of section 15 of the Specific Relief Act and the law laid down by the superior Courts. In support of his contention he relied upon the case of Sh. Allah Ditta v. Mst. Zainab Begum and 4 others (1993 C.L.C. 234). The learned counsel of the appellant in rebuttal submits that learned First Appellate Court decided issue No,5-F with cogent reasons which reveals that agreement to sell and receipt was declared valid by the Trial Court.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. First of all I would like to decide the first contention raised by the learned counsel of the appellant in Appeal No,47 of 1994 that appeal filed by the respondent before the First Appellate Court was not maintainable. The contention of the learned counsel of the appellant has no force, in view of the established principle laid down by the superior Courts to the effect that if the valuation fixed for the purposes of the Trial Court is not altered by the trial Court that valuation continues to be valuation for the purposes of the Appellate Court also, but if the valuation is changed by the trial Court then the valuation so changed is to be treated as valuation for the purposes of the appellate forum. In arriving to this conclusion, I am fortified by the following judgments:- ' Mumtaz Begum's case (PLD 1960 Lahore 1088), Muqarrab Khan's case (1993 MLD 2105).
' It is pertinent to mention here that in the present case, the valuation of the suit was changed by the trial Court as is evident from finding of the trial Court in issue No,5. Both the Courts below have given concurrent finding of.Fact to the following effect:-
(1) Nathu Khan executed agreement to sell in favour of Rao Aqeel Ahmad on behalf of himself and on behalf of his wife on 11-3-1986,
(2) Nathu Khan had no general or special power of attorney in his favour from his wife Mst. Rukia Begum.
' In view of the aforesaid circumstances, the question for determination for this Court whether the agreement to sell executed by Nathu Khan on behalf of himself with Rao Aqeel Ahmad is enforcible or not n view of section 15 of the Specific Relief Act, 1877. It is admitted fact that agreement to sell consists of two paras which are as follows:-
(1) Nathu Khan executed agreement to sell with Rao Aqeel Ahmad qua his land
(2) Nathu Khan executed agreement to sell on behalf of his wife Mst. Rukia Begum.
Mere reading the agreement to sell it contained legal part and illegal part. It is settled principle of law that if the legal part can be severed from the rest of the contract, it may be enforced. In arriving to this conclusion, I am fortified by the case of Gappoo Singh and another v. Har Charan and another (AIR 1935 Oudh 501) and Saundatti Yellama Municipality v. Shripadbhat Seshbhat Joshi and others (AIR 1933 Bombay 132). The Honourable Supreme Court has settled the aforesaid question of law in Razia Sultana' Bano's case (1993 SCMR 804). The relevant observation is reproduced here:-. "section 17 provides that as a rule specific performance of a contract should be granted in entirety and not in, parts. The essence of specific performance as laid down by this provision is that the Court will not order specific performance of a part of the agreement. However, the section itself provides three exceptions as contained in sections 14, 15 and 16. The appellant's claim in suit for specific performance is Only in respect of part of the land and not for the entire land for which Hassan Muhammad had agreed to sell. Therefore, the burden is upon the appellants to establish that their case fall within the ambit of anyone of the aforesaid sections. Sections 14 to 17 must be read together as they laid down the rules for granting specific performance of a contract. Section 14 provides that where a party is unable to perform whole of his part, but the unperformed part is in a small proportion to the whole in value and the party unable to perform admits of compensation in money, the specific performance of so much of the contract which can be performed by ordered and for the remaining unperformed compensation may be awarded. Section 15 relates to a situation where the unperformed part is larger than the part performed and for the unperformed part no compensation in money can be paid, then specific performance cannot be granted.
However, specific performance can be granted ' of such small part provided the plaintiff his claim to further performance including a claim for compensation for the deficiency or for the loss or damage sustained by him through the default of the defendant. Under section 16 if a part of the contract can and ought to be specifically performed stands on a separate and independent footing from another part of the contract, which cannot or ought not to be specifically performed, the Court may direct specific performance of such part of the contract which independent of the other part can be performed."
I am also fortified by the judgment of the Division Bench of this Court in Muhammad Din's case (1979 CLC 734). In view of what has been discussed above, the judgment of the trial Court is in accordance with law laid down by the superior Courts whereas the judgment of the First Appellate Court is contrary to the law laid down by the superior Courts. The judgment of the First Appellate Court is in violation of the law laid down by the superior Courts. This concept of jurisdiction and illegality had been considered by the Honourable Supreme court in Knawal Nain's case (PLD 1983 SC Sa) t.6 cover cases where decision on facts, is based on no evidence or inadmissible evidence or is so perverse with grave injustice viand result therefrom. Therefore, the First Appellate Court has committed material irregularity. This Court has ample jurisdiction to disturb the findings of fact in such situation as the principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case (1988 SCMR 851).
In view of what has been discussed above, this appeal is accepted with no order as to costs.
Resultantly, judgment of the First Appellate Court is set aside and the judgment of the Trial Court is upheld.