' FAQIR MUHAMMAD KHOKHAR, J.--This appeal, by leave of the Court, is directed against judgment and decree dated 5-3-1999 passed by the Lahore High Court, Multan Bench in Regular Second Appeal No,380 of 1970.
2. The relevant facts of the case are that late Khair Muhammad (predecessor-in-interest of the respondents) instituted a civil suit for specific performance of agreement dated 16-8-1965 (Exh.P1).
He stated therein that late Fazal Muhammad had agreed to sell him the suit-land comprising Killa Nos.1 and 10 measuring 12 Kanals in consideration of Rs,7,600. A sum of Rs,1,500 was paid in advance and the remaining amount was payable in two months. Notwithstanding the said agreement, late Fazal Muhammad alienated the suit-land to late Sardar Muhammad (predecessso r-in-interest of the appellants) in consideration of Rs,7,500 vide registered sale-deed dated 19-8-1965 (Exh.D1). As an alternate relief, the grant of decree in the sum of Rs,3,000 was prayed for. The suit was contested by both the defendants who filed their separate written statements. The Administrative Civil Judge, Sahiwal, after framing the issues and recording evidence of the parties, decreed the suit by judgment and decree dated 14-5-1969. The Additional District Judge, by judgment and decree dated 24-1-1970 accepted the appeal of late Sardar Muhammad, set aside the decree dated 14-5-1969 and dismissed the civil suit for specific performance of the agreement. However, the Additional District Judge granted the alternate relief and decreed the suit for Rs,3,000 against late Fazal Muhammad. He recorded a finding of fact that the agreement to sell (Exh.P1) could not cover the entire suit-land measuring 12 Kanals of Killa Nos.1 and 10 as' late Fazal Muhammad was a co-sharer to the extent of 1/3rd share therein. The Regular Second Appeal No,380 of 1970 filed by late Khair Muhammad was allowed by the impugned judgment and decree dated 5-3-1999 by the Lahore High Court, Multan Bench. The judgment and decree dated 24-1-1970 of the First Appellate Court were set aside and of the trial Court for specific performance of agreement dated 16-8-1965 were restored, subject to the deposit of the balance amount of Rs,6,100 within a period of one month.
3. The learned counsel for the appellants argued that late Fazal Muhammad was not .In exclusive possession of Killa Nos. 1 (7 Kanals,
8. Marlas) and 10 (3 Kanals, 14 Marlas) but was a co-sharer to the extent of 1/3rd share therein vide Exh.P9. The trial Court as well as the Lahore High Court did not take a correct view in decreeing the suit of late Khair Muhammad (predecessor-in-interest of the respondents) for specific performance of the agreement to sell (Exh.P1). The learned counsel further argued that late Sardar Muhammad (predecessor-in-interest of the appellants) was a bona fide transferee of the suit-land for value who had categorically denied his notice or knowledge of prior agreement to sell in favour of late Khair Muhammad. Therefore, the onus of proving such notice had shifted upon late Khair Muhammad who failed to discharge the same. No adverse inference could be drawn merely on the ground that predecessor-in-interest of the appellants had failed to prove the execution by late Fazal Muhammad, of agreement to sell dated 6-8-1965 (Exh. D2) for the sale of land in his favour. The learned counsel relied on the cases of Mst.
Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC (Pak.) 9) and Mst. Mussarat Shaukat Ali v.
Mrs. Safia Khatoon and others (PLD 1994 SC 2189) in support of his submissions.
4. The learned counsel further submitted that late Khair Muhammad had himself claimed an alternate relief for a decree of Rs,3,000 against late Fazal Muhammad which had been rightly granted by the First Appellate Court. The learned counsel pointed out that late Fazal Muhammad and his successors-in-interest were deleted from the array of respondents by order dated 23-2- 1998 passed by the High Court in Civil Miscellaneous No,158-C of 1998 moved by the respondents themselves. It was lastly submitted that the agreement to sell dated 16-8-1965 (Exh.P1) was not specifically enforceable for the reason that partial performance of agreement was not permissible in view of the dictum of this Court in the case of Mrs. Anwara Chaudhary v. M. Majid and others (PLD 1964 SC 807).
5. On the other hand, the learned counsel for the respondents quite frankly stated that the respondents were not interested in seeking the relief of a decree for partial performance of agreement but for the entire suit-land. He submitted that the appellants had not impleaded the legal representatives of vendor late Fazal Muhammad in the present appeal. He raised an objection that the predecessor-in-interest of the appellants had not filed any cross-objections before the High Court in respect of adverse findings of the First Appellate Court as to his prior notice of agreement to sell dated 16-8-1965 (Exh.P1). Therefore, the appellants were precluded from agitating against the same before the High Court as well as before this Court. He relied on the cases of Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53), Province of Punjab and others v. Government Employees Cooperative Housing Society Limited, Lahore and others (1996 SCMR 1682) and Muhammad Afzal Khan and another v. Muhammad Latif and another (1995 CLC 1951 [AJ&K] SC). He stated that there were concurrent findings of fact by all the Courts on Issue No,4 that Sardar Muhammad, the predecessor-in-interest of the appellants, had the prior knowledge of agreement for the sale of the suit-land in favour of Khair Muhammad, the predecessor-in-interest of the respondents.
6. The learned counsel stated that the question of non-description of all the Killa numbers in the agreement to sell dated 16-8-1965 (Exh.P1) was just an insignificant omission. The vendor Fazal Muhammad had in fact agreed to sell his entire 12 Kanals of land being 1/3rd share of joint Khata of Square No,46 measuring 36 Kanals and 18 Marlas of land and not only Killa Nos.1 and 10 thereof.
Under section 29 of the Contract Act only such an agreement was void the meaning of which was not certain, or capable of being made certain. However where a reasonable meaning could be given to a contract, it was not void for uncertainty. The learned counsel relied on the case of Mian Zafar Iqbal and others v. Bashir Ahmad and others (PLD 1989 Lahore 152).
7. The learned counsel argued that a co-sharer was permitted to alienate specific Khasra numbers of a joint Khata if he was found to be in exclusive possession thereof. He relied on the case of Shaukat Ali v. Sikandar Hayat and others (1998 SCMR 1201). The learned counsel submitted that by virtue of the provisions of section 18 of the Specific Relief Act, 1877 and section 42 of the Transfer of Property Act, 1882 a vendee could compel a vendor to make good deficiency in a contract on acquisition, by the vendor, of any title or interest in the subject-matter of contract.
8. We have heard the learned counsel for the parties at length. Under Order XLI, Rule 22, C.P.C. a respondent who does not file an appeal or cross-objection against a part of a decree can nevertheless support the decree on any of the grounds decided against him by the Courts below.
In an appropriate case, an Appellate Court may allow a party, on consideration of justice, to support judgment and decree under appeal on a ground which has been found against him in that judgment and decree. In taking this view, we find support from the case of Syed Ziaul Hasan alias Thah Peer. v. The State (1998 SCMR 1582) in which the cases of Kanwal Nain and Muhammad Afzal Khan (supra) were considered. The Supreme Court of India also took a similar view in the cases of Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and others (AIR 1965 SC 669) and Tepfulo Nakhro Angami v. Shrimati Ravoluei alias Rani M. Shazia (AIR 1972 SC 43). The decree by the First Appellate Court was in favour of the predecessor-in-interest of the appellants. In the peculiar facts and circumstances of the case, it was not obligatory for him to file an appeal or cross- objections before the High aut. He could defend the decree of the First Appellate Court on all the grounds available to him.
9. As to the other objection, we find that the respondents themselves had moved Civil Miscellaneous No,158-C of 1998 for deleting the name of late Fazal Muhammad and for non- impleadment of his legal representatives in the appeal. The same was allowed by the High Court by order dated 23-2-1998. Therefore, the respondents cannot be permitted to turn around to raise the objection at this stage that the appellants had not impleaded the legal representatives of late Fazal Muhammad. In any case, the appellants have not sought any relief against the legal representatives of late Fazal Muhammad vendor.
10. The appellants had failed, to prove the execution of prior agreement to sell dated 6-8-1965 (Exh.D2) between late Fazal Muhammad and late Sardar Muhammad. The said agreement had not been mentioned in the subsequent registered sale-deed dated 19-8-1965 (Exh.D1). The same was, therefore, rightly excluded from consideration by all the Courts.
11. We do not find any ambiguity or uncertainty in the agreement to sell dated 16-8-1965 (Exh.P1) executed by late Fazal Muhammad in favour of Khair Muhammad (the predecessor-in-interest of respondents) for the sale of 12 Kanals of land bearing Killa Nos.1 and 10 out of joint Khata of 36 Kanals and 18 Marlas of Square No,46. However, Jamabandi for the year 1962-63 (Exh.P9) clearly shows that late Fazal Muhammad vendor was a co-sharer to the extent of 1/3rd in the said Killa Nos.1 and 10 measuring 11 Kanals and 12 Marlas. The agreement to sell did not encompass 1/3rd share of Fazal Muhammad of joint Khata of all the other Killa numbers of Square No,46. The agreement to sell dated 16-8-1965 (Exh. P1) was rightly construed by the First Appellate Court that late Fazal Muhammad was not proved to be in exclusive possession of whole of Killa Nos.1 and 10.
We do not agree with the view taken by the High Court that the terms of the agreement dated 16- 8-1965 (Exh.P1) were not certain and that late Fazal Muhammad had agreed to sell his entire holding in the Chak.
12. In his statement before the trial Court and also in written statement, late Sardar Muhammad (the predecessor-in-interest of the appellants) had categorically denied of having any prior knowledge of agreement to sell dated 16-8-1965 (Exh.P1). In paragraphs 3 and 5 of the plaint late Khair Muhammad had mentioned about the existence of knowledge of late Sardar Muhammad of the written agreement to sell dated 16-8-1965 (Exh.P1). But evidence adduced by Khair Muhammad tended to show as if late Sardar Muhammad had knowledge of another occasion of an oral transaction/ agreement to sell which was subsequently reduced into writing as Exh.P1. The evidence led by the predecessor-in-interest of respondents beyond the scope of the pleading was not permissible. The predecessor-in-interest of respondents, had failed to discharge the onus to prove the knowledge of late Sardar Muhammad of the agreement to sell dated 16-8-1965 (Exh.P1).
The protection of clause (b) of section 27 of the Specific Relief Act, 1877 was available to the predecessor-in-interest of the appellants who was transferee of the suit-land for value in good faith and without notice of any prior agreement to sell.
13. The impugned judgment and decree passed by the Lahore High Court in Regular Second Appeal No,380 of 1970 are not sustainable at law. The first Appellate Court rightly dismissed the civil suit for specific performance of agreement dated 16-8-1965 and decreed the suit against Fazal Muhammad for Rs,3,000 by keeping in view the facts and circumstances of the case.
14. For the foregoing reasons, this appeal is accepted. The impugned judgment and decree dated 5-3-1999 passed by the Lahore High Court are set aside. The judgment and decree dated 24-1- 1970 passed by the Additional District Judge, Sahiwal are restored. The parties are left to bear their own costs.