' Amanullah petitioner/plaintiff filed suit against Sher Afzal, respondent/defendant for specific performance of agreement dated 13-10-1985 regarding land measuring 9 Kanals fully described in the heading of the plaint situated at Chak Mardan Tehsil and District Mardan. In the alternative prayer for recovery of Rs,50,000 alongwith interest at the rate of 13% per annum from 13-10-1985 till payment was also made; permanent injunction restraining the respondent/defendant to alienate the suit property till the decision of the suit was also sought. The said suit was resisted by the respondent/defendant by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit for specific performance of agreement to sell on payment of remaining sale consideration of Rs,4,000 to respondent/defendant vide judgment and decree dated 27-5-1997. Feeling aggrieved with the said judgment and decree respondent/defendant filed Appeal No,33/13 of 1997 in the Court of learned District Judge, Mardan. The said appeal was partially accepted, the findings of the trial Court were modified and the petitioner/plaintiff was only granted decree for recovery of Rs,42,000 against the respondents/defendant with costs alongwith 13% per annum payable from 13-10-1985 till the payment of amount. The claim of petitioner/plaintiff with regard to specific performance of contract was, however, refused vide judgment and decree dated 23-10-1997. Being aggrieved with the said judgment and decree passed by the learned Appellate Court, petitioner has filed the revision petition in hand.
2. Mr. Jamal Shah, Advocate the learned counsel representing the petitioner argued thit agreement to sell was proved and both the Courts below have admitted the same to have been executed by and between the parties. The learned trial Court had while properly appreciating the evidence passed decree for specific performance in favor of petitioner/plaintiff but the learned Appellate Court failed to appreciate the legal position properly.
3. It was also argued that the petitioner was only non-suited by the Appellate Court on the ground that at the time of agreement.To sell was executed the respondent/defendant was not the owner of the property in dispute but it was admitted by the learned Appellate Court that the respondent/defendant became owner of the suit-land vide decree of the Court dated 27-3-1986, therefore, under section 18 of the Specific Relief Act, read with section 43 of the Transfer of Property Act, the petitioner/plaintiff was entitled for decree prayed for.
4. On the other hand Mr. Muhammad Habib Qureshi, learned counsel representing the respondents argued that the learned Appellate Court while properly appreciating the evidence on record had granted decree which was prayed for in the alternative by the petitioner himself, therefore, no illegality whatsoever was committed by the learned. Appellate Court.
5. It was also argued that the agreement to sell dated 13-10-1985 had not been proved by the petitioner/plaintiff. The witnesses produced by him admitted that no sale consideration or part thereof was paid by the petitioner to the respondent in their presence, therefore, the suit of the petitioner/plaintiff outrightly deserved dismissal but the Courts below have not appreciated this position properly.
6. I have heard the learned counsel for the parties and perused the record.
7. So far as the agreement to sell dated 13-10-1985 is concerned, the Courts below have concurrently held, the same to be correct and duly executed by and between the parties, The learned trial Court while admitting the said agreement to be correct had passed decree for specific performance in favor of petitioner/plaintiff on payment of Rs,4,000, remaining sale consideration to respondent/defendant within thirty days. The learned Appellate Court also had admitted that the agreement to sell in question was correct and it had held the petitioner/plaintiff entitled to receive Rs,42,000, the amount of major portion of sale consideration paid back from respondent/defendant. When the agreement to sell dated 13-10-1985 was proved to have been executed by and between the parties, then the petitioner/plaintiff was entitled to decree for specific performance. A similar question came up for consideration in Mst. Noor Jehan and others v. Muhammad Rafique and others (1995 CLC 43), wherein it was held:-- "Furthermore, section 20 of the Specific Relief Act, further provides that contract, otherwise proper to be specifically enforced, may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same. We find that the provisions of Specific Relief Act have got a vivid learning in favor of the respondents in this case because the appellants have not placed any evidence on record to prove to the satisfaction of the judicial conscience of this Court as to why the agreement should not be specifically enforced.
Similarly, we have not been satisfied by the appellants as to why we should exercise our discretion against the grant of specific performance of agreement and set aside the decree passed by the trial Court."
8. The argument of the learned counsel for the petitioner that petitioner/plaintiff was non-suited by the learned Appellate Court only on the question that on the date i,e, 13-10-1985 when agreement to sell was executed by the respondent/defendant. He was not owner of the property in dispute hence had committed illegality has a force in it. If the respondent/defendant was not owner of the property in dispute on 13-10-1985 when agreement to sell was executed by him in favor of petitioner/plaintiff and thereafter he acquired the title thereto, then as per section 18(a) of the Specific Relief Act, the purchaser could compel him to make good the contract out of the said interest, which he had acquired later on. Having acquired the title to the property in dispute on 27- 3-1986, the respondent/defendant was bound to perform the agreement executed by him, but the learned Appellate Court did not appreciate this legal aspect of the case.
' Keeping in view the above mentioned discussion, it can be safely held that the impugned judgment and decree passed by the learned trial Court was perfectly in accordance with law, whereas the learned Appellate Court failed to appreciate the legal position properly. I, therefore, allow the revision petition in hand, set aside the impugned judgment and decree of the Appellate Court and restore that of the trial Court with no orders as to costs.