GULZAR AHMED, J.--- By this revision application, the applicant have challenged the judgment and decree dated 13.5.1999 of the learned 1st Additional District Judge, Khairpur by which Civil Appeal No. 61/1991 filed by the applicants was dismissed and the judgment and decree of the Trial Court by which the applicants suit was dismissed was ' maintained.
2. The facts of the matter are that the applicants had filed Suit No. 96 of 1984 before the Trial Court for declaration, specific performance of contract and permanent injunction against the respondents alleging therein that the respondent No. 1, has purchased agricultural land bearing.
Survey Nos. 222, 223, 232, 233, 234, 245, 246, 247 and 248 and an area measuring 42 acres out of UA No. 442 total area measuring 62-26 acres bearing lot No. 10 situated in Deh Dadu Taluka Nara in the year 1967 in the open auction from the Barrage Department at the rate of Rs.575/- per acre w.e.f. Kharif 1968-69 and Form "A" No. 127, dated 18.5.1968 was issued in favour of the respondent No. 1.
Respondents Nos. 1 and 2 are the real brothers and the respondent No. 2, has been managing the affairs of the respondent No. 1 pertaining to the suit land since the time of purchase. Respondent.
No. 1, in consultation with the respondent No. 2, agreed to sell the land measuring 43 acres in favour of the applicants and 19-26 acres in favour of the applicant No. 4 an agreement dated 25.3.1970 was signed and executed between the applicant No. 1, on behalf of all the applicants as purchaser and the respondent No. 1, as vendor. The applicant No. 1, paid consideration amount of Rs.9006-12- 0 in full and final satisfaction and original "A" form was handed over to the applicants and also the possession of the Lind was delivered to the applicants. The applicants after obtaining possession have brought the land under cultivation by making huge investment. It was further alleged that the respondents Nos. 1 and 2 had agreed that the land, will be transferred in favour of the applicants according to their respective shares and in this respect registered sale-deed will be executed or statement of transfer will be made before the authorities concerned. It was further alleged that the amount of installment to the paid to the Government was being recovered by the respondent No. 1 from the applicants and the applicants remained under the impression that the same is being deposited regularly. It is further alleged that the respondent No. 1 become dishonest and did not deposit the amount of installment with the authorities concerned resulting in cancellation of the land w.e.f. 1972-73 vide order dated 9.4.1973. Respondent No. 1, applied for regrant of land in 1976 which was allowed on 11.10.1976 subject to payment of instalments with penal interest. The respondent No. 1 did not inform the applicants regarding cancellation of the land nor did the respondent No. 1, inform the applicants about the order dated 11.10.1976. Respondent No. 1 filed an application before the Board of Revenue for re-grant Of the land and report was sought from the barrage authorities. At this stage, the applicants learnt about the fraud committed by the respondent No. 1 with them and they filed an application before the Colonization Officer, Sukkur Barrage informing about their rights iii the suit land. Pursuant to the application of the applicant, the Additional Commissioner Sukkur Division vide order dated 2.7.1981 allowed re-grant of the land in favour of the respondent No. 1, the applicant filed a review application before the Additional Commissioner but the same was rejected on 14.7.1981 with advise to seek remedy from the competent authority. The review petition of the applicants before the Board of Revenue was also rejected on 16.4.1984. It is further alleged that during the pendency of the Revision before the Board of Revenue applicants deposited entire price of the land with the Government. It is alleged that the respondent No. 1, refused to sign and execute a registered sale-deed in favour of the. Applicants or to have the land transferred by way of recording statement before the Barrage Mukhtiar kar. The applicants have further alleged that certain "faisla" was made wherein the claim of the applicants were recognized. On these basis the suit was filed. Respondent No. 1 contested the suit who filed his written statement and denied that any agreement was ever executed or any sale consideration was received by him from the applicants. He stated that the agreement is forged. He has further stated that the possession of the land was never handed over to the applicants of the land ever been developed. He further stated that the brother of the applicant No. 1, was "Hari" of Survey 245-E and he had bad eyes on the suit land from very beginning and has concocted a document. He has stated that the possession of the land is with him. He has further stated that the instalments of the land were deposited by him from his own source. The applicants claim to the authorities for the re- grant of the land to them failed. With regard the allegations of deposit of price by the applicants, the respondent No. 1 stated that it has not been done at his behest and no right is created in the suit land in favour of the applicants. The alleged "faisla" were also denied. Additional plea was taken that the suit was not maintainable in law and is bad for mis-joinder and non-joinder of necessary party and is also time-barred.
3. The Trial Court framed as many 10 issues and applicants produced evidence of its witnesses. No evidence was recorded from the side of the respondents and accordingly their side was closed.
After hearing the arguments of the Advocate of the parties, Trial Court gave its judgment dated 30.4.1991 in which it decided only Issue No. 7. Regarding the maintainability of the suit and found the suit is not maintainable and dismissed the same. The applicants preferred appeal against the judgment and decree of the Trial Court which was dismissed by the impugned judgment.
4. Mr. A.M. Mubeen Khan, learned counsel for the applicants has contended that both the Trial Court as well as the Appellate Court have given the findings that the suit of the applicants was not maintainable by relying upon clause,8 of conditions of grant contained in Form "A" and Section 19 of the Colonization of Government Land (Punjab) Act, 1912. He has argued that such finding of both the Courts below is illegal as the agreement by which respondent No.1, has agreed to sell the land in question to the applicants is not covered nor is hit by the said clause 8 or Section 19 of the said Act as agreement was merely an agreement to sell with stipulation that sale-deed will be registered after price of the land is paid to the Government.
5. Mr. Qalandar Bux Phulpoto, learned counsel for the respondents Nos. 1 and 2 has contended that the question whether the suit is maintainable or not has become of secondary issue because the Appellate Court has considered all the issues framed by the Trial Court and has given the findings that the respondent No. 1 did not sign the agreement nor there is evidence of payment of consideration of Rs.9,006-1 2-0 by the applicants to the respondent No. 1 nor the possession of the suit land was delivered to the applicant No. 1. On its face, the argument appear to be correct but it losses significant in the wake of applicant's challenging the other findings of the Appellate Court regarding existence of agreement, payment of sale consideration and delivery of possession therefor the determination of the question regarding maintainability of the suit is to be dealt with.
Learned counsel for the applicants has referred to clause 8 of the condition of grant of land contained in Form "A" and has stated that such clause provides that the grantee or his heirs, executors and assignee may not without permission in writing of the Revenue Officer/Collector lease, mortgage, sale or otherwise however, encumber the land granted or any portion thereof before all the amount due on such land on account of occupancy price and interest thereon shall have been paid. Learned counsel has also referred to Section 19 of the Act which provides that except as provided in Section 17, none of the right or interest vested in a tenant by or under the Government Tenant (Punjab) Act, 1893 or this Act, shall, without consent in writing of the Commissioner or of such Officer as he may be written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract other then a sublease for not more than one year in the case of a tenant who has not acquired a right of occupancy, any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has possession, he shall be ejected under the orders of the Collectors. Learned counsel has argued that the respondent No. 1 has merely entered into an agreement for sale of the land to the applicants which does not amount to actual sale and is not hit by either clause 8 of the condition of transfer contained in Form ' A' or Section 19 of the said Act. He has stated that such question was considered in the case of Muhammad Sadique v.
Muhammad Ramzan (2002 SCM R 1821), wherein the Honourable Supreme Court at page 1832 has observed as follows:- "This is settled law that the title of the property cannot be conferred to a third person by the allottee of the Government land without obtaining the proprietary rights due to the prohibition contained in Section 19 of the Act of 1912 and the sale in either form would not be validated till the acquisition of proprietary rights by the vendor. The value of each sale-deed executed in favour of the respondents was less than rupees 100 and was not required to be registered, therefore, the same at the time of execution would acquire the status of contract of sale which would be enforceable as a legal document for the purpose of establishing the title on the acquisition of proprietary rights by the vendor. This Court in the case of Muhammad Iqbal v. Muhammad Hussain (PLD 1986 S.C. 70) observed as under:- "It was held by this Court in paragraph 12 of its judgment in that case that a contract of this kind was not violative of the provisions of Section 19 of the Colonization of Government Lands Act, 1912.
Paragraph No. 12 may be reproduced here for facility of reference:- "On the facts of the case we are clear that the document was merely an agreement to sell the specific performance of which was postponed to a date when the grantees had acquired the proprietary rights. Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and an effort on the part of the contracting parties to keep themselves well; within the confines of the law and to act in accordance with the requirements of the law. Such an agreement to sell cannot be said ,to be violative of either the express provisions of Section 19 of the ct or of the public policy behind such a statutory provisions.
We respectfully follow the above-noted view taken by a learned Full Bench of this Court and hold that the oral agreement of sale by Ghulam Rasool in favour of Mirza Muhammad Hussain (respondent No. 1) is not hit by the provisions of Section 19 of the aforesaid Act. It may be mentioned that the same view has been taken in Mina Muhammad Ahmad Beg v. Mirza Amjad Beg, Ghulam Muhammad V. Lakha Singh and Mst. Khurshid Begum v. Inam Rabbani on which the High Court has relied while delivering the impugned judgment."
I have examined the agreement and find that it is an agreement to sell with stipulation of registration of sale-deed on payment of all Government dues.
6. On the basis of above observation of the Honourable Supreme Court of Pakistan, I find that the findings of the two Courts below regarding non-maintainability of the suit on the basis that condition 8 of Form ' A' and Section 19 of the Colonization of Govt. Lands (Punjab) Act, 1912 did not confer the right on the respondent No. 1, to sign and execute the agreement of sale was not based on correct application of law as has been laid down by the Hon'ble Supreme Court of Pakistan.
7. It was next argued by Mr. A.M. Mobeen Khan that the applicants have produced evidence and the statement of Arbab All the applicant No. 1 that the respondent No. 1 has entered into agreement to self with him in the year 1970 and Rs.9,006-12 was paid to the respondent No. 1 as per agreement and the original document of land and possession were handed over by the respondent No. 1 to the applicant No. 1 was not challenged in the cross-examination and in this view of the matter the assertion of the applicants regarding making of an agreement to sell payment of consideration and handing over of original documents and possession of land stands admitted. He has stated that the agreement was produced by this witness as Exh.44 and the original grant order was produced by this witness as Exh.45. He has further contended that no evidence in rebuttal was produced by the respondents Nos. I and 2. Mr. Kalander Bux Phulpoto learned counsel for the respondents has contended that no agreement as alleged by the applicants exists as the agreement does not contain the names of the applicants 2 to 4 but only of applicant No. 1 and further it also does not contain the name of the respondent-No. 2, but only of respondent No. 1. He has further argued that as alleged in the plaint, there is no document showing shares of the applicants in the suit land and that the agreement has not been proved. He has further contended that in prayer clause 1, the applicants have sought declaration against the order dated 16.4.1984 and 14.7.1981 passed by the respondents Nos. 3 and 4 respectively as illegal but no such order has been produced by the applicants and this prayer cannot be granted. He has stated that the respondent No. 1, in his written statement has labelled the agreement to be forged.
8. 1 have considered these arguments and have gone through the evidence. The applicant No. 1, in his evidence has specifically made allegation regarding the execution of the agreement by the respondent No. 1 in his favour and has produced such agreement as Exh.44. The agreement is signed by the respondent No. 1 as Vendor and is witnessed by Muhammad Mithal and Sobharo. In the said agreement it is mentioned that the suit land has been agreed to be sold by the respondent No. 1, to the applicant No. And payment of Rs.9006-12-0 is acknowledged. The agreement provides that further instalments of Government land price would be paid by the applicant No. 1, who will also be liable for payment of fine and interests. The agreement also provides that original Form ' A' has been delivered to the applicant No. 1 and possession of the land has also been delivered and responsibility for payment of land revenue would be that of applicant No. 1. On final payment of Government land price, sale-deed will be signed and executed.
Applicants have produced both the attesting witness of the agreement namely, Muhammad Mithal and Sobharo and both have stated that respondent No. 1 has signed the agreement in their presence and have admitted their own signatures on the agreement as witnesses Article 79 of Qanun-e-Shahadat Order, 1984 is as follows:- "79. Proof of execution of document required by law to be attested.-- If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it ,shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
9. The condition prescribed by the law for proving the attested document stands fulfilled as both the attesting witnesses have been produced and they admitted execution of the agreement in their presence by the respondent No. i. Thus the agreement Exh.44 stood proved. The Appellate Court has held the agreement to be not valid on the ground that it was not signed by the applicant No. 1 and thus there was no acceptance by applicant No. 1 to constitute an agreement. In my view this finding of the Appellate Court is based on misunderstanding of law in this regard and non- appreciation of evidence on the record. The execution of the agreement stands proved and its terms and condition itself amply demonstrate that the agreement stood accepted by the applicant No. 1. Besides Section 53-A of the Transfer of Property Act, 1882 is as follows:- [53-A. Part performance.-- Where any person contract to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transfer or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right In respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof........"
The above provision requires signing of contract of transfer of immovable property only by the transferer or on his behalf. There is no requirement of law that it should also be signed by the purchaser. Further the labelling of the agreement as forgery in the written ,statement of the respondent No. 1 was not enough as the written statement is not evidence in law. Reference in this respect is made to the case of Mrs. Rahat A.I v. Dr. Saeeda Rehman (2002 CLC 96) wherein it was held that the plea raised in the written statement without supporting evidence cannot be considered as a proof. Besides the agreement stands proved by the applicants. In this view of the matter, I am of the view that the Appellate Court has made serious error of law in giving the finding that the agreement was not valid. The applicant's plea of paying of consideration of Rs.9006-12 and handing over of possession of land and delivery of original form ' A' has also gone unchallenged and no evidence in rebuttal has been led by the respondents Nos. 1 and 2.
Respondents Nos. 1 and 2 have failed to explain as how applicants came in possession of original Form "A". The applicant No. 1, in his evidence has stated that he has been paying the land revenue of the suit land and has produced 41 original land revenue receipts as Exh.46/1 to 46/41. He has also produced 22 copies of Khasra girdwari and number Shumari as Exb.47/1 to Exh.47/20 and the original Ijazatnama and sketch as Exh.48 and 49. The applicant No. 1 in his evidence has stated that he has paid instalments to the respondent No. 1 who deposited the same and later on he learnt that the respondent No. 1 has not deposited the amount but has misappropriated the same and the land was cancelled and filed application for regrant of the land. In the cross-examination the applicant No. 1, stated that he has paid Rs. 40,000/- to the respondent No. 1 in two and half years before the cancellation of grant of land. No evidence in rebuttal has been produced by the respondents nor there is any specific cross-examination of the applicant No. 1, on these points. The irresistible conclusion of the above state of evidence is that the respondent No. 1, did enter into an agreement with the applicant No. 1 and has received sale consideration of Rs.9006-12/- and has handed over the possession of the land and original document of grant to the applicant No. 1, and that the applicant No. 1 has paid instalments for deposit of price of the land with the Government to the respondent No. 1. The findings of the Appellate Court on these matters are based upon misreading of evidence.
As regard the point that applicants have not filed copies of orders which they have prayed to be declared illegal in prayer No. 1 of their suit, it may be mentioned that the applicant by virtue of agreement to sell in their favour had no right to be heard by respondents Nos. 3 to 5 as on their record the land was in the name of applicant No. 1 and the matter being of civil nature. Revenue Authorities were not competent to decide the same and applicants only remedy was to approach Civil Court. From the plaint it appears that the Additional Commissioner in his order dated 14.7.1981 has made observation that matter is of civil nature. Neither order of the Revenue Authorities have been produced nor it is argued that such orders bars the applicants from claiming of relief of specific performance of agreement which they have claimed in the suit.
10. The Trial Court has not decided the case on merits but has dismissed the suit on the point of law that the suit was not maintainable. The Appellate Court has however considered all the issues and while deciding them against the applicants has agreed with the Trial Court on the point of maintainability of the suit. The question of maintainability of suit has already been adverted to and it is found that the suit was maintainable. The other findings recorded by the Appellate Court have been considered and found them to be based on misreading and non-reading of evidence and by not applying proper law to the facts and circumstances of the case which has led to giving of judgment which in law cannot be sustained being based on wrongful exercise of jurisdiction. It is settled law that Court has jurisdiction to decide the case rightly and has no jurisdiction to decide wrongly. Reference is made to the case of Utility Stores Corporation of Pakistan v. Punjab Labour Appellate Tribunal (PLD 1987 S.C. 447).
11. Applicants in prayer clause 2 have sought the following relief:- "2.-- That a decree for specific performance of the contractor may kindly be passed directing the defendant No. 1 to execute registered sale-deed of the land in suit in favour of the plaintiffs according to the shares as mentioned above, after obtaining the T.O. Form in his favour and getting the khata changed in his favour."
It has not come in evidence that respondent No. 1 has paid full price of the land to the Government thus it appears that respondent No. 1 right to alienate the land to the applicants has not matured.
In any case, under the agreement the respondent No. 1 is liable to deposit the price of the land with the Government on receipt of the same from the applicants . Applicant No. 1 has said in his evidence that he has paid to the respondent Rs. 40,000/- in two and half years for depositing instalments of price of the land with the Government. It has not come in evidence as to what was the actual price of the land which was to be deposited with the Government. Whatever the actual, price of the land is, the same has to be paid by the applicants and deposited with Government through respondent No. 1.
12. Thus this revision application is allowed and the judgment and decree of the Trial Court as well as of the Appellate Court are set aside and applicants suit is decreed as per prayer clause 2 quoted above. The applicants shall pay the price of the land payable by them to the respondent No. 1 who shall deposit the same with the Government or appropriate it to himself if he has, paid full price to the Government. Respondent No. 1 is directed to sign, execute and register the sale-deed of the land measuring 43 acres in favour of applicants Nos. 1 to 3 and land measuring 19-26 acres in favour of legal heirs of Saheb Khan named in the title of this revision application. The applicants shall pay the price of the land to the respondent No. 1 under proper written receipt within thirty days of this judgment and the respondent No. 1 shall sign, execute and register the sale-deed in favour of the applicants within further thirty days of receipt of payment of price of land from the applicants. There shall however be no order as to costs.