Poor D.1 Khan, petitioner/plaintiff filed suit for possession through specific performance of agreement, dated 14-3-1983 allegedly executed by defendants/respondents in his favour in respect of suit-land specifically mentioned in the heading of the plaint. The said suit was resisted by respondents/defendants by filing written statement. The learned trial Court after framing as many as 11 issues, recording pro and contra evidence of the parties passed partial decree vide judgment and decree, dated 20-10-1991 in favour of the petitioner/plaintiff to the extent of recovery of Rs.30,000 and the rest of the suit filed by the plaintiff/petitioner was dismissed. Feeling aggrieved of the said judgment and decree, respondent Muhammad Gul filed Appeal No.86/A/13 of 1995 in the Court of learned Additional District Judge, Mardan, which was dismissed vide judgment and decree, dated 14--12-1993. Being not satisfied with the judgments and decrees passed by the Courts below, the petitioner has filed revision petition in hand.
2. Mr. M. Javed Yousafzai, Advocate the learned counsel representing the petitioner argued that the petitioner/plaintiff had successfully proved the execution of sale agreement, dated 24-3-1983 Exh.
P.W.2/1. Zabta Khan P.W.2 and Darvesh P.W.3 marginal witnesses had also proved the contents of the said agreement and this fact was also affirmed by the Courts below. Muhammad Gul defendant/respondent No. 1 in cross-examination had also admitted having executed agreement Exh. P.W.2/1, therefore, decree for specific performance of the said agreement should have been passed in favour of petitioner/plaintiff.
3. It was also argued that even if the land in question was in the names of three brothers, the agreement could be specifically enforced to the extent of his share only. The petitioner had in the grounds of appeal taken up the plea that he was ready to relinquish his claim against his two brothers, who had executed the agreement but still the learned Appellate Court did not appreciate this legal position.
4. It was also argued that at the time of execution of agreement, the possession of the property in dispute was handed to the petitioner/plaintiff and he has been enjoying the possession of the same till date.
5. On the other hand Mr. Shahzad Gul, Advocate, the learned counsel representing the respondents argued that respondent No. 1/defendant No. 1 had never admitted the execution of agreement Exh.P.W.2/1.
6. It was also argued that the provisions of section 15 of the Specific Relief Act are not applicable to the case in hand. Moreover, there are concurrent findings of facts recorded by the Courts of competent jurisdiction, which need no interference by this Court.
7. I have heard the learned counsel for the parties and perused the record.
8. In order to prove his case the petitioner/plaintiff examined Jehanzeb, Patwari Halqa as P.W.I and placed on record various documents. Poo D.1 Khan plaintiff examined himself as P.W.2. Zoota Khan was examined as P.W.3 whereas Darvesh was examined as -P.W.4 (wrongly mentioned as P. Ws. 2 and 3). Zoota Khan and Darvesh are the marginal witnesses of sale agreement, dated 24-3-1983.
Exh. P.W.2/1. They stated that the said agreement was executed in their presence and they had thumb-impressed the same as marginal witnesses.
9. In rebuttal Muhammad Gul defendant No. 1 examined himself as D.W.1 whereas Ziarat Gul, defendant No.2 was examined as D.W.2. They denied having executed the deed Exh. P. W .2/ 1.
Through evidence available on record, the petitioner/plaintiff has successfully proved the execution of sale agreement Exh.P.W.2/1 through which land measuring 16 Kanals, 14 Marlas comprising Khasra Nos.413 and 414 situated at Mauza Shakar Tangi Katlang, Tehgil and District Mardan was agreed to be sold to the petitioner/plaintiff. The Courts below concurrently found that the said agreement Exh. P. W.2/ 1 was executed by and between the parties and that was the reason that the respondents/defendants were directed to refund/pay the received amount of Rs.30,000. The respondents/defendants did not tile any appeal or revision against the findings of the Courts below, therefore, the execution of the agreement Exh.P.W.2/1 stands proved. Now the question which needs determination in this case is as to whether, the agreement Exh.P.W.2/1 could be partly performed more specially when three brothers were joint owners of property out of which two brothers had not executed the said agreement. The answer to this question is in positive. As per section 15 of the specific Relief Act if a party to contract is unable to perform the whole of his part, the Court can direct party in default to perform specific portion or so much of the part of the contract as he can perform provided that the plaintiff relinquishes all claims to future performance, and all rights to compensation either for deficiency or for the loss of damages sustained by him through the default of defendant. In the case in hand, the respondent No. 1 who had executed agreement Exh.P.W.2/1 is co-owner/joint owner in Khasra No.413/414, he can perform the sale agreement to the extent of his share. The petitioner/plaintiff not only had relinquished his claim for further performance and all rights to compensation either for the deficiency or for the loss or damages sustained by him. The learned counsel representing the petitioner reiterated at the bar that the petitioner/plaintiff would not claim any compensation for the deficiency or the loss or damage caused to petitioner/plaintiff, therefore, while accepting the revision petition in hand I set aside the impugned judgments and decrees and passed decree in favour of the petitioner/plaintiff for specific performance of agreement, dated 24-3-1983 Exh.P.W.2/1 to the extent of respondent No.1/defendant No.1's share in Khasra Nos.413/414. The petitioner/plaintiff having relinquished his rights regarding compensation, shall not be entitled to any compensation for the deficiency or for the loss or damage sustained by him due to default of defendant sustainedNo.1. There shall, however, be no orders as to costs.