' This civil revision assails the judgment and decree dated 3-12-2001 passed by the Additional District Judge Bhakkar, whereby appeal of respondent No,1 was accepted and suit by the petitioner was dismissed reversing the judgment and decree dated 4-4-2002 passed by the Civil Judge, Mankera.
2. A short factual background of the case is that the petitioner filed a suit for specific performance of an agreement to sell dated 30-8-1988 whereby Karim Nawaz respondent No,1 and four others who are his relations entered into an agreement to sell their allotted land under Chashma-eBiraj Scheme for an amount of Rs,5 lacs through their attorney Soofi Amir Abdullah (respondent No,2), who is father of respondent No,1, as well. Both these documents, agreement to sell in favour of the petitioner and power-of-attorney in favour of respondent No,2 were registered on 30-8-1988 and 8-4-1984, respectively. The petitioner claimed in his plaint that possession of the land allotted to respondent No,1 was given to him under the agreement to sell which he has not only developed by expanding a huge amount but has also paid the instalments. Under the allotment to respondent No,1. Respondents being defendants in the suit resisted it by denying the execution of both the documents i.e, agreement to sell and the power-ofattorney. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned trial Judge who was seized of the matter, on the basis of his appraisal of evidence decreed the:suit of the petitioner vide his judgment and decree dated 4-4-2000.
3. Respondent No,1 aggrieved of the decision of the trial Court filed an appeal before the Additional District Judge, Bhakkar where he succeeded as his appeal was accepted on 3-12-2001 and the suit of the petitioner was dismissed mainly on the ground that the petitioner is not entitled to get specific performance of the agreement to sell, as he has not asked for performance of the agreement against the other four vendors. The petitioner has now come up in revisional jurisdiction of this Court for setting aside the appellate judgment and decree, above referred.
4. Learned counsel for the petitioner submits that though the other vendors with respondent are his family members who were granted entitlement certificates regarding their allotments on different times and their allotments were made on different occasions thus, the suit by the petitioner was not bad for part performance. He further contends that the petitioner has not relinquished any part of the allotment in favour of respondent No,1 and thus he could not have been non-suited. Learned counsel for the petitioner further elaborates his submissions by saying that the petitioner had proved due execution of power-ofattorney in favour of respondent No,2, father of respondent No,1 and agreement to sell in favour of the petitioner. He further elaborates his submissions by saying that both these documents are registered and respondents at no stage since 1980 have claimed or complained those documents to be forged or fictitious. He also adds that though suit of the petitioner was not bad for part performance yet it is permissible under the provisions of section 16 of the Specific Relief Act and thus maintained that judgments and decrees, impugned are not sustainable.
5. Learned counsel for the respondents has not only refuting submissions of the petitioner but besides supporting the judgment and decree of the Appellate Court, has urged that land mentioned in power-of-attorney in favour of respondent No,2 is different from the one mentioned in the plaint of the petitioner and in this manner his suit has rightly been dismissed by the Appellate Court. Learned counsel for the respondent further argues that allotment to respondent No,1 was made in 1993 whereas, the suit was filed on 17-9-1997 on the basis of an agreement to sell dated 30-8-1988 which on the' ace of it is barred by limitation. He further contends that in view of provisions of section 17 of the Specific Relief Act a part performance of an agreement is not permissible. According to him the petitioner should not be permitted to pick and choose and since, the agreement was joint, part performance of it, is not permitted under law.
6. I have anxiously considered the arguments of the learned counsel for the parties an have examined the record. Petitioner in order to prove execution of agreement to sell and receipt whereby price of the land was paid to respondent No,2, has produced two witnesses namely Sher Muhammad and Muhammad Naseem and both of them have signed these two documents as marginal witnesses P.W.2 Muhammad Naseem while appearing in the witness-box categorically proved execution of Exh.P.l and deposed that the petitioner paid an amount of Rs,5 lakhs in his presence, as well as, Sher Muhammad, the other witnesses, to respondent No,2. Similarly P.W.3 Sher Muhammad materially supported the stance of the petitioner and proved execution of the agreement to self and receipt above referred. Petitioner also produced Muhammad Hafeez Khan P.W.1, scribe of these documents who verified agreement to sell before the Sub-Registrar, Mianwali.
This witness also scribed a special powerof-attorney executed on behalf of respondent No,2 in favour of the petitioner for the purpose of completing allotment process in favour of respondent No, 1 . Petitioner himself appeared as P.W.4 and materially corroborated averments in the plaint.
Against the evidence of the petitioner respondent No,1 .Appeared as D.W.1 and produced Muhammad Tahir Sultan as D.W.2. He denied execution of agreement to sell but admitted power- ofattorney in favour of respondent No,2. Respondent No,1 also deposed that till 1988 no allotment in his favour was made whereas D.W.2 simply deposed that land in question is being cultivated by the tenant of respondent No,l.
7. Petitioner has successfully proved execution of agreement to sell, receipt regarding payment of earnest money and special power-of-attorney by respondent No,2 in his favour. Respondent No,1 while appearing as his own witness admitted that his father respondent No,2 as his general- attorney. Both these documents, i.e, powerof-attorney in favour of respondent No,2 and agreement to sell in favour of the petitioner, are registered documents, and were not challenged or reported to be false or fake. Respondents did not have any criminal case registered against the petitioner for the alleged forgery on their behalf and simple assertion of forgery of this document in the statement, is not enough to wipe of impact of the registered documents which have otherwise been proved to have been executed, as detailed above. Respondent No,1 has not produced an iota of evidence in support of his stance in the written statement. There is no explanation of any kind as to how all these documents came into being, two decades back. Possession of the land allotted to respondent No,1 is with the petitioner and has so been recorded in the Revenue Record in form of Khasra Girdawari and Jamabandi. The petitioner has produced receipts showing deposit of entitlements regarding allotment in favour of respondent No,1. Then there is another document Exh.P.15 which is a copy of daily diary of the Patwari concerned showing that the petitioner took over possession of the land after allotment in favour of respondent No,1 and thus I am clear that the petitioner has successfully proved the transaction in question, agreement to sell and payment of price as claimed by him in his plaint.
8. Allotment in favour of respondent No,1 is not joint with the other co-vendors, as is evident from Exh.P.13. Allotment in question of 100 Kanals of land in the name of Karim Nawaz Khan is Exh.P.12, which was exclusively in his name. All the five vendors, on whose behalf respondent No,2 agreed to sell their allotted land, were given entitlement certificates on different occasions. Price of lot of each vendor is mentioned as Rs,1 lac each in the receipt (Exh.P.3). Now under section 17 of the Specific Relief Act, 1877 it is provided that part performance of a contract cannot be allowed except in cases mentioned in sections 14, 15 and 16 of this Act. Section 16 of the Specific Relief Act reads as under:-- "Section 16. Specific performance of independent part of contract.---When a part of a contract which taken by itself, can ought to be specifically performed, stand on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part."
9. From the language of provisions of law above produced, it is clear that in the situation of the case, like the one in hand, part performance is permissible, because it provides that if the contract is severable then specific performance may be granted for that part which ought to be performed.
Besides it, I find that agreement of the petitioner with each of the vendor is independent because their allotment took place on different occasions and all these stands on a separate and independent footing from one and another part of the agreement so it cannot be said that decree passed by the trial Court were in part performance of the agreement.
10. I have examined the power-ofattorney in favour of respondent No,2 which clearly confers power on the attorney to have allotment in the names of the vendors and whereafter it is allotted the attorney was bestowed with the authority to alienate it in view of language of the power-of- attorney Exh.P.1. I find no worth in the arguments of the learned counsel for the petitioner that the land mentioned in the power-of-attorney is different from the one mentioned in the suit of the petitioner. Respondent No, l's allotment matured in 1993 and he gave details of the land allotted in his plaint and it being correct the petitioner could not have been non-suited on such a baseless assertion.
11. Learned counsel for the petitioner has rightly pointed out that suit for specific performance could have been filed only after finalization of allotment in favour of the vendors who were given land under Chashma Biraj Scheme on different occasion and at the time when the suit in hand was filed, other allotment had not matured. The petitioner being in possession of the land in dispute was only to file suit on denial of respondent their liability to perform their part of contract and thus suit which contains an assertion of refusal by the respondents to perform their part of contract, only three months prior to the institution of the suit cannot be said to be barred by limitation.
12. For what has been discussed above, I find that the Appellate Court had not properly comprehended the dispute between the parties and did not advert to the relevant provision of law and thus returned the judgment and decree which not only, run counter to the evidence on the file but being opposed to the law applicable or tainted with material illegality and irregularity and thus are not sustainable at law. I accordingly, accept this revision petition, set aside the judgment and decree dated 3-12-2001 passed by the Additional District Judge, Bhakkar and hold that the judgment and decree dated 4-4-2000 passed by the Civil Judge, Bhakkar shall stand revived and will hold the field. Suit of the petitioner stands decreed, in terms of the judgment and decree passed by the Civil Judge, Mankera on 4-4-2000. There will be no order as to costs.