' AKHTAR ZAMAN MALGHANI, J.--- This regular first appeal is directed against the judgment and decree, dated 15-12-2000 passed by Civil Judge, Nushki whereby suit filed by the respondent for recovery of Rs.8,00,000 was decreed.
2. Briefly stated, facts of the case are that the respondent filed a suit for recovery of Rs.8,00,000 (Rupees eight lac) against the appellant wherein it was averred that he entered into sale agreement with the appellant in respect of a shop situated at Anam Bostan Road and owned by the appellant and according to the contents of written agreement, executed between the parties on 20-9-1999, rupees four, lac were paid by the respondent to the appellant at the time of execution of agreement whereas balance amount i.e, Rs.4,50,000 was to be paid by the respondent on or before 20-11-1999. It is the case of the respondent that out of balance amount Rs.4,00,000 (Rupees four lac) were paid by him and it was further agreed between the parties that the remaining amount would be paid at the time of transfer of title in the name of the plaintiff but in the meantime the shop in question was demolished by the Assistant Commissioner/S.D.M. After serving notice under section 133, Cr.P.C. Upon the tenants. According to the respondent as the appellant failed to perform his part of obligations as such, he has become entitled to the return of Rs.8,00,000 paid by him to the appellant or in alternative he be directed to hand over the vacant possession of the shop in dispute to the respondent and also transfer the title of the shop in his favour.
3. The appellant contested the suit on factual and legal grounds. However, admitted the execution of agreement and receipt of rupees of eight lac. His stand was that the contract between the parties was completed as the symbolic possession of the shop was handed over to the respondent whereupon he also received rent from the tenant in possession of the shop. Out of the pleadings of the parties, the following issues were framed:--
(1) Whether the suit is not maintainable in view of legal objections A to D?
(2) Whether the defendant has not performed the terms and conditions of agreement dated 20-9- 1999?
(3) Whether the possession of shop was handed over to plaintiff by defendant and is still in the possession of plaintiff?
(4) Whether the plaintiff is entitled for the relief claimed for?
(5) Relief?
4. The respondent/plaintiff produced two witnesses namely Abdul tziz and Muhammad Raza apart from statement of his attorney on oath, whereas appellant/defendant also produced two witnesses in addition to statement of his attorney. The learned Civil Judge after hearing the parties and evaluating the evidence on record, decreed the suit as prayed for.
5. We have heard the learned counsel for the parties and also gone through the impugned judgment. The learned counsel for the appellant contended that as soon as possession of the shop in dispute was delivered to the respondent the contract had been completed and nothing was left on the part of the parties to perform as such, on account of any subsequent event the respondent was not entitled to the return of rupees eight lac. According to the learned counsel the payment of four lac rupees allegedly paid after the execution of agreement was not proved as such, the respondent was not entitled to decree to the extent of such amount. He further contended that no findings on the issue of possession though specially framed, were given by the trial Court which has rendered the impugned judgment and decree liable to reverse.
6. On the other hand the learned counsel for plaintiff/respondent supported the judgment decree of the trial Court and urged that the execution of agreement was not denied by the appellant wherein receipt of the four lac rupees have been acknowledged and remaining amount of rupees four lac were paid through cheque whereas Rs.50,000 were agreed to be paid at the time of transfer of title which part the appellant failed to perform.. He also failed to deliver the possession and get clear his title in respect of the shop in dispute. He further contended that there was no misreading or non-reading on the part of trial Court warranting interference by this Court and all the issues were properly decided by the trial Court.
7. We have carefully considered the respective contentions put forth by the parties' learned counsel in the light of evidence on record. So far execution of agreement Exh.P.1/A is concerned, same has not been denied by the appellant. According to the terms of. Agreement Rs.4,00,000 were paid by the respondent at the time of execution of agreement and balance amount was to be paid upto 20-11-1999. It was further stipulated that till the final payment the possession would remain with the seller (appellant). The attorney of the appellant has also not denied the receipt of four lac rupees mentioned in the agreement and further rupees four lac as alleged by the respondent. According to him the sale consideration of the shop in question was fixed for Rs.8,50,000 out of which Rs. 5,000 were paid at the time of striking deal whereas Rs.3,95,000 paid at the time of execution of agreement. He also admitted further receipt of rupees four lac by the appellant which was in shape of traveller cheques. He further stated that Rs.50,000 were retained by Haji Raza as expenditure towards transfer of title, commission and rent of the shop. In view of admission of the attorney for the appellant regarding receipt of rupees eight lacs, the contention of the learned counsel that payment of Rs-4,00,000 was not proved, are unfounded and baseless.
8. The points for determination which require consideration by us are as to whether the plaintiff was entitled for the return and recovery of rupees eight lacs and whether the contract was complete in all its intents and purpose and on account of subsequent event the plaintiff was not entitled> to ask for return of the money paid towards sale consideration.
9. In order to appreciate the correct position of law we have to see what are the rights and obligations of the parties generally and specifically agreed upon. Rights and liabilities of buyer and seller have been provided in section 55 of the Transfer of Property Act, 1882. Subsection (2) lays down that the seller shall be deemed to contract with the buyer that interest which he transfers to buyer subsists and that he has power to transfer the same. An express covenant of title in the sale- deed or agreement is not necessary because such a covenant is implied in every sale according to this subsection. The legal effect of such a covenant is as follows:--
(i) The covenant imports an absolute warranty of title.
(ii) If a defect in the vender's title is discovered after sale was duty completed, the vendee is entitled to sue for damages and claim the return of purchase money, if he is dispossessed in consequence of his vendor's defective title.
(iii) The liability is, however, limited to the title which the vendor professed to transfer.
(iv) The covenant runs with the land. It is, therefore, enforceable by subsequent purchasers of the land.
10. Thus notwithstanding non-mentioning of obligations of the appellant to transfer the title in the name of the respondent, he was under legal obligation to transfer the title in his name, without which sale could not be said complete. Even the evidence produced by both the parties suggests that the appellant undertook to transfer the title in the name of respondent though with somewhat different stand. According to the statement of the witnesses and attorney of plaintiff, Rs.50,000 were returned till the transfer of title by the appellant whereas according to the stand of the appellant this amount was retained towards expenses to be incurred on the transfer of title etc. Thus, it could not be said that the sale transaction was completed between the parties even if it is presumed that the symbolic possession was handed over to the respondent.
11. Similarly, under section 56 of the Contract Act, a contract to do an act, which after the contract is made, become impossible, makes such contract or agreement void. In the instant case the appellant was under legal obligation to transfer the title to the respondent which not only he failed to do, but it has become impossible due to refusal of the Municipal Corporation to transfer the title in the name of the respondent as such, the agreement between the parties became void and under section 65 of the Contract Act, too, the respondent was entitled to claim return of the money which the appellant is bound to restore in the light of provisions of section 65 of the Contract Act, 1872.
12. So far the contention of the learned counsel about non-deciding the issue regarding possession is concerned, we may observe that the learned Civil Judge while deciding the issue No,1 has concluded that the symbolic possession was handed over but the title could not transferred due to demolition of the shop having been built illegally on the encroached land.
13. In the light of above discussion in our view the respondent was entitled-for the decree prayed for and the appeal filed by the appellant is devoid of merits, which is dismissed accordingly with no order as to costs.