' This revision petition impugns the judgment and decree dated 20-10-1998 passed by the learned Additional District Judge, Hafizabad. By means of the impugned judgment and decree the decree dated 13-7-1995 passed by the learned Civil Judge, Hafizabad, was set aside and as a consequence the suit filed by Khadim Hussain petitioner (hereinafter referred to as the plaintiff) was. Dismissed.
2. The facts of this case are vehemently contested between the parties. The plaintiff claims that the defendants entered into an agreement to sell 4 Kanals, 16 Marlas of land situated in Chak Ghulla, Tehsil Hafizabad in favour of the plaintiff. This fact, however, is denied by the defendants. There is a receipt Exh.P.1 on the record, which has been signed by Hameed Ullah husband of defendant No,1 namely, Mst. Rasheda Khanum. The said receipt does not purport to have been executed in his capacity as attorney of his wife Mst. Rasheda Khanum or the defendant No,2 namely Mst. Siddiqa Khanum, who is the sister of defendant No,1.
3. It is evident from the evidence on record that the agreement in respect of 4 Kanals, 16 Marlas which allegedly was made orally has not been proved. It has been so held in the impugned judgment, which has considered the evidence on record and is well-reasoned. There, however, doe appear to be an agreement in respect of 1 Kanal out of the aforesaid 4 Kanals, 16 Marlas. This much also has been admitted in para. 2 of the written statement. Therein, it has been asserted that Hameed Ullah was the attorney of the defendants, but the agreement in respect of 4 Kanals was subjected to certain conditions, which had been set out in para. 2 of the written statement.
4. Learned counsel for the respondents has pointed out that the plaintiff was not entitled to any discretionary relief by way of specific performance, as he had earlier filed a-suit against the defendants to protect possession, which admittedly was adverse and not based on any agreement or other document of title. In this behalf he has referred to Exh.D.2, which is a copy of the plaint filed by the plaintiff in the earlier suit. I note therefrom that in the said plaint the plaintiff has asserted an agreement in respect of 1 Kanal of land only and not in respect of 4 Kanals, 16 Marlas.
5. In the above circumstances, I find that the plaintiff is at bestentitled to specific performance of an agreement in respect of 1 Kanal only for a consideration of Rs,15,000. The impugned decree is, therefore, modified. A decree in favour of the plaintiff is passed for 1 Kanal only. The said 1 Kanal is already in possession of the plaintiff.
6. The learned trial Court shall refund the balance amount of Rs,45,000 which had been deposited by die plaintiff pursuant to the decree in his favour passed by the learned trial Court.
7. It is pointed out by learned counsel for the plaintiff that the defendants/respondents have not paid court-fee of Rs,4,500 on the memo. Of appeal filed by them before the learned lower Appellate Court. The defendants/respondents are, therefore, directed to pay court-fee of Rs,4,500 on the memo. Of appeal within 30 days from today.
8. This revision petition succeeds partially in the above terms made is disposed of.