1. ' On 3-7-1987, respondent No,1, filed a suit for possession through specific performance of the agreement of exchange dated 11-3-1984, between the parties; for the declaration about ownership of the disputed plot and in the alternate claimed damages to the tune of Rs,20,000. It is the case of the plaintiff/respondent No,1 that petitioner/ defendant through the aforesaid agreement, agreed to exchange his land measuring 1 Kanal and 10 Marlas, out of Khasra Nos.100 and 397 (described in the plaint), situated in Mouza Arki with the land measuring 1 Kanal and 10 Marlas, bearing Khasra No,455, belonging to the respondent No, 1 . Subsequently, the petitioner/defendant on the basis of same agreement sold such exchanged land of the plaintiff to respondent No,2, but did not abide by the agreement, to give the possession of his land to the phintiff. In addition to the enforcement of agreement, sale made by defendant No,1 in favour of defendant No,2 was also challenged.
2. Learned trial Court framed the following issues:--
(1) Whether the suit is not maintainable in its present form? OPD (Mian Saqib Nisar, J)
(2) Whether the plaintiff is estopped to sue? OPD
(3) Whether the suit is bad for misjoinder of causes of action? OPD
(4) Whether the impugned document is liable to be impounded? OPD
(5) Whether the plaintiff is entitled to the decree for specific performance of the contract dated 11- 3-1984? If so, on what terms, modes and conditions? OPP
(6) If Issue No,5, is not proved, whether the plaintiff is entitled to the declaration prayed for? OPP (6-A) If Issue No,6, is proved in affirmative, whether the impugned agreement is result of fraud, misrepresentation and as such is not enforceable? OPD
(7) Relief.
3. ' While discussing Issues Nos.5, 6 and 6-A, together, the learned trial Court came to the conclusion that plaintiff is entitled to the decree for specific performance of the agreement and thus on the basis of these findings, Issues Nos.6 and 6-A, were accordingly disposed of. Suit of the plaintiff/respondent No,1, was decreed for the specific performance, as prayed for. Against the above, petitioner preferred an appeal and the learned Appellate Court, vide judgment, dated 7-3- 1993, came to the conclusion that "From the pleadings of the parties it is clear that the plaintiff has sought the annulment of the sale-deed dated 11-3- 1984, in favour of defendant No,2". He also claimed Rs,20,000 as penalty from the defendant but the issues in this behalf, have not been framed, accordingly following two issues were framed by the Court, which are as under-- 6-B Whether the impugned sale-deed dated 11-3-1984, by defendant No,1, to defendant No,2 was illegal, void and inoperative on the Plaintiff's right?
4. 6-C Whether the plaintiff is entitled to get any penalty from the-defendant, if so, to what extent?
5. OPP ' After framing of the above issues, the learned Appellate Court concluded as follows:-- ' After addition of these issues, the file of the learned trial Court is remitted to it with the direction to record evidence of the parties on these issues, give its findings and return to this Court, with evidence recorded thereon together with its findings on its basis within a period of two months from today.
6. 'The proceedings in this appeal shall remain sine die. It be put up for further proceedings on the receipt of the record from the trial Court.
7. ' On account of the remand, the learned trial Court, after recording evidence, returned its findings on the above issues. Issue No,6-B was decided in favour of plaintiff and sale in favour of defendant No,2, was declared inoperative and illegal. On Issue No,6-C, a decree for compensation to tune of Rs,20,000 was awarded to the plaintiff. While hearing the appeal, after the findings of the trial Court on the aforesaid two issues, learned Additional District Judge, dismissed the appeal, holding that the finding of the Court below on Issues Nos.5, 6 and 6-A are valid. As regard Issue No,6-B, it was held as below:-- "As plaintiff succeeds to prove that he was entitled to the relief. Of specific performance of contract, so there is no need to discuss the alternative relief claimed by him for the annulment of the sale- deed in favour of defendant No,1 and for the recovery of penalty of Rs,20,000 from the defendant.
8. Resultantly, this appeal has no force and the same is hereby dismissed."
2. Learned counsel for the petitioner, by relying upon the cases, reported as Abdul Basir Khan and others v. Sanaur Rehman and others PLD 1994 Pesh. 197, Noor Rehman and others v. Muhammad Yousaf 2000 CLC 1138 and Muhammad Sadiq and another v. Abdul Aziz and another 1990 CLC 1387 argued that the agreement of sale of un-partitioned property, could not be enforced in the eyes of law.
3. I have heard the learned counsel for the parties and find that there is no dispute between them about the execution of the agreement of exchange dated 11-3-1984. This is also the concurrent finding of the learned Courts below that parties did enter into an agreement of exchange. On the basis of same agreement, the petitioner has already sold the land from Khasra No,100 in favour of Nasar Masih respondent No,2 vide sale-deed dated 11-3-1984, thus have acted upon the exchange, he cannot now back out from the agreement and refuse the performance of his part of the agreement by effecting the exchange in favour of the respondent No,1, with regard to the land pertaining to Khasra No,455 i,e, the subject-matter of the agreement of exchange, dated 11-3-1984.
9. The argument that unpartitioned land cannot be exchanged and the agreement in this behalf is void, suffice it to say that the judgments cited by the petitioner's counsel are extinguishable.
10. Moreover, once having taken the benefit and premium of the same agreement by alienating the land owned by the respondent No,1 the petitioner is estopped by his conduct from taking the plea of invalidity of the agreement.
11. ' In the light of above, the judgment and decree of the trial Court, regarding enforcement of agreement of exchange as mentioned above is upheld but to the extent of granting compensation to respondent No,1, for the amount of Rs,20,000 and declaring sale in favour of respondent No,2, is set aside and the decree is accordingly modified. This petition is, therefore, partly allowed.