Sahib Gul and others Vs Soucha Gul and Others

v T

(JUDICIAL

Sahib Gul & 03 others

Petitioners.

V/s

Soucha Gul & others.

ti)' Respondents.

For the Petitioners: Mr ur Rehman, Advocate.

For the Respondents: Mr ul Hafeez, Advocate Date of hearing:

Date of Announcement:

,.. I

SYED ARSHAD ALI. J- Gul, the respondent No.l/plaintiff on 26.04.2004 had fi a suit bearing No. 291l1 Neem of 2004 seeking therein a decree for declaration, permanent injunction and sPeci peiformance of agreement dated 03.03.200 L' ("Agreement'). is averred in the Plaint that the suit property belonged to the gal heirs of Mian Gul, who are defendants No. 1 to 4 and intervention of defendant No.5 Muhammad Yousaf, t was executed between the parties wherein the Price of per marla was fixed as Rs.

19,000/- and total sale cons of the entire land was fixed 5f' as Rs. 1,520,0001-. An amount Rs. 210,000/- was Paid upfront and later Rs. 450,000/- paid to defendant No.5 for onward payment to defendant o.4, who is the mother of defendants No. 1 to 3. An of Rs. 50,000/- was Paid to defendant No.1 Sahib Gul before target date i.e. 04.11 .2001 and thus the total amount of 710,000/- was Paid. Since $i lrJ'irl-iJ' defendants No. 1 to 3 were in criminal case, therefore, when theY were the plaintiff had requested

them for execution of the deed but no avail. The plaintiff has funher averred that he obtained of the disputed property and had also installed Ice factory on the same which was in running condi and had also obtained electricity'elephone connections the said Ice factory.

2.Defendants No. 1 to contested the suit through their written statement and denied the execution of any deed between the parties. Defendant o.5 who had allegedly brokered the execution of between the parties filed separate written statement he has confirmed the execution of the Agreement the parties and payment of part of sale consideration. The learned trial Court from divergent pleadings had framed ous issues, however, the essential issue before the Court was tion of Agreement.

3.The bone of between the parties is the execution of Agreement. was produced before the Court as Ex.PW.5ll and to the Agreement, it was executed on behalf of legal heirs Mian Gul, namely, Niaz Gul, Sahib Gul, Nawaz Khan Mst. Khybaro through Muhammad Yousaf son of Haji Said Khan. According to Agreement, Muhammad Yousaf had undertaken that he represents all the owners and the e consideration was fixed as Rs. 19,000/- per marla and the consideration was Rs.

1,520,000/-. Muhammad Yousaf acknowledged receiPt of 4 an amount of Rs. 210,000/- as amount of Rs. 550,000/- was money whereas an by or before 05.04.2001 and the remaining amount was le within eight months i.e by 04.11.2001. The Plaintiff in ofhis case has produced the following evidence.

Multan Khan P Halqa appeared before the Court as PW-01 and has the revenue record in the form of Jamabandi for the Year, 2001-2002 and 2005-2006 (Ex.PW.lll & Ex.PW.ll4). ln he has also

produced Goshwara Milkiat (Ex .Il3 & Ex.PW.l/5) of the owner of the property Noorul Amin Khan Assistant of the PESCO appeared before the Court PW-02, who produced the relevant record relating to obtaining of electricity connection by the plaintiff for which he had ed on 19.03.2001 and accordingly the electricity was to the premises.

Hafeezullah Senior lerk Town-IV, Peshawar appeared before the Court as PW This witness has produced a licence which was issued in of the plaintiff for establishing Ice factory by the Government and exhibited as Ex.PW.3ll and Ex.PW.3/2. The licence was renewed over period of time on annual basis.

Muhammad Aslam S visional Officer PTCL appeared before the Court as who has produced the relevant record whereby a tel connection was connected to the premises and exhibited as .41t.

Fazal Hussain one of marginal witness of the Agreement appeared before the as PW-05, who in his testimony has confirmed the of the Agreement, the part payment of sale consideration transfer of possession to the plaintiff.

Azeemullah is witness of the Agreement, {- who appeared before the Court as PW-06 and has also confirmed the contents of the Hazrat Nabi appeared the Court as PW-07. This witness has confirmed the of an amount of Rs. 50,000/- to defendant No.l Sahi Gul, however, in cross- examination he has confirmed in this regard there is no documentary evidence.

Haji Munawar Khan s the other witness of the said transaction who appeared be the Court as PW-08.

Soucha Gul, the plaintiff himself appeared before the Court as PW-09 and supported the contents of the plaint, Agreement and part payment of the sale consideration.

The deed writer Mukhtiar Ali appeared before the Court as PW-10 and has stated that he scribed the Agreement which was produced in the Court as EX.PW.5/l. Nawaz Khan one of the legal heirs of Mian Gul appeared before the Court as DW-01 and stated that they had constructed a boundary wall around the disputed properfy measuring 02 kanal for the last twenty years and had also installed a saw machine. However, they were booked in a criminal case FIR No. 43 dated 18.01 .200I and later they were allowed bail by the High Court. During the said period, the property was given on rent to the plaintiff, however, later he had denied the title of the plaintiff over the suit property. He has denied execution of any Agreement between the parties, however, in his cross-examination, he has confirmed that the plaintiff is in possession of the property and he has installed an Ice factory on it. The defendants in support of their claim have also produced Hayat (DW-02) and one Taj Muhammad (DW- 03), who have supported the statement of defendant No.l regarding the installation of saw machine in the suit property and renting it to the plaintiff.

4.The perusal of the aforesaid evidence would show that defendants No. 1 to 4 are owners of the property and their 4d' possession is recorded in the column of cultivation. The Agreement was executed on behalf of defendants No. 1 to 4 by Muhammad Yousaf, who has also received part of the sale consideration. However, the crucial evidence in this case is the transfer of possession of the suit property to the plaintiff, installation/establishment of Ice factory by the plaintiff in the suit premises which at the relevant time was in running condition. However, the Agreement is neither signed by

defendants No. I to 4 nor there is any evidence which could suggest that Muhammad Yousaf had paid the part of sale consideration to defendant No. I to 4. Much reliance of the plaintiff beside oral evidence is on Section 53-A of the Transfer of Property Act, 1882 that pursuant to Agreement the plaintiff had obtained possession of the suit property. There is no evidence on record that the defendants have raised any objection nor has filed any criminal proceedings against the plaintiff for usurping their property. Though defendant No.l while appearing in the Court has stated that the suit property was given on rent to the plaintiff when they were released by this Court on bail, however, this plea/evidence is beyond pleading because it was never asserted in the written statement that the plaintiff is in possession of the suit property being their tenant, therefore, this evidence is not worth consideration being beyond the pleading. Grant of specific enforcement of an agreement to sell pertaining to an immovable property has always remained a discretionary relief and even in the cases where the agreement to sell was established before the Court, the Court may refuse to allow the relief of specific performance of agreement on equitable consideration. Farzand Ali and another vs. Khuda h and others (PLD 2015 Supreme Court 157). However, the Court is not denuded of the authority to consider the conduct of parties to the agreement and the balance of convenience and inconvenience of the parties while adjudicating the enforceability of an agreement, subject-matter 4' of the lis.

5.The close perusal of the entire evidence would show that though Agreement was not signed by defendants No. I to 4 but the other facts and circumstances of the case more particularly the transfer of possession of the suit property to the plaintiff, installation of Ice factory, obtaining of electricity connection etc would clearly show that the said transaction was

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though executed by Muhammad Yousaf but with the approval of defendants No. I to 4. Even the plaintiff was able to establish the part payment to defendant No.1 by producing two marginal witnesses, namely, Fazal Hussain & Azeemullah. In such a circumstances, non-signing of Agreement by defendants No. 1 to 4 is of no consequence when the plaintiff was able to establish 'consensus ad idem' between the parties being the basic inherit element relating to execution of Agreement. There is clarity regarding the disputed property and its consideration. Messrs Jamol Jute Baling & Co., Dacco vs. Messrs M. Sarkies & Sons, Dacca (PLD 1971 Supreme Court 784). This Court is conscious of the fact that admittedly, the plaintiff had not paid the entire sale consideration within the stipulated period nor even during proceedings before the Court has opted to deposit the said amount in the Court in order to exhibit his willingness to perform the Agreement, however, the evidence would show that the plaintiff has invested huge amount of money by installing an Ice factory in the premises. This fact is even admitted by the defendants in their evidence, however, there is no concrete evidence regarding the quantum of investment, however, one fact is very clear that the plaintiff is in permissive possession of the disputed property and running his business on the same. During the said period when the plaintiff was installing Ice factory in the premises, the defendants have never objected to it. Both the courts below while appreciating the evidence has held that the evidence < produced by the plaintiff inspires confidence and thus have decreed the suit in favour of the plaintiff. This Court in its limited jurisdiction has very less jurisdiction to interfere in the said findings.

6.The learned courts below have passed a conditional decree in favour of the plaintiff by directing him to pay the balance amount of Rs. 810,000/-, however, in my

humble understanding, the said direction requires liure bit interference. The Agreement was executed in the year, z00r, therefore, the consideration fixed in the year, zoor which remained unpaid till date is not reasonable because the prices of the propenies for the rast twenty years have increased many fold. Since the defendants have not received the consideration in time, therefore, the plaintiff is bound to compensate the defendants by paying the present market value of the property (that portion of the property for which the consideration remained unpaid). The said amount shall be determined by the Executing court within one month from the date ofjudgment of this court and after determination of the said amount, the plaintiff shall deposit the same within a period of one month, failing which, the conditional decree passed in favour of the plaintiff would stand revoked and as a consequence thereof the suit of the plaintiff would stand dismissed.

The Civil Revision disposed of accordingly.

Announced. Judge 05.0s.2023

Nawab Shah CS (SB) Justice Syed Arshad Ali