Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD HANIF through L.Rs, VS Respondent: PROVINCE OF PUNJAB through District JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Jehangir Arshad Title:MUHAMMAD HANIF through L.Rs, vs PROVINCE OF PUNJAB through District
JUDGMENT
Reported As: 2007 CLC 1309 Result: Petition accepted Judgment JUDGMENT ' MUHAMMAD JEHANGIR ARSHAD, J.--- This civil revision has been filed to challenge the judgment and decree dated 17-11-1993 whereby suit for specific performance of agreement to sell filed by Muhammad Hanif predecessor-in-interest of petitioners was dismissed and also the judgment and decree dated 10-1-1996 passed by learned Additional District Judge, Multan dismissing petitioners' appeal. 2. The facts in brief are that Muhammad Hanif predecessor-in-interest of the petitioners and Haider Ali predecessor-in-interest of respondents Nos.2 to 7 entered into an agreement to sell (Exh.P.3) on 9-2-1976 in respect of land measuring 94 Kanals, 17 Marlas in Chak No,131/E.B. Tehsil and District Vehari for a price of Rs,.80,000. Out of the fixed sale price of Rs,80,000 Haider Ali allegedly received Rs,38,000 at the time of execution of the said agreement and agreed to receive Rs,27,000 at the time of completion of sale-deed, whereas Rs,15,000 were agreed to remain with Muhammad Hanif for deposit of Government dues. On 9-2-1976 Haider Ali also executed power of attorney (Exh.P.10) in favour of Muhammad Zafar predecessor-in-interest of respondents Nos.8-A to 8-I and got the same registered with Sub-Registrar, Vehari. However, on 11-2-1976, a second agreement (Exh.P.2) was executed between Muhammad Hanif and Haider Ali and was also got registered on 1- 2-1976. It was agreed in both the above mentioned agreements that after acquisition of proprietary rights of the land allotted to Haider Ali under Islamabad Oustees Scheme, the sale-deed would be executed. Again on 13-8-1979 a third agreement (Exh.P.1) was executed between Muhammad Hanif and said Haider Ali, not himself but this time through his general attorney Muhammad Zafar and in the said agreement to sell price was enhanced to Rs,10,5000 out of which Rs,93,000 were stated to
---
## Page 2
have been received by Haider Ali himself whereas, Rs,12,000 were agreed to remain with Muhammad Hanif as necessary expenses for execution of the sale-deed and attestation of mutation, etc. From the Government on acquisition of the proprietary rights. It so happened that Muhammad Hanif when smelled some foul play on the part of Haider Ali, he immediately filed a suit for declaration and permanent injunction against Province of Punjab and heirs of Haider Ali, etc. With the prayer that they should refrain from alienating the suit property to anyone else as against him. The suit was however, dismissed as withdrawn by learned Civil Judge, Vehari on 18-12- 1989 with permission to file a fresh suit. The judgment of the learned Civil Judge is available as Exh.D.1. In the meanwhile, as Haider Ali the original allottee had expired and his Mutation of Inheritance No,847 was attested on 21-10-1985 (Exh.P.7), his heirs moved an application before the District Collector, Vehari with the prayer to grant leave to transfer the said property in favour of Munawar Ahmad, present respondent No,9 in terms of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 and the said prayer was allowed vide order, dated 18-12-1989 (Exh.P.4). Consequent upon said permission to transfer by the District Collector, Vehari the legal heirs of Haider Ali also executed sale-deed dated 21-11-1985 (Exh.P.6) in favour of Rao Munawar for a sum of Rs,5,00,000. Rao Munawar thereafter, obtained proprietary rights from the Provincial Government and sale-deed to this effect was executed in his favour by the Collector on 6-7-1989 (Exh.P.8) and in consequent thereto Mutation No,444 was also sanctioned in his favour. Conferment of proprietary rights in favour of Rao Munawar respondent compelled Muhammad Hanif to file a suit for specific performance on 25-7-1991 against the legal heirs of Haider Ali deceased (respondents Nos.2 to 7), Muhammad Zafar predecessor-in-interest of respondents Nos.8-A to 8-I, Rao Munawar respondent No,9 and Province of Punjab respondent No,1, seeking specific performance of agreement to sell dated 9-2-1976, 11-2-1976 and 13-8-1979 in respect of the land in dispute. The said suit was contested by Rao Munawar respondent only through his written statement dated 17- 5-1992, whereas, Muhammad Zafar predecessor-in-interest of respondents Nos.8-A to 8-I filed consenting written statement but respondents Nos.2 to 7 heirs of Haider Ali opted to remain absent and were thus, proceeded against ex parte. The learned trial Court in view of divergent pleadings of the parties framed the following issues and invited the parties to produce their evidence:-- Issues (1) Whether the defendants Nos.1 to 7 entered into sale agreement of the suit-land with the plaintiff through agreements dated 9-2-1976, 11-2-1976 and 13-8-1979 for Rs,1,05,000? OPP (2) Whether the plaintiff has paid Rs,65,000 to the defendants Nos.1 to 7 in pursuance of the agreements? OPP (3) Whether the plaintiff has performed his part of the contract? OPP (4) Whether the plaintiff is entitled to the decree for specific performance of the contract? If so to on what terms and conditions? OPP (5) Whether the suit is incompetent in view of preliminary objection No,1? OPD (6) Whether the sale agreement is violative of section 19 of the Colonization of Government Lands Act? OPD (7) Whether the agreements are fictitious, bogus, and collusive between the plaintiff on the one hand and the defendants Nos.1 to 7 on the other hand? OPD (8) Whether the suit is barred by limitation? OPD (9) Whether the defendant No,8 is bona fide purchaser for consideration and without notice? If so its effect? OPD (10) Whether the defendants are entitled to special costs under section 35-A, C.P.C.? If so, to what extent? OPD (11) Relief. ' Both the sides led evidence for and against and on the conclusion of the trial, vide judgment and decree, dated 17-11-1993 the suit was dismissed. Against dismissal of his suit, Muhammad Hanif
---
## Page 3
filed an appeal and the learned Additional District Judge, Vehari vide judgment, dated 10-1-1996 although reversed the findings of the learned trial Court on all the issues in favour of Muhammad Hanif but dismissed the appeal on Issue No,8 holding the suit of the petitioners as time-barred, although the learned trial Court recorded no findings on said issue as the same was not pressed by learned counsel for the defendants/respondents. Against dismissal of their appeal the present petitioners filed Civil Revision No,191 of 1996 which was allowed by this Court vide judgment dated 16-7-2004 with the result that the findings of learned Additional District Judge on Issue No,8 were answered in favour of the petitioners and their suit was decreed with costs. Against judgment of this Court Rao Munawar respondent filed C.P. No,934 of 2004 before the Honourable Supreme Court which was allowed on 25-10-2004 on the concession extended by petitioner's counsel Mr. Gul Zarin Kiani, Advocate and the case was remanded for decision afresh keeping in view the law laid down by the Honourable Supreme Court of Pakistan. 3. At the very outset Mian Shamas-ul-Haq Ansari, Advocate appearing for Rao Munawar respondent has taken an objection that since Mr. Gul Zarin Kiani, Advocate for the present petitioners before the Honourable Supreme Court conceded all the arguments of learned counsel for the respondents, therefore, despite remand by the apex Court the petitioners cannot be heard and this petition be only decided on the basis of arguments of learned counsel for the respondents; and that only point which the petitioners could validly agitate before this Court is that of limitation. I am afraid the above contention of learned counsel has any force. The judgment of the Honourable Supreme Court dated 25-10-2004 leads no doubt in one's mind that the apex Court remanded the case to this Court with a direction for its decision afresh keeping in view the law laid down by the apex Court. Para.4 of the said judgment clearly spells out the arguments of learned counsel, rather it appears that learned counsel appearing on behalf of respondent did not place the correct factual position before the apex Court inasmuch as, it was contended that there were concurrent findings of facts which were earlier upset by this Court, whereas, the findings of two Courts below are not concurrent. The learned trial Court although dismissed the suit of the petitioners on the basis of its findings under Issues Nos.1 to 7 and 6, whereas no findings were recorded by the learned trial Court on the question of limitation i,e, Issue No,8 being not pressed and the learned Appellate Court reversed findings of the trial Court on issues Nos.1 to 7 and 9 yet dismissed the appeal as well as suit of the petitioners by suo motu recording findings on Issue No,8 which were interfered by this Court on 16-7-2004 in Civil Revision No,191 of 1996. Similarly, it was argued before the apex Court that findings of two Courts were based on concurrent findings of facts therefore, no case was made out to bring the same within four corners of section 115, C.P.C. Justifying interference, which is again against the record as noted above because there is no concurrent finding of fact. However, the Honourable Supreme Court was impressed by the contention of learned counsel for the respondent that even in the absence of or without filing any cross-objections under Order XLI, rule 22, C.P.C. The respondent still had a right to challenge the findings on all the issues decided against them but the respondent was wrongly refused permission to challenge the findings on those issues which had been decided against him by the learned Appellate Court and in this view of the matter, the Honourable Supreme Court thought it appropriate to remand the case for deciding it afresh after allowing the respondent to challenge the findings of the learned Appellate Court on those issues which were decided against him and to defend the decree in terms of Order XLI, rule 22, C.P.C. Even without filing or in the absence of any cross-objections. I am, therefore, satisfied that the remand order has opened the field for both the parties and case was sent back to this Court for its decision afresh on all the issues in accordance with law, hence, there is no force in the objection of learned counsel for the respondent that petitioner has no right to be heard, thus, the objection is overruled.
---
## Page 4
4. It is argued by learned counsel for the petitioner that the Appellate Court has got no jurisdiction to suo motu record findings on Issue No,8 after the same was left undecided being not pressed by the respondent and that even otherwise, findings of the Appellate Court on Issue No,8 are not sustainable for the simple reason that it was specifically provided in the agreements that sale- deed would be executed within one month after acquisition of proprietary rights and since admittedly such rights were obtained on 6-7-1989 through sale-deed (Exh.P.8) and the suit was filed on 25-7-1989 which was well within time of three years in terms of Article 113 of the Limitation Act. Reliance in this respect has been placed on the case reported in Mst. Bibi Khatoon and 7 others v. Abdul Jalil PLD 1978 SC 213, Noor Muhammad v. Ghulam Muhammad 1984 CLC 1183 and Muhammad Hussain v. Saleem Jan and others PLD 1995 Pesh. 98. 5. Exercising his right of rebuttal on issue No,8 and others issues, learned counsel for the respondent submits that as held by the Honourable Supreme Court of Pakistan in the case 2003 SCMR 74 and also the remand order that respondent even without filing any cross-objection or in the absence of the same can argue to support the findings of the learned lower Court on all the issues decided against him, therefore, he has a right to challenge the findings of the learned Appellate Court on issues Nos.1 to 7 and 9 to substantiate that the decree of dismissal by the learned trial Court was still sustainable. In view of the law laid down by the Honourable Supreme Court in the cited judgments as well as directions contained in the remand order of the apex Court. I have no option but to allow the learned counsel for the respondents to challenge the findings of the learned Appellate Court on Issues Nos.1 to 7 and 9 decided against him and to defend the decree as provided under Order XLI, rule 22, C.P.C. Even in the absence of or without filing cross- objections. 6. On the question of limitation i,e, issue No,8 learned counsel for the respondents argued that without admitting execution of agreement Exh.P.1. To Exh.P.3, since it is proved from the record that respondent obtained permission to transfer lease rights from District Collector under section 19 of the Colonization of Government Lands Act, 1912 accorded on 18-11-1985 (Exh.P.4) and that in the light of the said order sale-deed with regard to transfer of tenancy rights was also executed and registered in favour of the respondent No,9 on 28-11-1985 (Exh.D.5) and since registration of the said documents is a notice in terms of section 3 of the Transfer of Property Act, therefore, permission granted on 18-11-1985 through Exh.P.4 was a notice to all including the petitioners and thus, his suit could be filed within three years from the date of 21-11-1985 in terms of second part of Article 113 of the Limitation Act but the suit was filed in 1991 which was hopelessly time-barred and was rightly held so by the Appellate Court under Issue No,8. It is also argued that although Issue No,8 was not pressed before the learned trial Court yet the fact is that in terms of section 4 of the Limitation Act, it is the duty of the Court to decide the question of limitation without any objection having been raised by the respondent. In support of his arguments, learned counsel has placed reliance on the case reported in Inam Naqshbandi v. Haji Sheikh Ijaz Ahmed PLD 1995 SC 314 and Ata Muhammad and others v. Mst. Khurshid Begum PLD 1964 Lah. 224. On the findings of learned Appellate Court under Issues Nos.1 to 7, learned counsel for the respondent has argued that petitioners have relied upon three agreements to sell, one executed on 9-2-1976 (Exh.P.3), second oh 11-2-1976 (Exh.P.2) and third on 13-8-1979 (Exh.P.1). So far as Exh.P.1. Is concerned, the same was allegedly executed and registered on 13-8-1979 through Muhammad Zafar alleged attorney of Haider Ali, whereas Haider Ali had already died on 18-4-1978 (Exh.D.8) and his Mutation of Inheritance No,348 though sanctioned on 30-10-1985 yet the same did contain his date of death as 13-5-1979, therefore, as with the death of Haider Ali the alleged power of attorney in favour of Zafar also stood revoked on the date of his death therefore, the agreement Exh.P.1 even if found correct, would neither have any effect nor would be binding on the respondent with regard
---
## Page 5
to Exh.P.2 and Exh.P.3, learned counsel argues that witnesses P.W.1 to P.W.5 produced by the petitioners and attorney of Muhammad Hanif P.W.6 have not been able to prove the execution of Exh.P.2 and Exh.P.3 in accordance with law inasmuch as, there is no evidence on the record about passing of consideration to Haider Ali, the original allottee nor any documentary evidence to this effect has been produced by the petitioner. It is also argued by learned counsel that since Zafar the alleged attorney of Haider Ali was closely related to Hanif petitioner therefore, without the permission of his principal namely Haider he could neither execute Exh.P.3 without firstly informing him or his permission nor the same was binding on the respondent being against the law as well as judgments of the Honourable Supreme Court reported in Haji Faqir Muhammad and others v. Pir Muhammad and others 1997 SCMR 1811. Further argues that since Exh.P.10 is certified copy of Special Attorney, therefore, same is not admissible unless absence of the original is satisfactorily proved. Reliance is placed on Syed Mansoor Ahmad v. Mst. Maqbool Begum and others 1990 SCMR 1259. It is next contended that as Zafar has failed to prove the alleged power of attorney in his favour therefore, his evidence has got no evidentiary value as attorney and in this situation it was incumbent upon Hanif petitioner to have appeared in the witness-box to prove his case and his non-appearance in the witness-box was a sufficient circumstance to discredit his version as held in Mst. Khair Ulnisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25, Feroze Khan and others v. Mst. Waziran Bibi 1987 SCMR 1647, Muhammad Bashir and others v. Chiragh Din through Legal Heirs and others 2003 SCMR 774 and Muhammad Afzal v. Muhammad Ayub and others 2003 SCMR 961. Further argued that petitioner could prove passing of consideration by summoning the Registrar as held in Waris Khan and 2 others v. Mst. Zainab Nisa and others 1997 SCMR 526. It is next argued that in the presence of permission dated 18-11-1985 (Exh.D.2) under section 19 of the Colonization of Government Lands Act, the sale-deed (Exh.D.5), Mutation (Exh.D.6), Khasra Girdavri, dated 8-7-1987 (Exh.D.10) and sale-deed from Government (Exh.D.7), the Civil Court had no jurisdiction to try the suit, especially when no such rights were ever conferred on Hanif under the Colonization of Government Lands Act, as held in Ata Muhammad and others v. Mst. Khurshid Begum PLD 1964 Lah. 224. It is further argued that in the presence of decision of the earlier suit filed by Hanif titled "Hanif v. Province of Punjab and others" (Exh.D.3) filed on 11-2-1985 and the judgment of this Court in Civil Revision No,488 of 1996 the suit was not competent at all. On Issue No,9 it has been argued by learned counsel for the respondent that since the respondent specifically took the plea of bona fide purchaser in the written statement and denied the existence of any prior agreement to sell in favour of Hanif petitioner, the onus to prove that respondent did have the notice about existence of prior agreements. Further that Rao Munawar respondent in his evidence as D.W.1 has specifically stated that before the purchase of property he checked out the Revenue Record and further that since it was specifically mentioned in sale-deed (Exh.D.5) that the property in question was free from any charges and encumbrances and that Munawar obtained leasehold rights after obtaining permission from the competent authority under section 19 of the Colonization of Government Lands Act and got the sale-deed registered in his favour, therefore, the respondent has successfully proved his case that he was bona fide purchaser of the suit-land for valuable consideration and the learned trial Court rightly decided issue No,9 in his favour which has been reversed by the learned Appellate Court. Learned counsel in support of his argument has placed reliance on the case reported in Mst. Khair-ul-Nisar and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 and Sana Ullah and 17 others v. Muhammad Rafiq 2003 CLC 138. 7. On the other hand, Syed Kabeer Mehmood Shah, Advocate learned counsel for the petitioners while controverting the arguments of Mian Shamas-ul-Haq Ansari, Advocate, submits that as Haider Ali the original allottee of the land in dispute who according to the petitioners executed Exh.P.1, Exh.P.2. And Exh.P.3 or any of his legal heirs, never denied the execution of these documents
---
## Page 6
nor even they filed written statement to this effect or appeared in the witness-box to deny these documents, therefore, in terms of proviso to Article 79 of Qanun-eShahadat Order (section 65 of the Evidence Act), the execution of these documents shall be presumed admitted and petitioners neither required any evidence for proving any of these documents nor required to call any witness as required by above mentioned provisions of law. It is further argued that since Exh.P.2 is a registered document and same was registered in the presence of Haider the original allottee, therefore, the endorsement recorded on the back of Exh.P.2 by the Registrar with regard to payment of consideration is sufficient proof for passing of consideration to him as held by this Court in Pirla and others v. Noora and others PLD 1976 Lah. 6. It is further contended that despite that petitioners did produce Abdul Rashid P.W.3 who identified Muhammad Hanif before the Registrar at the time of registration of Exh.P.1. And Exh.P.2. Similarly, Muhammad Iftikhar P.W.5 was also produced to prove these documents. About Exh.P.1 it has been argued by learned counsel for the petitioners that it was executed on 13-8-1979 by Zafar, the attorney of Haider Ali and in case if Haider Ali had died by that time the factum of death was not in the knowledge of Zafar respondent and even otherwise, it is not established from the evidence by the respondents that in fact on 13-8-1979 Haider had already expired. Regarding Exh.D.8 i,e, death certificate of Haider Ali it is submitted that said documents have neither been proved in accordance with law nor can be given any weight for the simple reason that same was kept dormant inasmuch as mutation of inheritance of Haider Ali bearing No,348 (Exh.D.1) was got sanctioned on 30-10-1985. Further argued that even otherwise, Exh.P.1 has been excluded from consideration by the learned Appellate Court and that petitioners also have no objection if the said document is not relied upon for any reason as through this document the amount of consideration was only enhanced, whereas, the original agreement between the parties is sufficiently proved by Exh.P.2 and Exh.P.3 and since Exh.P.2 is a registered document, presumption of truth is attached to the same and further that since there is no denial of the same either by its executant Haider Ali or any of his heirs, therefore, the petitioners have successfully proved the execution, as such Issues Nos.1 to 4 were rightly decided by the learned Additional District Judge. On Issue No,9, learned counsel argued that findings of the learned Additional District Judge do not suffer from any illegality or jurisdictional defect. The respondents never took a specific plea about their being bona fide purchaser for value without notice and the plea taken to this effect in preliminary objection No,9 cannot be considered as express plea, rather the same appears to have been inserted later on which is evident from the writing itself. Learned counsel for the petitioners contends that unless plea of bona fide purchaser for value without notice was expressly taken in the written statement neither any issue to this effect could be framed nor evidence could either be produced or looked into on this point. Reliance has been placed on the case Hakim Ali v. Muhammad Salim and another 1992 SCMR 46, Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336, therefore, the findings of the learned Additional District Judge on Issue No,9 are not open to interference. Lastly, on the question of legality of Exh.P.1 and Exh.P.2 on the touchstone of section 19 of the Colonization of Government Lands Act, learned counsel by placing reliance on the case Rajab Ali v. Mst. Aisha and others 1989 SCMR 135 argued that such plea is only available to the grantee of the State land i,e, Provincial Government and no other person and secondly as held by the Honourable Supreme Court in Shamir through Legal Heirs v. Faiz Elahi through Legal Heirs 1993 SCMR 145, Sher Muhammad Khan and others v. Ilam Din and others 1994 SCMR 470, Muhammad Iqbal and others v. Mirza Muhammad Hussain and others PLD 1986 SC 70, Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 and by this Court in 2006 MLD 1201 learned counsel has argued that suit for specific performance of agreement to sell after the acquisition of proprietary rights was not only competent but the same could legally be decreed on the proof of the agreement to sell. Learned counsel while concluding his arguments on behalf of the petitioners submits that
---
## Page 7
since the respondent voluntarily did not press Issue No,8 i,e, limitation, therefore, the learned Additional District Judge had no jurisdiction to record findings on issue No,8 of its own. It is also argued that since no specific appeal or cross-objections have been filed by the respondents on the issues decided against them by the learned Additional District Judge, they can though support the findings of the learned Additional District Judge on issue No,8 by referring to the findings of the learned trial Court on the remaining issues yet they cannot argue for dismissal of this civil revision on the basis of the findings of the learned trial Court on such issues which have been rightly set aside by the learned Appellate Court. 8. The above mentioned arguments with reference to the record and other material…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.