2019 Y L R 661
[Balochistan]
Before Abdullah Baloch, J
ARBAB MUHAMMAD AFZAL and another ---Petitioners
Versus
ABDUL KARIM and 6 others ---Respondents
Civil Revision No.390 of 2013, decided on 25th September, 2018.
Specific Relief Act (I of 1877) ---
----Ss. 12 & 21 ---Suit for specific performance of agreement ---Exchange agreement ---
Plaintiff filed suit for implementation of agreement for exchange of suit property which
was decreed ---Validity ---Suit property was not in the name and possession of defendants
at the time of execution of alleged agreement ---Defendants were not party to the
impugned agreement ---Alleged agreement was not specifically enforceable against the
defendants ---Courts below had committed material illegalities and irregularities while
decreeing the suit ---Defendants were not competent to execute any agreement with the
plaintiff in circumstances ---Suit was not maintainable against the defendants ---Impugned
judgments and decrees passed by the Courts below being not sustainable were set a side---
Suit filed by the plaintiff was dismissed ---Revision was allowed accordingly.
Behlol Khan Kasi for Petitioners.
Gul Hassan Tareen for Respondents.
Date of hearing: 12th September, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of i nstant amended petition
filed by the petitioners Arbab Muhammad Afzal son of Arbab Ghulam Nabi and another, against the judgments and decrees dated 31 -07-2012 and 30- 07-2013 (hereinafter referred
as, "impugned judgments and decrees") passed by the Civil Judge -II, Quetta (referred
hereinafter as "the trial Court") and by the Additional District Judge -I, Quetta (referred
hereinafter as "the appellate Court") respectively, whereby the suit of respondents/plaintiffs was accepted and appeal of the petitioner has been dismissed.
2. Brief facts arising from the instant amended petition are that the predecessor of
respondents filed a Civil Suit for Specific Performance before the trial Court with the averments that respondents/plaintiffs are the owners of the property consisting upon 2
Qitas measuring 5 rod, 10 pols bearing Khasra No.1136/238 measuring 14 Rods, 10 Poles situated at Mohal Chashma Tirkha, Mouza Tirkha Kansi, Tappa Saddar, Tehsil and District Quetta. The petitioner/defendant No.1 also owned landed property bearing Khasra N o.346 measuring 8 Rods, 2 Poles situated at Mohal Chashma Tirkha, Mouza
Tirkha Kansi, Tappa Saddar, Tehsil and District Quetta. Both the parties mutually
exchanged their properties in 1993. resultantly plaintiff became owner of property vide mutation No.1266 whereas the defendant No.1 become owner of the property by virtue of mutation No.1265. Later on out of khangi taqseem, the plaintiffs and defendants arrived at property transaction with regard to handover two shops by defendants to the plaintiff measuri ng 250 sq.ft each shop total 500 sq.ft to be constructed by the defendant on his
land under Khasra No.238, in this behalf agreement dated 6th November 1995 was executed between the parties and the petitioner/defendant No.1 constructed a building on the bri nk of Spiny Road on the said land in the name of his son Adnan. Later on the
respondents/plaintiff approached the petitioner/defendant No.1 to honor the commitment made by him through agreement dated 6th November 1995 whereby the petitioner/defendant No.1 refused to do the needful, hence the respondents/plaintiff filed
the instant Civil Suit against the petitioners/defendants, which was decreed.
3. The suit of the respondents/ plaintiffs was contested by the petitioners/ defendants
on legal as well as on factual grounds by means of filing written statements.
4. Out of the pleadings of the parties the learned trial Court framed as many as
following issues: --
"1. Whether the agreement dated 6th November 1995 has been executed between the parties and the parties are bound to abide the term and condition of agreement?
2. Whether the suit is not maintainable in view of PLO's C, D & F?
3. Whether the plaintiff is entitled to the relief claimed for?
4. The relief?"
5. After recording evidence and hearing the parties the learned trial Court, decreed
the suit of the respondents/ plaintiffs vide impugned judgment and decree as referred in Para No.1.
6. Being aggrieved the petitioner filed an appeal against the said impugned judgment
and decree dated 31st July, 2012 before the learned appellate Court, which was dismissed vide judgment and decree dated 30th July 2013. Hence, this petition.
7. The learned counsel for the petitioners contended that the judgments and decrees
passed by Courts below suffers from mis -reading, no n-reading and misappreciation of
evidence; that the plaintiffs/respondents have failed to prove their case through confidence inspiring evidence, even the Marginal Witnesses of the so called agreement was not produced by the petitioners, as such, the agree ment could not be executed and
enforceable against petitioners Nos.2- A to 2 -C that the witnesses produced by the
respondents have recorded contradictory statements with each other, that the suit for performance was not maintainable being voidable agreement , but the Courts below did
not consider this important aspect of the case, hence committed material illegalities and irregularities while passing impugned judgments and decrees, which are not sustainable and liable to be set aside.
8. Conversely, learned c ounsel for respondents vehemently opposed the arguments so
advanced by the learned counsel for petitioners contended that the respondents have proved their case through oral as well as documentary evidence and the Courts below
have rightly decreed the suit of the respondents.
9. Heard the learned counsel for the parties and perused the record minutely, the
claim of respondents/plaintiffs is that on 6th November 1995 an agreement arrived
between the parties i.e. petitioner No.1 (Arbab Muhammad Afzal) and the predecessor of
respondents (Arbab Kamal Khan) whereby it was agreed between the parties that the petitioner No.1 in pursuance of family partition ( ) construct two shops in brinks of Spiny Road, Quetta each shop would be of 10/25 sq. ft = 250 sq. ft. at K hasra No.238 and same
shops would be handed over to the predecessor of respondents and said agreement was duly signed in presence of witnesses i.e. Amanullah son of Habibullah Khan and Sardar Muhammad Asim son of Sardar Muhammad Ishaq Khan and also duly at tested by Notary
Public in presence of the parties. It is further alleged by the respondents that the petitioner No.1 constructed a building along with 14 shops on the said Khasra number, while on demand of predecessor of respondents, the petitioner No.1 r efused to hand over two shops
in order to abide the terms and conditions of agreement dated 6th November 1995.
10. Now adverting to the evidence of the parties, in order to prove its case the
respondents produced four witnesses and also recorded his own st atement, it is pertinent
to mention here that the Marginal Witnesses of the aforementioned agreement were not produced by the respondents. The PW -1 Arbab Sardar Khan stated that the dispute
between the parties is with regard to two shops, but failed to men tion the description of
shop, Khasra number, location and the boundaries, in cross -examination stated that:--
PW-2 Musa Khan, in his examination in chief did not mention the details of dispute
between the parties, simply deposed that at the time of construction he asked the
petitioners he is doing what, in reply he said that he is constructing two shops to hand over the respondent (Arbab Kamal Khan) in cross -examination he stated that:--
PW-3 Basharat Iqbal, Advocate is the Notary Public appeared an d verified the
signatures over the agreement dated 6th November, 1995, while PW -4 is Javed Malik
petition writer, District Court, Quetta he also identified his hand writing, signatures over the stamp paper of agreement dated 6th November, 1995, which was w ritten by him in
presence of the parties. The respondent Arbab Kamal Khan also recorded his own statement wherein he deposed that: --
He has wrongly mentioned the date of agreement as 11th November, 1995 instead of
6th November 1995 he further stated that the Marginal Witnesses of agreement Amanullah
has been died in an accident at Saranan, while the witness Sardar Muhammad Asim was brought by the petitioner No.1 Arbab Muhammad Afzal; while in cross -examination he
stated that:--
In reply of question No.12 he stated that: --
In reply of question No.19 he stated that: --
In reply of question No.20 he stated that: --
In reply of question No. 24 he deposed that: --
In reply of question No.26 he deposed: --
In reply of question No.29 he denied that: --
11. In rebuttal the petitioners/ defendants produced two witnesses and also recorded
the statement of defendant No.2 as Attorney of defendant No.1 Aftab Ahmed stated that
in the year 1990 the defendant No.2 (late) Adnan Arbab husband and father of newly impleaded petitioners i.e. petitioner No.2- A and petitioners Nos. 2 -B to 2 -C purchased the
land bearing Khasra No.238 from Habibullah and Shah Muhammad son of Muhammad Aslam measuring 500 sq. ft. and constructed a plaza over the said land and he is the owner of the said property in reply of a question No. 9 the DW -1 deposed that: --
In reply of question No.12 he deposed that: --
In reply of question No.13 he deposed that: --
In reply of question No.14 he deposed that: --
12. The next limb of contention of learned counsel for petitioners was that since the
alleged agreement was executed between the petitioner No.1 and the predecessor of
respondents, same is not binding upon the predecessor of petitioners Nos.2- A to 2 -C in
this regard he referred the revenue record of Khasra No.238, which was got mutated vide
Intheqal No.1040 in the name of predecessor of petitioners Nos.2- A to 2 -C (late Arbab
Adnan son of Arbab Muhammad Afzal) from the name of Habibullah, Shah Nawaz and Muhammad Aslam on 6th October 1990, perusal whereof reflects that the property in
question was purchased by the predecessor of petitioners Nos.2- A to 2 -C prior to the
agreement signed between the petitioner No.1 and predecessor of respondents on 6th November 1995 and it was an admitted fact from the perusal of record that the real owner
of the property in question is predecessor of petitioners Nos.2- A to 2 -C and agreement
subsequently was carried out between the petitioner No.1 and the predecessor of
respondents does not binding and enforceable against the petitioners Nos.2- A to 2 -C and
according to the settle norms of Contract Act and Specific Relief Act section 12 read with Section 21, the said agreement is not specifically enforceable against the petitioners Nos. 2-A to 2 -C and both Court below have committed material illegalities and
irregularities by decreeing the suit of respondents/plaintiffs in contrary to the law and facts because neither the predecessor of petitioners Nos.2- A to 2 -C was party to the
agreemen t in question dated 6th November 1995 nor building was constructed by the
petitioner No.1 though the petitioner No.1 is the father of the predecessor of petitioners Nos.2- A to 2 -C, but personal relationship is quite different with legal propositions. Even
otherwise, nothing was brought on record that the petitioner No.1 being father of the
defendant No.2 was legally authorized to sign agreement on behalf of his son, as such,
suit for specific performance against the defendant No.2 (predecessor of petitioner s
Nos.2 -A to 2 -C) is not maintainable on three counts firstly neither the suit land at the time
of executing of agreement was in the name and possession of the petitioner No.l. Secondly neither the building was constructed by the petitioner No.1, and third ly the
predecessor of petitioners Nos.2- A to 2 -C was not party to the agreement dated
06.11.1995, hence the petitioner No.1 was not competent to execute any agreement with the predecessor of respondents. But both the Courts below without proper appreciation of law and available record decreed the suit of respondents, which is not sustainable, ridiculous, perverse and against the norms of justice. The respondents/plaintiffs have failed to make out a case of Specific Performance against the petitioners.
In view of the above, I am of the considered opinion that the alleged agreement
dated 6th November 1995 is not enforceable against the petitioners Nos.2- A to 2 -C, hence
the decree passed by trial Court and maintained by appellate Court is not sustainable,
acco rdingly the petition is accepted and the judgments and decrees passed by Courts
below are set aside and the suit filed by the predecessor of respondents is dismissed.
Parties are directed to bear their own costs.
ZC/75/Bal Revision allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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