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Civil Revisions Nos. 181 of 1982 and 401 of 1984, decided on 10th November, 1985.

‑‑ O. IX, r. 6‑‑Transfer of Property Act (IV of 1882), Ss. 53‑A & 54 ‑,Agreement to sell executed ‑ Subsequent sale by vendor contested by vendees under agreement to sell ‑ Vendor implead as party to suit but did not contest suit in spite of service‑Parties to previous agreement, held, would be entitled to sale consideration as mentioned in agreement to sell which stood established due to non. appearance of vendor in spite of service.

‑‑‑‑ S. 54‑Sale‑deed subsequently executed by vendor in favour of respondents due to failure of previous agreement to sell with petitioners ‑ No exception, held, could be taken to subsequent execution of sale‑deed where vendor was not at fault for non‑fulfillment of previous agreement to sell.

‑‑ S. 115 ‑ Revisional jurisdiction ‑ Failure to contest suit by vendor would establish claim of parties to previous agreement with regard to sale consideration‑High Court in revisional jurisdiction granted relief to petitioners in respect of sale consideration.

Abdur Rehman Khan for Petitioners.

M. Afzal Sarwar Khan and Sh. Wazir Muhammad for Respondents.

Date of hearing: 10th November, 1985.

By this judgment I propose to dispose of these two revision applications bearing Nos. 1.81/82 and 401/84 as both have arisen from the same transaction. It is alleged that on 2‑11‑1977, the petitioners entered into sale agreement with the vendor with respect to the suit land and at the time of execution of the sale agreement they jointly paid Rs. 28.000 to the vendor. In the events that happened, the vendor sold the land to the vendees/respondents herein through registered sale‑deed dated 12‑1‑1978. The petitioners were divided into two groups and each group brought separate suits for possession of the suit land by specific perform ance or in the alternative they sought decree for the recovery of the above amount of Rs. 28,000. It may be pointed out that to both suits the vendor was impleaded as party. He was served but he chose to remain absent and was placed ex parte. The other respondents/vendees contested the suits and upon the pleadings of the parties, the learned trial Judge framed issues and recorded thereupon their evidence. He preferred the evidence of the petitioners and decreed their suits for possession of the suit land by specific performance of the contract dated 2‑11-1977, vide his judgment dated 18‑10‑1981. The vendees respondents were aggrieved, therefore, they challenged the judgment of the learned trial Judge in appeal before the learned District Judge who allowed the appeal and dismissed the suits of the petitioners and also rejected their prayer for the recovery of Rs. 28,000 vide, his judgment dated 27‑5‑1982. Hence these two revision applications.

I have heard the learned counsel for the parties and perused the record. The learned District Judge found that the sale agreement dated 2‑11‑1977 is a fictitious document. He observed that the vendor did not turn up and was placed ex parte. According to the learned District Judge, he could have been summoned through the Court by the petitioners in support of their claim that he had received from them Rs. 28 000 as sale consideration of the suit land. He also observed that the writer of the sale agreement would not help the petitioners as legally he is not an attesting witness and that this witness stated that he bad scribed the deed after Court hours but the other witness, namely, Shahzada P. W. a Tonga driver is not certain whether the deed was written during the Court hours or thereafter and thus he according to the learned District Judge, contradicts in this behalf the statement of the deed writer. He also observed that while P. W. Shahzada says that the sale consideration was paid to the vendor in his presence, the statement of the deed writer is silent in this respect. He thus held that the sale agreement was fictitious or for that matter the vendor had never executed any sale agreement in favour of the petitioner qua the suit land.

I feel disturbed by the above observations of the learned District Judge while holding that the sale agreement was a fictitious document. It is a matter of record that the vendor was impleaded as party by the petitioners in both suits. He was, therefore, bound to contest the claim of the petitioners that he had not received any sale consideration and had also not executed the sale agreement. He chose to remain absent despite proper service and was placed ex parte. It was, therefore, the duty of the Court to grant decree of recovery in favour of the petitioners. I am satisfied that he had received the sale consideration of Rs. 28,000 from the petitioners as sale consideration and had executed sale agreement in their favour in this behalf.

This brings me to consider the question whether the registered sale -deed by which the, vendor had sold the suit land in favour of the vendees/respondents is illegal and ineffective over the rights of the petitioners. It is conceded on behalf of the petitioners that they had jointly entered into sale agreement with the vendor and had jointly paid the sale consideration. Thereafter, they did not remain as one body and were divided into two groups. It can, therefore, be said that there was caused dis‑union and discord between them. In the circumstances, and adverse inference can be drawn against their conduct that they were not willing to jointly purchase the suit land. The vendor, was, therefore, obliged a to sell the suit land to vendees/respondents. On this view of the matter, no exception can be taken against the registered sale‑deed qua the suit land executed by the vendor in favour of the vendees/respondents.

The result is that I partly allow these revision applications and consequently while dismissing the suits of the petitioners for possession of the suit land by specific performance. I decree their suits as regards the amount of Rs. 28,000 which they had paid to the vendor at the time of execution of sale agreement. No order as to costs.

A. A. Revisions partly accepted.

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