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Regular Second Appeal No. 13 and Civil Miscellaneous Appeal No. 393 of 1986, decided on 9th September, 1986.

‑‑‑S. 100‑‑Second appeal‑‑Plea not raised either in written statement or even in appeal below, held, could not be taken up in second appeal by High Court.

‑‑‑S. 44‑‑Co‑owner's possession‑‑Possession of one co‑owner, possession of all‑‑Mere fact that possession was recorded in relevant Khasra Girdawari to be held by all co‑owners, held, would not necessarily lead to conclusion that all co‑owners were in a holding actual possession of land.

‑‑‑S. 100‑‑Specific Relief Act (I of 1877) , Ss. 12 & 22‑‑Specific performance of contract of sale of immovable property‑‑Plea raised by defendant‑appellant in respect of inadequacy of price relating to question of fact and not raised in appeal below‑‑Plea not entertained in second appeal by High Court.

Ali Muhammad Khan v. Riazuddin Khera P L D 1981 Kar. 170 ref.

‑‑‑Ss . 12 &, .22‑‑Transfer of Property Act (IV of 1882) , S . 44‑‑Civil Procedure Code (V of 1908) , S . 100‑‑Suit for specific performance of contract of sale of immovable property‑‑Defendant appellant contending that his mother and sister being ca‑sharers in land, disability existed in him to sell land in suit‑‑Overall share in Khata of such defendant ca‑sharer however, exceeding area agreed by him to be sold‑‑Order of appellate Court below decreeing suit of plaintiff‑respondent, held, was unexceptionable in circumstances.

Muhammad Shafi and others v . Mirza and others P L D 1959 Lah. 398 and Mustafa Khan and 3 others v. Muhammad Khan and another P L D 1978 S C (A J&K ) 75 ref.

Muhammad Muzaffar Khan v . Muhammad Yusuf Khan P L D 1959 SC 9 rel.

Ch. Mushtaq Ahmad Khan for Appellant.

Respondent filed a suit for specific performance of agreement, dated 28‑11‑1974 regarding sale to him of 18 Kanals 17 Marlas of land situated in village Khambranwala Tehsil and District Sialkot for a consideration of Rs.13,000 whereof Rs.12,417 had already been received by the defendant to whom he was willing to pay the balance Rs.583. Defendant contested the suit by denying execution of the agreement and taking up the pleas also of fraud and inadequacy of consideration. He claimed also that he could not have undertaken to sell the land because he is not the sole owner thereof. Necessary issues were set down for trial and after recording the evidence of the parties learned trial Judge held that the agreement Exh. P. 1 was infact executed by the defendant and no fraud had been proved to be committed thereabout. He, however, upheld the contention of the defendant that he is not the sole‑owner of the land and, finding that his mother and sister were also the co‑sharers therein so that the defendant was an owner therein of only 14/24 share, by his judgment, dated 26‑1‑1978 decreed the suit for 14/24 share of the land against a proportionate price worked out to be Rs.7,600 and dismissed the suit with regard to the remaining land but, despite the finding that a sum of Rs.12,417, out of the contracted amount of Rs.13,000, had already been received by the defendant, there was no order passed with regard to the remaining sum paid to the defendant.

2. Two appeals were there against filed by the parties in the district Court which were heard by a learned Additional District Judge who affirmed the trial Court's findings with regard to due execution of the agreement of sale and failure to prove any fraud thereabout, to hold also that the defendant's share in the entire Khata was more than 18 Kanals 17 Marlas and the mere fact that he is a co‑sharer in the land with his mother and sister could not be a disability about his alienating the land within the extent of his overall share in the entire Khata in the form even of specific Khasra numbers. He referred to Muhammad Shafi and others v. Mirza and others P L D 1959 Lah. 398 and Mustafa Khan and 3 others v. Muhammad Khan and another P L D 1978 S C (AJ&K) 75, in support of his view and by his consolidated judgment, dated 4‑1‑1986 accepted the appeal of the plaintiff to decree his suit in full by requiring him to deposit within 30 days the sum of Rs.583 which remained to be paid out of the consideration agreed upon between the parties and dismissed the appeal of the defendant who has now come up to this Court in second appeal.

3. While conceding that the defendant‑appellant's overall share in the entire Khata exceeds 18 Kanals 17 Marlas, learned counsel has attempted to argue that the defendant‑appellant was not in exclusive possession of the land which is shown in the Khasra Girdawari to be jointly possessed by all three co‑owners, therefore, he alone could not either have contracted for the sale of the specific Khasra numbers in suit or be compelled to transfer them in the name of the respondent. There was no plea on the point at all raised by the appellant either in A his written statement or even in his appeal below, therefore, he cannot take it up at this stage. Even otherwise, the argument of the learned counsel is only assumptive in character because the mere fact that possession may be recorded in the relevant Khasra Girdawari to be held by the owners would not necessarily lead to the conclusion that all the co‑owners are in fact holding the actual possession of the land. In B law, possession of one co‑owner is regarded the possession of all and since the other two co‑sharers of the appellant are his female relations, therefore, there would not be any reason to believe that he may not be in exclusive possession of the land in dispute. Contention of the learned counsel is repelled for all the foregoing reasons.

4. Next argument of the learned counsel is that the agreement for sale of 18 Kanals 17 Marlas for a meagre sum of Rs.13,000 is, on the very face of it, unconscionable and deserved to be refused to be specifically enforced for the discretion in that behalf vesting in the Courts who have not attended to this aspect of the case. This contention relates to a question of fact and does not appear to have been raised in the appeal below and cannot, therefore, be entertained at this stage. However, there is no evidence or material brought on the record for proving that such a price agreed to in the year 1974 may be inadequate. To support his argument, learned counsel has himself invited attention to a Division Bench judgment in Ali Muhammad Khan v. Riazuddin Khera P L D 1981 Kar. 170, which rather than supporting his case goes against him inasmuch as a similar argument raised therein was repelled in paragraph 11 of the judgment with the observation that the inadequacy of price can hardly be a ground for refusing specific performance.

5. In the end, learned counsel has also Half‑heartedly repeated the defendant‑appellant's argument raised in the Courts below with regard to his mother and sister being the co‑sharers of the land in suit and l) consequent disability in him to sell the land in suit. It has been rightly rejected by the learned Additional District Judge on the conclusion that his overall share in the Khata exceeds the area contracted by him to be sold. Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 S C 9 furnishes a complete answer to the contention which is repelled as being simply untenable.

6. The decree passed in the appeal below is unexceptionable. There is no case made out for interference. Hence, dismissed in limine.

M. Y. H. Appeal dismissed.

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