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Regular Second Appeal No.589 of 1978, decided on 23rd June, 1987.

---S.100--Second Appeal--Misreading of evidence by Courts below- Scope of second appeal--Appellants, sons of deceased brother of respondent's husband, referring their dispute relating to inheritance, to arbitration and ultimately reaching to an agreement whereby respondent was to get two specific portions of land of appellants in two different districts and in lieu thereof to surrender in favour of appellants her unallotted units in other two districts and some excess area of land in District F--Appellants performing their part of contract whereas respondent avoided same--Respondent occupied both areas of appellants' land but neither surrendered her excess area nor did she execute any power of attorney in their favour to get land allotted in lieu of remaining units and as such violated the terms of agreement- Respondent manifestly contravening agreement but lower Courts passing decree in her favour by misreading evidence particularly in regard to stipulations in agreement--Decree in favour of respondent passed by Courts below, being not sustainable was set aside and suit of appellant decreed in second appeal.

Jari Ullah Khan for Appellants.

Ch. Riasat Ali for Respondent.

Date of hearing: 17^th June, 1987.

This Regular Second Appeal arises from the judgment/decree dated the 20th of May, 1978, of the learned District Judge, Gujranwala, whereby the decree of the trial Court was upheld.

2. The dispute relates to inheritance of one Tufail who died issueless. The appellants-plaintiffs were his nephews i.e. sons of a real brother while the respondent-defendant was his widow. They referred the dispute to Arbitration and ultimately agreed to an arrangement reproduced in para. 2 of the impugned judgment, whereby the respondent was to get (i) a specific portion measuring 13 Kanals 81 Marlas equal to J of 53 Kanals 14 Marlas situate in Chak No.64/G. B., Tehsil and District Faisalabad, (ii) the entire area measuring 108 Kanals situate in Kartarpur Mallian, Tehsil and District Gujranwala and in lieu thereof was to surrender in favour of-the appellants his unallotted units numbering (a) 1544 of village Ghazipur, Tehsil Liaqat Abad, District Rahimyar Khan, (b) 636 of Chak No.64/G.B., Tehsil and District Lyallpur, and (c) the remaining portion of the land in the aforementioned Chak.

3. The appellants' grievance was that the respondent did not surrender to them the excess area of Chak No.64/G.B. nor did she execute any Power of Attorney in their favour to get land allotted in lieu of the remaining units, and thereby abandoned the agreement. They added that while the respondent apportioned the benefits under the agreement in selling away the specific portion of land at Lyallpur and getting mutated in her name the whole of 108 Kanals at Kartarpur Mallian, Gujranwala, she avoided to perform her own part of the contract which in fact constituted consideration for relinquishing on their part the entire area of Gujranwala in her favour. According to them if consideration for a contract fails, it becomes frustrated and no obligation arises thereunder. On this premise, they averred that the respondent could not apportion the entire land at Kartarpur Mallian and that the same had to be divided as per personal law shares.

4. The suit was resisted denying the alleged non-performance of the contract on the part of the respondent. She urged that she was not asked to execute a Power of Attorney in favour of the appellants to get land in lieu of the unallotted units of her deceased husband and that in any event it were the appellants who avoided to abide by the contract by unsuccessfully assailing sale of land at Lyallpur made by her. She justified transfer of the whole land at Kartarpur Mallian pointing out in particular, that the appellants did not come with clean hands inasmuch as they got 477 out of 636 units corresponding to their 3/4th share in the deceased's inheritance and that failure on their part to get land for the remaining 159 units relating to her 1/4th share was deliberate as also dishonest.

5. On these pleadings appropriate issues were framed and both the Courts below concurrently held against the appellants. Mr. Jari Ullah, counsel for appellants relying on the entry in R.L.II Ex.PW.9/1 strenuously urged that the act of getting 477 units proportionate to their 3/4th share on the part of the appellants was by no means unclean inasmuch as they were entitled to 159 more units corresponding to the respondent's share but those had been kept apart for her and could not have been transferred to them without authorisation by her. He submitted that the onus lay on her to show that she had performed her part of the contract by executing a Power of Attorney in their favour to get land in lieu of her units and that absence of such authorisation by her was a material infringement of the contract. The argument is not without substance. Authorisation in their favour had to proceed from the respondent and she could not be relieved of this obligation by merely pleading that she was not asked, much less by a written notice to execute the same. Agreement or no agreement the appellants had to get 477 units in their own right, in any event and the same was by no means a reprehensible act so as to make their hands unclean. Apparently they would have been doubly eager to get the remaining 159 units, but the R.L.II suggests that tho se stood separated, indeed transferred to the respondent and it fell upon her to further convey them to the appellants. What did she do in this behalf Nothing Counsel was right in contending that the assumption made in this behalf by the lower appellate Court was a pure and simple misconception of law calling for interference in R. S. A Still further, the respondent was supposed to have surrendered excess area at Lyallpur in favour of the appellants. She did not, and manifestly in contravention of the agreement. She occupies both the areas, and where has she observed the contract Obligations were mutual and not one-sided. In fairness the appellants performed their own part whereas the respondent avoided it. She has to blame herself.

6. The lower appellate Court misread the evidence particularly in regard to stipulations in the agreement and consequently its conclusion cannot be sustained. The R.S.A. is accepted, the impugned judgment and decree are set aside. The appellants' suit is decreed with costs throughout.

M. Y. H./R-36/L Appeal accepted.

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