MITHAL SHAH Versus RAFIULLAH

JAMALUDDIN H. AHMAD, J. ‑This first appeal is directed against the judgment dated 31‑5‑1965 and decree passed by the District Joge, Dadu, in Civil Suit No. 12/63, whereby he had dismissed the suit filed by the appellant/ plaintiff and had also directed that the costs of the suit be borne by the res pondent Khawja Rafiullah, who was the defendant No. 1 and who is now represented by his L/Rs. in the appeal. The original suit was filed for the specific performance of contract as well as for permanent injunction.

2. The brief facts as disclosed in the plaint filed by the appellant are that respondent No. 1 Khawja Rafiullah bad agricultural land in Taluka Dadu, 64 acres, 24 ghuntas of which were in Deh Noorjah which has been finally confirmed upon him in permanent settlement of his claim and which was described as Schedule `B' land, and 238 acres 17 ghuntas,‑which being excess land had been surrendered and thereafter repurchased by him and which was described as Schedule `A' land. This land was in two Dehs i.e. Noorjah and Naulakba. The appellant's case was that the respondent No. 1 executed a Kabala upon receiving a consideration of Rs. 1,000 whereby he promised to execute an agreement of sale for both the above‑mentioned lands before 6‑11‑1962. He had thereafter on 1‑11‑1962 executed an agreement of sale of 64 acres 32 ghuntas i e. Schedule 'B' land for a total price of Rs. 22,032.00 out of which Rs. 2,000 had been immediately paid and the balance was to be paid before 31‑3‑1963 when the registered sale deed was to be executed. On the same date a separate agreement had also been executed with regard to the land described in Schedule `A' for which a separate sum of Rs. 13,105,00 yeas paid and whereafter the appellant had deposited the instalment in the Government Treasury of Rs. 3.782.08 on 29‑1‑1963. As this land was as yet Government land and instalments of the price were yet to be paid the respondent No. 1 executed a general power of attorney in favour of the appellant on 2‑11‑1962 which was registered. According to the appellant physical possession of the entire land had been given to him. The appellant thereafter paid some more amounts of money towards the agreed remainder of price of Schedule 'B' land and after effecting improvements on the land itself commenced cultivation operations on the same. On 28‑3‑1963, the appellant approached the respondent at Karachi for finally executing the sale deed in respect of Schedule 'B' land and also an agreement to sell the land in Schedule 'A'. On contacting him on 2‑4‑1963 he got a promise from him that he will come to Dadu on 7‑4‑1963 for finaliza tion of the required transaction. As he did not turn up on the said date, the appellant gave him a notice on 8‑4‑1963 to notify his willingness to perform his part of the contract whereafter the respondent No. 2 i.e. Amir Hamzo Shah who was also Zamindar of Dadu District started interfering with the plaintiff's possession over the land and harassing his harts The appellant, therefore, prayed not only for the specific performance of the contract, but also for an injunction to restrain the respondent No. 2 from interfering with his peaceful possession, The cause of action for this suit had arisen on 7‑4‑1963 being the date on which the sale deed had to be executed at Dadu according to tree promise made by respondent No. 1 and against respondent No. 2 the cause of action had arisen on 1‑4‑63 when he had caused harass ment to the appellant and his harts.

3. Along with the plaint the appellant had also filed an application under O. 39, rules 1 and 2 of the C. P. C. supported by an affidavit, claiming that the respondent had already made part performance of the contract regarding the whole land by putting him in possession and that he had even filed 107, Cr. P. Code proceedings against respondent No. 2 as he apprehended breach of peace at his hands. This application was contested and disposed of by the District Judge, Dadu, on 4‑6‑1963 before the two respondents filed the written statements which were dated 31‑7‑1973. Upon the basis of the affidavits filed by the two respondents and about 10 haris of the land describ ed in Schedule 'B' and also upon the consideration of the fact that the respondent No. 1 had executed a registered sale deed of the land in favour of respondent No. 2, the District Judge declined to issue an injunction against respondent No. 2 and dismissed the application with costs. Even at that stage the Judge was of the view that the respondent No. 2 had produced sufficient evidence to show that he had acquired a valid title over the land by virtue of a registered sale deed and the affidavits of the haris who had culti vated the land during the Rabi Crops. It was also shown that he was in possession.

4. The two respondents however filed their written statements sub sequently as stated above. Respondent No. 1 Khawja Rafiullah admitted that he had executed the Kabala but it was with regard to the land shown in Schedule 'A' alone. He also admitted to hive executed other documents but according to him the land contemplated was only that which is shown in Schedule 'A' and not that which is shown in Schedule 'B'. As the documents were written in Sindhi language, he was not sure about the contents of the same and if any reference had been made to the land in Schedule 'B' in these documents it was all without his knowledge and consent. He denied to have received any consideration with regard to the land in Schedule 'B'. His case was that he had given 4 lease thereof to respondent No. 2 i.e. Amir Hamzo Shah about four years before and had thereafter executed an agree ment of sale subsequent to which he had even executed a regular sale deed in this favour which was registered. He insisted that the possession of the land in Schedule 'B' was all along with the respondent No. 2, Amir Hamzo from the time he had given him the lease of the land. The respondent No. 2 claimed no dispute about the land shown in Schedule 'A' and stated that he had no knowledge of any transaction of any nature between respondent No. 1 .and the appellant. But with regard to the land in Schedule 'B' he asserted that he was in possession of the same since the time he had taken the land on lease and that he had acquired title of the same by purchasing the said land from respondent No. 1, who had executed a registered sale deed in his favour. He accordingly continued to be in possession of the land in Schedule 'B'. He vehemently denied the allegation that he was interfering with the possession of the land as stated by the appellant because he being in the actual physical possession of the land as an owner thereof, such a question Aid not arise at all. With regard to the land in Schedule 'A' however, he had no dispute as he did not claim the same by any means and, therefore, did not interfere with any possession of the same.

5. On consideration of the pleadings of the parties the District Judge framed in all ten issues, which are reproduced below:‑

"(1) Whether the agreement of sale (Kabala) dated 29‑10‑62 incorporat ing the land shown in the Schedule 'A' as well as the Schedule 'B' was signed by the defendant No. 1 under the colour of signing the document regarding the land shown in the Schedule 'A' only?

,(2) Whether the amount of Rs. 2,000 received by the defendant No. 1 from the plaintiff was not the earnest money towards the sale price of the land shown in the Schedule 'B' as evidenced by the agreement of sale dated 1‑11. 1962?

(3) Whether specific mention in the agreement dated 1‑11‑62 of the possession of land shown in Schedule 'B' having been delivered to the plaintiff is not true and that the defendant No. 1 had not, delivered possession to the plaintiff?

(4) Whether the defendant did not receive Rs. 3,500 towards the sale price of the land shown in Schedule 'B' as evidenced by the receipts, but as a loan as answered by the defendant No. 1 ?

(5) Whether the defendant No. 2 is in possession of the land shown in Schedule 'B' for the last four years by virtue of a registered lease executed by the defendant No. 1 in his favour?

(6) Whether the defendant No. 1 had executed an agreement of sale in favour of the defendant No. 2 prior to the agreement dated 29‑10‑1962 executed by him in favour of the plaintiff?

(7) Whether the agreements of sale dated 29‑10‑62 and 11‑11‑62 being unregistered have no binding force on the defendant No. 1 ?

(8) Whether specific performance of the contract cannot be granted on account of the penalty clause‑in the contract?

(9) Whether compensation in money is adequate relief in lieu of the breach of the contract relating to the sale of the land?

(10) What should the decree be?"

6. To support his case the appellant examined himself and produced various agreements of sale executed by respondent No. 1 in his favour. Exh. 51 was an agreement dated 29‑10‑62 which was referred to as the 'Kabala' in the plaint. In this reference has been made to both the lands. described in Schedules 'A' and 'B'. It was stated that this agreement was, valid only for one week and that before 6‑11‑1962 the parties were to enter into separate agreements regarding the lands specified in Schedules 'A' and, 'B'. A further date i.e. 31‑3‑1963 was also fixed for the pucca sale deed regarding Schedule 'B' land. This agreement was signed by the parties in presence of witnesses Dhani Buz son of Pir Bux and Mehtab Ahmad son of Abdul Wahid: Exhs. 52 and 53 were two agreements dated 1‑11‑62: respectively and deal with the sale of land of both Schedules 'A' and B'. On these two agreements the witnesses of execution are Abdul Hayee son of A. Qadeer and Dhani Bux son of Pir Bux. Exh. 54 is a further document executed by Khawja Rafiullah, giving a general power of attorney to the appellant. This was registered on 2‑11‑1962 and related to the land described., in Schedule'A'. The appellant also produced Exhs. 55, 56 and 57 to prove the various amounts that he had paid to respondent No. 1 Khawja Rafiullah. Exh. 58 is the notice dated 8‑4‑63 given by the appellant to Khawja Rafiullah. In this notice he referred to the Kabala and the agreements men tioned above and also the various amounts of money that he had paid. This, notice was given with a view to show his willingness to pay the balance of" Rs. 16,532 and further asking the respondent No. 1 to complete the transac tion by execution of sale deed and getting it registered in his favour within seven days. Appellant further produced Exhs. 59, 60/1, 60/2 and 60/3 to show that he had actually taken water for the Rabi Crops 1962‑63 and also that he had applied for exemption of land revenue for certain survey numbers. in April, 1963. To support his case further he examined Mehtab Ahmad and Abdul Hayee who were also the witnesses of execution of the documents and Muhammad Hashim who was scribe of Exhs. 51, 52, 53 and 54 and the receipt Exh.

55. To prove the factum of possession, the appellant examined witness A. Rahim, his Kamdar, and Muhammad Saleh, Allah Bux and Ilyas, haris of the land besides Haji Hassan and Kadir Bux, who claimed to be Zamindars of the vicinity.

7. On behalf of the respondent No. 1, Khawja Rafiullah examined himself and stated that he got about 330 acres of land in two Dehs. Le,. Noorjah and Naulakha in Taluka Dadu and that he leased out his land to= Bashir Ahmad Shah, who was a relation of Amir Hamzo Shah, the respondent No. 2. Although the deed of lease was executed in the name of Bashir Ahmad Shah, the real lessee was Amir Hamzo Shah with whom he had the talks of the lease and also final settlement. Subsequent to this he had to surrender about 290 areas of land. 92 acres of land was permanently transferred to him out of which 64 acres were in Deh Noorjah and rest were in Deh Naulakha. He produced Exh. 76 dated 10th of September, 1962 to show that he agreed to sell 62 acres of transferred land in Deh Noorjah to Anfir Hamzo Shah. According to him he bad entered into an agreement with the appel lant only in respect of land which was the surrendered land and that be had' given the possession of the confirmed land to Amir Hamzo Shah, respondent No. 2, and that of the surrendered land to the appellant. He produce& Exh. 77 which is the registered sale deed in favour of the respondent No. 2 in respect of the confirmed land and which is dated 26‑3‑1963. This land actually stood in his name in the record of rights also and he produced Exh. 79 to prove that fact. This respondent did not examine any other witnesses and relied upon his word supported by the documents as stated above. Respondent No. 2 Amir Hamzo Shah examined himself in support of his case. He corroborated Khawja Rafiullah and said that the land allotted. to Khawja Rafiullah was given in lease to Bashir Ahmad Shah, who was his eousin. He produced the lease deed executed by the respondent No. 1 in favour of Bashir Ahmad Shah as Exh.

80. According to him, his brother Piral Shah who had taken some land on lease in Deh Jhandiani Taluka Saiwan and which was about 275 acres, had exchanged that leased land with the leased land of Bashir Ahmad Shah and there had been a deed of exchange between them too and which he produced as Exhs. 84 and 84‑A. It is in this way that the land belonging to respondent No. 1 Khawja Rafiullah had come into possession of Piral Shah, the brother of respondent No. 2. The deed of exchange executed by Bashir Ahmad Shah was in favour of both Piral Shah and Hamzo Shah and thus respondent No. 2 was a party to this exchange. He, therefore. claimed to be in possession of the land. He confirmed the agreement with regard to sale executed by Khawja Rafiullah in his favour respecting the confirmed land in Deh Noorjah and which was Exh.

76. So also he confirmed the registered sale deed i.e. Exh.

77. He claimed that he and his brother Piral Shah continued to be in possession of the land and also paid . the land revenue assessment. He produced the land revenue bills, and receipts for 1.959‑60, 1960‑61, 1961‑62, 1962‑63 as Exhs. 86‑A to 86‑D, 87‑A to 87‑D, 88 and 89‑A to 89‑E and 90‑A to 90‑E. He claimed to have paid land assessment even for the years 1963‑64, but did not produce any receipts as he had not brought them. He claimed to have raised the Rabi Crops of the year on this land and gave the names of Allah Bachayo, Majid, Gullan, Allah Warayo, Ibrahim, baidino, Muhammad and others as being the harts on this land and denied that the appellant Mithal Shah bad at any time remained in possession of the disputed land. 'This respondent No. 2 examined Allah Bachayo son of Ali Mohammad from amongst the haris to prove the actual possession of Amir Hamzo Shah. This witness denied to have been the hart of the appellant or to have been given any Fertilizers by him. The respondent No. 2 has also examined Mohammad Ramzan Tapedar who supported Amir Hamzo Shah in saying that it was he who enjoyed the possession and produce of this land and that he paid the land revenue assessment during the years 1962‑63 and 1963‑64. He denied that the appellant had ever been in possession of this land during his stay as a Tapedar. According to him, appellant did possess some other land in Deh Noorjah for which he paid land revenue assessment. This witness also produced the field books for. this land pertaining to the years 1962‑63, 1963‑64 and 1964‑65 which mentioned the names of haris, who were claimed by Amir Hamzo Shah to be his harts. No other evidence was examined by respondents.

8. The Additional District Judge after considering the evidence on record dismissed the suit of the appellant and disallowed the relief for specific performance, but directed that the costs of the suit be paid by respondent No. 1 as the documents relied upon by the appellant were proved to have been executed by the respondent No. 1.

According to the trial Court, the Kabala, Exh. 51, was duly executed by the respondent No. 1, Khawja Rafiullah, and the contents thereof which were proved by the appellant through the witnesses and scribe were understood by the respondent No. 1 to be related to land of Schedule 'A' as well as Schedule B'. Though the language in which this Kabala was written is Sindhi, but the amount of Rs. 1,000 was mentioned in words which could be understood by any person who knew Urdu language. The trial Court, therefore, held that this agreement was not restricted only to the land that was alleged to have been repurchased by respondent No. 1. Similarly, his findings were that the amount of Rs. 2,000 that was received by the respondent No. 1 by way of agreement Exh. 54 dated 1‑11‑1962 was in fact with regard to the land mentioned in the agreement and which was the land of Schedule 'B'.

According to the trial Court, the execution of the two agreements Exhs. 52 and 53, was duly proved and it was not possible to believe as alleged that the contents were not understood by him due to the use of the language i e. Sindhi, because the endorsement at the bottom which is in Urdu shows that the respondent No. 1 had signed these two documents after clearly under standing the contents thereof. About the fact of delivery of actual physical possession the finding of the trial Court was that the expression to that effect in the agreement was a usual expression commonly made in such documents and did not really prove the passing of the actual possession itself. The further evidence adduced by the appellant i.e. the evidence of the haris etc. was also in the opinion of the trial Court of not much value because the admitted position is that he was given the possession of the excess land that is covered by Schedule `A' which was also in Deh Noorjah partly, and in that case it was not difficult for the appellant to produce such sort of evidence as he has done. The dispute was over the land‑which was Schedule 'B' land and it was in the possession of respondent No. 2 before the transaction. It was in the possession of Bashir Ahmad Shah on lease, the period of which extended up to Kharif 1962‑63. Respondent No. 2 claims to be in possession of this land and respondent No. I had supported his contention. Respon dent No. 2 had produced document I.e. the agreement dated 10‑9‑1962 Exh. 76 and also the registered sale deed dated 26‑3‑1963 Exh. 77 which shows that he was in possession. He has also produced the land revenue receipts which support him. The appellant had also himself admitted that the Tapedar had refused to take land revenue from him for the disputed land. Tapedar was not able to produce any further evidence about his actual possession over the disputed land and he relied upon the share list of water rotation fixed by the P. W. D. Exh. 59, but which has not been actually proved as the Abdar who prepared the list has not been examined. Similarly the fardis of remission of land revenue which have been produced by the appellant could not possibly prove his actual possession. In the first place only three survey numbers i.e. 289, 292 and 293 are mentioned from the disputed survey numbers in thesefardis and in the second place the original application made for these remissions have not been produced. The admitted position is that respondent No. 1 was holding A general power of attorney from the appellant and in that situation the production of the application was necessary according to the trial Court. to show the capacity to which the general remissions were obtained. About the amount of Rs. 3,500 which according to the appellant was paid by him to the respondent No. 1 towards the sale price of the land in Schedule'B' the explanation given by Khawja Rafiullah respondent No. 1 was that it was a loan, the trial Court has dis believed the version of respondent No. 1 in this regard and receipt itself shows that the money was paid towards the sale price of land as there was no amount due with regard to the other land actually transferred to the appellant. The only conclusion that could be drawn was that the receipts covering amount of Rs. 3,500 related to the sale price of the land in Schedule 'B'. In considering the position whether the respondent No. 2 Amir Hamzo Shah has been in possession of land in Schedule 'B' for the last four years by virtue of the registered sale deed executed by respondent No. I in his favour, the trial Court came to the conclusion that the documents produced by respondent No. 2 though could not be termed as false documents but were not convincingly true, and although the trial Court had found that the appellant was not given possession by virtue of documents executed by the respondent No. 1, it also said that Amir Hamzo Shah respondent No. 2 was in possession of the disputed land since last four years not necessarily by virtue of the registered sale deed Eah.

84. However, with regard to the disputed land, the trial Court had no doubt that the respondent No. 1 had executed an agreement of sale Exh. 76 of that land to the respondent No. 2 on 10‑9‑1962 which was prior to the one that he executed in favour of the appellant on 1‑1 t‑1952. However, these two agreements, one executed by the respondent No. 1 in favour of the appellant and other in favour of respondent No. 2, are both unregistered documents and the trial Court held that, Prima facie, both will have a binding force on the respondent No 1, but in view of the fact that he had executed another registered sale deed in favour of respondent No. 2, the registered documents would operate in spite of the unregistered agreement executed in favour of the appellant. The trial Court interpreted section 47 of the Registration Act and held that a registered document shall operate from the time the same would have commenced to operate, if no registration thereof was required, and not from the time of its registration. Thus the registered sale deed in favour of respondent No. 2 was according to the trial Court effective from the date of the execution of the original agreement i e. dated 10‑9‑1962 and which was in favour of respondent No. 2. The learned Additional District Judge also construed the provision of a clause made in the agreement which was a penalty clause for the breach of the contract. This clause provided a penalty of twice the purchase price which was agreed upon by the parties. And although the Court thought that the provision for a penalty in itself did not bar the specific performance of the contract, but in the present case there were also other circumstances which precluded its specific performance. In the opinion of the learned Judge the penalty provided in the above referred clause was adequate compensation for the breach of the contract and it was held that this compensation in money would afford adequate relief in the present case. The compensation was, however, not awarded as it was not specifically pleaded, but on an overall consideration of the facts and circumstances of the case, the relief of specific performance was not granted.

9. Now at the outset it may be stated that the respondents did not dispute the facts stated in the plaint with regard to the land described as Schedule `A' which was 238‑17 acres in area and was situated partly in Deh Noorjah and partly in Deh Naulakha, both in Tapo Noorjah. Respondent No. 2 was not concerned with this land at any time and claimed no know ledge about any transaction relating to the same by respondent No. 1, who himself affirmed having executed documents in favour of the appellant about this land.

The prayer clause in the plaint was also therefore to the effect that the respondent No. 1 be directed to execute an agreement to sell, about this land and also accept the balance of consideration. The other prayer was that the respondent No. I and even No. 2 be constrained to vacate or undo any acts that may be contrary to the agreements or interests of the appellant. This latter prayer seems to be irrelevant so far as the land, Schedule `A', is concern ed. The real dispute therefore is restricted to land described as Schedule 'B' and which is 64‑24 acres in Deh Noorjah and it is with respect to this land that the original Court had refused to direct any enforcement of sale.

10. The first ground of attack of the learned counsel for the appellant) against the judgment of the lower Court and in support of his case was based on section 53‑A of the Transfer of Property Act read with section 27 of the Specific Relief Act. According to him as the respondent No. 1 had executed a Kabala dated 28th October 1962, and a subsequent agreement dated 1s It November 1962, in favour of the appellant and as per endorsement therein he` bad also put the appellant in physical possession of the land on 28 th October 1962. then these facts alongwith that of payment of consideration, that be had substantially proved by examining witnesses of execution, and the haris working on the land, entitled him to the decree as prayed for by him. This decree could be passed and be binding even on tee respondent No. 2 who claimed to have purchased this land through a registered sale deed. The contention was that in the first place not only the respondent No 1 'Ass precluded from claiming any right in the property adverse to the appellant, who on his part was willing and prepared to perform his part of the contract, but the respondent No. 2 also could not claim any benefit on that basis, of the registered sale deed, as he had notice of the appellant's contract and also his physical possession on the land.

When confronted with the situation created by the effect of the definition of the terms notice as provided in section 3 of the Transfer of Property Act with its Explanation 1, coupled with section 27(61 of the Specific Relief Act, the counsel proceeded to argue that in such a case the burden of proving any lack of notice lay heavily on the other side which in this case has not been discharged. According to the learned counsel the onus was on the respondent No. 2 to prove that though he bad purchased the land in dispute by a register ed document, but he had done so bona fide, without a real notice of the prior transaction of sale of the same land in favour of the appellant. In support of this contention of his the learned counsel relied on the case of Mst. Khairunnissa and 6 others v. Malik Muhammad Ishaque and 2 others (P L D 1972 S C 25). This was a case where specific performance of a contract was sought against a person, who subsequent to the first contract, was claiming title in the same property and their Lordships of the Supreme Court bad held:‑

"Under the provisions of section 27(6) of the Specific Relief Act, 1877 a contract can be specifically performed against any other person claiming title to the property arising subsequently to the original contract but an exception has been made in the case of transferee for value who has paid him money in good faith and without notice of the original contract. It is, therefore,, for the transferee to prove that he was a transferee in good faith and without notice of the original contract for valuable consideration. In a suit for specific performance of contract the onus lies heavily on the person whose title arises subsequent to the contract to sell and he must prove that he is a transferee for value and has paid the money in good faith and without notice of the original contract. Under section 27(6) of the Specific Relief Act negative is to be proved by the subsequent transferee. If he appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden and the onus will then shift to the plaintiff to prove that the subsequent transferee had the notice of the original contract.

Where the subsequent transferee, who was impleaded as defendant, died during the pendency of the suit before his evidence could be recorded and the fact that he had no notice of the prior sale was sought to be proved, under section 32 of the Evidence Act, 1872 by the written statement filed by him, it was held that written statement could not be exhibited as evidence in Court without the person filing the same being examined. In the circumstances, it was held that there was no negative evidence to disprove notice of prior sale."

Now obviously the present case is not covered by the proposition of law stated .above. ‑In this case the respondent No. 2 has not only denied any knowledge .about the previous transaction of the appellant in clear and specific terms in ,the written statement that he has filed, but he also stepped into the witness box to depose so on oath. Not only this but in cross‑examination a sugges tion seems to have been made to him that he had ante dated the agreement that was made in his favour, so as to look prior to the one made in favour of the appellant. This is not only denied by him but such an allegation was also denied by respondent No. 1. The agreement in favour of respondent No. 2 4s dated 10‑9‑ 1962 while even the first `Kabala' in favour of the appellant is dated 28‑ 10‑1962. It is thus much later in time. The agreement executed on 1‑11‑1962 was consequent to the `Kabala'.

In these circumstances even relying on the case P L D 1972 S C 25, the onus of bona fides and want of notice had not shifted to the respondent No. 2 and the appellant had himself to establish his own case whether this Court could grant him a decree of enforcement of an unregistered contract so as to be binding on the respondent No. 2, who had the benefit of the registered sale ,deed executed in his favour.

11. The learned counsel then made an unsuccessful attempt to show that even on this view of the position, the appellant had, in fact, on his part, proved all the requirements of section 27‑A of the Specific Relief Act; and, for this purpose, he read out the evidence led by the appellant at the trial. He soon realised that there was nothing on the record to support him. In fact this was not even the case of the appellant in the plaint itself as he bad merely pleaded harassment at the hands of respondent No. 2. In his deposi tion he said:‑

"Now I have come to know since about a year or so that defendant No. 1 had sold this land to defendant No. 2, by a registered deed."

Another part of his statement in Court is also noteworthy. It is:‑

"Defendant No. 2 is resident of village Aminani. The land shown in Schedule `B' is 2‑3 S. Nos. away from the village of defendant No. 2. Amir Hamzo Shah defendant No. 2 was originally a Tapedar and has Left serving about 3 or 4 years back. Amir Hamzo Shah threatened my harts to leave the land and he also threatened to take away the standing crop by force. I therefore made an application to police for action under section 107, Cr. P. C. Police took no action as they said that it was a civil dispute between us. Thereafter I filed this suit."

Not only these statements show that he said nothing about there being no bona fide sale of this land, but in effect they betray him as they indicate his prior knowledge of such a sale before coming to the civil Courts. In view of all this and the existence of a registered sale deed executed in favour of the No. 2, the learned counsel well realised that the appellant was also not entitled to a decree for specific performance of the contract as prayed for by him. The learned counsel in fact conceded that such a decree as was sought by the appellant by filing the suit could not possibly be granted to him so long a registered sale deed which completely and legally transferred the ,rights in the land to the respondent No. 2 was in the field, and that it was necessary for him to have got that document cancelled before he could obtain the relief prayed for. The learned counsel being faced with this difficult position frankly stated that the plaint in its present form was not, therefore properly framed, and that it should have also included the prayer for can cellation of the registered documents of sale in favour of respondent No. 2.

The plaint should have been amended to include that prayer as soon as the, knowledge of the existence of that document was acquired by the appellant. The learned counsel, however, took the stand that, although the plaint was, not properly framed originally, it could still be amended at this stage, and,. for that purpose, be requested for time to enable him to make the necessary application. This time was granted to him, and he filed his application on 9th December 1974, in para. No. 2 of which application he contended that the relief of cancellation of the sale deed dated the 26th March 1963 (Exh. 77), could not be made as the appellant was not aware of the execution and registration of the same when he filed the suit. This statement also reacts adversely to his prior submission that he had discharged the burden of establi shing the fact that the respondent No. 2 had entered into the transaction with the full knowledge and notice of the agreement of sale which the appellant had now made the subject‑matter of the suit for specific performance.

12. It might be useful to reproduce here the specific terms of the prayer that the learned counsel had made in his application, which was under Order VI, rule 1.7 read with section 151, C. P. C. :‑ .

"3. That, as directed by this Honourable Court and in the interest of justice it is just and proper that the following amendments in the plaint may very kindly be allowed:

After paragraph 12 of the plaint, paragraph 12‑A. That Khwaja= Rafiullah sold the Schedule 'B' land to defendant No 2 Amir Hamzo, Shah by a registered sale deed dated 26‑3‑1964, registered in Book No. 1, Serial No. 515, pages 281 to 2$9, Volume 312, after entering into, Kabala dated 29‑10‑1962 and agreement dated 1‑11‑1962 with the: plaintiff and delivering possession of the said Schedule `B' lends to, him.'

In paragraph 13 after the words `and as the defendant No. 2 has no right t disturb the possession of the plaintiff' the following addition be allowed :‑ 'and as the sale deed dated 26‑3‑1963 was registered at Dadu.'

In the relief claimed the following relief: "d/l. The Court will be pleased to adjudge the sale deed dated 26‑3‑1963 registered in Book No. IX, Serial No. 515, pages 281 to 289, Volume= 312 at Dadu Sub‑Registry as void and not binding on the plaintiff.'

Amended plaint is filed." .

This application for the amendment of the plaint was also heard and was. directed to be disposed of alongwith the main appeal.

13. Now, at the outset, I would like to make it clear that there was no direction by the Court to make amendments in the plaint as has been wrongly stated in this application at the commencement of the paragraph quoted above. This application was made as the learned counsel himself thought that, in view of the legal position, as it stood, it was possible for him to get the plaint amended, although the matter was at the stage of appeal.

14. To support the above proposition and the application made by him, the learned counsel relied first on the case of Bashir Ahmed Khan v. Qaisar Ali Khan (PLD1973SC507). In this case, a suit for declaration had been filed on 13th of May, 1959 with regard to the ownership of property alleged to have been purchased in the year 1949 by way of an oral sale and which property was subsequently acquired by the Thal Development Authority on 4‑4‑1951. During the pendency of the suit, several preliminary objections as to its main tainability were raised, decision of which became the subject‑matter of a Revision Application in the High Court which was dismissed on 15th March 1967 and a leave to appeal was granted by the Supreme Court to examine the correctness and legality of the order made by the High Court. While granting this leave to appeal, the Supreme Court ordered stay of further proceedings in the suit pending in the trial Court till disposal of the appeal. While leave to appeal was granted on 29th of June 1967, an applica tion was made in the Supreme Court praying for permission to amend the plaint or, in the alternative. to vacate the stay order. so as to enable the trial Court‑to decide 'the application for such amendment of the plaint. By an order dated 10th of January, 1968, their Lordships of the Supreme Court suspended the stay order to enable the moving of the application before the trial Court for permission to amend the plaint. The application for amend ment made before the trial Court was, however, rejected which order was therefore challenged in Revision before the High Court, which came to the conclusion :‑

"That the amendments sought by the plaintiff‑s were not hurt by the bar of limitation, and that the amendments did not seek to change the nature of the suit."

The decision of the High Court was challenged before the Supreme Court, where after considering certain case‑law, it was held:‑

"It is true that the rule consistently laid down in these precedents is that although the powers of amendment are wide and should always be liberally exercised to secure the proper administration of justice, yet an amendment which involves the setting up of a new case and alters the real matter in controversy between the parties ought not to be allowed. The question, however, is whether this rule has any application to the facts of the case before us."

Having laid down the above principle of law, their Lordships then proceeded to examine the facts and the circumstances of the case before them and found;‑, that the amendments were, in fact, intended to remove the objections raised by the petitioner himself as to the maintainability of the suit, that is in the trial Court and further that almost all the time was spent in getting the decision from the Courts at various levels on the question whether the amend ments were indeed necessary or not, and therefore, in the special circumstances stated, it was held that the amendments could be allowed even if a fresh suit involving these reliefs would have been barred by time on the date of the application for amendments. All these objections were relatable to the objection raised on the ground of limitation, as the application for amend ment was moved after a lapse of nearly nine years since the institution of the suit. But so far as the question of any new relief prayed by way of amend ment and/or based on different causes of action having the effect of changing the very nature of the suit, their Lordships of the Supreme Court obviously expressed no disagreement with what was laid down in the case of Charan Das and others v. Amir Khan and others (AIR1921 PC50). Obviously, this case did not give the support to the learned counsel that he needed. as, in the first place, there is no suit pending in the trial Court at the moment, and, in the second place no special circumstances are shown to exist as contemplated in the case of' Bashir Ahmed Khan v. Qaisar Ali Khan.

15 The respondent No. 1 on his part had disclaimed the execution of any such document in fafour of the appellant respecting the subject matter of land specified in Schedule `B'. As professed by the appellant in his specification for amendment of the plaint made now in this Court, he had no knowledge of this registered sale deed at the time of the filing of the suit but it is obvious that he had acquired this knowledge much before the filing of the written statements by the respondents which are both dated 31st July 1963. The order of the District Judge, Dadu; dated 6 4‑1963, in very clear terms, referred to the existence of this registered sale deed and in fact the District Judge had used evidence of this document as one of the grounds on which he has refused to issue any injunction against the respondent No. 2, as had been prayed for by the appellant. The appellant had failed to take notice of this fact all this time when he should have amended this plaint so as to include the relief of getting this document can celled. At this late stage, during the pendency of the appeal, at least the interests of the respondent No. 2 are seriously to be affected and his position is bound to be greatly jeopardised, as this document would amount to introducing a new subject‑matter and a new relief against him which is effectively changing the whole character of the suit.

In the light of the above discussion, it is very clear that the present case is a case of flagrant carelessness, where the appellant being in the full knowledge of the facts had omitted to pursue the remedy that was open to him and had! failed to file or frame a suit in accordance with the requirements of law. The application for amendment of the plaint, therefore, cannot be accepted now and is to be treated as rejected.

16. The learned counsel thereafter raised a totally different argument which, in fact, was conflicting with what he had prayed for by an application for amendment of the plaint. In his submission the necessity of getting a document cancelled before enforcing a right to the specific performance of a contract would not arise in a case where the instrument that formed an obstacle in the way of such a relief was a document that was void in itself. According to him, in the present case also the document that was executed by the respondent No. 1 in favour of the respondent No. 2, whereby he had transferred the rights of ownership through a registered sale deed was a void document and as such would not affect his relief of getting the contract en forced through the suit that had been filed by the appellant.

He relied upon the case of Shamshad Ali Shah and others v. Syed Hassan Shah and others (P L D 1964 S C 143) in support of this argument and quoted a passage appearing at page 153 which, in fact, had been reproduced by their Lordships of the Supreme Court froth the case of Ramchandra Jivaji Kanago and another v. Laximan Shrinivas Naik and another (AIR 1945 P C 154) and is as under:‑

"Having regard to the findings of the High Court which their Lordships find no reason to reject, the main question for determination before the Board as stated already, is whether the suit is barred by Article 91, Limitation Act. If the deed of gift is a void transaction no question of cancelling, or setting it asid, would arise, but if it only a voidable transaction, that is, a transaction valid until rescinded, then the necessity to set it aside is obvious before possession of the property can be claimed."

The case before their Lordships of the Supreme Court was that of a gift under the Muhammadan Law, and it was held that, if the deed was merely invalid, and not void, it would have been necessary for the plaintiff to have that set aside as a preliminary to their taking possession of the property and that Article 91 of the Limitation Act would be attracted to the case. Their Lordships were of the view that, when a gift is not accompanied by posses sion, it is void ab initio. Obviously, this case was not of much help to the appellant for a transaction which could be shown to be void in itself would be ignored and it would need no further process for making it extinct. This case does not throw any light on the question whether the deed sought to be challenged‑before us is void nor can it do so because the facts in the case cited and those in the instant case are completely different. Instead of trying to show how the registered deed in favour of second respondent was void, Mr. Nomani merely referred us to another judgment reported in Abdul Hamid alias Md. Abdul Hamid v. Dr. Sadeque Ali Ahmed and others (P L D 1969 Dacca 357). but there the deed with regard to which declaratory relief was sought was alleged to be vitiated by fraud, want of consideration and other circumstances. Therefore, this case also throws no light on the question whether in the instant case the registered sale in favour of the second respondent is legal or illegal and if so whether it is void or voidable. Mr. Nomani's only other submission was to refer us to the following passage in the Dacca case: ‑

"There is ample authority for the view that a distinction should be drawn between the cases where the plaintiff is a party to the deed and the case in which he is stranger to it. Where a document is to be set aside or declared null and void by a person who is a party to the deed, mere declaration would not do and cancellation of the deed is a necessary relief unless the document is void ab initio. But a person who is not the party to the deed is not bound to have it set aside or can celled and a mere declaration that it will not affect the plaintiff's rights would be quite enough. If the plaintiff is bound to have the document set aside or declared null and void the plaint must be treated as includ ing a prayer for consequential relief, but if it is not incumbent on the plaintiff to get rid of the document the plaint must be treated ac one for a declaration pure and simple."

On the basis of these observations, the learned counsel attempted to circum vent his failure to challenge in the plaint the sale deed in favour of the second respondent. Now the observation that a person who is not a party to a deed is not required to have the deed cancelled appears to support, at first sight, Mr. Nomani's submission. But in the first place these observations are obiter, and secondly, the suit in the case cited was for a deelaration that a deed execut ed by the petitioner was void and in these circumstances the Court held that the petitioner was not required to pay court‑fee for the cancellation of the deed. It may further be noted that the learned Judge in the case cited had relied upon an earlier judgment of their High Court reported in P L D 1965 Dacca 439. That too was a suit in which the plaintiff had sued for a declara tion that a document executed by him was void and the only question before the Court was of court‑fee on the prayer for the cancellation of the document. Neither of these judgments have the remotest relevance to the instant case because the appellant had not sought in his plaint any declaratory relief with regard to the registered sale in favour of the second respondent. He had merely sought a permanent injunction to restrain that respondent from inter fering with his possession; but as be deliberately refrained from seeking even declaratory relief, neither the Dacca case cited nor the earlier case i.e. P L D 1965 Dacca 439 have the remotest relevance to the instant case. Accordingly it is not necessary to examine the wider proposition as to whether a person who is not a party to the deed can challenge it by seeking only a declaratory relief.

17. The situation that emerges now after rejecting the application for amendment is that the appellant cannot be entitled to get a decree for the enforcement of the contract for which he had filed a suit and which had been dismissed by the District Court. No other finding of the District Judge or the issues framed in the suit have been challenged and in view of the above there is no reason to interfere with the same. The trial Court bad dismissed the suit but had ordered the costs to be borne by the respondent No. 1 although the relief of specific performance could not be given to the appellant, but the documents upon which he was. relying were proved to have been executed by the respondent No. 1. In this appeal, how ever, the costs of the appeal shall be born by the appellant himself. As a result, the present appeal fails and is dismissed with costs.

S. A. H. Appeal dismissed.