MUHAMMAD HUSSAIN Versus KHUSHI MUHAMMAD

MIAN SAQIB NISAR, J.‑‑‑ Suit for specific performance filed by Khushi Muhammad (plaintiff) deceased, now represented by his successor against the appellant and respondents Nos.2 to 4, was allowed, but qua the subsequent vendees, the respondents Nos.5 to 6, it has been dismissed, hence this appeal.

2. Briefly stated the facts of the case are that on 19‑1‑1987, plaintiff brought a suit for specific performance of an agreement to sell dated 4‑7‑1983, executed between him and respondents Nos.2 to 4, for sale of the suit land, measuring 128 Kanals and 14 Marlas, agreed to sold to him by the said respondents, for a total consideration of 11,21,000, out of which, he claimed to have paid to the respondents amount of Rs.10,21,000, as earnest money and on the payment of ordinance amount of Rs.1,000 sought enforcement of the agreement the plaintiff impleaded the appellant as defendant No.4 in the suit on the ground, that he has subsequently, purchased the suit land, from respondents Nos.2 to 4 and further sold a part of this land to defendants Nos.5 to 6 who were arrayed as defendants Nos.5 to 6.

3. As per paragraph No.2 of the plaint, it is the case of the plaintiff that respondents Nos.2 to 4,, had filed a suit for pre‑emption qua the suit land against the vendees,, which was decreed in their favour; they were short of the pre‑emption price and had approached the appellant, for the payment of requisite amount to them with the promise that when land is transferred in their favour, they shall sell the same to the appellant. The appellant agreed to the above proposal but had reservation that because the land has not so far been transferred in their favour, thus he imposed the condition that the plaintiff should stand as a surety for the above bargain. Accordingly, plaintiff stood as a surety in the manner that two agreements were executed between the parties on 4‑7‑1983, according to one agreement, which was subsequently renewed on 11‑11‑1983, the respondents Nos.2 to 4, agreed to sell the suit land which they were entitled on account of the pre‑emption decree in their favour and through the second, plaintiff agreed to sell his land in favour of the appellant, which agreement was in the nature of surety to ensure that respondents Nos.2 to 4, shall finally transfer the suit land to the appellant once they became the owners thereof. It is also stated in the plaint that the appellant promised that if the suit land is transferred to the appellant by respondents Nos.2 to 4, he would not press for the specific performance of the agreement, executed in his favour by the plaintiff. Plaintiff after sale in favour of the appellant, by respondents Nos.2 to 4, asked the appellant for the return of his agreement, but in the meantime, a pre emption suit was filed against the appellant by the relatives of respondents Nos.2 to 4. The appellant pressed the plaintiff to get the said suit withdrawn, however, as the plaintiff could not manage the same, the appellant on the basis of the agreement with the plaintiff, filed a suit for specific performance against him, which suit is pending. In paragraph No‑3 of the plaint, it is also stated that if the appellant insists to pursue his abovementioned suit for specific performance, against the plaintiff, then the sale made by respondents Nos.2 to 4, in favour of the appellant and further alienation in favour of respondents Nos.5 to 6, shall have no effect on the right of the plaintiff to seek the enforcement of the agreement between the plaintiff and respondents Nos.2 to 4. This suit was contested by the appellant and respondents Nos.5 and 6, whereas respondents Nos. 2 to 4, conceded the case. Out of the pleadings of the parties, following issues were framed:

(1) Whether the suit is collusive between the plaintiff and the defendants Nos. 1 to 3, 5 and 6? OPD‑4.

(2) Whether the suit is time‑barred? OPD‑4

(3) Whether the agreement of sale if any is void. because of uncertainty? OPD‑4

(4) Whether the plaintiff is estopped by way of his word and conduct to bring this suit? OPD 4, 5, 6

(5) Whether the plaintiff has no locus standi? OPD‑4

(6) Whether the defendant No.4, is a bona fide purchaser with consideration and without notice? OPD‑4

(7) Whether this suit is a counterblast? OPD‑4

(8) Whether the defendant No.4, is entitled to special costs? OPD‑4

(9) Whether the plaintiff has no cause of action?

(10) Whether the plaintiff is entitled to the decree for specific performance of the agreement, if so, on what terms? OPP

(11) Relief.

3. Khushi Muhammad (plaintiff), examined P.W.1, Karamat Ullah, the scribe of the agreement to sell dated 4‑7‑1983 (Exh.P.1); P.W.2 is Ch. Asghar Ali Sindhu, Advocate, who is scribe of renewed agreement dated 11‑11‑1983; plaintiff himself appeared as P.W.3; defendant No.1 Muhammad Sharif, who is one of the vendors of the agreements dated 4‑7‑1983 and 11‑11‑1983, appeared as. P.W.4; Amanat Ali, grandson of Khushi Muhammad, was examined as P.W.5 and Muhammad Ishaq, is P.W.6. Documentary evidence placed by the plaintiff is Exh.P.1 to Exh.P.5, significance of these are Exh.P.1 to Exh.P.2, agreement dated 4‑7‑1983 and renewal thereof dated 11‑11‑1983 Exh.P.2. Defendant No.4, examined Shabbir Hussain Patwari as D. W .1, Ghulam Qadir, Tehsildar Ferozewala appeared as D.W.2, Muhammad Iqbal; Patwari Halqa Alo‑Mahar as D.W.3, Muhammad Shafi, Patwari Halqa Ghoinke ,as D.W.4 and himself appeared as D. W .5.

4. Learned trial Court, after conclusion of the trial, decided all the material issues, in favour of the plaintiff and decreed the suit against the appellant. However, it was dismissed qua respondents Nos.5 and 6, holding them to be the bona fide purchasers without knowledge of the agreement to sell, between the plaintiff and defendants Nos.2 to 4.

5. Learned counsel for the appellant, contends that the Court below bas misread the evidence on the record and has also misapplied the law. In this behalf, it is stated that according to the averments of the plaint, it is a clear admission that the agreements Exh.P.1 and Exh.P.2, were in the nature of surety, resultantly, once the suit land had been transferred in favour of appellant by the respondents Nos.2 to 4, agreements Exh.P.I and Exh.P.2, lost their legal value and force and cannot be specifically enforced. He has also referred to the written statement, filed by Khushi Muhammad in the earlier suit for specific performance brought by the appellant. In paragraph No.2 of the written statement, Khushi Muhammad, has explained the background and tire purpose of the two agreements and has admitted that his agreement with the appellant, was in the nature of surety and once the property had been transferred by defendants Nos. 1 to 3, in favour of appellant, such agreement automatically has been rescinded. He has also referred to the statement of Khushi Muhammad in the present suit, in which, he in clearest terms has admitted that he has not paid any amount of consideration to defendants Nos.1 to 3, and that this amount was paid by the appellant in the manner, as has been narrated in the plaint and that he only stood as the surety for the transfer of land by defendants Nos. 1 to 3, in favour of the appellant: He has also referred to Exh.D‑2, the statement of Khushi Muhammad, in the suit, filed by the appellant against him, mentioned above and the statement of D.W.2 Ch. Muhammad Saeed Ahmed, Advocate, who appeared as witness in the said case on behalf of Khushi Muhammad.

6. Conversely, learned counsel for the respondent No.1, Khushi Muhammad (now represented by his legal heirs), has argued that the above agreements were independent in nature; in fact, Khushi Muhammad, had agreed to sell his land in favour of the appellant, who paid an amount of Rs.10,21,000 to him. This amount was paid as an earnest money by Khushi Muhammad, to defendants Nos.1 to 3, for his agreement to sell and therefore, Khushi Muhammad, is entitled to seek the enforcement of the agreement dated 4‑7‑1983, as reviewed on 11‑11‑1983. It is also submitted that in the earlier suit filed by the, appellant, against Khushi Muhammad, a compromise was affected between the parties by virtue whereof, Khushi Muhammad, returned the amount of Rs.10,21,000 to the appellant and therefore, he unconditionally withdrew his suit. In this behalf, he has referred to the statement of P.W.5 and P.W.6, who have deposed that the above amount was returned to the appellant and he relinquished his claim in the above manner. It is stated that no significant cross‑examination has been conducted on these two witnesses, thus it stands admitted that the agreement to sell between the appellant and Khushi Muhammad dated 4‑7‑1983, came to an end on account of the repayment of aforesaid mount and because the said amount which the appellant paid to Khushi Muhammad, and Khushi Muhammad paid to defendants Nos.1 to 3, as consideration of his agreement to sell, between them, therefore, the agreement is liable to be enforced. It is also submitted that Muhammad Sharif, one of the vendors has appeared as witness and has deposed that the vendors took the amount of Rs.10,21,000, from Khushi Muhammad and had agreed to sell the suit land in his favour. This witness has further admitted the execution of Exh.P.1 and also renewal agreement dated 11‑11‑1983 Exh.P.2.

7. We have heard learned counsel for the parties. Plaintiff Khushi Muhammad, in the plaint, himself has made very important admissions, which cannot be ignored or last sight of. He has narrated as to how, defendants Nos.1 to 3, required certain amount for the payment of pre emption price in the suit for pre‑emption decreed in their favour qua the suit land. It is also mentioned that the said defendant had approached defendant No.4/appellant, for borrowing this amount, but appellant No.1 agreed to make payment, if Khushi Muhammad, stood as a surety .for that purpose, therefore, in the above circumstances, two agreements were executed between the parties, one through which Khushi Muhammad, as surety had agreed to sell his land in favour of the appellant, and through another agreement of even date, respondents Nos.1 to 3, agreed to sell the suit land in favour of Khushi Muhammad. This clearly establishes that the agreement between the plaintiff and defendants Nos. 1 to 3, was not an' agreement of sale, but it was an agreement of surety, for the purpose of safe guarding the right and interest of appellant for the payment which he had made to defendants Nos. 1 to 3, for discharge of their liability under the pre‑emption decree. This being surety agreement cannot be considered as a valid and absolute sale agreement in favour of Khushi Muhammad, particularly, when even according to the contents of the plaint, defendants Nos. 1 to 3, had agreed to sell the suit land, directly to the appellant and they had already transferred the suit land to the appellant in pursuance of this agreement, therefore, the agreement between Khushi Muhammad and appellant stood automatically terminated and deemed cancelled. It is Khushi Muhammad own case that the appellant, when subsequently a pre‑emption suit was filed against him pressed Khushi Muhammad, for getting that suit withdrawn, but as he could not do so, resultantly, the appellant filed a suit for specific performance against Khushi Muhammad, on the basis of agreement dated 4‑4‑1983. In this case, Khushi Muhammad has appeared as D.W.5 and in clear and unequivocal terms made very important admission in the examination‑in‑chief.

In cross‑examination, he admitted:

Likewise in that suit, Ch. Saeed Ahmed, Advocate, who represented Khushi Muhammad, in, the present suit, also appeared as D.W.2 and stated.

In cross‑examination, he conceded that subsequently, the parties approached him and required that the suit land be transferred in favour of the appellant. Further according to Exh.D.9, written statement, filed by Khushi Muhammad, in the earlier suit, he vividly stated as below:‑‑

8. In the light of these admissions, particularly, when Khushi Muhammad appeared as witness as P.W.3, and was confronted with these documents, he admitted these statements but has given no explanation for his contrary stands. It is not proved that the agreement in question was independent, rather we hold that the agreement was in the nature of a surety and it stood terminated, the moment the suit land was purchased by the appellant and he withdrew his suit for specific performance.

9. As regards the argument of learned counsel for the respondent that Khushi Muhammad, has returned the amount of Rs.10,21,000 to the appellant and it is on this account, he withdrew his suit for specific performance; and the statement of D.W.5 and D.W.6, who have testified about the return of this amount have not been subjected to cross examination, thus it is amply proved that the appellant gave up his claim after the return of the aforesaid amount, which he paid to Khushi Muhammad.

10. We have considered this submission, the plaintiff in his suit, has not mentioned the above fact, because at the relevant time, when. the present suit was instituted, earlier suit for specific performance was already pending. In the statement of Khushi Muhammad, that the suit for pre‑emption was dismissed, on account of change in the law, therefore, it seems most probable that when the pre‑emption suit terminated, the appellant obviously in the true nature of the transaction, did not press this suit and the same was unconditionally withdrawn. If the appellant had been paid some by Khushi Muhammad, it was expedient to have mentioned the payment in the suit for specific performance filed by the , appellant. Rather contrary to the above, withdrawal is simpliciter. It is incorrect to state that no cross‑examination has been conducted on D. W .5 and D. W .6. The appellant has suggested to them that he did not receive any amount from Khushi Muhammad. Even otherwise, said D.Ws. are close relative of Khushi Muhammad and resultantly, their evidence cannot be given much credence. Above all, Khushi Muhammad, never sought amendment in the plaint, to ever assert the fact that he had returned the amount of Rs.10,21,000 and it is on this account, the appellant withdrew his suit for specific performance. It is settled law that no person call be allowed to lead evidence beyond the scope of his pleadings and even if such evidence is produced, that shall be ignored by the Court. This principle is squarely applicable to the present case, resultantly the statement of D.W.5 and D.W.6, cannot be considered.

In the light of what has been discussed above, we find that the learned trial Court, has given incorrect and wrong finding on the relevant issues including that there is a valid agreement between, the plaintiff and respondents Nos.2 to 4, which can be enforced. Accordingly; by allowing this appeal, we set aside the judgment and decree of the trial Court and dismiss the suit for specific performance. No order as to costs.

S.A.K./M‑1390/L Order accordingly.