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Petitioner: ABDUL KADIR VS Respondent: MIR ASHRAF ALI KHAN AND 2 OTHER
Court Name: Sindh High Court Judge(s): Zaffar Hussain Mirza, Syed Sajjad Ali Shah Title: ABDUL KADIR vs MIR ASHRAF ALI KHAN AND 2 OTHER Case No.: Civil Appeal No. 13 of 1975 Date of Judgment:1980-12-22 Reported As: 1982 CLC 110 Result: Appeal dismissed
JUDGMENT
JUDGMENT SAIIAD ALI SHAH, J.-'Ibis First Appeal is directed against the Judgment dated 22-1-1975 of learned Senior Civil Judge. Dadu, in a F. C. Suit for specific performance, possession and mesne profits valued at Rs.1,04,170 whereby the said suit with regard to the relief of specific performance, posses- -sion and mesne profit has been dismissed but decreed for Rs.61,000 for recovery of earnest money and part payments made to judgment-debtor. Shortly stated the relevant facts are that the appellant/plaintiff namely Abdul Kadir son of Haji Khan filed a suit as stated above on 29-3-1968 in the Court of District Judge, Dadu against respondent No. 1 Mir Ashraf Ali Khan on the averments that the said respondent entered into an agreement with the appellant on 14-9-1967 at Karachi to sell 94-24 acres of agricultural land situate in Village Saidpur, Taluka Mehar, District Dadu, which is specified in the plaint, for a total sale price of Rs.1,04,170 out of which the appellant paid Rs..31,000 as earnest money. The agreement further provides that the appellant will pay 2/3rd of Rs.73,170 the remaining balance of consideration amount in the month of January, 1968 and Rs.24,390 the remaining con--sideration amount, at the time of registration of sale deed before the Sub---Registrar. The agreement further stipulates that the respondent shall give possession of the aforesaid land to the appellant before the commencement of Kharif season of 1967-68 after the expiry of the then existing `Maqata' and if the said respondent failed to give possession, be would pay one year lease money of the whole land. The said agreement also provides that the said respondent shall procure all the necessary documents and shall inform the appellant for getting the registration of sale deed and if he failed in that regard or the registration of the sale-deed got protracted on the part of the appellant the said respondent will recover Rs.5,000 for a year as penalty. It is further stated in the plaint that the
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said respondent Mir Ashraf Ali Khan realized further amounts on different occasions from the appellant through his Mukhtar Kabir Khan and on one occasion he himself realized Rs.30,000 from the appellant on 7-3-1967. It is further stated in the plaint that Mir Ashraf Ali Khan did not inform the appellant about the procurement of the necessary documents nor delivered possession of the said land. In these -- circumstances as stated above the appellant sent a notice to the said respondent on 1-8-1967 calling upon him to receive the remaining unpaid balance of the sale-price and to execute and register sale-deed in his favour. Mir Ashraf AR Khan sent his reply dated 11-$-1957 denying the allegations and cancelling the agreement of sale. The prayer in the plaint is that respondent Mir Ashraf Ali Khan be ordered to execute sale-deed in favour of the appellant and hand over possession of the land in dispute with mesne profits by way of compensation at the rate of Rs.5,170 annually or such amount as the Court may determine from the date of the suit till the delivery of the possession on the appellant's paying to the respondents or depositing in the Court Rs.27,500 or any other amount determined by the Court within such time as the Court may deem proper. Mir Ashraf Ali Khan filed his written statement on 19th July, 1968 in which he has denied that he entered into any agreement to sell with appellant and further stated that the said agreement was in fact a collateral security for a loan taken and inflated amount has been shown therein. It is further stated in the written statement that the said respondent had taken a loan of Rs.25,030 from the appellant and Rs.31,000 have been shown to include interest of Rs.6,000. All other assertions made in the plaint have been denied including the receipt of notice from the appellant and reply sent thereto by the respon--dent. On 27th August, 1968 an application under Order 1, rule 10, Order VI, rule 17 and Order XXII, rule 10 read with section 151, C. P. C. Was filed in the Court by the appellant praying for allowing amendment in the plaint to include and join as parties Ali Nawaz, son of Haji Rasool Bux as defendant No. 2 and Nusrat Ali son of Mir Aftab Ali Khan as defendant No. 3 for the reason that they in conspiracy with respondent Mir Ashraf Ali Khan have filed a Collusive Suit No. 73/68 in the Court of First Class Civil Judge, Hyderabad for specific performance of an alleged fictitious agreement of sale in respect of suit land executed on 22-4-1968 and the said suit has been declared in favour of Ali Nawaz on the admission of claim by Mir Ashraf Ali Khan and his attorney Nusrat Ali Khan, who were impleaded as defendants in that suit. This application was resisted and objections were filed by Ali Nawaz on 5-10-1968 taking the plea that objector is neither necessary party nor a proper party on the ground that there was no privity of contract between the objector and the appellant. Finally the application utrder Order I, rule 10, C. P. C. Was allowed by the trial Court on 13-11-1968 in consequence whereof amended plaint was filed oil 23-11-1968 and amended written statement was filed by respondent No. 1 and Ali Nawaz and Nusrat Ali Khan who were joined as defendants Nos. 2 and 3 respectively also filed their written statements. Respon--dent No. 2 Ali Nawaz has taken a plea in his written statement that the land in question was agreed to be sold to him by an agreement dated 29-5-1966 and the possession has been banded over to him, which fact was within the knowledge of the appellant who is a neighbouring Zamindar. It is further stated in the written statement that the Court at Dadu had no jurisdiction to question the validity of the decree passed in suit at Hyderabad. The other two respondents Mir Ashraf Ali Khan in his amended written statement and Nusrat Ali Khan in his written statement have denied that suit filed at Hyderabad was collusive and decreed without jurisdiction and further averred that Court at Dadu has no jurisdiction in view of the decree passed by the competent Court having coordinate jurisdiction. (1) Whether the defendant No. 1 entered into an agreement of sale of the suit land with the plaintiff or whether it was an agreement of collateral security? (2) Whether the plaintiff paid Rs.71,500 towards the consideration amount of Rs.1,04,170 of the suit land to the defendant No. 1 as shown in paras Nos. 3 and 5 of the plaint ?
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(3) Whether Rs.5,470 was annual interest and not lease money, if so, what is its effect and can the defendant maintain such plea ? (4) Whether the defendant No. 1 failed to perform his part of agreement, if so, is the plaintiff entitled to specific performance of the contract, possession and mesne profits by way of compensation as prayed ? (5) Whether the plaintiff had knowledge of defendant No. 2's agreement with defendant No. 1 and the possession thereof ? (6) Whether decree in Suit No. 73 of 1968 of the Court of Civil Judge, First Class Hyderabad obtained by defendant No. 2 against defendants Nos. 1 and 3 is collusive and fraudulent and ineffective against the plaintiff and being without jurisdiction and void? (7) Whether the suit is barred by the principles of res judicata? (8) Whether this Court has no jurisdiction to sit in judgment over the judgment and decree of a Court of co-ordinate jurisdiction of Hyderabad? (9) Whether-there is privity of contract between the plaintiff and the defendants Nos. 2 and 3 and if so, what is the effect? (l0) Whether the suit is maintainable as there is no prayer for the can--cellation of the judgment and decree of senior Court Hyderabad? (11 ) Whether the suit is not properly stamped? (12) What should the decree be? Subsequently an additional issue was also framed as Issue No. 13 with the consent of the parties which is to the effect "whether the parties to the suit are agriculturalists and with what effect" but this issue was not pressed by the parties hence the trial Court has refrained from giving finding on this issue. Before the trial Court appellant Abdul Kadir has examined himself and four other witnesses. On the other side the respondents have examined themselves and two other witnesses. Appellant Abdul Kadir has deposed that respondent Nusrat Ali offered to sell the suit land to him and he executed such agreement on 14-9-1966 which he has produced as Exh, 126. Appellant paid him Rs.31,000 in cash, The agreement was attested by Ghulam Hussain and by one Oath Commissioner. He has also stated that at that time the suit land was on lease with his father and respondent Ali Nawaz, which was to expire in `Rabi' 67-68. He has produced letter of Mir Ashraf Ali Khan dated 4-11-1966 as Exh. 127 demanding from him Rs.10,0j0. He has produced receipt dated 4th November, 1.966 showing acceptance of payment of Rs.3,000 by Kabir Khan attorney of respondent Mir Ashraf Ali Khan on his behalf. He has also produced another receipt dated 20th November, 1966 showing acceptance of payment of Rs.7,000 by Kabir Khan on behalf of Mir Ashraf Ali Khan. He has further produced another receipt dated 7-3-1967 showing payment of Rs.30,600 to Mir Ashraf Ali Khan, which is Exh. 129. It is further stated by the appellant in his evidence that when Mir Ashraf Ali Khan did not execute registered sale-deed, on 1-8-1967 he sent him a notice through Advocate and produced the same as Exh. 131. Mir Ashraf Ali Khan sent him a reply through his Advocate, which is Exh. 132, whereby the agreement of sale was cancelled. Appellant Abdul Kadir has also deposed that he came to know subsequently that respondents Ali Nawaz and Nusrat Ali in conspiracy with respondent No. 1 Mir Ashraf Ali Khan got fraudulently a decree passed by civil Court, Hyderabad in favour of Ali Nawaz in respect of the same suit land. Respondent No. 2 Ali Nawaz knew that the appellant had purchased the suit land from Mir Ashraf Ali Khan, who has executed such agreement. Witness Ghulam Hussain has deposed that he accompanied Abdul Kadir to Karachi and in his presence agreement of sale of the suit land was executed between Mir Ashraf Ali Khan and Abdul Kadir. He has also stated that he was witness to 'payment of Rs.30,000 to Mir Ashraf Ali Khan at Karachi and he had attested receipt Exh. 129.
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Witness Maula Bux, who is Stamp Vendor had deposed before the trial Court that in April, 1968 respondent Ali Nawaz and his father Rasool Bux came to him with a stamp paper of Rs.4 dated 29- 5-1966 in the name of Ali Nawaz. It was a blank paper and Ali Nawaz asked him to write an agreement of salt' which be refused to write on the old stamp paper. There--after Ali Nawaz and his father brought Mr. Amir Ali, an Advocate and Notary Public and one other man, who urged him to write agreement, which lie did. He has produced that document as Exh. 140. It is stated by him chat respondent Nusrat Ali signed that agreement as an executants. Witness Muhammad Hashim had deposed in the trial Court that Abdul Kadir and his father had come to him at Hyderabad in February, 1968 and he accompanied them to Mir Hassan Marri rind K. B. Ghulam Muhammad Wassan, who called Nusrat Ali and asked him to approach his father-in- law Mir Ashraf Ali Khan to finalize the sale of suit land with Abdul Kadir as Mir Ashraf Ali had already accepted the consideration. It is further stated by the witness that Nusrat Ali later on demanded Rs.10,000 as his commission to do the needful. The said money was brought after about a week but Nusrat Ali refused to execute the receipt with full description of the bargain. Haji Khan Muhammad is father of appellant Abdul Kadir and had deposed before the trial Court that the suit land belonging to Mir Ashraf Ali Khan was on lease with him and respondent Ali Nawaz jointly. Mir Ashraf Ali Khan executed the agreement of sale of the suit land with his son appellant Abdul Kadir. He has also deposed about the payments made to Kabir Khan on behalf of Mir Ashraf Ali Khan and also payment made by Abdul Kadir to Mir Ashraf Ali at Karachi. He has further stated in his evidence about the refusal of Mir Ashraf Ali Khan to execute registered sale. Deed and seeking intervention of K. B. Ghulam Muhammad Wassan in the Court. He has also stated about the suit filed at Hyderabad and decreed in favour of Ali Nawaz in respect of the suit land. He has further stated that his son Abdul Kadir filed appeal in the High Court against the decree passed by Hyderabad Court in favour of Ali Nawaz and has filed a copy of the order of the High Court dated 1- 5-1970 which is Exh. 143 on the record. It appears from this order teat L. I'. A. Was filed before the High Court by Abdul Kadir against Mir Ashraf Ali Khan, Ali Nawaz and Nusrat Ali which was dismiss-- ed in limine with the remark that observations of the learned Single Judge that the proper remedy for appellant is to file a suit for cancellation of decree will not be binding and this point will be decided by the Court below on its merits. On the other side respondent No. 3 Nusrat Ali had testified before the trial Court that respondent Ashraf Ali Khan is his father-in-law and had some land in Taluka Mehar which was looked after by him. Abdul Kadir and his father wanted to purchase the suit land and made offer which he rejected. He sold the land in question to Ali Nawaz, who offered better price of Rs.1,100 per acre. He has further stated that the suit land was already in possession of Ali Nawaz and agreement of sale was executed by him. Ali Nawaz filed a suit in Civil Court, Hyderabad which was decreed on his admission. He produced the copy of decree as Exh. 150. He has further stated that he was never called by K. B. Ghulam Muhammad Wassan nor had any talks with him in presence of Abdul Kadir in respect of the suit land. Witness Qaim Din examined on behalf of the respondent has deposed before the trial Court that he was petition writer and has scribed sale deed dated 18-9-1968, which was executed by Nusrat Ali in favour of Ali Nawaz. He got the same document registered on 31-12-1968. He produced the docu-- ment as Exh. 158. Witness Muhammad Saleh had deposed that he has attested Exh. 158. Witnesses Wahid Bux and Nizamuddin have deposed that they have attested agreement of sale Exh. 140, which was executed by Nusrat Ali in favour of Ali Nawaz. Respondent Mir Ashraf Ali Khan in his deposition before the trial Court has denied execution of agreement of sale of the suit land with the appellant. It is further stated by him that this document Exh. 126 was written by the appellant himself in Sindhi at Karachi and he does not know Sindhi language and the contents of the documents were never explained to him in Urdu. He has admitted having taken a loan of Its. 25,000
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from the appellant but Rs.31,000 were shown in the document because the appellant wanted to charge interest of Rs.6,000. Ashraf Ali Khan has further admitted having signed this document in presence of appellant, Kabir Khan and Mujtahid Khan. Presence of Ghulam Hussain is denied. He has admitted having given the suit land on lease to Ali Nawaz and Haji Khan Muhammad father of appellant. Nusrat Ali is his attorney and not Kabir Khan. He denied having received payments from appellant through Kabir Khan. He has further stated that signature on Exh. 129 (receipt of Rs.30,000 dated 7-3-1967) purports to be his is a bit doubtful. He admits having sent letter Exh. 127 to the appellant but further states that it does not relate to the suit land but to the land of his were. He has further denied that decree in suit No. 73/68 by Civil Court, Hyderabad was collusive and he received notice from the appellant or gave reply to it. Lastly respondent Ali Nawaz has deposed before the trial Court that the suit land was leased out in favour of his father in 1958 and subsequently to him from time to time. Respondent No. 3 leased out the suit land to him in the year 1963 for three years. He has produced general power of attorney in favour of respondent No. 3 executed by respondent No. 1 as Exh. 208 and also sale deed Exh. 209. He has further stated that father of appellant was not partner with him in the lease of the suit land which be subsequently purchased according to the market, price from respondent No. 3 by way of agreement for sale executed at Hyderabad. Thereafter respondent No. 3 avoided finalization of the sale deed and he filed a suit for specific performance of agreement in civil Court at Hyderabad. The suit was decreed on admission by respondents 1 and 3. He produced certified copy of the decree Exh. 120. He paid the balance and the sale deed was registered at Dadu. He further claimed no knowledge of agreement of sale of the suit land between Mir Ashraf Ali Khan and the appellant. The appellant knew about the transaction of the sale which he made with respondent No. 3 in respect of the suit land which was already in his possession. He has also stated that he has orally informed the appellant about the transaction of the suit land by means of agreement of sale with respondent No. 3. He has also produced about 81and revenue receipts Exh. 210 (1 to 8) and two Remission Fardies Exhs. 210/9 and 10. He has also produced 6 land revenue bills Exhs. 210/11 to 16 and true copy of the Record of Rights of Form No. VII, Exh. 211. It appears that initially the plea of -the appellant before trial Court was that his agreement executed on 14-9-1966 Exh. 126 on the record was prior in time than the second agreement executed on 22-4-1968 (Exh. 140) by respondent No. 3 Nusrat Ali in favour of respondent Ali Nawaz in respect of the same suit land. Originally appellant Abdul Kadir had filed suit in the trial Court at Dadu on 29-3-1968 against Mir Ashraf Ali Khan only and subsequently on 27-8-1968 he filed an application under Order I, rule 10 and Order VI, rule 17 and section 151, C. P. C. For amendment of plaint and for impleading Ali Nawaz and Nusrat Ali as defendants in the suit before trial Court on the ground that he had come to know that a collusive Suit No. 73/68 was filed at Hyderabad by Ali Nawaz against Ashraf Ali and Nusrat Ali for specific performance in respect of the same suit land on the basis of agreement of sale allegedly executed by Nusrat Ali in favour of Ali Nawaz on 22-4- 1968 at Hyderabad and the said suit was decreed on 23-5-1968 on the admission of claim made by Ashraf Ali Khan and Nusrat Ali. This application was contested but later on vide order dated 13- 11-1968 prayer in the application was granted in consequence whereof amended plaint was filed on 23-11-1968 and Ali Nawaz and Nusrat Ali were joined in the proceedings as defendants Nos. 2 and 3 respectively. Respondent No. 2 Ali Nawaz filed his written statement before the trial Court at Dadu and took the plea that his agreement was executed on 29-5-1966 at Hyderabad and the possession of the suit land was also banded over to him and further this fact was within the knowledge of the appellant Abdul Kadir, who is a neighbouring Zamindar. Respondent No. 2 Ali Nawaz in his written statement also challenged the jurisdiction of the trial Court to call in question the validity of decree passed by a competent Court at Hyder--abad with co-ordinate jurisdiction. The trial Court inter alia framed Issue No. 5 to the effect whether plaintiff (appellant before us) had
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the knowledge of defendant No. 2's agreement with defendant No. 1 and the possession thereof. It is contended on behalf of the appellant before us that finding of the trial Court on the - issue mentioned above against the appellant is based upon incorrect appreciation of evidence and misapplication of the relevant provisions of law. It was submitted in this context that the case of the appellant before the trial Court was that his agreement dated 14-9-1966, which was executed at Karachi was prior in time and the agreement executed in favour of respon--dent No. 2 Ali Nawaz at Hyderabad was subsequent in point of time and was executed on 22-4-1968 but has been made to appear as having been executed on 29-5-1966 by interpolation. Now there is no specific issue on this particular assertion that the agreement in favour of Ali Nawaz is subsequent in time and/or is a forged document. Issue No. 5 speaks only about the knowledge of the plaintiff (appellant) of this agreement of respondent No. 2 Ali Nawaz. Now if the evidence is evaluated by the trial Court only to ascertain knowledge of the plaintiff (appellant) of the agreement executed at Hyderabad, then the scope of inquiry is limited only to the factum of knowledge and further probe beyond the execution of this agreement was not contemplated. So far the evidence produced by the parties on this point is concerned, as stated above the appellant in his application for amendment of the plaint and for impleading Ali Nawaz and Nusrat Ali as defendants in the suit before the trial Court and affidavit in support thereof claimed that the agreement in favour of Ali Nawaz was executed at Hyderabad on 22-4-1968 but subsequently when the plaint way allowed to be amended and Ali Nawaz and Nusrat Ali were impleaded as defendants, written statement was filed by Ali Nawaz in which he stated that he has a decree in his favour granted bar the competent Court at Hyderabad in a suit filed for specific performance on the basis of agreement of sale which was executed on 29-5-1966. Appellant has examined witness Maula Bux who has deposed before the trial Court that he was stamp vendor and petition writer at Hyderabad in 1968, when Ali Nawaz and his father Rasul Bux brought to him a stamp paper of Rs.4 which was blank and bore the date 29-5-1966 issued in the name of Ali Nawaz. He was asked by Ali Nawaz and his father to write an agreement of sale on that paper which he refused because the stamp paper was old. Then they brought Amir Ali, an Advocate and Notary Public and one other --man, who prevailed upon him to write the agreement which be did. It was signed by one Nusrat Ali as executant. Rasul Bux, Lutaf Ali and Amir Ali attested the said paper in his presence. He produced this document as Exh. 140. In the cross-examination, this witness has stated before the trial Court that he was a matriculate and had charged Rs.25 from them and made a mention of this document in his personal diary. He did not produce that diary. He has further stated that he left the space in the document as the parties insisted that they would get endorsement of the witnesses themselves. He has further stated that he has signed the document at the end and has given the date and he did not com--plain to anybody. The trial Court has disbelieved this witness on his own admission in evidence that he had scribed the document in April, 1968 when the stamp paper was dated 29-5-1966 as such this reflects upon his conduct as petition writer and additionally for the reason that he had sworn an affidavit before Mukhtiarkar, Hyderabad for this purpose, which indicates his having been won over by the appellant. We have checked the original agreement Exh. 140 on the record. It appears that four-rupee stamp , paper has been issued on 29-5-1966 vide Serial No. 250 in the name of Ali Nawaz son of Haji Rasul Bux. It is signed by the stamp vendor. The signature of stamp vendor in English is illegible. The remaining contents of the agreement are in Sindhi language which witness Maula Bux claims to have written as scribe of the agreement. At the end of the body of the agreement the date is mentioned as 29-5-1968. Like this on the same page this date is mentioned at four other places. At two places under the signatures of Nusrat Ali and Mir Ashraf Ali, at the third place under the signature of Maula Bux and at the fourth place under the signature of Amir Ali Notary Public this date is mentioned and at all these five places there is interpolation in the year and the last digit
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that is 6 appears to have been converted into 8 purporting to show the year 66 originally written to be read as 68. Now the question that arises for consideration is as to who is responsible for interpolation. The agreement in which the interpolation has been made has come from the possession of respondent No. 2 Ali Nawaz, who filed his written statement in the trial Court on 4-1-1969. The paper book does not show the endorsement with regard to the documents filed or relied upon but the original written statement of Ali Nawaz shows such endorsement in type, which is to the effect that documents filed are (1) decree in Suit No. 73/68, (2) original agreement dated 29-5-1966 and (3) L. R. Receipts and bills. The typed word "filed" has been scored of…
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