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Petitioner: MUHAMMAD YOUSUF ISHAQUI (REPRESENTED BY LEGAL HEIRS) VS Respondent: ABDUL MAJID JUDGMENT
Court Name: Sindh High Court Judge(s): Naimuddin Ahmed Title:MUHAMMAD YOUSUF ISHAQUI (REPRESENTED BY LEGAL HEIRS) vs ABDUL MAJID
JUDGMENT
Reported As: 1984 CLC 243 Result: Appeal accepted Judgment JUDGMENT ' This second appeal under section 100, C. P. C. Is directed against the judgment and decree dated 9th November, 1970, passed in First Appeal No, 124 of 1964, by the District Judge, Hyderabad, reversing the judgment and decree dated 22nd April 1969, passed in Suit No, 101 of 1962, by Mr. Shamsul Arfin A. Kureshi, Civil Judge, 1st Class, Hyderabad in the following circumstances. 2. The appellant/plaintiff filed a suit against the defendants/respondents for specific performance of the contract, dated 13th December, 1961, for sale of agricultural land bearing Survey Nos. 113, 114, 115/1 to 2 116/3 and 4, 61/3 ; Deh Sohrab Goth Taluka Hale, and for injunction, which was subsequently amended so as to include the alternate relief of refund of Rs, 5,000 received by respondent No, 1/defendant No, 1 from the appellant plus Rs, 5,000 towards compensation for withholding the execution of the sale-deed. According to the allegations made in the plaint the land was on lease with the appellant which he had taken from one Mr. Q. A. Khan, C. S. P., which were subsequently allotted to respondent No, 1 due to his (appellants) efforts under I. R. IV Scheme and then on his P. Q. R. Under Permanent Scheme. It was further the case of the appellant that persuant to the agreement of sale the appellant was put into possession of the suit land as purchaser/owner on 13th December, 1961 and since then upto the date of filing of the suit he was in possession of the same and that he had improved the land and converted the same into a garden and that respondent No, 1 had avoided to execute the sale-deed and he had not obtained the necessary permission and certificate from the Rehabilitation Department. It was further alleged that few days before the filing of the suit the appellant learnt that respondent No, 1 was entering into an agreement of sale of the land with other respondents and he was going to execute sale-
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deed in their favour. He also alleged that he was always ready and prepared to perform his part of the contract and pay the balance amount of sale consideration to respondent No, 1 but he had refused to perform his part of the contract. 3. The respondent No, 1 filed a detailed written statement wherein he did not specifically denied the execution of the agreement but pleaded that the appellant was exercising undue influence on him on account of his superior position in the Company where both were allegedly employed. He has also pleaded that the appellant had induced him to sign some written stamped paper, the contents whereof were not translated to him, by practising fraud and on misrepresentation and by exercising undue influence over him. He also denied that respondents Nos. 2 to 5 had knowledge of the sale agreement in favour of the appellant or that any notices were served on them before the execution of the said deed. 4. Respondents Nos. 2 to 5 adopted the written statement of respondent No, 1 by using the words "that the written statements of the rest of the defendants is the same as above", and signed the same even without any verification. 5. On the pleadings of parties the following 12 issues were framed by the First Court. "(1) Whether the suit is barred under the provisions of Civil Procedure Code ? (2) Whether the suit is not maintainable ? (3) Whether this Court has no jurisdiction ? (4) Whether the suit is improperly valued and insufficiency stamped ? (5) Whether the agreement of sale, dated 13th December, 1961 was executed by the defendant No, 1 under misrepresentation, fraud, Undue influence practised by the plaintiff. (6) Whether the defendant No, 1 received Rs, 5,000 from the plaintiff as lease money and not as earnest money towards sale consideration ? (7) Whether the defendant has committed any breach of agreement of sale, dated 13th December, 1961 ? (8) Whether the plaintiff is entitled to have the specific performance of the contract of sale in respect of suit land in his favour ? (9) Whether the defendants Nos. 2 to 7 are bona fide purchasers of the suit land without notice ? (10) Who is in possession of the suit land ? (11) Whether the plaintiff is entitled to any relief ? (12) What should the decree be 7' 6. The learned Civil Judge decided issues Nos. 1 to 9 and 11 in favour of the appellant. He, however, with regard to issue No, 10 observed that the same was not happily worded and that possession of the suit land at the time of trial of the suit by either party was not so much relevant for the disposal of the suit and the factum of possession relating to the period when the alleged sale-deed dated 12th July, 1962, was executed by respondent No, 1 in favour of respondents Nos. 2 to 5 was material. On the question of possession the learned Civil Judge found that the respondents had not been able to substantiate their claim as to possession after April 1962, till they executed the sale-deed allegedly on 12th July, 1962, and that the possession of the appellant through his lessee Allah Wasayo was prima facie proved. 7. Before the learned Civil Judge the appellant examined himself (Exh. 52) Muhammad Abdul Rashid (Exh. 53), Muhammad Unis (Exh. 74), Mumtaz Ali (Exh. 77), Allah Warayo (Exh. 86), Muhammad Bux (Exh. 87) and Moinuddin Ahmed Chishti (Exh. 94). 8. On behalf of respondents Nos. 2 to 7 Muhammad Shah (Exh. 106), Pir Nadir Shah (Exh. 108), Allah Dino (Exh. 109), respondent Umer (Exh. 115) and Inayatullah Sub-Registrar, Hala (Exh. 165) were examined. Respondent No, 1 did not examine himself nor he led any evidence. 9. Aggrieved by the judgment and decree, dated 24th April, 1969, passed by the Civil Judge, respondents Nos. 2 to 7 filed an appeal under section 96, C. P. C. Which was heard by Mr. Hamzo
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Khan Kureshi, District Judge, Hyderabad, who by the judgment dated 9th November, 1970 set aside the judgment and decree by reversing the findings of the learned Civil Judge without stating the points requiring determination as required by the provisions of rule 41 of Order 31, C. P. C., the decision thereon and the reasons for the decision. He only generally dealt with the issues. 10. Being aggrieved by the judgment and decree of the learned District Judge, Hyderabad, the appellant has filed the present appeal. 11. I have heard Mr. Ibadat Yar Khan, Advocate for the appellant and Mr. Raja Qureshi, Advocate for the respondents Nos. 2 to 7. None appeared on behalf of respondent No, 1. 12. The learned counsel for the appellant has questioned the findings of the learned District Judge, on all the points decided by him. He submitted that the findings of the learned District Judge, are based on :- (a) no evidence ; (b) non-consideration of the material evidence on the record, or are ; (c) in disregard of the provisions of Order 8, rules 3 to 5, C. P. C. ; and (d) in disregard of the provisions of the Evidence Act as to burden of proof. 13. On the other hand, Mr. Raja Qureshi learned counsel for respondents Nos. 2 to 7 submitted that the findings of the learned District Judge that there was no agreement of sale between the appellant and respondent No, 1, that the agreement, dated 13th December, 1961, was obtained by the appellant by fraud, misrepresentation and undue influence, and therefore, the same was void, and that respondents Nos. 2 to 7 were bona fide purchasers for value without notice and they continued to be in possession since 1958, are based on evidence and are according to law. 14. In order to appreciate the respective contention it is necessary to state the points that required consideration. These are : (1) Whether the respondent No, 1 had executed the agreement, dated 13th December, 1961 ? (2) Whether the agreement was obtained by the appellant from respondent No, 1 by practising fraud or on misrepresentation or by exercising undue influence ? (3) Whether the respondents Nos. 2 to 7 were the bona fide purchasers for value, without notice ? (4) Whether the amount of Rs, 5,000 paid by the appellant to Abdul Majeed, respondent No, 1 as part of sale consideration or towards the lease of the land ? 15. So far as the first point is concerned, respondent No, 1 has not specifically denied in the written statement the execution of the agreement and he has rather admitted the execution of the agreement. Respondent No, 1 after generally denying the contents of paragraph 5 of the written statement, has stated as follows :- "5. As submitted above, the plaintiff was exercising undue influence on this defendant on account of his superior position and on account of the fact that the entire correspondence and papers pertaining to the grant of lands to this defendant from the Settlement Authorities were in the possession and custody of the plaintiff and also because this defendant was under the impression that on the basis of the general Power-of-Attorney the plaintiff could harm his interest and deprive him of his lands. ' In fact during course of time the plaintiff dealt with the property of this defendant in such a manner that the latter was deprived of the entire land except the suit lands by the misrepresentation of the plaintiff. Some of the defendants land comprising of 30 acres situated near Mirpurkhas were also got transferred by the plaintiff in the name of his wife without any consideration whatsoever. The plaintiff earned a lot of money out of the lands of the defendant but gaye him no accounts in spite of the defendant's requests therefor. In respect of the suit lands the plaintiff impressed upon the answering defendant that he should dispose of the same as it would difficult for him to manage it and that he would get him good price for that. Ultimately in November, 1961, the plaintiff wrote to this defendant to see that the land cannot be disposed of for
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more than Rs, 500 per acre. Thereafter the plaintiff came to Karachi in December, 1961 and asked this defendant to gave him a fresh power-of-attorney in the form of an authority to sell the land as he said that ' by doing so the defendant would be able to get higher price for his land. He further represented that without such authority he was unable to negotiate with the prospective purchaser. As this defendant as subsequently found out the plaintiff practiced fraud and misrepresentation and exercised undue influence on this defendant and induced him on that basis to sign a written stamp paper, the contents of which were not translated to the defendant. It is, therefore, denied that this defendant entered into the agreement of sale in respect of the suit lands and received consideration of Rs, 15,000" (underlining" is mine for emphasis). 16. From the above it is clear that the execution of the agreement was not being denied what was being alleged was that the appellant had executed the document as power-of-attorney and not as an agreement and the same was obtained by fraud and misrepresentation or by exercising undue influence on him. 17. Even, otherwise, so far as the execution of document is concerned it is proved by the evidence of Abdul Rasheed (Exh. 73) who stated that he was working as Oath Commissioner in Karachi and he signed the sale greement (Exh. 55) and the receipt acknowledging receipt of Rs, 5,000 (Exh. 56) as a witness. He further stated that the contents of documents were read over and explained to respondent No, 1, and that the documents and papers were produced before the Magistrate in whose presence the earnest money of Rs, 5,000 was paid to respondent No, 1 when he and the other witness to the agreement M. A. Ishaqi were also present and that the amount of Rs, 5,000 was of earnest money and not lease money and the Magistrate before whom the money was paid was dead. ' In the cross-examination he stated that he signed the agreement as a witness in the office of the Magistrate and in his presence the documents were not read over to Abdul Majeed before going to the Magistrate and that he was witness of payment of Rs, 5,000 to Abdul Majeed and not anything else and that he was witness for the signature of respondent No, 1 and others on the documents. 18. Muhammad Unis (Exh. 64) who is brother of the Magistrate before whom the agreement of sale was executed was also examined. He in his deposition, stated that he was well-versed with the signature of Muhammad Usif, his elder brother, who was posted as Additional City Magistrate at Karachi and who died in 1964. He identified the signature of his brother on [Here in italics] ' the sale agreement and receipt and stated that the endorsement thereon was in the handwriting of his brother. ' In cross-examination he stated that he knew the appellant since before the independence as he used to live in the same village in India and that his brother also knew him since those days. 19. The sale is also indirectly proved by the evidence of Moinuddin Ahmed Chishti (Exh. 94). The Assistant Rehabilitation Mukhtiarkar and A. S. C., Nawabshah who stated that in July, 1962, he was holding same post at Hyderabad and Abdul Majeed had failed an application before him on 16th July, (962 of which he issued notice to the parties and when they came he recorded the statement of respondent (Exh. 97). He produced the application and the statement as Exhs. '6-97. In his deposition before Moinuddin Ahmed Chishti (Exh. 94), respondent No, 1 has stated as follows ; "I had entered into an agreement with Mr. Ishagi for sale of survey Nos. 113, 114, 1151112, 116,6013 4, 61- 3, total area 29 Acres-23 ghuntas Den Sohrab pur Tappa Zarpir Taluka Hala and had received Rs, 5,000 in advance. Total price of the said agricultural land had been settled at Rs, 15,000. Rupees Ten Thousand, being the balance are still outstanding. Possession of the above-mentioned land has been with Mr. Ishaqi continuously." (Underlining is mine for emphasis).
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' do not want to keep Mr. Ishaqi as my special Attorney because he had promised to pay the entire price of Survey Nos. 113, etc. Measuring 29 acres-23 Ghuntas in Deh Sohrabpur, Taluka Hala within four months and has not made the payment as yet. Now I am being offered higher price for the said agricultural land and so I do not want to sell this land to Mr. Ishaqi and it is why I have cancelled this special power-of-attorney also." 20. The respondent No, 1 has not appeared in the witness-box to rebut the above evidence and the evidence of the appellant (Exh. 52) who proved the agreement and also deposed that he had paid Rs, 5,000 as earnest money, the note was written in Karachi and Abdul Rashid and Muhammad Akil were witnesses of the documents: The documents were also signed by the Magistrate and Muhammad Baig, Abdul Rauf had identified respondent No, 1. He further deposed that the documents were read over and explained to him and he had given the amount in the presence of the witnesses and the Magistrate. In cross-examination he had denied the case put forward by respondent No, 1 in the written statement. 21. So far as the allegations of fraud, misrepresentation and undue influence are concerned the burden to prove the allegations was squarely on respondent No, 1 but he did not step into the witness-box to prove these allegations nor did he examine any witness in support of the allegations. Al mere plea in the statement without proof is of no avail to a party unless it is specifically or by necessary implication admitted. In the present case' the statement was not verified on Oath and therefore, it could not be treated as evidence and it could not have been accepted. If any authority is needed reference may be made to a decision of the Supreme Court in list. Khalr-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (1), (Here in italics) (1) PLD 1972 SC 25 ' wherein the rule was stated by Waheeduddin Ahmed, J, in the following words : "The statements made in the written statement are not on oath. They are only verified and therefore, they cannot be treated as evidence in the case." ' It may be stated that in this ease the second purchaser had died during the pendency of the suit before his evidence was recorded. He, therefore, could appear in person to deny the allegations. In support of the rule the reference was 'made to J. B. Bros. & Co. v. C. R. Seriven and others (1) and Muhammad Siddlque v. Bhupendra Narayan Roy Chaudhry (2). In the first named case it was held as follows : "A verification is required with a view to discourage, if not to prevent, the institution of false suits ; the Legislature never contemplated that verified statements should be treated as evidence on behalf of a plaintiff against a defendant. The inference may legitimately be drawn from the language used in section 191 read with section 193, I. P. C., that a verified statement would not be "evidence" but for the special provision of section 191 which has been enacted for a special purpose." ' In the second named case it was ruled as follows : "that written statement cannot be exhibit if defendant dies without being examined." 22. The learned Civil Judge has dealt with both the points as follows : "With regard to the execution of the sale agreement there is evidence of the plaintiff, Mohomed Abdul Majid Oath Commissioner and Muhammad Unis. Furthermore, plaintiff has also produced the statement of defendant No, 1. Exhs. 96 and 97 recorded by Moinuddin Chishti, Assistant Rehabilitation Mukhtiarkar, Hyderabad. Exhs. 96 and 97 are very important documents which throw much light on the points under consideration and is a complete answer to the defendants objections. Exh. 97 is the certified copy of the said statement of defendant No, 1 and Exh. 96 is an application which defendant No, 1 had moved before the Assistant Rehabilitation Mukhtiarkar against the plaintiff and, therefore, a notice Exh. 95 was issued to the plaintiff. During these
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proceedings, the statement of the defendant No, 1 was recorded and in this statement he admitted to have sold out the land in suit for a consideration of Rs, 15,000 and received Rs, 500 as earnest money from the plaintiff. He further stated that he did not want to complete the sale in favour of the plaintiff as he was offered some higher rate for the suit land. This statement was made by him on 25th July, 1962 and has further been proved through the evidence of Assistant Rehabilitation Mukhtiarkar Exh. 94. In this statement, defendant also admitted that the plaintiff has since been in possession of the suit land. In view of the defendant No, l's own admission before the Assistant Rehabilitation Mukhtiarkar, it is not open to the remaining defendant to allege certain facts on behalf of the defendant No, 1 who (1) AIR 1917 Cal. 269 (2) PLD 1962 Dacca 643 ' himself had no courage to appear in the witness-box and assert the allegations set out by him in the written statement. I am, therefore, convinced that the allegations of fraud, misrepresentation and undue influence have not at all been substantiated and it is proved on record that defendant No, 1 executed the agreement of sale, dated 13th December, 1961 in respect of the suit land with the plaintiff and received Rs, 5,000 as earnest money." 23. So far as the judgment of the Appellate Court is concerned the learned District Judge has not at all considered the effect of the statement of respondent No, 1 (Exh. 97) before Moinuddin Ahmed Chishti, Assistant Rehabilitation Mukhtiarkar. He has further stated that the attesting witnesses to the document namely, M. A. Shafi and M. A. Rashid have not been examined. This statement does not appear to be correct for M. A. Rashid (Exh. 73) was examined and I have already referred to his evidence herein-before. Perhaps the error has occurred while noting his name as in the title of the deposition his name appears to be wrongly written as Abdul Majid otherwise, he was one of the marginal witnesses. 24. So far as M. A. Shafi is concerned, agreement (Exh. 55) does not show that any person by the name of M. A. Shafi had witnessed the agreement. Perhaps, M. A. Shafi has been read for M. A. Ishaque who was none else, but admittedly the brother of the appellant. Since an independent witness namely, M. A. Rasheed was already examined in my opinion, it was not necessary to examine M. A. Ishaqui. 25. For the aforesaid reasons, I hold that the execution of the agree-I meat was proved and the burden of proof of the allegations that it was B executed by practicing fraud, misrepresentation for under undue influence, was not discharged by respondent No, 1 or otherwise. 26. I may now, deal with the fourth point first, namely, whether the amount of Rs, 5,000 was paid as lease money or earnest money. In this regard it would suffice to say that Abdul Majeed has not stepped into the witness-box while the document (Exh. 96) and receipt (Exh. 56) have been proved not only by the evidence of the appellant but also by the evidence of M. A. Rashid (Exh. 73), which proves that the amount of Rs, 5,000 was paid as earnest money. 27. I should not consider the remaining third point namely, whether respondents Nos. 2 to 7 were bona fide purchasers for value, without notice. So far as this point is concerned the burden of proof of the issue was squarely on respondents Nos. 2 to 7. 28. While considering the third point, the question that requires consideration is whether the contract between the appellant and respondent No, 1, could be enforced against respondents Nos. 2 to 7. ' In my opinion such contract could be enforced under section 27 (b) of the Specific Relief Act against respondents Nos. 2 to 7 as they admittedly acquired the title to the land subsequent to the contract. There is however, one exception it is that such a contract cannot be enforced if respondents Nos. 2 to 7 were the transferees for value to be paid in money in good faith and
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without notice of the original contract. I may here quote the provisions of section 27 (b) of the Specific Relief Act which read as follows "27 (b).-Any other person claiming under him by a title arising subsequent to the contract, except a transferee for value who has ' paid his money in good faith and without notice of the original contract." 29. Therefore, the further question that arises for consideration is whether respondents Nos. 2 to 7 are the transferees for value and who have paid the money in good faith and without notice of the original contract. The burden of proving that they were such transferees was surely on them and this proposition is well established. However, if any, authority is needed reference may be made to the Supreme Court decision in the case of Mst. Khair-ul-Nisa to which reference was made by Mr. Ibadat Yar Khan, the learned counsel for the appellant as well as by Mr. Raja Qureshi learned counsel for the respondents. It was observed therein at page 29 of the report as follows :- "It will be noticed that under this provisions of law, 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. This provision of law has been the subject of interpretation in two decisions of the Privy Council, namely Bhup Narain Singh v. Gokul Chand Mahlon and others (AIR 1934 P. C. 68), and Shankarlal Narayandas Mundade v. The New Mofussil Co. Ltd, and others (AIR 1946 P C 97). The question whether a subsequent transferee can resist the suit on ground of good faith and without notice was also considered in the case of Varden Seth Ram v. Luckpathy Royjee Lallah (9 Moor's I. A. 307). On this subject,. The Privy Council observed in the case of Bhup Narain Singh as under :- "In their Lordships' opinion, the section lays down a general rule that the original contract may be specifically enforced against a subsequent transferee, but allows an exception to that general rule, not to the transferor, but to the transferee, and in 'their Lordships' opinion, it is clearly for the transferee to establish the circumstances which, will allow him to retain the benefit of transfer which prima facie he had no right to get. Further, the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lie, and the provisions of sections 103 and 106, Evidence Act, 1872, have a bearing on the question." ' In the case of Shankarlal Narayandas Mundade v. The New MOW Co. Ltd., the Privy Council observed as under - "Their Lordships have found it…
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