P L D 1989 Peshawar 201 (PLP)

(1) Whether the plaintiff is entitled to a decree for the specific performance of an agreement to sell dated 21‑2‑1975 and entered with the patwari vide roznamcha Mad No.300 on the same date arrived at between the plaintiff and defendant‑1. (2) Whether the subsequent sale of the suit property through registered dated 14‑3‑1975 and mutation thereof dated 21‑6‑197.5 settled between the defendants 1 to 2 to 4 is void, unlawful and ineffective on the rights of the plaintiffs? (3) Whether the plaintiff is entitled as a consequential relief to the permanent injunction as prayed for? (4) Whether the plaintiff is entitled in alternative for possession through the right of pre‑emption of the suit land? (5) In case of decree of possession through the right of pre‑emption, what is the market value of the suit land? (6) Relief.

4. The trial Court decided issues Nos. 1, 2 and 3 against the plaintiff, issue No.4 partly in his favour and on issue No.5 the market value was fixed at Rs.23.98 per kanal. In, view of his findings on the issues, the trial Court dismissed‑the suit on 4‑2‑1986. Feeling aggrieved the petitioner filed an appeal which was also dismissed on 17‑2‑1987 by the learned District Judge, D.I. Khan. Still feeling ‑dissatisfied the petitioner has filed this petition.

5. The learned counsel for the petitioner has challenged the findings of the learned Courts below on issues Nos.l and

2. He submits that oral agreement by respondent No.1 to sell the suit' land in favour of the petitioner was amply proved by the admission of respondent No.1 who had not only confessed judgment but had also appeared in the witness‑box and stood the test of cross‑examination of the answering respondents. His alternative plea was that the transaction evidenced by the registered exchange deed on the foot of which impugned Mutations No.1851 and 1852 were attested was in fact of sale and hence pre‑emptible. In support of this plea he again relied upon the testimony of Akram Khan defendant‑respondent No.1. Upon the admission of the plaintiff‑petitioner both in the plaint and then in the witness‑box respondent No.1 first got the transaction of sale of the suit land recorded in the Daily Diary of the Patwari on the basis of which Mutation No.1844 was entered. Again it is the case of the plaintiff‑petitioner that defendant‑respondent No.1 resiled from his agreement to sell and instead entered into another sale agreement with defendant‑respondents Nos. 2 to 4 but gave it the colour of an exchange. Defendant‑respondent No.1 on his part, has neither denied 'nor admitted the alleged agreement to sell with the petitioner. Nonetheless he had the dheek to execute an agreement of exchange with respondents Nos.2 to 4 and get it registered as well. After all this, he made a volte face and instead of sticking to his plea of exchange, claimed to have sold the suit land at the hands of defendant‑respondents Nos.2 to

4. The pleas of exchange and sale are inconsistent. He is, therefore, estopped in law from taking the plea' that, he had sold the land to defendant‑respondents Nos.2 to 4 when he had already executed the registered exchange deed with them. In almost a similar situation in Zainab v. Fazal Dad (PLD 1966 WP Lah. 1050) the defendants, who had disowned the tenancy in the Revenue Court pleaded in the Civil Court that they were tenants and, therefore, the Civil Court was not seized of the jurisdiction, were not permitted to approbate and reprobate: In Zainab's case in such like situation general rule of estopped was explained as under:,‑ "The general rule of estoppel underlying such class of cases is stated in Bigelow on Estoppel, Sixth Edition in the following words, "It may be laid down as a broad proposition that one who, without mistake induced by the opposite‑party, has taken a particular position deliberately in the course of a litigation must act consistently with it, one cannot play fast and loose."

6. With a view to explain in Zainab's case the dectrine of estoppel, Sardar Muhammad lqbal J borrowed the observations of M. Monir which he made in the 4th Edition of Principles and digest of law of Evidence which are to the following effect:‑ "The basic principles underlying the doctrine of estoppel by election is that where A, dealing with B, is confronted with alternatives and mutually exclusive courses of action in relation to such dealing, between which he may make his election, and A so conducts himself as reasonably to induce B to believe that he is intending definitely to adopt the one course and definitely to reject or relinquish the other, and in such belief B alters his position to his detriment, A is precluded, as against B, from afterwards resorting to the course which he has thus deliberately declared his intention of rejecting."

7. In this context I can do no better than reproduce the following observations from Hamanta Kumari Devi v. Parasanna Kumar Datta (ILR 56 Cal. 584) which were also noticed in Zainab's case:‑ "It is hardly consonant with justice that the defendants, who took up in the proceedings under section, 105 the position that the applications did not lie, should be allowed to turn round and say that the said applications were entertain-able in law, and as such operate as a bar to the suits. The present suits may rightly be said to have arisen out of the result of those applications. It is well settled that a party litigant cannot be permitted to assume inconsistent position in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent.

8. The principle enunciated in the last mentioned case is applicable to the facts of present case. Defendant‑respondent No.1 cannot be allowed to blow hot and cold at the same time. In this case the doctrine of estoppel by election operates with full force against defendant‑respondent No.1 and he cannot be allowed to play fast am loose to the detriment of the answering respondents that he had executed the exchange‑deed which transaction was in fact of a sale, moreso when he had also disowned the alleged earlier transaction of sale in favour of the petitioner.

9. The plea of the petitioner that the impugned transactions evidenced by Mutations Nos.1851 and 1852 were of sale which he sought to be proved from the evidence of Muhammad Akram Khan defendant‑respondent No.1, has therefore, to be ignored.

10. The learned counsel for the petitioner then maintained that even if the evidence of defendant respondent No.1 is ignored still the parties to the impugned exchange transaction have not transferred possession of the exchanged lands and, therefore, the exchange was not complete. A similar plea raised in Ali Muhammad v. Malik Sanwal (PLD 1961 Pesh. 62) was repelled by Abdul Hamid; J. in the following words: -- "It has been stated that the parties have not transferred possession of the exchanged pieces. That would not prevent an exchange from being an exchange, and would not convert an exchange into a sale. Each party is now, after the deed of the 4th of April 1955, free to recover possession from the other."

11. The following observations of the learned Judge are also applicable in the instant case:‑ "Court should hesitate, in the absence of very strong evidence to the contrary, from rejecting documents which have been executed between the parties with free consent and under which they have parted with their rights in their properties. Written documents which appear to have been executed without tinge of fraud and compulsion are entitled to great respect in order to confer security on human dealings."

12. After hearing the learned counsel for the parties and going through the record, I find that the Courts below have applied their mind to the factual and legal aspects of the case and 'have given B cogent reasons in support of the conclusions arrived at by them. The learned counsel for the petitioner has failed to point out any material misreading or non‑reading of evidence on the issues Nos.1 and 2.

13. For what has been stated above, there is no merit in this revision which is dismissed with costs. A . A . /738/P Revision dismissed.