P L D 1964 (W (PLP)

FAROOQI, J.‑This is a regular first appeal by the unsuccessful plaintiff Syed Ghulam Hussain Shah, whose suit for possession of 400 kanals of land in Chak No. 13, Fordwah, Tahsil Hasilpur was dismissed by the Senior Civil Judge, Bahawalpur in Civil Suit No. 195160 by a judgment dated 30th January 1962.

2. The material facts are these : 800 kanals of land had been purchased from three persons, namely Hernam Singh, Bachan Singh and Bala Singh all on the same date, that is 17th November 1947 by means of four registered sale deeds for a total consideration of Rs. 17,

000. The vendee in all these sale deeds was Ghulam Muhammad who was the defendant in the suit from which the present appeal arises and who is now the sole respondent before us. The sellers who were all Sikhs migrated as a result of the partition and in view of the provisions of the law relating to the administration of evacuee property Ghulam Muhammad applied to the Custodian for the confirmation of sale of all these lands upon the basis of the aforesaid four registered deeds of sale. This confirmation was granted to him by the Custodian by his order dated 25th January 1950. These were colony lands and certain dues had yet to be paid and this being done and confirmation from the Custodian having been obtained the question of mutation of these lands in the Revenue Records arose. Ghulam Mohammad was claiming the mutation of the entire 800 kanals of land in his favour. The plaintiff Ghulam Hussain Shah who was formerly a Girdawar in Multan and bad, at the time of the purchase of these lands, taken service in the Revenue Department of the Government of Bahawalpur claimed half share in this land amounting to 400 kanals upon the ground that this property had been jointly purchased by him and Ghulam Mohammad but the latter was shown as the sole vendee because Ghulam Hussain being in Government service in the Revenue department was prohibited from buying land. In the year 1950 Ghulam Hussain was discharged from the service of the State upon his conviction under section 420, P. P. C. He, there fore, contested the claim of Ghulam Mohammad in the mutation proceedings. While the contest was still going on and before the final orders were passed the parties were brought together for the purposes of settlement and an agreement was reached between them which was reduced to writing on 14‑11‑

52. This agreement is Exh. D/A, the material terms of which are as follows: (1) Ghulam Muhammad admits that Ghulam Hussain Shah has half share in the whole land in dispute; that the purchase price was paid half and half by both the parties but the sale deeds were made only in the name of Ghulam Muhammad because Ghulam Hussain Shah was a Government servant; that in the Revenue Records the land was entered in the name of Ghulam Muhammad. (2) That Ghulam Hussain Shah was asked before the Panchayat to value the whole land and upon the valuation put by him, either he could take the whole land or Ghulam Mohammad. (3) That Ghulam Hussain Shah fixed the price of the whole land at Rs. 50,000 and that Ghulam Mohammad agreed to take it at that price. (4) Ghulam Mohammad accordingly agreed to pay to Ghulam Hussain Rs. 25,

000. From this sum Rs. 3,250 were to be deducted which Ghulam Mohammad had to receive. The balance of Rs. 21,750 was to be paid to Ghulam Hussain Shah by 16th December 1952. However, if the money was not paid by that date, the same was to be recovered from the estate of Ghulam Mohammad. Sheikh Khairuddin of Mandi Chishtian became a surety for the payment of the aforesaid sum of Rs. 21,750. (5) On payment of the aforesaid sum of Rs. 21,750 Ghulam Hussain Shah shall have nothing to do with the land in dispute and there will be no claim of his of any kind. (6) The amount of Rs. 3,250 which had been kept as deposit with Chaudhry Shukardin was payable to Ghulam Hussain Shah and Ghulam Mohammad would have that amount made over to Ghulam Hussain from Shukardin. This agreement has been executed both by Ghulam Hussain as well as by Ghulam Mohammad and has been witnessed by four persons including Haji Khairuddin who has also acknowledged himself to be the surety in terms of the agreement. The scribe of the document is Zulfiqar Ahmad, Municipal Commissioner, Mandi Chishtian. Some of these persons had taken part in the Panchayat as a result of which the settlement had been reached.

3. Ghulam Hussain Shah received two sums of money from Ghulam Mohammad through the surety Khairuddin. The first was of Rs. 5,000 and the second of Rs. 10,

000. The former was paid on 14‑12‑52 and the latter on 4‑1‑

53. Ghulam Hussain acknowledged the receipt of these two sums on 4‑1‑53 by receipt Exh. D/B. These facts are not in dispute. In fact Ghulam Hussain in his replication admitted this agreement and in the witness box admitted every one of the terms set out above. He also acknowledged the receipt of Rs. 5,000 and Rs. 10,000 from Khairuddin and also Rs. 3,250 from Shukardin. With regard to the former two payments he gave an explanation to which we shall revert later.

4. In spite of the agreement and the receipt of money as stated above Ghulam Hussain managed to obtain a mutation in respect of half the land in his favour on 23‑5‑

53. It is the case of the defendant that Ghulam Hussain was able to obtain this mutation because of his influence with some of the Revenue officers. It may be mentioned here that the original of the agreement dated 14‑11‑52, Exh. D/A, was kept with one Shah Din who was one of the members of the Panchayat. This Shah Din had gone away to England, and it is the case of the defendant that Ghulam Hussain took this attitude before the Revenue authorities in spite of the settlement and part payment because he had thought that the original agreement, Exh. D/A, would not be available to Ghulam Mohammad. A copy of the agreement was produced by Ghulam Mohammad before the Revenue authorities but this was not accepted by them.

5. Having been defeated in the mutation proceedings Ghulam Mohammad promptly filed a suit on 25th May 1953 in the Court of Senior Civil Judge, Bahawalpur being Suit No. 56/53 challenging the validity of the mutation oh half tile land in favour of Ghulam Hussain and claiming that he (Ghulam Mohammad) was the sole owner of the whole land which he had purchased from the Sikh evacuees and that Ghulam Hussain had no right in it. This suit was decreed by the trial Court but Ghulam Hussain's appeal was allowed by the District Judge, Bahawalpur in Civil Appeal No. 33/58 by the judgment dated 31‑1‑59, as a result of which Ghulam Mohammad's suit stood dismissed. His second appeal in the High Court was dismissed on 30th January 1960. Ghulam Hussain then filed the present suit for possession on the basis that he was the owner of 400 kanals of the said land which w as equal to 2 sqrs. In the written statement Ghulam Mohammad amongst other pleas set up the agreement dated 14‑11‑52, Exh. D/A, the material terms of which, as stated above, were reproduced in the written statement. It was further stated that in pursuance of the agreement he had paid Rs. 15,000 to the plaintiff who had also acknowledged it on 4‑1‑53 and that he had relinquish ed all his rights in the said land. It was also pleaded that the plaintiff had never been in possession within 12 years of the suit and his suit was, therefore, barred by limitation.

6. A replication was filed by the plaintiff in which he admitted the agreement referred to in the written statement but it was averred that inasmuch as the defendant had not paid the amount within the appointed time, the plaintiff was not bound by it. It was added that in any case in so far as the High Court had held in favour of the plaintiff (in the previous suit by Ghulam Mohammad) the question of the aforesaid agreement no longer arose and the defendant was precluded from urging it in vices of the said judgment. It was denied that the quit was barred by limitation.

7. Upon the pleadings of the parties the following issues were framed by the learned trial Judge:‑ "(1) Whether the valuation for the purposes of Court‑fee and jurisdiction has been correctly assessed? (2) Whether the plaintiff's suit is within time? (3) Whether the plaintiff is owner on account of the decision of the Panchayat and also on account of the decision of tile High Court dated 30‑I‑1960 in case of Ghulam Mohammad v. Ghulam Hussain Shah relating to the suit land? (4) Whether the plaintiff on account of agreement dated 14‑1‑52 and subsequently by receiving Rs. 18,250 has given up his rights about the suit land in favour of the defendant? (5) On proof of issue No. 4, whether the defendant had not paid the amount within prescribed period and thereby has contravened the conditions of the agreement dated 14‑11‑52, therefore, the agreement is not binding on him. (6) Whether in the presence of the decision of the High Court of West Pakistan dated 30‑1‑60 in the case of Ghulam Mohammad v. Ghulam Hussain Shah for declaration about the suit land the defendant cannot raise objection about the agreement and payment of price etc. and previous decision between parties operates as res judicata? (7) What is the effect of tile previous litigation of the parties in the present case? (8) Relief."

8. The learned Judge decided the first two issues in favour of the plaintiff. On the third issue he found that the plaintiff was the owner of the land (400 kanals) that he executed Exh. D/A. On the fourth and fifth issues which he tried together he found that by Exh. D/4 the plaintiff had relinquished his right in the land in dispute and had received Rs. 18,250 in pursuance thereof. He repelled the contention of the plaintiff that Rs. 15,000 had been paid in respect of the produce of the previous year as was alleged by him. With regard to the question that the amount was not paid within time he held that under the agreement it was expressly provided that if the sum of Rs. 21, 750 which was to be paid by Ghulam Mohammad was not paid by 14‑2‑52, it was recoverable from his property and also from Khairuddin who had stood surety in that behalf. It was pointed out that the plaintiff was, therefore, not entitled to rescind the contract because of non -payment within time. With regard to the objection that the document, Exh. D/A, was not admissible in evidence for want of registration he held that the case was covered by section 53‑A of [lie Transfer of Property Act read with the proviso to section 49 of the Registration Act. He further held that the payment of Rs. 18,250 was in part payment of the performance of the contract, Exh. D/A. He, therefore, answered both the issues in favour of the defendant.

9. On issues 6 and 7, which related to the question of res judicata, he held against the plaintiff and found that the decision of the former suit did not operate as res judicata. Upon the , findings he dismissed the plaintiff's suit.

10. Mr. M. E. Rana the learned Advocate for the appellant has urged the following two points only before us:‑ (1) That the decision in the former suit filed by Ghulam Mohammad, in which he had sought declaration in respect of half the land and which was refused to him, operates as constructive res judicata in the present suit. (2) That the defendant had not fulfilled his part of the agreement, Exh. D/A, and was not ready and willing to fulfil it and, therefore, he is not entitled to the protection under section 53‑A of the Transfer of Property Act.

11. The first contention is based upon Explanation IV to section 11 of the C. P. C. It will be convenient now to quote the section and the explanation relied upon:‑ "

11. No Court shall try any suit or issue in which the matter directly and .substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." "Explanation IV.‑Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." The contention is that in the previous suit, in which Ghulam Mohammad was the plaintiff, he should have made the transaction of 14‑11‑52 contained in Exh. D/A as a ground of a t tack in support of his claim that he was the sole owner of the property, namely the half portion which was being claimed by Ghulam Hussain and in respect of which he had obtained mutation in his favour on 23‑5‑

53. The argument proceeds that in so far as Ghulam Mohammad did not make this transaction as a ground of attack which he ought to have done, it must be deemed that this question had been a matter directly and substantially in issue in the previous suit. It is, therefore, urged that the decision in the previous suit operates as constructive res judicata and Ghulam Mohammad, who was the defendant in the present suit, was debarred from urging the agreement contained in Exh. D/A in defence of Ghulam Hussain's suit for possession in respect of the same subject‑matter.

12. The substance of the claim of Ghulam Muhammad in the previous suit has been succinctly brought out in the opening paragraph of the judgment of the District Judge, Bahawalpur in Civil Appeal No. 33/58 and which appears at page 45 of the paper‑book. It reads as follows:‑ "This appeal arises out of a suit by the respondent (Ghulam Mohammad) against the appellant (Ghulam Hussain) to obtain a declaration that the land in dispute measuring 400 kanals situated in village Chak No. 13/F. W. Tehsil Hasilpur belonged to plaintiff and was in his possession as owner and the defendant had nothing to do with it and that the mutation of the land in favour of defendant sanctioned on 28‑5‑53 was illegal and ineffective against the rights of plaintiff." Then follows the statement of the defence, the material part of which is:‑ "The defendant pleaded in reply that the land actually belonged to him and that although the registered sale deeds executed in respect of the land by non‑Muslims who sold it in 1947 were in favour of plaintiff as a vendee, he was merely a Benamidar on behalf of the defendant who was the actual purchaser and had the sale deeds executed in favour of plaintiff because he himself was in Government service and, therefore, could not acquire immovable property." The issue with regard to the main contest between the parties as framed by the trial Judge and which has been reproduced in the judgment of the District Judge was issue No. 2 which read as follows:‑ "Did the defendant purchase the land in suit in the name of the plaintiff who was his servant and himself paid the entire sale price?"

13. It will thus be seen that Ghulam Mohammad was claiming to be the owner of all the 800 kanals of land which included the 400 kanals in respect of which Ghulam Hussain had obtained the mutation in his favour upon the basis that he was the sole owner of the land having purchased it from non‑Muslim owners by virtue of the registered sale deeds. On the other hand, the defendant was contending that half the land out of the total of 800 kanals belonged to him because he was the real purchaser of it though Ghulam Mohammad had been nominally shown as a transferee in the sale deeds and that the latter was merely a Benamidar for the former in respect of half the land, namely the 400 kanals in dispute. The learned District Judge upon examina tion of the evidence reached the conclusion that Ghulam Mohammad was a Benamidar of Ghulam Hussain in respect of the land in dispute (400 kanals) and consequently set aside the judg ment of the trial Court and dismissed the suit of Ghulam Mohammad. The operative part of the judgment which comes at the end is as follows:‑ "In view of what has been said above I disagree with the finding of the learned trial Court on issue No. 2 and decide the issue in favour of the defendant. It follows as a necessary corollary that the mutation in question was rightly decided in favour of defendant. I, therefore, accept the appeal and setting aside the judgment and decree passed by the learned trial Court dismiss the suit of plaintiff with the costs through out."

14. The question which arises for consideration is whether Ghulam Muhammad by reason of his failure to raise a plea upon the basis of the agreement dated 14‑11‑52 in that suit is now barred by the principle of res judicata from raising it in the present suit. It must be noted that Explanation IV to section 11 uses the words "might and ought"; therefore, it is not enough to attract the principle of Explanation IV that the matter might have been made the ground of attack. It must be held that it ought to have been made a ground and unless it can be so held the principle contained m Explanation IV will not be attracted. Their lordships of the Privy Council were considering a somewhat similar situation in the case of the Government of Province of Bombay v. Pestonji (P L D 1949 P C 31). In that case, the question arose in this way. In a previous suit against the Government it had been claimed by the trustees of the Wadia Trust that in respect of a certain village they were entitled to the levy of non‑agricultural assessment. This claim was based upon the basis of the relevant grant and upon the allegation that the village had been surveyed and settled under the Revenue Code. The Government did not contest the fact of the survey settlement in that suit which was decided upon that basis and upon the construction of the grant. In a subsequent suit the plea raised by the Government was that the village in question had not been surveyed and settled tinder the Revenue Code. It was common ground that if the village was not so surveyed and settled the plaintiff would not be entitled to the levy of non‑agricultural assessment. It was argued on behalf of the trustees that in the previous suit the question whether a survey settlement had or had not been introduced was res judicata, in that the Government with due diligence not only might, but ought to have raised the question in the previous suit, as being one which, if decided in their favour, would have involved the dismissal of the suit. This argument was based upon Explanation IV of section 11, C. P. C. In repelling that contention their Lordships observed as follows:‑ "It is no doubt true that this matter might have been raised and if raised a decision on it might have resulted in the dismissal of the suit against the Government but the question is, ought this matter to have been raised by the Government? Their lordships think it is impossible to say that the Government ought to have raised it, because of the admission made in that case. It is obvious that the most important question with which the Government was concerned was the construction of the grant namely, whether it was not merely an assign ment of revenue or whether it amounted to a grant of the proprietorship of the villages to the grantee."

15. In the case before us Ghulam Mohammad was challeng ing the validity of the mutation in respect of half the land which had been purchased in the year 1947 from the non‑Muslim owners and he was doing so upon the basis that he was the true owner upon the basis of the sale deeds and their confirmation by the Custodian in his favour. Ought he to have raised the plea in that suit that he had become entitled to that land by virtue of an agreement of sale or of relinquishment by Ghulam Hussain? Would not this plea have been destructive of the main plea that he was the full owner by virtue of the sale in his favour by the non‑Muslims'' Would it not be clearly incongruous for Ghulam Mohammad to raise such a plea in that suit where he was claim ing a declaration upon the basis of his own title arrived from the non‑Muslims" The answer, in our opinion, must clearly be in the affirmative. If such a plea had been set up Ghulam Mohammad would have had to say in evidence firstly, that he was the sole owner of the whole property including the 400 kanals because he had purchased it from the non‑Muslim owners and that Ghulam Hussain had nothing to do with it and had no right to title or interest therein. In the next breath he would have had to say that Ghulam Hussain wits the owner of the 400 kanals and that he (Ghulam Mohammad had agreed to purchase it from him for a consideration of Rs. 25,000 or that Ghulam Hussain had relinquished his right in that land for the aforesaid consideration. It is difficult to contemplate a more incongruous position. The test of determining whether both the ground; ought to have been set up in the previous suit is afforded by the provision of Order II, rule 1, C. P. C. which relates to the frame of suit and it provides that every suit shall, as far as practicable, be framed so as to afford grounds of final decision upon the subjects in dispute. Was it practicable for Ghulam Mohammad to set up this plea of the agreement of 14‑11‑52 in the previous suit? We have pointed out the difficulties that would obviously arise in his way if he had done that. Order 11, rule 6 gives power to Court to order separate trial when it appears that any causes of action joined in one suit cannot be conveniently tried together. It cannot be said of any matter that it ought to have been set up as a ground of attack in a former suit, if its introduc tion would have been incongruous to the matter of that suit. A large number of cases holding this view have been collected by Mulla in his Commentary of the C. P. C. dealing with Explana tion IV of section

11. But it is not necessary to refer to them because Mr. M. E. Rana did not contest the correctness of this principle. A Division Bench judgment of the Lahore High Court in the case of Labh Singh v. Court of Wards (A I R 1945 Lah. 210) which has been relied upon by the learned Judge is very much in point. In that case, one Labh Singh had repeatedly attempted to buy a property from the Court of Wards in auction and he had brought no less than three suits with the object of having declared that he had become the owner of the property and of preventing the Court of wards from putting it up for sale again. These were dismissed. Then the plaintiff brought a suit from which the appeal arise alleging that the sale, if it ever took place, had fallen through so that the plaintiff was entitled to the return of his money under section 65 of the Contract Act. The Court of Wards took the plea that this claim was barred by res judicata. The learned Judges while repelling this contention held as follows:‑ "The present prayer could only be treated as covered by the rule of res judicata if it is held that it was one which the plaintiff ought to have added as an alternative to his previous prayer No doubt it is a claim which might have been added to any of the previous suits, but that is not the same thing as holding that it should have been so added. The ordinary rule is that an alternative claim need not be added if there would be a distinct incongruity between the two claims and it seem to me that there would have been a considerable incongruity the plaintiff had been suing on the basis that there was a valid sale in his favour and at the same time on the ground that the sale had been avoided at his instance."

16. The learned counsel for the appellant, as we have just observed, does not contest the decision in this case but what he urges is that there would have been no incongruity in the previous suit if Ghulam Mohammad had set up the additional ground of attack based upon the transaction of 14‑11‑

52. We have said enough to show that there would be a distinct and clear incongruity if such a ground had been taken in the previous suit, The learned counsel has cited a number of cases. These are reported in‑ (1) A I R 1937 Lah. 872, (2) A I R 1931 Lah. 217, (3) A I R 1932 Cal. 889, (4) A I R 1930 Cal. 690, and (5) A I R 1958 Bom.

152. We have examined these decisions. They are clearly distinguishable on facts and it is not necessary for us to deal with them because it was conceded before us that if the introduction of tile ground would have been incongruous then it could not be said that it ought to have been set up in the previous suit his disposes of the first point but we may in deference to the argument before us refer to another aspect of the matter.

17. It was contended by Mr. Abdul Haq, the learned counsel for the respondent, that considering that Ghulam Mohammad had sought a declaration with regard to the ownership of the land in dispute in the previous suit and had challenged the validity of the mutation in favour of Ghulam Hussain he could not have raised this plea upon an unregistered document on the ground of part performance when he came to Court as a plaintiff. Reliance was placed upon a judgment of the Privy Counsel in the case of Prabodh Kumar Das and others v. Dantmara Tea Co. Ltd. (A I R 1940 P C 1). In that case an action had been brought by the plaintiffs seeking a declaration that a certain tea company and other has no right or title to the estate and were debarred from enforcing any right to it. The plaintiffs did not have a registered document in respect of the property in question and had relied upon section 53‑A, Transfer of Property Act, upon the basis of an agreement reached by interchange of letters. Their lordships held that section 53‑A did not entitle the plaintiffs to bring the suit which they had done. In doing so they observed as follows:‑ "In their Lordships' opinion, the amendment of the law effected by the enactment of section 53‑A conferred no right of action on a transferee in possession under an unregistered contract of sale. Their lordships agree with the view expressed by Mitter J. in the High Court that `the right conferred by section 53‑A is a right available only to the defendant to protect his possession. They note that this was also the view of their late distinguished colleague, Sir Dinshah Mulla as stated in Edition 2 of his treatise on the Transfer of Property Act at p.

262. The section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee." This decision was considered in a Division Bench of the West Pakistan High Court at Lahore in the case of Inayatullah v. Shah Mohammad (P L D 1961 Lah. 372). In this case the plaintiff who was in possession of the property in suit upon an unregistered document of sale had brought the suit against the seller as well as his subsequent transferees for a specific performance of the contract of sale against the defendant No. 1 and for declaration that the Other defendants had not obtained any right by subsequent mortgages created in their favour by the defendant No.

1. It was urged on behalf of the defendants that the unregistered document did not entitle the plaintiff to bring an action in Court. Reliance was placed upon the Privy Council decision referred to above. Their lordships distinguished that decision and held that it should be applicable to the facts upon which that decision was given.

18. For the purposes of the present case we do not find it necessary to go into the question whether the judgment of the Division Bench is liable to challenge in view of the aforesaid Privy Council decision. It is enough to say that in the case before their lordships of the Division Bench there was a specific prayer made for the specific performance of the agreement. The suit, therefore, would be competent upon that ground alone. We also do not want to examine the question, for the purposes of the present case, whether a person in possession under unregistered document of transfer or agreement to transfer cannot, in any situation, come to Court as a plaintiff. This is not necessary because in the present case having regard to the nature of the suit which Ghulam Mohammad had brought and which was for a declaration based upon a title we are of the opinion that he could not have come to Court upon the basis of the unregistered document, Exh. D/A. That document entitled him to defend his possession as a transferee under section 53‑A against the transferor or any one claiming under him. It did not entitle him to file a suit for declaration.

19. With regard to the second point it was the contention of Mr. Rana Abdul Hamid that in order to get the benefit of provisions of section 53‑A Ghulam Mohammad should have performed or should have been willing to perform his part of the contract and that this has not been established in this case. He first attempted to argue that the sum of Rs. 15,000, which the plaintiff Ghulam Hussain had admittedly received from the defendant through Khairuddin, was not towards the consideration of the agreement, Exh. D/A but had been paid by Ghulam Mohammad in lieu of the produce of the land in dispute. Ghulam Hussain had himself attempted this explanation in his evidence. When he was confronted with the receipt, Exh. D/B dated 4‑1‑53 in which he acknowledged the fact of the receipt of Rs. 5,000 on 14‑12‑52 and Rs. 10,000 on 4‑1‑53 through Khair uddin, he said that he had received these two sums but he said that it was incorrect to say that these payments had been received by him in pursuance of the agreement, Exh. D/A. This statement is palpably false. In fact, earlier in his examination-in‑chief he had himself stated that during the pendency of the previous suit a Panchayat had taken place and they had decided that Rs. 15,000 which he had recovered as consideration for sale should be adjusted towards the produce and Ghulam Mohammad should pay another Rs. 10,

000. Besides it has to be noted that the agreement, Exh. D/A clearly provided that Khairuddin was a surety for the payment of Rs. 21,750 to Ghulam Hussain by Ghulam Mohammad and obviously it was for this reason that these two payments had been made by Ghulam Mohammad through Khairuddin. The agreement dated 14‑11‑52 Exh. D/A, clearly states that Ghulam Hussain had no claim in respect of any produce. How could then Ghulam Mohammad pay him Rs. 15,000 on account of produce within a month of this agreement?

20. The learned counsel then urged that in any case Ghulam Mohammad had not paid the balance of Rs. 6,

750. In this regard we believe the evidence of Ghulam Mohammad, that he was prepared to pay this amount but in so far as Ghulam Hussain had gone back upon the agreement and was pressing his claim for mutation before the Revenue authorities he was not willing to accept this amount. Mr. Abdul Haq, the learned counsel for the respondent, made a statement that his client was always and was even now ready and willing to pay the balance of Rs. 6,750 provided the plaintiff would accept it.

21. It was lastly urged in this, connection by Mr. M. E. Rana that the date for the payment of Rs. 21,750 according to the agreement, Exh. D/A, was 16‑12‑52 and that the defendant had failed to adhere to this dead line and, therefore, he was not entitled to the benefit of the agreement or to take protection under section 53‑A of the Transfer of Property Act. We are unable to agree. The plaintiff himself accepted the second instalment of Rs. 10,000 on 4th January 1953. That was beyond 16‑12‑

52. Moreover, the agreement itself provides that if the payment was not made by Ghulam Mohammad it could be recovered from his property or from Khairuddin, the surety. It is, therefore, clear to us that the fact of non‑payment of the whole amount by 16‑12‑52 does not disentitle the defendant from the benefit of the agreement.

22. The learned counsel drew our attention to the evidence of Ghulam Mohammad in which his former statement in the pre vious suit with regard to the reason for the payment of Rs. 15,000 had been put. Apparently there he had said that he had paid this amount to Ghulam Hussain as consideration for a share in his ice factory. Obviously, this was incorrect. No share in ice factory has been given by Ghulam Hussain to Ghulam Mohammad. It wits the former who had driven tile latter to the taking of this kind of stand. Having recovered the major portion of Rs. 25,000 which was the consideration of the agreement, Exh. D/A, he sneaked to the Revenue authorities and managed to obtain a mutation in his favour. It is easy to see the plight of Ghulam Mohammad. He did not have the original agreement in his possession, the copy which lie produced before the Revenue authorities was rejected as being inadmissible, the person with whom the original document was, had gone abroad and he, there fore, filed a suit two days after the sanction of mutation seeking a declaration upon the basis of the sale deeds, all of which were in his favour. We do not think any use can be made by the plaintiff of the statements made by the defendant in the previous suit with regard to the reason given by him for the payment of these Rs. 15,

000. We have no doubt that these Rs. 15,000 and the other Rs. 3,250 were received by the plaintiff towards the agreement, Exh. D/A, and the defendant who was already in possession of the land had partly performed it by making these payments and was fully entitled to the benefit of the protection under section 53‑A, Transfer of Property Act. We have, there fore, no hesitation in rejecting the second point as well, which was urged by the learned counsel for the appellant.

23. No other point was pressed before us and in view of our conclusion on the two points which were urged, we dismiss the appeal with costs and uphold the judgment of the learned trial Judge. S. Q. Appeal dismissed.