1989 PLP 422 (CLC)

(7) Whether the plaintiff and defendants Nos.l to 3 settled Suit No.1119/1971 and defendants Nos.1 to 3 received Rs.45,000 in full and final settlement of the claim on account of the consideration of the plot in suit ? (8) Whether the cost of construction on the plot in suit on the date of filing the amended plaint i.e. 24‑4‑1978 was not Rs.11,000? If so, what is its effect ? (8A) Whether the suit is barred under sections 70 and 70‑A of the Co‑operative Societies Act, 1925 ? (9) Whether the plaintiff is entitled to a decree of specific performance of the agreement of sale ? (10) To what other relief, if any, is the plaintiff entitled ? On 22‑4‑1985, when the case was fixed for evidence, no one appeared on behalf of the defendants. On behalf of the plaintiffs, evidence of plaintiff Dr. Kaniz Zehra Zaidi (Exh. 8) was recorded and after her evidence, Mr. Abdul Majid Khan, learned counsel for the plaintiffs, closed the side of the plaintiffs. Defendants and their counsel were called absent. For the evidence of defendants, the case was adjourned. On 5‑9‑1985, the matter was called in the morning but no one had appeared on behalf of the defendants. The matter was again taken up at 11 a.m. on 5‑9‑1985 but the defendants and their counsel were called absent. The side of the defendants was closed and the case was adjourned to a date in office for arguments. The case is fixed today for arguments. The defendants and their counsel have been called absent. I have heard the arguments of Mr. Abdul Majid Khan, learned counsel for the plaintiffs.

2. Issue No.l is whether the agreement of sale of the suit land dated 11‑1‑1967 in favour of the plaintiff was executed by defendants Nos. l to 3 due to fraud and misrepresentation. The burden of proving this issue was on defendants Nos.l, 2 &

3. Neither any evidence was led by these defendants nor they have appeared when the case was taken up for evidence. They have also not appeared today. The evidence of the plaintiffs has gone uncontroverted. Issue No.l is decided against the defendants Nos.l, 2 &

3. Issue No.2 is whether defendants Nos.2 to 3 had revoked the agreement of sale and if so, what is its effect. After having sent a notice of revocation, defendants Nos.l, 2 & 3 settled their dispute with the plaintiff and obtained an additional amount of Rs.45,000 from the plaintiff and withdrew their claim in respect of the plot in question. This stand is confirmed not only by the evidence of plaintiff Dr. Kaniz Zehra Zaidi but also by the certified copies of the application under Order XXIII, rule 1, C.P.C. filed by defendants Nos.l, 2 & 3 against the plaintiff in Suit No.218/1971 and Suit No.1119/1971 in the District Court Karachi, and the orders passed by the Civil Judge. In the circumstances, the revocation of the agreement of sale by defendants Nos.l, 2 & 3 became ineffective. On issue No.2, it is held that defendants No.l, 2 & 3 are deemed to have withdrawn their notice of revocation of the agreement of sale. Issue No.3 is whether defendant No.3 executed special Power of Attorney in favour of the plaintiff's nominee and allowed the plaintiff to raise construction. The special power‑of‑attorney has not been produced in the evidence of plaintiff Dr. Kaniz Zehra Zaidi but the evidence on behalf of the plaintiff is to the effect that the possession of the plot in question had been handed over to the plaintiff and plaintiff had raised construction with his own funds on the plot in question. The evidence of the plaintiff has gone uncontroverted, as observed earlier. On issue No.3 my finding is that the plaintiff had been allowed to raise construction on the plot in question after the execution of the agreement of sale dated 11‑1‑1967 by defendants Nos.1, 2 & 3 in favour of the plaintiff under which agreement possession of the plot had been delivered to the plaintiff. Issue No.4 is whether the plaintiff illegally and forcibly occupied the suit land/or raised construction. The evidence of the plaintiff and the documents produced on behalf of the plaintiff during the evidence clearly established that the plaintiff had lawfully occupied the suit land under the agreement of sale dated 11‑1‑1987 and had raised construction thereon. No evidence has been led to the contrary by the defendants. Issue No.4 is decided in the negative. Issue No.5 is about payment of the consideration and additional payment of Rs.45,000 by the plaintiff to the defendants Nos.l, 2 &

3. The agreement of sale dated 11‑1‑1967 (Exh. 8/6), certified copies of the orders in Suit No.218/1971 and Suit No.1119/1971 (Exh. 8/9), the original receipt of Rs.45,000 (exhibit 8/10) and the evidence of Dr. Kaniz Zehra Zaidi (Exh. 8) have proved that a sum of Rs.75,000 as total consideration and an additional amount of Rs.45,000 had been paid by the plaintiff to the defendants Nos.l, 2 &

3. Issue No.5 is decided accordingly. Issue No.6 is whether the plaintiff obtained receipts of Rs.5,000, Rs.3,000 and special power‑of‑Attorney from the defendants by fraud and misrepresentation. The burden of proving this issue is on defendants Nos.l, 2 &

3. No evidence has been led on their behalf. Evidence of the plaintiff on the other hand shows that there was no fraud or misrepresentation on the part of the plaintiff. Issue No.6 is decided in the negative. Issue No.7 is whether the plaintiff and defendants Nos.1 to 3 settled Suit No.1119/1971 and defendants Nos.l to 3 received Rs.45,000 in full and final settlement of the claim on account of the consideration of the plot in suit. As observed earlier, no evidence has been led on behalf of the defendants Nos.l, 2 & 3 and the evidence of plaintiff Dr. Kaniz Zehra Zaidi has gone uncontroverted. Even the certified copies of the application under Order XXIII, rule 1, C.P.C. filed in the two District Court suits and the original receipt of Rs.45,000 executed by defendant No.3 as attorney of defendants Nos.4, 5 & 6 (Exh. 8/10) show that the suit in the District Court had been settled and the defendants Nos.l, 2 & 3 had withdrawn all their claims against the plaintiff in respect of the property in suit. Issue No.7 is accordingly decided in the affirmative. Issue No.8 is about the cost of the construction on the plot in suit on the date of the filing the amended plaint i.e. 24‑4‑1978 was not Rs.11,00,000 and if so what is its effect. No evidence has been led by the plaintiffs on this issue. The evidence has also not been led by the defendants as observed earlier. In the circumstances, on issue No.8 my finding is that there is no evidence on record as to what was the cost of construction on the plot in question. Burden of issue No.8‑A about the suit being barred was on defendant No.7. No one had appeared on behalf of defendant No.7. The burden of proving issue No.8. has not been discharged. Issue No.8A is accordingly decided in the negative. Issue No.9 is whether the plaintiff is entitled to specific performance. On the state of evidence produced on behalf of the plaintiff, which has gone uncontroverted, in my view, the plaintiffs are entitled to specific performance of the agreements of sale.

3. In view of my findings on the issue framed in this suit, plaintiffs are entitled to a decree for specific performance. I pass a decree for specific performance of the agreements of sale dated 17‑6‑1961 and i1‑1‑1967 in favour of the plaintiffs. In case defendants Nos.l to 6 do not execute a conveyance and get the same registered in favour of the plaintiffs within two months hereof, the Nazir of this Court will execute the conveyance deed in favour of the plaintiffs. The cost and registration fee and all other expenses in respect of the conveyance deed and for any other document that is required to be executed or registered will be borne by defendants. The plaintiffs shall have their costs as against defendants Nos.l, 2 & 3 only. M. Y. H./M‑594/K Suit decreed.