P L D 1959 (W (PLP)

MUHAMMAD SHAFI, J.‑Nisar Muhammad Khan, Bashhir Muhammad Khan sons of Sher Muhammad Khan, and Jan Muhammad Khan and Taj Muhammad Khan, sons of Khawaja Muhammad Khan, all minors, instituted a suit against Mst. Rahat Begum and seventeen others for a decree for the possession and specific performance of the contract of sale in respect of 502 kanals 19 marlas of land, eight houses,. and a tower, situated in Mahal Dheri Zardad Khan, Tehsil Charsadda, alleged to have been entered into by Shahzada Muhammad Shah (D. 2), on behalf of his wife, Mst. Rahat Begum (D. 1), on the 22nd of March 1951. The pLalntiffs' case was that Shahzada Muhammad Shah (D. 2) held a general power‑of‑attorney on behalf of his wife defendant No. 1 Mst. Rahat Begum, and in that capacity, he contracted to sell the suit property in favour of the minors through Khawaja Muhammad Khan, the uncle of the first two pLalntiffs and the father of pLalntiffs Nos. 3 and 4, on the 20th of March 1951, in lieu of Rs. One lac (Rs. 1,00,000). The forms for the deposit of Rs. 1,875 into the treasury for the purpose of the purchase of the requisite stamp paper were filled in on the same date. Before, however, the money could be deposited into the treasury, it transpired that the land could not be sold under the Kabul River Project Control and Prevention of Speculation in Land Act VI of 1948, without the permission of the Provincial Government. On the 22nd of March 1951, the parties executed a written agreement of sale and Rs. 4,000 were paid as an earnest money. Tentatively, it was agreed that the sale deed would be executed within six months. The balance of Rs. 96,000 was to be paid before the Sub‑Registrar at the time of the registration of the deed. It was given out in the agreement that the land was free from all encumbrances, including the lease, but the pLalntiffs' next friend came to know subsequently that by a registered lease deed, dated the 11th of February 1949, the property had in fact been leased out for a period of ten years in favour of Haji Muhammad Zaman, and Gut Shah (Ds. 8 and 9) respectively, and that Rs. 6,000 had been paid in advance to the lessor. The same day on which this agreement was written, an application was made by Shahzada Muhammad Shah (D. 2) on behalf of his wife, Mst. Rahat Begum, to the Revenue and Divisional Commissioner of the defunct North‑West Frontier Province for the necessary sanction. An inquiry was held by the Government, in which the statements of Mst. Rahat Begum and Shahzada Muhammad Shah were taken by Syed Lal Badshah field Qanungo (P. W. 1). This application was accepted, and on the 18th of December 1951, the suit‑property was exempted from the operation of the aforementioned Act. The next friend of the pLalntiffs came to know of this exemption on the 15th or 16th of February 1952. The next friend of the pLalntiffs then asked the prospective vendors to sell the property in favour of the minors, but they did not care to reply to this demand. After a week, the next friend of the pLalntiffs was informed that Shahzada Muhammad Shah as the general attorney of Mst. Raltat Begum (D. 1) had sold away 420 kanals 10 marlas and some houses out of the land and houses contracted to be sold to pLalntiffs earlier in favour of Haji Abdullah Khan (D. 3), Mir Afzal Khan (D. 4), Mastan Khan (D. 5), Ajoon Khan (D. 6), and Sadiq Jan (D. 7) by a registered sale deed, dated the 24th of March 1952, for Rs: one lac and forty thousand. It was alleged that though this amount was ostensibly paid in presence of the Sub‑Registrar, it was in fact fictitious and entered simply to deter the prospective pre‑emptors and to defraud the pLalntiffs. ' It was further stated in the pLalnt that by mutation No. 164 attested an the 29th April 1952, Mst. Rahat Begum (D. 1) had sold' fictitiously 82 kanals 9 marlas of land also out of the said land in favour of her nephew Fateh Muhammad Khan (D. 2): The pLalntiffs further alleged in the pLalnt that before mutation No. 164 was attested, he had served a notice on defendant No. 10, Fateh Muhammad Khan, that the vendors had already contracted to sell the property in his favour and therefore, he should not purchase it. The pLalntiffs sought the decree on payment of Rs. 90,000, after deducting the amount of Rs. 4,000 which had already been paid and Rs. 6,000 which the vendors had received from the lessees, from the sum of one. lac of rupees. The defendants who have not been referred to above, i.e. who were neither the lessees nor the subsequent vendees, were impleaded as defendants, because they were in possession of the property as tenants. The suit was contested by the vendees, Defendant No. 1, Mst. Rahat Begum, did not put in any written statement, but her husband Shahzada Muhammad Shah (D. 2) entered into defence. Fateh Muhammad Khan's written statement was a short one, denying all the allegations of the pLalntiff. He, however, asserted that he had purchased land measuring 22 jaribs 14 marlas from Shahzada Muhammad Shah, general attorney of Mst. Rahat Begum, in lieu of Rs. 33,000 on the basis of the mutation which was attested at Tahsil Charsadda, and that it was in his possession and had been leased out by him. This defence is a bit difficult to understand, because the land, as already stated, was under lease with defendants Nos. 8 and 9 at the time the mutation was attested. It was further pleaded that he had purchased the property without the notice of the contract of sale in favour of the pLalntiffs in good faith and with con sideration which had been paid in cash to Mst. Rahat Begum. He further asserted that he had superior right of pre‑emption to the pLalntiffs, so even if they had purchased the property he would have pre‑empted the sale. Defendants Nos. 3 to 7 raised some preliminary objections that the agreement to sell was insufficiently stamped, the Court‑fee was not properly paid, and that the pLalntiffs were not entitled to get a decree for the possession of the suit land. On merits, they pleaded that they had purchased the property in good faith and with consideration without the notice of any agreement to sell in favour of the pLalntiffs. Shahzada Muhammad Shah (D. 2) raised five pre liminary objections. They were to the following effect :‑ (1) That the suit was bad on account of misjoinder of causes of action and defendants. ExpLalning the objection, he submitted that defendants Nos. 3‑7 were not in possession of the property, and, therefore, they could not be impleaded as defendants in the case. (2) That no prayer for the possession of the property can be granted in favour of the pLalntiffs before the lease in favour of defendants Nos. 8 and 9 is terminated. (3) The pLalntiffs cannot be granted the possession of the property before the lease executed on the 10th of February 1949, is cancelled. (4) The agreement dated the 22nd of March 1951, was not properly stamped, and was, therefore, inadmissible in evidence. (5) The value for the purposes of court‑fee and jurisdiction was not properly fixed.

5. According to him, separate court‑fee should be paid on the prayer for possession and for the specific performance of the contract. On merits, he denied that he had entered into any contract of sale on behalf of his wife with the pLalntiffs. He admitted that the next friend of the pLalntiffs had asked him if there was any bar for him to sell the land to which he replied that he would make an application for the removal of the bar, but subsequently he was informed that there was no legal bar for him to sell the property. He denied the execution of the agreement dated the 22nd of March 1951. He, however, stated, that the next friend of the pLalntiffs, who was an Advocate and his friend must have betrayed the trust reposed in him and got his signatures on a blank paper and written something on it in his own handwriting. He further pleaded that the next friend of the pLalntiffs was estopped by his conduct to insist upon the completion of the sale. He admitted that the next friend of the pLalntiffs had made an application on his behalf to the Government for the permission to sell the property but he did not say in his written statement as to in whose favour the property was proposed to be sold. He asserted that he did not know what was written in the application itself. He further admitted the sale in favour of defendants Nos. 3‑7 and 10 and maintained that the price mentioned in the deed and the mutation was correct, and not fictitious. He expLalned that the document in favour of defendants Nos. 3‑7 was registered in Zerinabad, because the sum involved was very heavy and it required to be protected. He vaguely hinted that he had been defrauded. In para No. 8 of the written‑statement he admitted that the property was leased out in favour of defendants Nos. 8 and 9 and said that if the agreement of sale had been entered into by him this fact would certainly have been mentioned in it. He further stated in the written‑statement that defendant No. 10 had his land adjacent to the land sold in his favour. In para No. 10 of the written‑statement, he maintained that the property involved was worth more than two lacs of rupees, and the next friend of the pLalntiffs was anxious to get it at a very low price, and for that purpose, he had brought into existence the alleged agreement to sell. He re‑asserted that he had trusted the next friend of the pLalntiffs, because he had been his client, and that he (the next friend) had taken undue advantage of that trust and brought into existence a fictitious agreement to sell. He further pleaded that as the sale had not taken place within six months, therefore, it could not be completed now. On these pleas the learned trial Court framed the following seventeen issues :‑ (1) Whether the suit is bad for mis joinder of defendants and causes of action ? (2) Whether the suit for specific performance is not com petent ? (3) Whether the relief for possession cannot be cLalmed ? (4) Whether the agreement to sell in favour of the pLalntiffs is not properly stamped and is, as such, inadmissible in evidence. (5) Whether the suit has been properly valued for purposes of court‑fee and jurisdiction? (6) Whether defendants Nos. 3‑7 and 10 are purchasers in good faith, for consideration and without notice ? (7) Whether defendants Nos. 1 and 2 did not receive the earnest money of Rs. 4,000 at the time the agreement to sell was executed in favour of the pLalntiffs ? (8) Whether the agreement to sell in favour of the pLalntiffs was got executed through undue influence by the next friend of the pLalntiffs ? (9) Whether there existed the relationship of counsel and client between the next friend of the pLalntiffs and defendant No. 2 at or at any time previous to the execution of the agreement to sell by defendant No. 2 in favour of the pLalntiffs ? (10) If issue No. 9 is proved in the affirmative, whether the next friend of the pLalntiffs in any way took undue advantage of his position as a counsel, in connection with the execution of the agreement to sell in favour of the pLalntiffs ? (11) Whether the plea of fraud .is available to defendant No. 2 in spite of his omission to disclose the nature and the details of the alleged fraud ? (12) If issue No. 11 be in the affirmative, whether pLalntiffs' next friend exercised any fraud in the execution of the agreement to sell by defendant No. 2 in favour of the pLalntiffs ? (13) Whether the pLalntiffs are not entitled to the relief sought for their failure to take timely steps 'towards the execution and registration of the sale deed ? (14) To what reliefs are the pLalntiffs entitled against which of the defendant and on what terms ? (15) Whether there was any lease in favour of defendants Nos. 8 and 9 previous to the agreement to sell in favour of the pLalntiffs, if so, how it affects the present case? (16) Whether defendants Nos. 3‑7 can plead the execution of an agreement to sell in their favour without filing a copy of the same or disclosing the date of its execution or any other details ? (17) If issue No. 16 is proved in the affirmative, was any agreement to sell executed by defendant No. 2 in favour of defendants Nos. 3‑7, if so, with what effect on the present case ? Issues Nos. 1 and 2 were not pressed by the counsel for the defendants, and they were, therefore, decided against them. Issue No. 3 was only lukewarmly argued, but the learned trial Court held that the decree for the specific performance of the agreement without a prayer for the possession of the land would be meaningless and would involve multiplicity of suits, because in the event of a decree for the specific performance, another suit for possession shall have to be instituted by the pLalntiffs. In any case, it is obvious that the land was under lease with defendants Nos. 8 and 9, and therefore, the pLalntiffs could only be granted a 'decree for the constructive possession. On issue No. 4, the learned trial Court held that the agreement to sell required a stamp of Re. I only, and that the proposition was not disputed at the time of the arguments. Here, the judgment of the learned trial Court seems to be erroneous, because under Serial No. 5 of Schedule I, of the Indian Stamp Act (N.‑W. F. P. Amendment) Act XV of 1948, a stamp of Rs. 1‑4‑0 was payable on the agreement to sell the effect of the under payment of the stamp on the agreement to sell will at the utmost be to ask the pLalntiffs to pay the deficit stamp plus the penalty, but the learned counsel for the appellants does not insist upon it. His only argument is that if another, four‑annas stamp was to be appended to the agreement to sell, then the signature of Shahzada Muhammad Shah (D. 2) would have appeared on the front page, and not at the back, as is the case here. This argument appears to us to be absolutely misconceived, because if another paper had to be attached to the agreement to sell, then it would have been open to the appellants to say that Shahzada Muhammad Shah's signature was obtained upon a blank paper and attached to the adhesive stamp paper. The next friend of the minors has been more careful in having the signature of Shahzada Muhammad Shah just at the back where the adhesive stamp is printed. If this signature is that of Shahzada Muhammad Shah (D. 2) then he could have possibly omitted to see that he was signing the stamp paper, and not a blank one. Issue No. 5 was also not disputed at the time of the arguments. The court‑fee had been paid on ninety thousand rupees, i.e. the balance of the sale price agreed to be paid on the basis of the agreement to sell. The learned trial Judge discussed issues Nos. 6, 16 and 17 together. He held that the onus lay very heavily upon defendants Nos. 3‑7 and 10 to prove positively that they were purchasers in good faith for consideration and without notice. After discussing the evidence exhaustively, he came to the conclusion that the aforementioned defendants had failed to discharge this onus. In support of issues Nos. 16 and 17 the defendants alleged that prior to the sale under the registered sale decd and mutation in their favour, defendant No. I had executed in their favour an agreement to sell on the 3rd of October 1951. The learned trial Court held that this document was not a genuine one and had been brought into existence after even the written‑statements were put in to meet the pLalntiff case. Giving the reasons therefore he said that the document was written on a pLaln paper, and that such document could be manufactured at any time. Secondly, he opined that no reference to this agreement to sell was made in the registered deed, dated the 24th of March 1952. Thirdly, he observed that no reference to this agreement to sell was made in the written‑statement. Fourthly, he disbelieved the evidence of the witnesses produced to prove this document, because they happened to he the near relations of defendant No. I (Mst. Rabat, Begum). Lastly, he took notice of the fact that none of the defendants Nos. 3‑7 came forward as his own witnesses to prove the execution of the agreement to sell and also to repudiate the suggestion that he had no knowledge of the execution of the agreement to sell in favour of the pLalntiffs. The learned trial Court discussed issues Nos. 7 and 8 together and held that the agreement to sell in favour of the pLalntiffs had been proved from the unassailable evidence produced upon the record On giving his decision on issues Nos. 9, 10, 11 and 12' the learned trial Judge held that defendant 2 in his statement was denied that he ever engaged Mr. Khawaja Muhammad Khan as his counsel, and therefore, the question of his undue influence over him did not arise. He further held that no fraud had been alleged in the statement by defendant No. 2, much less Proved. Issue No. 13 was again very lukewarmly argued that the sale deed was to be executed within six months, and since the pLalntiffs had not taken steps to get the sale deed executed and registered, therefore, the time being the assence of the contract, the pLalntiffs could not be granted the relief asked for. The Court considered this plea as fantastic, in view of the defence taken up by defendants Nos. I and 2, that no agreement to sell was ever executed. Issue No. 15 was decided in favour of defendants Nos. 8 and 9 on the admission of the pLalntiffs themselves. As a result of the above observations, the pLalntiffs were granted the decree prayed for. They were allowed to recover their costs from defendants Nos. 1. 2, 3‑7 and

10. Defendants Nos. 3‑7 and 10 have come up on appeal to this Court. It is conspicuous that Mst. Rahat Begum (D. 1) and her husband, Shahzada Muhammad Shah (D. 2) have not appealed against the decree passed by the learned trial Judge. At the outset, the learned counsel for the appellants made an application that they should be permitted to raise the following questions which were neither raised in the written‑statement, nor in the grounds of appeal. (1) That the minor pLalntiffs were suing through their next friend for the specific performance of a contract to purchase Property, and that such a contract, according to a Privy Council authority (39 Cal. p. 232), was not specifically enforce able. (2) That pLalntiffs Nos. 1 and 2, Le. Nisar Muhammad Khan and Bashir Muhammad Khan, were minor sons of Slier Muhammad Khan, who was alive at the time when the alleged contract to sell was said to have been completed. Khawaja Muhammad Khan, their uncle, was neither their natural guardian, nor guardian appointed by the Court, and was, therefore, in law, not entitled to enter into any contract on their behalf. There was, thus, no contract and none could be enforced. (3) That even in respect of his own minor sons, Khawaja Muhammad Khan could not enter into such a contract. (4) That neither party was aware at the time of entering into the alleged contract of sale that the property in suit was not permissible to be sold without permission of the Govern ment. The contract was, therefore, vitiated by mistake, and is void under section 20 of the Contract Act. (5) That even if the parties were aware of such a position, the contract, not being wholly dependent for its completion on the will of the parties, was not specifically enforceable. (6) That in respect of defendant No. 10 (Fateh Muhammad Khan) superior right of pre‑emption was pleaded in the written‑statement, and not disputed in the replication. The trial Court nevertheless did not frame an issue on this point. It was asserted that defendant No. 10 was a nephew of the vendor, and a co‑sharer in the land sold, and had property contiguous to that of the vendor and sharer in amenities. The framing of the issue to cover this point and adjudication upon it was necessary, because a Court would not enforce specific performance of a contract against a person with superior right of pre‑emption. (7) That defendants Nos. 3‑7 pleaded that they had in fact paid Rs. 1,34000 to defendant No. 1, through defendant No.

2. The pLalntiffs have admitted that the amount over and above Rs. 60,000 had been refunded, but the learned trial Court failed to frame an issue on this point and had given no finding thereon. The value of the property would be an important consideration in deciding the question of specific performance and would be still the more important in the case of a pardah nashin lady dealing with the minors through an Advocate, who, while giving advice, was also trying to help himself and his family. (8) That the execution and the validity of the agreement to sell was expressly disputed, but no issue was framed on that question. It was prayed that permission might be granted to the appellants to amend their written‑statement to raise the questions not already raised and permission might further be granted to raise the questions mentioned above in the appeal. It was further submitted. that should the Court be of the opinion, that to decide some or all the questions mentioned above, opportunity to lead evidence upon these points should be given, then the evidence might be recorded either by this Court, or the trial Court be directed to record such evidence and submit the same to this Court. It has been most vehemently argued that these questions, though not raised in the memorandum of appeal, should be allowed to be raised now. Under Order XLI, rule 1, Civil Procedure Code, the memorandum of appeal shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and such grounds shall be numbered consecutively. Under Order XLI, rule 2 of the same Code, the appellant cannot, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. It is, however, open to the Appellate Court in deciding the appeal to depart from the above principle, and not confine to the grounds of objections set forth in the memorandum of appeal or taken by the leave of the Court under this Rule. The learned counsel for the appellants submits that the Court, under this Rule, has a discretion to permit a new point not raised in the memorandum of appeal to be raised and argued at the hearing. It is urged that this permission should ordinarily be granted where the point sought to be raised is a question of law dependent on no new facts except those already on record, or is a point to which the other side cannot legitimately raise an objection on the ground of surprise: It is conceded that in the latter case, the permission can be granted only on such terms as would idemnify the opposite party for the loss caused to him by reason of the failure of the appellant to raise the point in time. In support of his arguments the learned counsel has cited several authorities. The first case cited is a. Full Bench authority of Allahabad High Court. Muhammad Ismail v. Chittar Singh (I L R 4 All.69). The three Judges, who formed the Full Bench, held that not only may the plea of res judicata, though not taken in the memorandum of appeal be entertained in second appeal, under provisions of section 542 of Act X of 1877, but that even when such plea has not been urged in either of the two lower Courts or in the memorandum of appeal, if raised in the second appeal, it must be considered and determined either upon the record as it stands, or after remand, for findings of fact. The second case cited is Chhadani Lal and another v. Shama Charan Lal and others (AIR 1914 All. 2), decided by Rafiq, J. in Single Bench. In this case, it appears that the plea of res judicata was taken in the trial Court, but not in the memorandum of appeal. The learned Judge, following IV Allahabad page 69, held that the plea of res judicata could be taken for the first time at the hearing of a second appeal, although it was not taken in the memorandum of appeal. The third case cited is also a Single Bench case reported in Rai Singh and another v. Ram Singh and others (A I R 1933 Lah. 738). In this case, the defendant‑appellants had at first instituted a suit in the revenue Court for the ejectment of Phul Singh and Changi and had obtained a decree against them. Subsequently, Phul Singh instituted a suit for a declaration that the mortgage in favour of one Ranpat was a benami transaction and also mentioned in the pLalnt that the decree for ejectment obtained against the pLalntiff should not affect his rights. It is not clear from the judgment as to what was the defence taken up by the defendants in respect of the revenue Court decree or whether any issue on the point was framed by the trial Court or not. It is also not clear from the judgment as to whether the two Courts below had given any decision on this plea. All that is mentioned in the judgment is that the objection that the revenue decree operated as res judicata was not taken up in the grounds of appeal. The learned Judge allowed this plea to be taken, because it was patent on the record and appeared to him to be important. No case law was cited or discussed by the learned Judge. The fourth case cited is Annappa Ramchandra Rai v. Krishna Narayan Prasad and others (A I R 1936 Bum. 41). In this case, the managers of a temple had brought a suit against the members of a Committee and the trustees of the fund collected for the benefit of religious and charitable institutions for the possession of the land pur chased out of the fund and recovery of the rest of the amount due to the temple after taking accounts of the fund from the beginning. The trial Court had made a preliminary decree awarding the pLalntiffs the possession of the land with mesne profits and also directing the taking of the fund in the hands of the defendants. Subsequently, a Commissioner was appointed to take the accounts, and after he had reported, a final decree was passed awarding the pLalntiffs a certain sum of rupees. Two appeals were filed in the High Court, one from the final decree, and the other from the original decree. These appeals were accepted on the ground that as the case was of an alleged breach of trust created for public purposes of a religious nature and one of the reliefs prayed for in the suit, namely, the taking of accounts, was a relief for the kind specified under section 92, subsection (2) of the Civil Procedure Code, which provided that save as provided by the Religious Endowments Act, 1863, no suit cLalming any of the reliefs specified in subsection (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that subsection. Their Lordships held that the institution of this suit required the previous sanction of the Collector under section 93, and as the sanction had not been obtained, therefore, the suit could not be maintained. The learned Judges allowed this objection to be taken, though it was not taken in the trial Court, nor was it mentioned in the memorandum of appeal. Their Lordships allowed it because it appeared on the face of the record, and they felt that they could not refuse to allow the point to be taken and argued. In this case too, the learned Judges did not make any reference to case‑law. The fifth case cited is Krishnawa Yelagouda Patil and another v. Ramagouda Kadagouda Patil (A I R 1941 Bom, 351). I am not very clear as to why this case has been cited, because the learned Judges did not allow the question whether a decree against a widow is binding on the estate to be raised in appeal, because according to them, it depended partly on question of fact and, therefore, could not be allowed to be raised in appeal without special leave under Order XLI, rule 2, C. P. C. when it was neither raised at the trial, nor mentioned in the grounds of appeal. They, however, ‑observed as obiter dictum that the practice of the Bombay High Court was not to allow new points to be taken in appeal, unless at any rate, it was clear that the point was a pure question of law which could be determined on the materials already on the record. The sixth and the last case cited is Muhammad Idris Haider v. Muhammad Habibur Rehman (A I R 1948 Pat. 97). In this case, the question which seems to have been discussed by the learned Judges was that there was no specific provision to allow the appellant to amend his memorandum of appeal against one decree or order to be substituted for an appeal against another decree or order. This case has perhaps been produced in support of the oral prayer which the learned counsel for the appellants made that he might be permitted to amend the memorandum of appeal, There, however, seems to be no point in allowing the amend ment when the Court has got the power under Order XLI, rule 2, C. P. C. to allow the appellant to urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. It is a bit difficult to accept the dogmatic proposition put forward by the learned counsel for the appellants that every question of law depending on facts already on the record should be permitted to be raised in the Appellate Court though not raised in the subordinate Court. No doubt the authorities cited at the bar lend support to this principle, but then no situation in one case .can be identical with the situation in another case. Combination of facts and material conditions in a case must have its own specific pattern. In order to arrive at a certain decision on all questions whether of fact or of law diverse facts must arise for consideration and the comparative importance of this or that fact must depend on circumstances of each case. In assessing the value of the judgments cited at the bar no standard higher or stricter than this can be Lald down or was Lald down in any case. Every case, therefore, has to be decided with reference to the facts and circumstances and no useful purpose will be served by attempting to decide a point by reference to previously decided cases. It seems necessary to emphasise somewhat obvious points that in all the authorities cited at the bar, the learned Judges, while allowing the questions of law to be raised for the first time in appeal, did not enter into any detailed discussion. The perusal of all these authorities makes it somewhat clear that the points which were allowed to be raised in appeal were already in the mind of the parties and they brought material upon the record in respect of their view points without any objection from the adverse party. There are, however, authorities of the Indian Courts in which questions of law not taken in the trial Court were not allowed to be raised in the Appellate Court. Some of these authorities are as under (1) Kalyanpur Lime Works Limited v. State of Bihar and another (AIR 1954 S C 165). In this case, the objection that a lease granted by the Government did not conform to the provisions of section 30 of the Government of India Act, 1915, which was not raised in the pleadings, nor in the memorandum of appeal to the High Court, was not allowed to be taken up for the first time during the course of the arguments. (2) Nazroo and another v. Lalman and another (A I R 1955 Himachal Pradesh 44). It was held that in a suit for possession and rent against the tenant, the latter could not for the first time in appeal be allowed to raise objection to sufficiency of notice to quit after having failed in the first Court on his plea of title. (3) Sukh Ram v. Baldev Dass (A I R 1957 Madhya Pradesh 138). It was held that it was a settled law that the decision of a case could not be based on grounds outside the pleadings of the parties, and that it was. the case pleaded that had to be found by the Court. It was further pointed out that a defendant appellant, who had not raised in his written‑statement the plea which he sought to raise in his appeal, could not, therefore, be allowed to raise it for the first time in appeal. In arriving at this conclusion, the learned Judges relied upon A I R 1953 S C

235. I have not come across any authority of the Pakistan Supreme Court or High Courts on the point in issue and none indeed has been cited at the bar. The framers of the Civil Procedure Code have devised many ingenious safeguards to secure that no party is taken by surprise either in the trial Court or in the Court of appeal both on the questions of fact and questions of law. I may here‑mention the provisions of the Civil Procedure Code which are material for the decision of this case. Under Order VIII, rule 2 of the Civil Procedure Code, a defendant must raise by his pleadings all matters which show the suit not to be maintainable or that the transaction is either void or voidable in point of law and also on other such grounds of defence as if not raised would be likely to take the opposite party by surprise. The provisions of this rule are not directory, but imperative. Order VIII, rule 9 afforded a further opportunity to the defendant to put in an additional written‑statement. There is yet a third opportunity afforded to the defendant by Order VI, Rule 17, which lays down that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. The issues are then framed by the Court after it has read the pLalnt and the written statement, if any, and after such examination of 'the parties as may appear necessary upon the material proposition both of fact or of law upon which the parties are at variance. Under Order XVIII, rule 2, the evidence is allowed to be produced by the parties in support of the issues only which they are bound to prove. Under Order XX, rule 4, the Court, after recording the evidence pronounces the judgment which shall contain a concise statement of the case, the points for determination (mean ing thereby the issues) and the decision thereon which must be supported by reasons. It will appear, from the resume of the law that the Court or the parties cannot depart from the issues. No doubt Order XLI, rule 2 vests in the Appellate Court a discretion to allow a party to urge any ground of objection not set forth in the memorandum of appeal, but this ground in my view must only be the one which has been raised and debated in the trial Court, and not the one which has been completely left out from the very beginning. The rule of law is based on sound common sense. The decision of a case cannot be based on grounds outside the pleadings of the parties, and it is the case pleaded that has to be found by the Court. The parties are bound by their pleadings. A defendant, who has not raised in his written‑statement the plea, which in law, he was bound to raise, and which he seeks to raise in the Appellate Court cannot, therefore, be allowed to raise it for the first time in appeal. To allow the questions of law or of fact to be raised in appeal for the first time would clearly prejudice the other party and thus defeat the ends of justice. I may repeat in order to emphasise the point that the objection to the maintainability of the suit or whether a contract is void or voidable must be raised in the written‑statement, and if it is not so raised, it cannot be allowed to be raised for the first time in appeal. The suit in the present case was instituted on the 2nd of May, 1952, and was decided on the 25th of May, 1953. An appeal against the decree was lodged by the defendants on the 13th of August, 1953. It came up before the defunct Judicial Com missioner's Court on the 9th of October, 1953, when it was admitted to full hearing and then before a Division Bench of this Court on the 9th of September, 1957, 10th of September, 1957, 12th of September, 1957, 23rd of September, 24th of September, 1957 and on the 13th of October, 1957. On one of the dates the point debated before the Division Bench was whether the appeal had abated or not and a decision was given thereupon. On none of these occasions did the appellants urge the question which they now seek to raise. It will be most unfair for the Court to exercise the discretion under Order XLI, rule 2, even if it is vested in it in favour of allowing the said grounds to be urged at the argument stage of later on. It should not be forgotten that six years have now elapsed and if all these points had been raised in the trial Court, it was open to the pLalntiffs to seek permission to amend the pLalnt or take any other effective step to meet these objections. For example, the first and the only question upon which lengthy arguments had been addressed to us was that the suit for the specific performance of the contract was not maintainable, because the minors were not bound by the contract as there was no mutuality. If this objection which is essentially of maintain ability of the suit had been raised in the trial Court, the fathers of the pLalntiffs could have very well said that the names of the pLalntiffs were benami and they were in fact the real vendees of the property and that the consideration which was to be paid was to come out of their own resources and not from those of the minors. In order to achieve this purpose it was open to the fathers to bring another suit on their own behalf or amend the pLalnt, eliminating the minors altogether. If this point is allowed to be raised now and it becomes necessary for the fathers of the pLalntiffs, one of whom is now dead, to institute a suit, it will obviously be barred by time. To allow them to amend the pLalnt would entail unnecessary expense and waste of time. The parties, in my view, are bound by their pleadings, and they must not be allowed to travel beyond their pleadings. To do so would not only be the violation of the express provisions of the Civil Procedure Code but also unjust, unfair, and inequitable. Another serious objection against allowing the appellants to raise the question of mutuality is that the only party which was affected by it and which alone could raise it was Mst. Rahat Begum, the alleged vendor of the property. She did not choose to put in the written‑statement. Her husband, who was only working as attorney for her, put in the written‑statement but that was only on his own behalf and not on behalf of his 'wife. After the ease was decided, the appeal has been lodged only by the subsequent vendees and not either by Mst. Rahat Begum or her husband Shahzada Muhammad Shah. It may be argued that denial of the execution of the agreement by Shahzada Muhammad Shah in his written‑statement and statement in Court, and by Mst. Rahat Begum in her statement recorded on commission, amounted to their taking objection to the enforceability in law of such agreement, but then Order VI, rule 8, C. P. C. is a complete answer to that argument, which lays down that where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract. So far as the other objections are concerned, no detailed argu ments had been addressed to us. In any case, it is hinted in the application itself that in order to decide those objections it would be necessary to amend the pleadings and allow the parties to lead evidence, which may be recorded either by this Court, or the trial Court be directed to record such evidence and submit the report. Even on the authority cited by the learned counsel for the appellants this request is untenable. The question whether Khawaja Muhammad Khan could enter into contract on behalf of his nephews and sons or the questions whether the contract was entered into in ignorance of certain important questions of fact are essentially the questions of fact and not of law. It has been urged that Fateh Muhammad Khan (defendant No. 10) had definitely pleaded in his written‑statement and not disputed in the pLalntiffs' replication that he had a superior right of pre‑emption and, therefore, no decree should be granted against him. In their replication, the pLalntiffs had distinctly stated that it was not necessary to decide the question of the superior right of pre‑emption in this case, The issues were framed on the 25th of July, 1952, in the presence of the parties' counsel, and yet defendant No. 10 did not insist that an issue should be framed also on this point, nor did he make any application that this point was also raised in the written‑statement and an issue should, therefore, be struck upon it. The only conclusion which can be arrived at in these circumstances is that defendant No. 10 waived the objection and agreed to the contention of the pLalntiffs that it was not necessary in this case to go into the question of superior right of pre‑emption. In any case, it was never alleged for defendant No. 10 that he had purchased the property in the exercise of his superior right of pre‑emption and so the question now disputed never in fact arose out of the pleadings. We would have, however, seriously considered the question of allowing Fateh Muhammad Khan (D. 10) to raise the point of pre‑emption, though not mentioned in the memorandum of appeal, if he had specifically stated in his written‑statement the qualification upon which he cLalmed superior right of 'pre‑emption and the parties had brought material upon the record on which we could base the judgment. All that Fateh Muhammad Khan (D. 10) said in his written‑statement was that if the pLalntiffs had purchased the property he would have brought a suit for pre‑emption. That assertion did not amount to his saying that he had either a superior right of pre‑emption or had purchased the property in exercise thereof. So far as the material on this point is concerned, Fateh Muhammad Khan (D. 10) declined to appear in the witness‑box as his own witness. His counsel asked a question from Mst. Rabat Begum (D. 1) in cross‑examination, to which she replied that the land sold to him was in joint Khata with his other lands, but then this question was asked after the pLalntiffs had concluded their cross‑examination of the witness and had, therefore, no opportunity to further cross‑examine her. Lal Badshah (D. W, 3) stated in his cross‑examination that the suit land adjoined the land of defendant No.

10. This is the entire material upon which the learned counsel for defendant No. 10 asked us to give judgment in his favour. Comparing the two statements, it will appear that they are discrepant in this respect that while Mst. Rabat Begum says that Fateh Muhammad Khan is a co‑sharer in the Khata, Lal Badshah says that he has his land adjacent to the land in dispute. This surely is not a sufficient material upon which a judgment can be given one way or the other. The Patwari and the Kanungo appeared in the witness‑box, but no question was asked from them as to whether Fateh Muhammad Khan (D. 10) was joint in this Khata or had land adjacent to the land in suit. Learned counsel for defendant No. 10 referred us to the following authorities :‑ (1) Rangi Ram and others v. Mehr Singh anti other 50 Indian Cases page

241. All that was Lald down in this authority was that a sale in execution of a decree for specific performance of a contract to sell is subject to the right of pre‑emption. (2) Dulhin Rajikishore v. Muhammad Qaiyum and others A I R 1942 Pat. page

366. It was held in this case that section 22 of the Specific Relief Act Lald down that the right to decree a specific performance is discretionary and the Court is not bound to decree specific performance merely because it was lawful to do so. Their Lordships held that where specific performance was sought to be enforced against a subsequent purchaser who has got a right of pre‑emption, the Court should in the exercise of its discretion under section 22 refuse to decree the specific performance. In this case, it had been established beyond doubt that the subsequent vendees had a superior right of pre‑emption over the pLalntiffs in whose favour the agree ment to sell had been executed. The same view was expressed by the Calcutta‑ High Court in case Munshi Habibur Rehman v. Maulvi Ali Azhar 98 Indian Cases page 193 and Ganda Ram and another v. Ram Chand and another A I R 1524 Lah. page

163. In both these cases also, the superior right of pre‑emption was distinctly asserted and proved. The proposition of law Lald down in these authorities is sound, but on facts they have no application to this case. For the above reasons, I dismiss the application of the appellants for allowing them to raise the objections not taken up in the written‑statement or the grounds of appeal. The merits of the case should not present any difficulty. It is alleged by the pLalntiffs and denied by the defendants that Shahzada Muhammad Shah agreed to sell the property in dispute in his capacity as a general attorney of his wife Mst. Rabat Begum in the former's favour for a sum of one lac of rupees, and in evidence thereof executed an agreement to sell on the 22nd of March, 1951, after he had received Rs. 4,000 as earnest money. It is not denied, and has in fact been admitted both by Shahzada Muhammad Shah and Mst. Rabat Begum that the former holds a general power of attorney by which he is authorised to dispose of the latter's property by sale, mortgage, gift etc, etc. Shahzada Muhammad Shah, in his statement, admitted his signatures on the agreement, but contended that it was possible that his signatures were obtained without his having noticed that it was a stamped paper. He asserted that he only signed one blank paper at Dherizardad, and not in Peshawar Cantonment, at was alleged by the pLalntiffs, in order to authorise Khawaja Muhammad Khan, the next friend of the pLalntiffs, who happens to be an Advocate, to apply for permission for the sale of the land, from the Provincial Government. This statement of Shahzada Muhammad Shah is obviously untrue, because the signatures of Shahzada Muhammad Shah appeared just at the back of the stamp, and one signing it could not possibly omit to notice that he was doing so on a stamped paper. Apart from this fact, there is the evidence of Murad Khan (P. W. 4) and Yar Muhammad Khan (P. W. 5), the attesting witnesses to this agreement to sell, stating on solemn affirmation that Shahzada Muhammad Shah agreed to sell his wife's property mentioned therein in lieu of one lac of rupees in favour of the pLalntiffs, and in token thereof, signed the deed. Murad Khan (P. W. 4) is an absolutely disinterested witness and we do not see any reason to reject his testimony. No doubt, Yar Muhammad Khan is very closely related to the pLalntiffs, inasmuch as his sister is married to Sher Muhammad Khan, father of pLalntiffs Nos. 1 and 2, but at the same time he happens to be a relation of Mst. Rabat Begum as well, because their grandfathers were first cousins inter se. Another fact which proves the genuineness of the agreement to sell is provided by the application which was wade by Shahzada Muhammad Shah and was scribed by Khawaja Muhammad Khan, the next friend of the pLalntiffs, on the same day, to the Revenue and Divisional Commissioner, for sanction to sell the property in dispute in favour of the pLalntiffs. Shahzada Muhammad Shah has denied that he had put the signatures to this document, but here he is belied by his own witness and son‑in‑law Ahmad Sayyar (D. W. 5), who knows his handwriting as he must, and who stated on solemn affirmation in. cross‑examination that the signatures on this application were those of Shahzada Muhammad Shah. An inquiry was ordered on this application which was conducted by Lal Badshah, Kanungo (P. W. 1). This officer recorded the statement of Shahzada Muhammad Shah as well as that of Mst. Rabat Begum, both of whom stated that they wanted to sell the property in dispute in favour of the pLalntiffs. They, however, denied in their statements in Court that they made any such statement, or having made them, they put their signatures upon them. So far as Shahzada Muhammad Shah is concerned, he is again belied by his son‑in la Ahmad Sayyar (D. W. 5), who made a categorical statement that the signatures on the statement are those of Shahzada Muhammad Shah. The signatures of Mst. Rabat Begum and Shahzada Shah, on these statements are also proved by the evidence of Yaqub Khan (P. W. 7). The [earned counsel for the appellants dubbed Sayyed Lal Badshah as an interested witness and argued that all the statements which are alleged to have been recorded on the application were false and concocted for the benefit of the pLalntiffs. It is admitted by Sayyed Lal Badshah (P. W. 1) that his first cousin is married to the daughter of Yakub Khan (P. W. 7) whose sister or step‑sister is married to Sher Muhammad Khan, the father of pLalntiffs Nos. 1 and

2. This relationship, however, is so remote that we do not consider that for that reason a responsible officer, as Sayyed Lal Badshah is, would concoct an absolutely false file. In any case, Ahmad Sayyar has definitely proved that Shahzada Muhammad Shah's statement was recorded by this witness and so this statement cannot certainly be a forged document. If Shahzada Muhammad Shah's statement is genuine, then there is no reason why should the statement of Mst. Rahat Begum be not so: It may particularly be noticed that although Mst. Rahat Begum in her evidence denied the signatures on this statement. Shahzada Muhammad Shah was not prepared to go so far as to deny these signatures to be those of his wife, and only stated that he could not say whether the original of Exh. P. 5 bore the signatures of his wife or not. This non‑committal and evasive reply proves beyond any reasonable doubt that Mst. Rahat Begum did make a statement before Lal Badshah, and having done so, signed the same. It is also very difficult to believe that Khawaja Muhammad Khan, a senior Advocate of this Court, fabricated so many false documents just to acquire the property of Mst. Rahat Begum. If he had done so, then no sooner he instituted the present suit Mst. Rahat Begum or Shahzada Muhammad Shah would have at once brought criminal proceedings against him which admittedly they did not. From all this mass of evidence an irresistible conclusion arises that Shahzada Muhammad Shah, as a general attorney of his with did agree to transfer the property in dispute in favour of the pLalntiffs. The agreement to sell Exh. P. 2 is a genuine document and both Shahzada Muhammad Shah and Mst. Rahat Begum are bound by it. The defendant‑appellants produced upon the record an agreement dated the 3rd of October, 1949, (the date 13th of December, 1949, written in Msr. Rahat Begum's statement appears to be wrong), by which Mst. Rahat Begum agreed to sell 451 kanals 1 marla of land, including some of the land in dispute, for rupees one lac and forty thousand, in favour of Abdullah Khan, Mir Afzal Khan, Mastan Khan, Ajoon Khan and Sadiq Khan defendant‑appellants. The genuineness of this document has been questioned by the pLalntiffs. It will be noticed that this document has not been written on a stamped paper. It only bears two revenue stamps of one‑anna each which can be purchased at any time from the Post Office and affixed to a document. Another circumst ance which throws considerable doubt on the genuineness of this document is the fact that except this agreement to sell Mst. Rahat Begum did not execute any other deed in respect of her property. All these deeds were executed by her husband in his capacity of her general attorney. It is also extremely curious and unbelievable that although Mst, Rahat Begum agreed to sell the property in favour of the defendant‑appellants, yet she did not inform her husband on his return from Quetta, that she had executed an agreement to sell the property in dispute in favour of the defendant‑appellants. Apart from that, right from the 3rd of October, 1949, to the date when it was produced in Court, it did not see the light of the day, nor was it mentioned in the deed of sale. That this document was brought into existence after the written‑statements were put in is clear from the fact that no mention of this agreement was made by anyone of the defendants before the issues were struck. This document is purported to have been scribed by Ghulam Qadir (D. W. 2), who is not a regular deed‑writer. He belongs to Akbarpura village, and yet in order to write this document, he arrived in Jehangir abad, forty miles away from his village three days before the deed was executed. No explanation has been offered as to why was this particular gentleman selected to write the deed and not a regular deed‑writer. The attesting witnesses of this agreement were Faizullah Khan, the nephew of Mst. Rahat Begum, and the son‑in‑law of Abdullah Khan defendant‑appellant, and Lal Badshah (D. W. 3), the maternal uncle of Mst. Rahat Begum. Both of them are interested persons. This Lal Badshah is the same person ‑who was examined as a witness by Sayyed Lal Badshah (P. W. 1), the Kanungd, and had stated that Mst. Rahat Begum, his niece, for reasons given in the statement, was transferring her property in favour of the pLalntiffs. Lal Badshah admitted in Court having made this statement, but never stated therein that Mst. Rahat Begum had agreed to sell the same property previously in favour of the' defendant‑appellants. In agreement, therefore, with the finding of the learned trial Court, we have no hesitation in arriving at the conclusion that this agreement to sell was a false and fabricated document. The position, therefore, is that Shahzada Muhammad Shah, acting on behalf of his wife, agreed to sell the property in suit in favour of the plaintiff-respondents. The learned counsel for the appellants put up a lukewarm argument that Shahzada Muhammad Shah had no authority to enter into an agreement for sale, merely, because he had been given a power‑of‑attorney to execute a deed of sale. This objection was not taken in the trial Court, nor has it been included in the memorandum of appeal. A copy of the general power‑of‑attorney has been placed upon the record, which authorizes Shahzada Muhammad Shah to do all acts on behalf of his wife Mst. Rahat Begum in respect of her property. This will include the authority to execute agreement to sell. Having found that Shahzada Muhammad Shah had agreed to sell the property in dispute in favour of the plaintiffs the onus that the defendant‑appellants had no notice of this agreement to sell lay very heavily upon him. This is clear from section 27 of the Specific Relief Act, which lays down that specific performance of a contract may be enforced against any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract. The onus, therefore, that a person whose' title arises subsequent to the contract to sell is a transferee for value who has paid his money in good faith and without notice of the original contract lies very heavily upon him. This proposition of law is well settled and has been laid down in the following authorities :‑ (1) Lekh Singh v. Dwarka Nath and others A I R 1929 Lah 249. (2) Khem Chandra De Sarkar v. Amiuanala De Sarkar A I R 1925 Cal. 61 and (3) Khuda Bakhsh v. Abdul Jabbar P L D 1952 Pesh. 2

3. So far as the sale in favour of Abdullah Khan, Mir Afzal Khan, Mastan Khan, Ajoon Khan and Sadiq Khan appellants is concerned, perhaps it is difficult to deny that the consideration was paid in good faith; because the whole of it passed hands in the presence of the Sub‑Registrar himself. This, however, cannot be said with regard to the consideration alleged to have been paid for the land which was transferred by mutation No. 164, in favour of Fateb Muhammad Khan appellant attested on 19th of July, 1952. No money was paid in the presence of the revenue officer and no satisfactory evidence has been produced to show that this money, i.e. Rs. 33,000 was in fact paid to Mst. Rabat Begum or her general attorney. The question, however, still remains if the defendant‑appellants were transferees in good faith and without notice of the previous contract. The negative is easier to prove than positive. There is an authority for the view that the sub‑transferees can effectively discharge the onus placed upon them by section 27 of the Specific Relief Act, by just appearing in Court and stating on solemn‑affirmation that they had not knowledge of the previous contract. The onus would then shift on to the plaintiffs to show that they had such a knowledge. Fateh Muhammad Khan defendant‑appellant declined to appear as his own witness. He perhaps found it difficult to explain away the notice which was given to him by Khawaja Muhammad Khan on the 16th of April, 1952, that he should not purchase the property, because the owner had already contracted to sell it in plaintiffs' favour. It is not denied that this notice was not issued or was not received by Fateh Muhammad Khan. It is, therefore, posi tively proved that so far as Fateh Muhammad Khan is concerned, he purchased the property with the notice that it had already been agreed to be sold to the plaintiffs. So far as the other defendant‑appellants are concerned, none of them appeared in the witness‑box except Mir Afzal Khan. It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross‑examination. His non‑appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. By non‑appearance, therefore, the defendant‑appellants except Mir Afzal Khan failed to discharge the onus or shift the onus on to the plaintiffs. As regards Mir Afzal Khan, he appeared as his own witness; but did not say a word that he had no know ledge of the agreement of sale in favour of the plaintiffs. It is argued that he impliedly denied the knowledge by saying that he did not visit Prang in order to offer condolence on the death of Tila Muhammad Khan, who was killed in Peshawar Cantonment, in February, 1952, because the knowledge of the sale was imputed to him by Murad Khan (P. W. 4), who said that he went for the condolence where Mir Afzal Khan D. W. was also present and he asked him if Shahzada Muhammad Shah had executed any agreement to sell the suit property to Khawaja Muhammad Khan's nephews, and he gave a reply in the affirmative. This might amount to the denial of the talk which took place between Murad Khan and Mir Afzal, but it can certainly be not inferred from it that he also denied knowledge of the agreement of sale by Shahzada Muhammad Shah on behalf of his wife in favour of the plaintiffs. On the other hand, Khawaja Muhammad Khan, Yar Muhammad Khan and Muhammad Yakub Khan have appeared in the witness‑box and have stated on solemn‑affirmation in clear words that the defendant‑appellants had such knowledge. Haji Abdullah Khan (Defendant No. 3) is the father‑in‑law of the nephew of Mst. Rabat Begum (defendant No. 1). Fateh Muhammad Khan (D. 10) is the son of Mst. Rabat Begum's consanguine brother. If Mst. Rabat Begum's husband executed the agreement to sell, as we hold he did, then it will be fantastic to believe that Haji Abdullah Khan and Fateh Muhammad khan, who are so closely related to the vendor, had no knowledge of this agreement to sell. If they had the knowledge, then the other co‑vendees of Haji Abdullah Khan will also be presumed to have the knowledge, because Haji Abdullah Khan could not keep the agreement secret from them. We, therefore, hold that the appellants purchased the property with the knowledge that Shah zada Muhammad Shah had entered into an agreement to sell the same property in favour of the plaintiffs. In this view of the case, the appeal of the appellants must fail and is hereby dismissed with costs, throughout. Pleader's fee Rs.

500. A. H. Appeal dismissed.