1980 PLP 1450 (CLC)

(e) Civil Procedure Code ('V of 1908)

O. VI-Appeal-Pleadings--Decision of a case cannot be based on grounds outside pleadings of parties

Defendant not raising, in his written statement a plea dependent on a fact, held cannot be allowed to raise same four first time in appeal.-[Appeal (civil) Pleadings]. G. Naqashband for Appellant. Qazi Muhammad Jamil for Respondents Nos. 1 and

2. Respondent Nos. 3 to 5 : Ex parte. Date of hearing: 11th November, 1979. The suit out of which this appeal has arisen was brought by the plain tiffs apparently under section 19 Specific relief Act, for specific performan ce of a contact dated 7th June, 1965, whereby 5 kanals, 19 marlas, 4 sirsais of land specified in the plaint is said to have been purchased by them from Faqir Mohammad defendant No. 1 in the suit, for a sum of Rs. 10,000 The plaintiffs also sought a declaration that a registered sale deed dated 19th August 1965, executed by defendant No. 1 in favour of Said Habib defendant No. 2, was void and imperative as against the plaintiff s rights. The defence of the defendants in the suit was that defendant No. 1 never entered into an agreement of sale with the plaintiffs muchless did he execute the clued dated 7th June, 1965 and that in point of fact, he had sold that the land in question to defendant No. 2 by virtue of sale deed dated 19th August, 1965. Both the Courts below' have held that the agreement deed dated 7th June, 1965, with regard to the sale of the suit land had been executed by defendant No. 1 in favour of the plaintiffs and, that the subsequent regis tered sale deed executed by defendant No. 1 in favour of defendant No. 2 was void, collusive and ineffective as against the plaintiffs' rights, and they decreed the plaintiffs' claim in its entirety. Against these decisions, Said Habib defendant No. 2 has come up to this Court on appeal. Before I proceed to deal with the contentions raised before me, I would like to set forth certain facts which would facilitate the understand ing of the case. The strait land was originally owned by Said Habib defendant No.

2. By a registered sale-deed executed on the 2nd Decem ber, and registered on the 7th December, 1953, copy Exh. P. W. 5/1, he sold it to Faqir Mohammad defendant No.

1. On the back of this sale deed, an agreement to sell with respect to the suit land was reduced to writing on the 7th June, 1965, purporting to be on behalf of Faqir Mohammad defendant No. 1 in favour of the plaintiffs. The agreement recites that the land has been sold by the executant to Matiur Rehman, Abdul Dayatt and Anwar-ur-Rehman (plaintiffs) for the amount entered in the registered sale deed, which was Rs. 10,000 and out of this amount, Rs. 2,500 shall be paid to the vendor at the time of the attesta tion of sale mutation wattle the rest of the sale consideration has today been paid. Then on 13th August, 1965, Faqir Mohammad executed a sale deed which was registered in the office of the Sub-Registrar, the same day, selling the property in question to Said Habib. The learned counsel for the appellant urged three points before me. First that the evidence produced at the trial was not sufficient to warrant the conclusion that the document dated 7th June, 1965, had been executed by Fadir Mohammad defendant; second that this document was a simple receipt acknowledging the sum of Rs. 7,500 as having been received by the executant; and third that owing to the non-registration of the deed dated 7th June, 1965 and non-delivery of possession of the property to the plaintiffs, the subsequent transferee, viz, the appellant, could have no notice of the said transaction and he was, therefore, protected by section 27, Specific Relief Act. The argument in support of the first point may be dismissed straight away because of the evidence available on the record and the concurrent finding of the two Courts below on the point. Abdur Rehman and Bakhtawar are the marginal witnesses of the deed in question dated 7th June, 1965. They were produced by the plaintiffs at the trial Court and were examined as P. Ws. 3 and 4 respectively. Both of them deposed on solemn affirmation that the deed was executed by Faqir Mohammad who put his signature thereon as an executant and also received a sum of Rs. 7,500 in their presence: It is significant to note that none of these witnesses was cross-examined at all on the point of the execution of the, deed by Faqir Mohammad. It is well settled that the failure to cross examine a witness tantamounts to admitting his statement. See Syed Iqbal Hussain v. Mst. Sarwari Begum (P L D 1967 Lah. 1138), Qasim and others v. The State (P L D 1967 Kar. 233), and Mst. Zar Jan v. Mst. Najmun Nisa and others.( P L D 1969 Pesh. 118). It is obvious, therefore, that the failure on the part of the defendants to cross-examine the marginal witnesses, namely, Abdur Rehman and Bakhtawar tant amounts to admitting their statements with the result that there could be no manner of doubt that the deed was executed by Faqir Mohammad defendant. Apart from this, there is concurrent finding of two Courts below in favour of the execution of the deed by Faqir Mohammad de fendant. This finding is undoubtedly based on the evidence given by the two marginal witnesses and the statement of Anwar-ur-Rehman, one of the plaintiffs. When this position was pointed out to the learned Advocate for the appellant, he could not sustain the argument that the finding arriv ed at by the trial Court and confirmed by the lower appellate Court is an illegal finding in any way and lie fell back on his alternative argument on the second point, namely, that the document was a simple receipt and that at any rate it was an incomplete sale agreement. Elaborating his argument on the second point, the learned counsel for the appellant submitted that the deed in question simply amounted to an acknowledgement and that with no stretch of imagination could it be regarded as an agreement of sale. He said that by means of this deed, the executant had simply acknowledged the receipt of Rs. 7,500 and had promised to return the same to the plaintiffs on their demand. It appears to me that this contention of the learned counsel is founded on a mis conception. A mere glance at the deed would clearly show that on its basis, the execntant had agreed to sell the land specified in the registered sale-deed dated 7th December, 1953, to the plaintiffs for Rs. 10,000 out of which he received a sum of Rs. 2,500 on the very same day, and ex pressed his desire to receive the remaining sum of Rs. 2,500 at the time of the attestation of the sale mutation. It is difficult to understand as to how this deed could possibly be regarded as a mere acknowledgement. I can entertain no doubt in my mind that the deed amounts to an agreement of sale and does not bear the slightest resemblance with an acknowledge ment or a receipt. I now arrive at a stage where it becomes necessary to consider the third point raised on behalf of the appellant, which indeed is most difficult of all the points urged in this appeal. It has been contended by the learned counsel for the appellant that the so-called agreement of sale in favour of the plaintiffs being unregistered and the transaction embodied therein having not been accompanied by the delivery of possession, the appellant could not be taken having notice of the said transaction and for that reason, he being a transferee for value in good faith and without notice of the said contract; was protected by section 27(b) of the Specific Relief Act. To support his contention, he placed reliance on Shah Mohammad v. Inayatullah and others (P L D 1953 Lah. 87 ). Repelling these contentions, the learned counsel for the plaintiffs-respondents maintained that since Said Habib appellant did not claim protection under section 27, Specific Relief Act in his written reply and statement before the trial Court, and this ground having been not raised and debated there, could not be urged before this Court. Support for this view was sought from two decisions, namely in the case of Dyal and others v. Hirda Ram and others (A I R 1915 Lah. 399) and Haji Abdullah Khan and others v. Nisar Mohammad Khan and others (P L D 1959 Pesh. 81). I have carefully examined the authorities referred to by the learned counsel on both sides and have given my anxious thought and dispassionate consideration to the matter. It is true that under section 27(b) Specific Relief Act, a contract may be enforced not only against a party to it but also against any person claiming under him by title arising subsequently, to the contract, except a transferee for value who has paid consideration in good faith and without notice of the original contract. It would be seen that; this section enacts an equitable rule which allows a later' legal title to prevail over an earlier equitable title in the case of a bona fide purchaser for value without notice. But it is also true and is well settled by authority that to come under the exception to clause (b) of section 27, a subsequent vendee has to show that he is a purchaser (1) bona fide (2) for value and (3) without notice of previous agreement. These are questions of facts, pure and simple, and in order to defeat the previous transferee the subsequent transferee' has to raise them in his written statement and thereafter has to lead evidence to substantiate them. In my view, a question of fact which for its decision depends upon evidence must be raised in the pleadings of the parties, and unless it is so raised and debated in the trial Court, it cannot be raised in appeal. This rule of law is obviously founded on the principle that the decision of a case cannot be based on grounds outside the pleadings of the parties, and in fact, it is the case pleaded that has to be found by the Court. A defendant who has not raised in his written statement a plea dependent on a fact, cannot be allow ed to raise it for the first time in appeal. In the present case, the appellant did not raise the question of his being a bona fide purchaser for value and without notice of previous agreement in favour of the plaintiffs, in his written statement filed in the trial Court, with the result that he could not be allowed to raise it either before the first appellate Court or in second appeal before this Court. The facts of the-case reported as P L D 1953 Lah. 87 referred to and relied on by his counsel do not bear the slightest resemblance to the facts of the present case and the authority cannot, therefore, be of any avail to him. Out of the two cases referred to, and relied upon, on behalf of the respondents, one, reported as P L D 1959 Pesh. 81, appears to be on all fours with the present case. Assuming, however, for the sake of argument that the appellant, in law, is entitled to raise the said point in this second appeal, he is con fronted with a further difficulty arising out of his failure, to substantiate the point by any evidence. The appellant's evidence in the trial Court consisted of his solitary statement and even in that statement he did not where say that he was a purchaser, bona fide or without notice of the previous agreement in favour of the plaintiffs, nor did he claim protection under section 27(b). Specific Relief Act. It is obvious, therefore, that there was no evidence what so ever to bring the appellant's case under the exception to clause (b) of section 27 of the Specific Relief Act. The position that emerges from the discussions given above is that there is no substance in this appeal. The result, therefore, is that the appeal fails and is accordingly-dismissed with costs. M. Y. M. Appeal dismissed.