1988 PLP 1616 (MLD)

This is a suit for specific performance, cancellation of documents and injunction.

2. Case of the plaintiff is that defendants Nos.1 to 4 had entered into an agreement with the plaintiff on 28-5-1971 to sell their land bearing Survey Nos.81 82 measuring 30 acres and 4 ghuntas situated in Deh Tour, Tappo Konkar, Taluka Karachi at Rs.14,400 per acre. Defendant No.1 had signed the above agreement for himself and also on behalf of the defendants Nos.2, 3 and 4 as their duly authorised attorney. Defendant No.5 had undertaken to act as Inter mediatory through his son, the defendant No.6, who was duly constituted agent of defendant No.5. Out of the sale price a sum of money at the rate of Rs.10,000 per acre was payable to Original vendors i.e. defendants Nos.1 to 4 while the remaining Rs.14,400 per acre was to be paid to defendant No.5. It was agreed that the vendees shall get boundaries of the said land demarcated by fixation of the stones for the purposes of identification of the said land and shall supply a copy of site plan thereof to the plaintiff within three months. It was further agreed that the vendors shall at their own expenses and cost provide to the vendees an abstract of vendor' title, certified copy of record of rights and Land Revenues Clearance Certificate. It was further agreed that the Inter mediatory shall at his own cost and expenses provide to the Vendees/plaintiffs a permission from the Deputy Commissioner, Karachi to sell the said Land, The plaintiff had agreed to pay a further sum so as to bring the total payment to 33% of the agreed price immediately on compliance of the aforesaid condition. It was also agreed that within 4 months of the last payment the vendees shall pay a further sum of rupees so as to bring the total payment to 66% of the agreed price in proportionally to the vendors and intermediatory. It was also agreed that in the event of any delay, the party responsible shall pay to the other party a sum of Rs.12,000 per year as damages and for that purpose defendants Nos.1 to 5 shall be deemed to be one party.

3. Defendants Nos.1 to 6 did not comply with any one of the terms of this agreement in-spite of the fact that the plaintiff paid a sum of Rs.1,64,000 to the defendants Nos.1 to 5 from time to time. In February, 1975 the plaintiffs found a board of M/s. Rais Amrohavi Foundation erected on the Land which gave cause of concern to them. They immediately contacted the defendant and filed a Suit bearing No.365/75 before the Civil Judge No.11 at Karachi for injunction against the defendant. Defendants Nos.1 to 4 appeared before the said Court and stated that the suit had become infructuous as defendants Nos.1 to 4 sold the property to defendant No.7. An application under Order 7, rules 11, C.P.C. was also filed and the suit was dismissed on the ground having become infructuous. Hence this suit with the following prayers:- (a) For specific performance of the agreement dated 28-5-1971, against the defendants directing them to convey the Survey Nos.81 and 82, measuring 30 acres and 4 ghuntas in Dch Tour, Tappa Monkar, Super Highway, in favour of the plaintiff. (b) For cancellation of the Sale Deeds dated 14-9-1974, entered into between the defendants Nos.1 to 4 and 7 and that between defendants Nos.7 to 8 being obtained by fraud. (c) For injunction restraining the defendants, their agents or any other person transacting any business in regard to this land in any manner. (d) Cost of the suit, and (e) Any other or further relief that this Hon'ble High Court may be pleased to grant."

4. Almost all the defendants filed written statements, Defendants Nos.1 to 4 in their written statements admitted that they had agreed to sell the land at the rate of Rs.14,400 per acre and out of this amount they were to receive a sum of Rs.10,000 per acre while the defendants Nos.5 and 6 were to receive Rs.4,400 per acre. They have also admitted all the other contents of the agreement of sale as well as having executed the same. Regarding the receipt of the amount they have not given any specific or clear reply except that they have vaguely stated that the contents of para 14 of the plaint are not admitted. They have alleged that they had made compliance of all the formalities stipulated by them in the agreement of sale and had requested the plaintiff through notice dated 5-4-1972 by registered post as well as by a public notice published in Daily Jang dated 7-5-1972 informing the plaintiff that they had fulfilled all the requirements and called upon the plaintiffs to pay the balance of the price within 10 days otherwise they would treat the agreement as cancelled. Since the Plaintiffs failed to comply with the notice, defendants Nos.1 to 4 entered into an agreement of sale of the said land with defendant No.7 on 25-6-1974. After the execution of the aforesaid agreement again defendant No.7 also by a public notice published in Daily Morning News, and Daily Aghaz dated 23/24 of July 1974 respectively invited objections from public at large and that no objection was received from any quarter. Finally the sale-deed was executed by defendants Nos.1 to 4 in favour of the defendant No-7 on 17-9-1974 and physical possession was handed over to them. Defendant No.7 had then sold the said land to Messrs Rais Amrohavi Foundation, the defendant No.8. The defendants Nos.5 and 6 in their written statement admitted the plaintiffs case and have stated that they have no objection to the decree for specific performance being passed in his favour. The defendant No.7 has stated in her written statement, defendants Nos.1 to 4 have sold the land in suit to her by a legal valid sale-deed and she in turn had sold the same to defendant No.8. Defendant No.8 the Rais Amrohavi Foundation in its W/S. admits having purchased the land in suit from defendants Nos.1 to 4 for valuable consideration, in good faith and without notice of the alleged agreement of sale between the plaintiffs and defendants Nos.1 to

4. It is further stated by the defendant No.8 that it has already allotted the suit land to its 347 members and transferred possession of the respective plots to them and they are in exclusive possession of the same. The list of these members/allottees is placed on record. They have also stated that defendants, Nos.1 to 4 had already terminated the agreement of sale entered into by them with plaintiff by a notice dated 8-4-1972 sent by registered post and by public notice published in Daily Jang dated 7-5-1972. They have denied almost all other allegations of the plaintiff. On the pleadings of the parties following issues were framed:- (1) Whether the amended plaint is in conformity with the order dated 16-12-1978? If not to what effect? (2) Whether the suit is propel ~y valued and proper court-fee is paid thereon? (3 Is the suit barred by limitation? (4) Whether the agreement dated 28-5-1971 between the plaintiff and defendants Nos.1 to 4 was terminated under notices dated 8-4-1972 and 7-5-1972 respectively on account of the failure of the plaintiff to perform its part of the contract? (5) Whether the defendant No.8 purchased the suit land, in good faith and without notice of the agreement dated 28-5-1971, from the defendant No.7 on 2-11-1974, entered upon the same, constructed a site office and fixed hoardings around the boundaries thereof, within the knowledge of the plaintiff, as alleged? (6) Whether the defendant No.8, has allotted the suit land with possession to 347 of its member, according to the layout plan approved by the Cantonment Board, Malir, Karachi? If so, to what effect? (7) Whether the sale of the suit land by the defendant No.7 to the defendant No.8 is collusive and are they one and the same person as alleged by the plaintiff? (8) Is the suit not maintainable as framed? (9) Whether the plaintiff is entitled to the Specific performance of its agreement dated 28-5-1971? (10) Decree and Costs? My findings on these issues with reasons therefore are as under:- ISSUES NOS.1 TO 9 All these issues are inter connected and therefore are being taken up together. The plaintiff has examined Syed Wahiduddin husband and attorney of Mst. Qamar Bano who is one of the partners of the plaintiff firm as Ex.7. His evidence is to the same effect as pleaded in the plaint and therefore need not be reproduced. He has produced the special power of attorney as Ex.7/1, agreement of sale Ex.7/2, receipts Ex.7/3 to Ex.7/8. As against this defendants Nos.1 to 4 have examined their attorney Muhammad Yousif Oadir as Ex.8. He has also repeated the pleas taken by him in the written statement and therefore his evidence also need not be reproduced. He has produced General Power of Attorney as Ex.8/1 and the notice sent by their Advocate to the plaintiff and its acknowledgement due as Ex.8/2 and Ex.8/3. He has also produced the notice published in Daily Jang dated 7-5-1972 as Ex.8/3. Defendant No.7 Mst. Shakila Khanum has also examined herself as Ex.9 and has produced the notices published in Daily Morning News as Ex.10 and in Daily Aghaz as Ex.11-She has also produced true copy of extract of register of mutation as Ex.12, agreement of sale between her and defendant No.8 as Ex.13 and the final sale-deed as Ex.14, site plan Ex.15 and receipts Ex.16 and Ex.17. Defendant No.8 has examined their Director Shahid Ahmed Khan as Ex.l8 whose deposition is to the same effect as has been pleaded in the written statement of defendant No.8. Agreement of sale was entered into on 28-5-1971 between the plaintiff and defendants Nos.1 to 4, defendants Nos.5 and

6. The defendants Nos.1 to 4 and 5 and 6 have admitted the execution of the said agreement. The plaintiff has alleged that it has paid Rs.1,64,000 to defendants Nos.1 to 4 and 5, Rs.27,000 were received by the defendants Nos.5 and 6 out of this amount while the remaining amount was received by the defendants Nos. 1 to

4. In the written statement defendants Nos.1 to 4 have not specifically stated as to how much amount was received by them but they have made a vague averment that the plaintiff failed to make the payment. In this deposition they have admitted the receipt of the amount shown in the receipts Ex.7/5 and Exs.7/7 and 7/8 and to have signed house receipts. Their denial does not appear to be convincing. The signature on the disputed receipt Ex.7/3, tallies with admitted signatures of Ramzan. It is also attested by Muhammad Asghar Notary Public. No doubt signatures on Ex.5/4 does not tally with admitted signature of Muhammad Ramzan but the payment is by pay orders and, therefore, there does not appear to be any doubt about the same. The disputed receipt Exhs.7/6, 7/7 and 7/8, bear signatures of defendant No.6 and the payment thereof is not denied by the defendants Nos.5 and 6 even in their written statement. It however appears that after having paid this amount the plaintiffs were not interested in getting the sale-deed executed and had not paid the balance :e the defendants Nos.1 to

4. The defendants Nos.1 to 4. issued registered notices ?o the plaintiff through this Advocate Mr. Z.H.Chishti Ex.8/2 and endorsed its copy to Muhammad Mubin defendant No.6 Ex.8/3 is the registered acknowledgement due addressed to Muhammad Mubin on one side and the plaintiffs on other side. However, service thereof on defendant No-6 is proved and admitted. No doubt the plaintiff has denied to have received this notice but there is another notice which was published in Daily Jang dated 7-5-1972 and has been produced as Ex.8/4. Even if the registered acknowledgement due Ex.8/3 is not considered to have been served on defendant the notice published in Daily Jang is a good service against the plaintiffs. Jang is the Urdu daily service against the Plaintiffs. Jang is the Urdu daily of Karachi and has got largest circulation. The plaintiffs are also Urdu speaking and literate persons, a judicial mind would not be prepared to believe that the plaintiff would have remained unaware of this notice published in such a newspaper. I therefore hold that the plaintiffs had come to know on 7-5-1972 that the defendants Nos.1 to 4 had refused to perform the contract in case he failed to pay the balance of price within two weeks. The suit has been filed on 15-1-1977 i.e. after a lapse of 4 years 8 months and 8 days thereof Article 113 of Limitation Act reads as under:- "113.For Specific-performance of a contract. Three years. The date fixed for the performance or if no such date is fixed, when the plaintiff has notice that perform ance is refused'. The plain reading of this Article would show that it was the duty of the plaintiff to have filed suit for specific performance either within 3 years of the date fixed in the agreement or where any such date was not fixed within three years of the date when he got notice that the defendant had refused to perform the contract. Since the notice of refusal to perform the contract was published in Daily Jang and had come to the notice of the plaintiff to my satisfaction, it was the duty of the plaintiff to have filed this suit for specific performance within a period of 3 years from that date. By having failed to file the suit within 3 years his claim has become time-barred. The defendant No.8 is subsequent bona fide purchaser of the suit land for value and without notice of the plaintiff's agreement. After having entered into agreement defendant No.7 had published notice to the general public in the newspapers Morning News and Aghaz about the said agreement of sale inviting objections if any to the said agreement in respect of the said land. The extract of register of mutation also shows that the land was mutated in the name of defendant No.7 from the name of defendants Nos.1 to 4 and there was no entry about the agreement of sale of the plaintiffs in that register. The defendant No.7 or at least defendant No.8, was therefore not expected to have received any notice of the agreement of sale entered into between the plaintiff and defendants Nos.1 to

4. I am therefore satisfied that on the one hand the suit of the plaintiff is H barred by Article 113 of the Limitation Act. On the other hand I am satisfied that the defendants Nos.7 and 8 are bona fide subsequent purchaser of the land in suit for value and without notice of the agreement of sale executed between plaintiff and defendants Nos.1 to 4, and 5 and

6. These are the reasons for which I have passed my short order dated 26-1-1988 and dismissed the suit and refused the specific performance and called upon defendants Nos.1 to 4 to return the amount of Rs.1,64,000 minus Rs.27,000 to the plaintiff within three months. Defendants No.5 and 6 were also directed to return Rs.27,000 to the plaintiff and the said amount was ordered to be a charge on the property in suit. A.A./P-55/K Order accordingly