P L D 2004 Supreme Court 465 (PLP)

(8‑D) Whether certain amendment in the plaint has been made without permission of the Court, If so, its effect? OPD (8‑E) Whether the defendants Nos.2 and 3 have raised construction on the suit land before the institution of the suit? If so, with what effect? OPD. (8‑F) Whether certain amendment has been made in the amended written statement without permission of the Court? If so, its effect? OPP.

9. Relief. Since above issues had been framed at latter stage when parties had already led evidence, therefore, additional opportunity was granted to them to produce evidence as such appellants, got another chance of recording, of their statement through appellant Bashir Ahmed. Learned trial Court on completion of trial dismissed the suit of the respondents Appeal filed by them before the District Judge also failed as the same was dismissed vide judgment, dated 27th January, 1994. As such they filed Civil Revision No. 999 of 1994 before the High Court, which has been accepted by means of impugned judgment.

3. Learned counsel appearing for the appellants contended:‑‑ (i) That appellants Nos.1 and 2 and predecessor‑in‑interest of appellants Nos.3 to 8 were bona fide transferee for value without notice of the previous agreement for sale, therefore, they are entitled for protection under section 27(b) of the Specific Relief Act. (ii) That the predecessor‑in‑interest of respondents Nos.1 to 5 namely Abdul Salam (late) was not entitled for the relief of specific performance, in view of the discretionary jurisdiction of the Court as the appellants had constructed two residential houses/bungalows on the disputed property. (iii) That admission made by the appellants, if any, in the written statements filed by them could not be used against them without formal proof according to law. (iv) That the concurrent findings of fact recorded by trial and Appellate Courts were not liable to be disturbed by the High Court in exercise of its discretionary jurisdiction.

4. On the other hand learned counsel for respondents argued:‑‑ (a) That appellant are not entitled for the protection under section 27(b) of the Specific Relief Act as they had notice/knowledge in respect of the sale agreement between Dolat Khan and late Abdul Salam. (b) That the trial and Appellate Courts did not exercise jurisdiction judiciously, therefore, learned High Court by correcting the error had rightly granted decree of specific performance in favour of Abdul Salam (late) predecessor‑in‑interest of respondents/plaintiffs in accordance with law. (c) It is well‑settled principle of law that parties are bound by their pleadings, therefore, the appellants cannot claim exception to the contents of written statement filed by them. (d) As the learned trial and Appellate Courts committed illegalities and irregularities in dismissing the suit of predecessor‑in‑interest of respondent Abdul Salam (Late), therefore, High Court in exercise of jurisdiction under section 115, C.P.C. in the interest of justice corrected both the errors and had rightly granted decree in their favour.

5. Weshave heard learned counsel for the parties and have gone through the impugned judgment carefully. The contention of learned counsel for appellants as noted at Sr. No. (i) is covered under issue No‑9‑A. Learned trial and Appellate Courts had decided this issue against the plaintiff's/respondent Abdul Salam (late). Appellants in their written statement, dated 18th December, 1980 admitted that "disputed property was in possession of one Noor Muhammad son of Maula Bukhsh as tenant and it was difficult to take possession of the same from him and for such reason plaintiff avoided to purchase the disputed property. They obtained possession from him after making payment of Rs.4,500 to him and this amount was adjusted from the sale price paid by them to vendor." Possession of the land was taken by the appellants. Recital of sale‑deed (Exh. PI), dated 23rd April, 1975 also reveals that prior to its execution possession of disputed property was taken over by the vendees. In addition to it one of the vendees i.e. appellant Muhammad Bashir in his Court statement deposed that at the time of taking over the possession they had learnt that Abdul Salam (late) had entered into agreement with Dolat Khan after having received Rs.17,

000. There is no rebuttal to above material particularly documentary evidence i.e. sale‑deed (Exh.P1) and oral evidence of Muhammad Bashir. In the written statement important admissions have been made but have not been confronted to them during the statement of one of them i.e. Muhammad Bashir or by leading secondary evidence, under Article 76 of the Qanun‑e‑Shahadat Order 1984, according to which no fact need be proved in any proceedings which the parties thereto or their agents agree to admit at the time of hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. However, by appending a proviso thereto discretion has been given to the Court to require the facts admitted to be proved otherwise than by such admissions. The scope of controversy between the parties seems to have been narrowed down by this Article because whatever has been mentioned in the written statement had never been denied by the appellants particularly the facts relating to possession, of Noor Muhammad tenant on the disputed land and making payment of Rs.4,500 to him for handing over possession of the land and getting adjustment of this amount out of sale consideration. Because on the basis of such facts the appellants wanted to convey that though this very property had been purchased by the respondent Abdul Salam (late) but he abandoned the idea to purchase the same because it was difficult to take over possession from tenant Noor Muhammad. It is true that a written statement cannot be treated as an evidence against the party who had submitted it as per rule laid down in Mst. Khair‑un‑Nisa v. Muhammad Ishaque (PLD 1972 SC 25). However, this judgment is distinguishable on fact because the person who had submitted the written statement in this case had died, therefore, this Court observed that without confronting his legal heirs With its contents it cannot be treated as an admission on behalf of their predecessor‑in‑interest, whereas in instant case appellants as it has been observed hereinabove had never disowned the contents of the written statement. Therefore, we are inclined to hold that strong inference can be drawn against the appellants of having acquired knowledge about the sale of the property prior to their entering into sale‑deed, dated 23rd April, 1975, possession of which was also taken by them earlier to execution of sale‑deed. The oral statement of appellant Muhammad Bashir and sale‑deed (Exh. P1), which had been referred to hereinabove, also furnishes the evidence against them to the same effect.

6. Learned counsel for appellants attempted to persuade us that as the appellants had purchased the property in good faith, therefore, under section 27(b) of the Specific Relief Act, the High Court would have not granted relief to respondents against them. To substantiate his plea reliance has been placed by him upon the judgment reported as Haji Abdullah Khan v. Nisar Muhammad Khan (PLD 1959 Peshawar 81). In this case learned Division Bench of the Peshawar High Court has ruled as under:‑‑ " ..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 AIR 1929 Lah. 249. (2) Khem Chandra De Sarkar v. Amiuanala De Sarkar AIR 1925 Cal. 61 and (3) Khuda Bukhsh v. Abdul Jabbar PLD 1952 Peshawar 23" He has also relied upon Mst. Khair‑un‑Nisa v. Muhammad Ishaque (PLD 1972 SC 25). In this case by making reference to the above noted judgment, conclusion has been drawn as under:‑‑ "The principles of law enunciated in these decisions appear to me to be quite correct. It seems to me that under section 27(b) of the Specific Relief Act negative is to be proved by the sub sequent transferee. If he appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden and the onus will then shift to the plaintiff to prove that the subsequent transferee had the notice of the original contract." He also relied upon the judgment reported as Muhammad Ashraf v. Ali Zaman (1992 SCMR 1442).

7. As it is noted in above judgment that heavy onus has been placed upon the subsequent transferees to establish that they had no notice about the earlier transfer of the property and in good faith they had paid the money to the owner. In this context it has already been held hereinabove that appellants had knowledge about the sale of property by Dolat Khan in favour of Abdul Salam, therefore, in pursuance of such conclusion, it is not possible to hold that the appellants paid the money for the transfer of the property in their favour to vendor Dolat Khan in good faith. It is to be seen that expression `good faith' contains in its folds the element of `honesty or sincerity of the purpose'. For the admitted fact that the possession of the land was taken over by the appellants before execution of sale‑deed (Exh. P1) and at that time they had also learnt about the existence of agreement to sell between vendor Dolat Khan and vendee Abdul Salam but not only they entered into a contract with them in pursuance whereof they got sale‑deed (Exh.P1) registered in their favour but also paid Rs.4500 to Noor Muhammad. Had the appellants been honest and sincere in their deed, they would have restrained themselves from executing the sale‑deed in respect of the property which was subject‑matter of an agreement between vendor and Abdul Salem (late), therefore, such transaction between the parties lacks the element of good faith. Thus it is concluded that appellants have failed to discharge the onus that they had no knowledge about the earlier agreement of sale of land in dispute nor they had paid money in good faith to vendor, therefore, they are not entitled for the benefit of section 27(b) of the Specific Relief Act.

8. Learned counsel for appellants strenuously contended that the appellants had raised construction over the land in dispute without any intervention by the respondents, as such, instead of granting them the decree of specific performance, the learned High Court may have awarded compensation to them payable by the vendor under section 19 of the Specific Relief Act.

9. Learned counsel for respondents contended that after the institution of the suit, there were three or four occasions when appellants had a chance to submit written statements, original or amended, but they never raised this plea, except when lately on 20th January, 1982 they submitted amended written statements, they for the first time took the plea that after spending Rs.6 lacs they had raised the construction, therefore, the suit of the respondents is liable to be dismissed. According to learned counsel despite raising the plea in this behalf, no evidence was led by the appellants, as such merely on the basis of an assertion their such plea cannot be accepted.

10. This argument of the learned counsel has also been considered consciously. Scanning of record reveals non‑production of evidence by the appellants to prove the factum of raising construction by them during the pendency of the suit without any interruption The trial Court had framed issue in this behalf being No. 8‑E, which has already been reproduced hereinabove. The issue was decided in affirmative by the trial and First Appellate Courts but the learned High Court reversed the findings on this issue for the following reasons:‑‑ "(12) Coming now to issue No.8‑A, it may be noted that the plea of raising construction on the suit‑land before the institution of the suit was not even raised in the written statement. In answering this issue, the learned trail Court only referred to oral evidence of the parties which is equally balanced. The documentary evidence bearing on the controversy was totally ignored. The contesting respondents had claimed raising of construction on Kila No. 11 of Square No.48. However, according to the Khasra Girdawari Exh.P5, the entire area of Kila No.11 of Square No.48 has been under cultivation till Kharif, 1981 when out of the total area measuring 2 Kanals was shown to be under a house. This clearly establishes that the subsequent vendees had not raised construction before the institution of the suit."

11. It may be noted that trial and Appellate Courts have failed to take. into consideration the documentary evidence available on record on the basis of which the plea of appellants stands negated. The judgments relied upon by the learned counsel for appellants reported as Jhando and another v. Ramesh Chandra and others (AIR 1971 Allahabad 189) is not of any help to him in view of the findings of learned High Court based on the contents of Khasra Girdawari (Exb. P5) It may also be noted that plea of appellants is that the construction has been raised by them in Killa No.11 Square No.48 prior to institution of the suit in 1975, whereas Khasra Girdawari indicates that till Kharif 1981 there was no construction on it and after it a construction has been raised on 2 Kanals. The argument raised by the learned counsel for respondents seems to be convincing on the point that if appellants had raised construction before the institution of the suit to 1975, then they could have pleaded this fact at the time of submission of first written statement but as there was no construction, therefore, this fact was not incorporated therein. He has also relied upon the judgment reported as Damacharla Venkata Seshaiah v. Damacharla Venkayya and others (AIR 1974 Andhra Pradesh 193). This very judgment came up for consideration before the Indian Supreme Court who granted compensation to the plaintiff keeping in view the fact that Godowns and other costly structure have already been built on the land in question by the appellants (Defendants). Damacharla Anjaneyulu and another v. Damacharla Venkata Seshaiah and another (AIR 1987 SC 1641). Distinction between the facts of the case in hand and in the reported judgment is apparent i.e. appellants have failed to establish that they have raised construction prior to institution of the suit as it has been held by the High Court and confirmed by us in above para. therefore, we are persuaded to hold that decree of specific performance cannot be denied to the respondents under section 19 of the Specific Relief Act.

12. It is also contended by the learned counsel for appellants that the High Court should have not exercised jurisdiction under section 115, C.P.C. for the purpose of setting aside concurrent findings of fact recorded by the trial and Appellate Courts, therefore, on this score as well interference is called for by this Court in the impugned judgment.

13. We are not impressed from this argument of the learned counsel because in our opinion Courts below not only omitted to read evidence available on record properly but also applied incorrectly law on the subject i.e. section 19 as well as section 27(b) of the Specific Relief Act, therefore, for such reasons, interference by the High Court in the findings of Court below in exercise of its powers being just and proper is not open to any exception under section 115, C.P.C. Thus for the foregoing reasons, appeal is dismissed with costs. M.H./M‑58/S Appeal dismissed.