' SYED HAMID ALI SHAH, J.---Case of the respondent No,1 as set out in the plaint is that suit property measuring 5 Marlas, was sold by the respondent No,2 in his favour through an, agreement to sell dated 8-1-1998, against consideration of Rs,70,000 (rupees seventy thousand only). Total sale consideration was paid on the understanding that sale-deed would be executed as and when respondent No,2 so desires. A general power of attorney was also executed but the respondent No,2 deceitfully and fraudulently alienated the suit property in favour of the petitioner, through registered sale-deed dated 9-2-1998. Petitioner and respondent No,2 contested the suit through filing the written statements, wherein the execution of agreement to sell and receipt of earnest money was denied. Petitioner took the plea of bona fide purchaser. Seven issues were framed and evidence of the parties was recorded.
2. Learned trial Court on conclusion of trial, treated the suit, as recovery suit and passed a decree for Rs,70,000 (rupees seventy thousand only) along with interest at the rate 6% from 9-2-1998, till realization against the respondent No,2. Respondent No,1 being dissatisfied - preferred an appeal against the impugned judgment and decree was accepted and learned appellate Court while setting aside the decree of trial Court, passed the decree for specific performance of agreement holding sale in favour of petitioner, fraudulent. Hence this petition.
3. Learned counsel for the petitioner has submitted that the learned lower Appellate Court has declared the sale-deed in favour of petitioner as null and void while neither there was any assertion in the plaint to this effect nor any specific prayer was made in this regard; that the suit of the plaintiff was for specific performance of the agreement; that it had not been pleaded in the plaint that the petitioner at the time of registration of the sale-deed in his favour had the knowledge of the agreement to sell in favour of respondent No,1; and that no evidence can be led on a point which has neither been urged nor pleaded in the plaint. Learned counsel argued with vehemence that any evidence in this regard, even if available on file, cannot be read legally.
Learned counsel has submitted that agreement to sell/Ikrarnama (Exh.P.1) provides for penalty for non-performance of agreement. The agreement is thus of the nature that it cannot be specifically enforced, having a . Penalty clause in it. Learned counsel in support of this contention referred to provisions of Articles 124 and 125 of the Contract Act and also section 21(a) of the Specific Relief Act, 1877.
4. Learned counsel for respondent No,1 on the other hand has submitted the decree of the learned lower appellate Court has been passed after proper appraisal of the evidence where the learned appellate Court has examined the whole controversy. The Court after discussing the documentary as well as oral evidence of the parties reached the conclusion that Exh.P.1 had validity been executed by the parties and respondent No,2 was legally bound to enforce the contract. Learned counsel then submitted that respondent No,2 has not challenged the impugned decree of the learned appellate Court, therefore, the findings of the appellate Court to his extent have attained finality. It was contended that relationship between the petitioner and respondent No,2 is of maternal uncle and nephew, besides the brother of the petitioner is married to the daughter of respondent No,2. The parties maintained close relationship. It is beyond comprehension that a sale transaction of a house, by an uncle is kept secret from the nephew. Learned counsel added that it is not believable that sale of property and execution of power of attorney, to that effect was not in the knowledge of the vendee. Learned counsel then submitted that P.W.2 Muhammad Ismail, P.W.3 Rehmat Ali and P.W.4 Bashir Ahmad have categorically stated that petitioner was present at the time of the sale of the suit property to respondent No,
1. Agreement to sell Exh.P.1 was executed and signed in his presence and sale consideration was also-paid in his presence. These witnesses were not cross-examined specifically in this regard and the statements of witnesses P.W.2 to P.W,4, prove that the petitioner had the knowledge of the sale and such value cannot claim the protection under section 41 of the Transfer of Property Act, 1882.
5. Heard learned counsel for the parties and examined the record.
6. Respondent No,2 who has denied the execution , of Ikrarnama Exh.P.1 dated 8-1-1998 and receipt of sale consideration of Rs,70,000 (rupees seventy thousand only). But he has not challenged the appellate decree of the learned Additional District Judge, Pasrur. The findings of the Court that sale transaction through Exh.P.1 for all intent and purpose is a sale transaction and respondent No,2 has received total price of the land, had no power to alienate the disputed land, has attained finality.
While deciding present petition, it will deem that the question that transaction between the respondents Nos.1 and 2, subject-matter of Exh.P.1 is sale transaction, has been resolved and no more in issue.
7. Adverting to the claim of the petitioner that he is a bona fide purchaser B and his rights are protected under section 41 of the Transfer of Property Act; the learned appellate Court has examined the issue and discussed it in discrete detail. Relationship between the petitioner and respondent No,2 is that one of real uncle (Mamoon) and nephew. Brother of the petitioner is married to the daughter of the respondent No,2, which shows that a transaction in the house of uncle in the small locality cannot remain hidden. This fact further stands established by the statements of Muhammad Ismail, P.W.2, Barkat Ali, P.W.3 and Shabbir Ahmad, P.W.4. Each one of them has stated that at the time ,of the execution of Exh. P.1, respondent No,2 was present and sale consideration was received before him.
8. Viewing the controversy in hand from the angle that petitioner and respondent No,2 are close relatives, live in a small locality in Tehsil Pasrur sales of property in such locality are open and cannot be kept hidden. P.W.2 to P.W.4 have admitted the presence of petitioner during earlier transaction of sale through Exh.P.1'. Petitioner thus cannot claim the protection of bona fide purchaser.
9. The objection of the petitioner as to the maintainability of the suit on the basis of provisions of subsection (a) of section 21 of the Specific Relief Act, 1877, has not legal basis for the reason that a transaction of sale, which is fraudulent and aimed at to defeat the rights of respondent No,1 arising out of valid contract shall be nullified. I Moreover the penalty mentioned in Exh.P.1, is not the adequate relief so as to give the petitioner the benefit of section 21(a) of Act 1877; The learned appellate Court has rightly held that through the relief of cancellation of the registered sale-deed in favour of present petitioner has not been claimed in the prayer clause of the plaint, yet in the body of the plaint the plaintiff has urged the same. The Court is competent to grant relief even if it has not been prayed for, a relief is granted when such party is held entitled to it. The Court can itself mould the relief, according to the circumstances of the case. Reference can be made to the case of "Salah-ud-Din and 2 others v. Frontier Sugar Mills and Distillery Ltd. And 10 others" (PLD 1975 SC 244).
10. In view of the above, the impugned judgment of the learned appellate Court is devoid of any illegality or legal infirmity. This revision is without any merit and is accordingly dismissed with no order as to costs.