MUHAMMAD HABIBULLAH, J.-This is an appeal from a judgment and decree dated 14-5-1977 of Mehr Ahmad Raza, Civil Judge, Lahore, whereby he decreed the suit filed by respondent No. 1 against the two appellants and their father Siraj Din, for possession of about .1 square of land, described in the plaint, through specific performance of an agreement to sell, which was executed by Siraj Din.
2. The background of this case is that Siraj Din had borrowed a sum of Rs. 80,000 from certain persons and had executed two pronotes, each in the-sum of Rs. 40,000, in their favour. The payees endorsed the pronotes in favour of Lal Din respondent No. I herein, for valuable consideration. As holder bf the two pronotes Lal Din brought two suits, for the .Recovery of Rs. 42,400 each, against Siraj Din. During the pendency of the suits an order of interim injunction restraining Siraj Din from alienating his land had been passed, but he executed a sale-deed transferring all his agricultural land measuring 681 Kanals, 16 Marlas, situated in village Muhammad Sultanabad, Tehsil and District Lahore to his two daughters, the appellants herein. . The two suits were heard together and decreed on the basis of a compromise arrived at between the parties on 25-2-1965. In the compromise deed Siraj Din admitted that the sum of Rs, 80;000 was due from him, and he agreed -to pay the sum due by transferring one square of his land to Lal Din, which was valued at Rs.
95,000, and to take the balance amount of Rs. 15,000 from him at the time of registration of the sale-deed. He also stated in the said agreement that he had already transferred his lands to his two daughters, the appellants herein, but would be responsible for having the sale deed executed on their behalf, failing which Lal Din would have the right to file suit for specific performance. It was also mentioned in the compromise agreement, that if Lal Din backed out from accepting the land as aforesaid in satisfaction of the decree, he would only be entitled to recover Rs. 40,000 and balance would be treated as forfeited earnest money ; and that if on the other hand Lal Din failed to secure execution of the sale deed on account of evasion by the appellants, he would be entitled to recover Rs. 80,000 through execution of the decree.
3. Siraj Din did not have the sale-deed executed in favour of Lal Din, nor did he pay him any money.
Lal Din made oral requests and sent notices to Siraj Din for getting the sale-deed executed, but received no reply. Lal Din then filed applications for execution, which according to the appellants' learned counsel are pending in the Court of Senior Civil Judge, Lahore. Lal Din then brought two suits. The first suit was filed under section 53 of the Transfer of Property Act, praying for a declaration that the sale of property made by Siraj Din deceased in favour of his daughters, tile appellants herein, was fraudulent and without consideration, and had been made to defeat his creditors, and was therefore of no legal effect as against Lal Din and other creditors of Siraj Din. The suit was decreed on 16-10-1974. A copy of the judgment is placed on record as Exh. P. W. 9/1. The other suit, out of which this appeal has arisen, was filed for possession through specific performance of the agreement to sell contained in the compromise deed.
4. In the present case, it was also stated in the plaint that Siraj Din had earlier given the land in dispute on long lease to one Muhammad Sharif, who was in its cultivating .Possession. Muhammad Sharif had constructed a haveli on the land and had also installed a tube-well. Before the expiry of the period of the lease Siraj Din asked Lal Din to pay Rs, 53,500 to Muhammad Sharif : Rs. 36,000 as price of tube-well and haveli etc, and Rs. 17,500 as refund of lease money which the latter had paid to Siraj Din. Lal Din respondent made the payment and Muhammad Sharif --delivered the possession of the property to him. In his suit for possession through specific performance the respondent also prayed in the alternative for the recovery of Rs. 80,000 as well as Rs. 53,500, from Siraj Din. The trial Court decreed the suit for specific ,performance, and rejected the alternative prayer, for the recovery of money on the ground that the amount could be secured through the execution of the compromise decree passed in the two money suits.
5. Originally the suit was filed against Siraj Din and his two daughters, the appellants herein. But when Siraj Din died on 21-3-1969 his other legal heirs besides the two daughters, were also brought on record. They are his two widows (including the mother of the appellants, two daughters from the first wife, mother, sister and a brother. The 3 defendants originally impleaded as such, filed written statements, contesting the suit. However, the legal representatives of Siraj Din, other than the two appellants herein and their mother, filed a written statement admitting the suit.
6. The appellants raised a number of pleas in their written statement. Their case was that respondent No. 1 had included in the plaint a certain piece of land which was not the subject- matter of the compromise decree, and as such the suit was not maintainable ; that the property having been validly transferred to the appellants, Siraj Din could not make any agreement to sell in respect thereof ; that the compromise decree provided for two alternatives : recovery of the decretal amount through execution, and seat for specific performance, and the respondent having opted for recovery through execution, was estopped, from bringing the suit for specific perfor-- mance; that the respondent had colluded with Muhammad Sharif to deprive the appellants of the land ; and that the suit land was not the subject-matter of the compromise decree. The controversy between the parties is reflected in the issues that were framed, which are as follows : -.
"(1) Whether the suit of the plaintiff is not maintainable as he has included in the suit, land which was not subject-matter of the Com--promise between the parties 7 O. P. D. Defendants 5 and 6.
(2) Whether the suit is barred under Order II, rule 2 of the Civil Procedure Code 7 O. P. D. Defendants 5 and 6.
(3) Whether the compromise between the plaintiff and father of. defendants Nos. 5 and 6 is illegal as the property in suit had already beefs sold to defendants Nos. 5 and 6 2 O. P. D. on 5 and 6.
(4) Whether the plaintiff is estopped by the conduct to file the suit O.P.D,on5 and 6.
(5) Whether the suit for specific performance does not lie for want of any legal agreement ? O. P. D. on 5 and 6.
(6) Whether the present suit is meant to execute the compromise decree, if so, its effect ? O. P. D.
On 5 and 6.
(7) Whether the plaintiff is entitled to specific performance of the agreement of sale-deed dated 25-2-1965 ? O. P. D.
(8) Whether the sale in favour of defendants Nos. 5 and 6 by deceased Siraj Din is fictitious, fraudulent and without consideration ?O. P. D.
7. The trial Court decided all the issues in favour of respondent No. 1 and decreed the suit. On Issue No. 1 the Court expressed to the effect that the land which had been agreed to be sold was the same for which respondent No. 1 had filed the suit. On issue No. 2; the Court held that the other suit which was decided through judgment Exh. P. 1, had been filed later in time, and as such there was no question of the present suit being barred by Order II, rule 2, C. P. C. On issue No. 3 the finding of the trial Court was that Siraj Din had executed the sale-deed in. Favour of the two appellants, while a Court's interim prohibitory order was in force, and as such the sale was void. The Court also found that the sale had been made to defeat the creditors, and that it was without consideration, It was, therefore held to the effect that Siraj Din continued to remain the owner of the land and as such the agreement to sell which he had made was legal and valid. On issue No. 4, the trial Court found that the plaintiff had two options : to file a suit for specific performance, and to file execution applications for the recovery of Rs. 80,000 and that both the options were available to him together. There was no question of any estoppel. The Court also found that although the respondent had filed an application for execution of the decree, but since he had secured the possession of land at the instance of Siraj Din from Muhammad Sharif, after paying Rs. 53,500 to him, the filing of a suit for specific performance was a more efficacious remedy for him. On Issues Nos. 5 and 6, the trial Court expressed to the effect that the promise to sell a square of land, which was included in the compromise agreement, was a matter extraneous to the suit in which the compromise had been made, and as such the promise could only be enforced through a separate suit and not by execution of the decree. On Issue No. 7, the finding of the trial Court was that respondent No. 1 was ready and willing to-'perform his part of the- contract, and had in fact paid the sum of Rs. 15,000 thereunder. When at the instance of Siraj. Din, he paid Rs. 53,500 to Muhammad Sharif He vas, therefore, entitled to specific performance of the, agreement. The Court also held that there was no difficulty in identifying the land which had been agreed to be sold, and that it was the suit land. It was also held that the sale in favour of the appellants being fraudulent and void, the respondent was not. Prevented from seeking the specific performance of the contract. The finding on issue No. 8 was that the sale made in favour of the appellants was/fictitious, fraudulent and without consideration.
8. The case has been argued on behalf of the parties at length. It is contended on behalf of the appellants that issue No. 8 has not been correctly decided and that the appellants being the transferees of the land from their father, the latter could not validly agree to sell any portion of it to Lal Din. Sale deed Exh. D. 1 shows that the property was sold to the appellants on 10-4-1964. The sale was incorporated in the revenue record through Mutation No. 33 (Exh. D. 3). In his written statement Siraj Din had taken up the stand that he had indeed sold the land to the appellants. It is, therefore urged, that the respondent who was not a party to the sale-deed could only file a suit under section 53 of the Transfer of Property Act, but he could not challenge the validity of the sale made to the appellants.
9. The case of respondent No. 1 on the other hand is that the sa made to the appellants was fictitious and without consideration and therefor of no legal effect. In this behalf reliance is placed on civil Court's prohibitor interm orders;-. Including Exh. D. 1 dated 3-3-1964, which prevented Siraj Din from selling the property. These orders however are of no avail to the respondent, because their violation merely entailed penal consequences for Siraj Din ; the orders did not detract from the validity of the sale. Areference in this behalf may be made to Beli Ram & Brothers v. Ram Lag and others (AIR 1925 Lab: 644
10. In order to show that no genuine sale took place, respondent No. 1 produced a copy of statement of Muhammad Sharif (Exh. D. W. 4/9) which had been made in the other case filed by respondent No. 1 under section 53 of the Transfer of Property Act. Muhammad Sharif, had appeared as a witness in his capacity as attorney of appellant Mst. Saeeda. Although the purpose of his deposition in that case was to prove the sale, but his cross--examination suggested the inference that the sale must have been made without consideration. However, since the Witness was not produced in this case, no reliance can be placed on his previous statement. Similar is the position of the statement of Mst. Saeeda Akhtar appellant (Exh. P. W.4/10), which statement she had made in the other case. It cannot be regarded as relevant in the present case. Since there is no admission made in the statement as such, it could not be regarded as relevant even as an admission.
11. Exh. P. 2 is a copy of statement which Siraj Din had made in. The suit for recovery of Rs. 42,4G0. In that case he had stated that he had not sold his land to his daughters but that Yaqub had got the sale-deed executed fraudulently in the name of his daughters. It is admitted on behalf of the appellants that Siraj Din had died on 21-3-1969 after filing the written statement in this case, but his earlier statement cannot be regarded as being relevant under section 33 of the Evidence Act, because the appellants were not a party to the earlier suit, in which the statement had been made, nor could the appellants be regarded as Siraj Din's representatives-in-interest, because as vendees they have an independent capacity of their own. The statement could also not be proved as an admission against the appellants for the same reason.
12. Exh. P. W. 9/1 is a copy of the trial Court's judgment in the other case which respondent No. 1 had filed against the appellants and Siraj Din under section 53 of the Transfer of Property Act. It is held in the judgment to the effect that the sale made by Siraj Din in favour of the appellants was fictitious, and without consideration. Learned counsel for respondent No. 1 wishes to employ this judgment as proof of the findings arrived at therein. The principles of res judicata are not pressed, but what is asserted is that the judgment is relevant under section 13 of the Evidence Act. Reliance is placed on Midnapur Samdari Company Ltd. v. Narash Narayan Roy (AIR (2) Cal. 460). It is true that in this case the Privy Council did use the finding arrived at in a judgment, a copy of which was produced in evidence, but it was not ruled expressly that such judgment was admissible as proof of the particular point decided in it. Under section 13 of the Evidence Act, for disprovingd a right, a transaction by which the right was denied may be proved. A judgment can therefore be proved as an instance of denial of the right by a Court. However, the grounds or reasons given by that Court for the denial of that right, merely on account of being basis of the findings in the previous case, cannot be regarded as relevant evidence under section 13 of the Evidence Act. It was so held in Coca-Cola Company v. Pepsi-Cola Company (1). However, in the present case, the judgment a copy of which had been produced in evidence, was appealed against, and we have dismissed that appeal (R. F. A. No. 108 of 1979) today. Our finding in that case is that the transaction of sale made in favour of the appellants was without considera--petition. We regard this as a significant instance of denial of the appellants' right to the land. We feel that the appellants did not produce enough evidence to displace the inference that the sale was without consideration. Issue No. 8 is decided accordingly.
13. It was also contended on behalf of respondent No. I that in view of the decree passed in the other case, it was not necessary for the respondent to have proved Issue No. 8. It was a suit under section 53 of the Transfer of Property Act, brought by respondent No. 1 against the same parties, praying that the alienation of land made by Siraj Din to the appellants, may be declared to have been made to defeat his creditors. The.Suit was decreed vide judgment Exh. P. W. 9f 1, which judgment we have affirmed today in R. F. A. No. 82 of 1974. It is submitted that the two money suits filed by Lal Din had been decreed. Against Siraj Din on the basis of a compromise which gave two options to Lal Din: to file an application for execution and recover the amount due, or to file a suit for specific performance for the sale of one square of land in satisfaction of his claim. These are the two modes in which Lal Din creditor could satisfy his claim. His suit 'under section 53, having been decreed against the appellants, the entire property transferred by Siraj Din to them became available to him for satisfying his claim in any of the two modes. Reliance was placed on Kallubandi Manjamma v. Kethe Rangappa and others (2), to submit that a decree under section 53 of the Transfer of Property Act enures for the benefit of that creditor also who accepts a portion of the property in satisfaction of his debit.
(1) AIR 1942 P C 40(2) AIR 1954 Mad. 173
14. The relevant facts of that case were that a debtor had settled through gift some immovable property on the donee. Thereafter the debtor agreed to sell the property to the creditor in discharge of his debit. The creditor's suit for specific performance was decreed and a sale-deed was executed in his favour. He then brought a suit under section 53 praying that the gift made by the debtor to the donee in fraud of creditors was not binding on him. This suit was also decreed, which decree was affirmed in appeal. The donee then brought a suit for establishing her title to the property on the basis of the gift. Her suit and first appeal having been dismissed, she brought a second appeal which was .Decided vide the reported judgment. It had been contended on her behalf that the decree passed under section 53 enured for the benefit of creditors only and not for the benefit of a transferee under an agreement, who chose to accept property in satisfaction of the debt, and that the result of the decree was not to annul the gift altogether, but only to render it inoperative against the creditors. It was held that the transferee had not shed his character as a creditor, when he agreed to purchase the property in satisfaction of his debit. It was expressed by relying on Oakes v. Turquand & Harding ((1867) L R 2 H L 325 (A), that "it was well settled that a creditor having the right to avoid a transfer under section 53, Transfer of Property Act can do so by any act which shows clearly and unambiguously an intention to avoid it". Relying on Sami Asari v.
Ashaqla Plllari (AIR 1921 Mad. 657it was expressed that the transferee showed his intention to avoid the transfer at the time of execution of the sale-deed when he was yet a creditor and as such the requirements of section 53 were fulfilled.
15. The case of the respondent appears to be on a still better footing, because he continues to be a creditor till today. If the agreement of sale is enforced in his favour, it will be regarded as being primarily in satisfaction of his debit.
16. We, therefore, find that respondent No. 1 is not prevented from enforcing specific performance of the contract of sale, provided the contract is otherwise enforceable.
17. On I,-sue No. 2, it was submitted on behalf of the appellants that the finding of the trial Court that the present suit was not barred under Order II, rule 2, C. P. C. Was based on the erroneous assumption that the other suit had been filed later in time. Actually the other suit was filed on 17-12- 1965 and the present one on 14-11-1967.
18. There is no doubt that the other suit was brought much earlier, but the provisions of Order II, rule 2, C. P. C. Are still not attracted because the previous suit was based on altogether a different cause of action. The previous suit under section 53 of the Transfer of Property Act, was brought for the benefit of all creditors and the cause of action for that suit arose on 10.6-1964 when Siraj Din executed a sale-deed in favour of the appellants to defeat his creditors. The cause of action for the present suit arose on 25-2-1965 when the agreement to sell was made. There is. Therefore, no question of the present suit being barred by the provisions of Order 11, rule 2, C. P. C. Issue No. 2 is decided accordingly.
19. On Issue No. 4, it was submitted by the appellants' learned counsel, that respondent No. 1 having elected to exercise the option of having the decree for payment of money excepted, was estopped from bringing this suit for specific performance.
20. We do not find any substance in this submission. To give rise top estoppel by election, the two remedies should not only be available in the alternative but should also be inconsistent, so that the option of one must necessarily imply the repudiation of the other. A reference may be made tot Golab Kore v. Badshah Bahadur (21 C 129in which it was held as follows: "When there are two remedies open to a party aggrieved in respect of any matter, no question of election of remedies arises unless they are inconsistent and alternative. But as the remedy by a review, the mere fact that the party seeking to set aside a consent decree on the ground of fraud etc., bad recourse to an application for review of judgment does .Not debar him from recourse to a regular suit, as the remedies are cumulative and concurrent, and the decision upon the application for review does not operate as rev judicata. "
The adoption of one did not imply the repudiation of the other, unless satisfaction was actually obtained by adoption of one course. We, therefore, hold that respondent was not estopped to bring the suit for specific performance. Issue No. 4 was correctly decided against the appellants.
21. On Issue No. 5, the case of the appellants is that the agreement dated 25-2-1965 was a contingent contract within the meaning of section 31 of the Contract Act, because it provided that should Siraj Din fail to have the property conveyed from his daughters, respondent No. 1 shall have the right to have the decree executed for recovery of Rs. 8 Y,000. The event on which the enforcement of the contract was contingent was the agreement of the appellants to execute the sale. It is urged that in view of section 32 of the Contract Act, contingent contracts cannot be enforced unless the contingent event happens, and since the appellants did not agree to execute a sale-deed, the contract could not be enforced.
22. There is no force in this argument because the agreement also provides that respondent shall have a right to obtain a sale-deed through specific performance of the contract. The suit for specific performance, therefore, did lie and Issue No. 5 was correctly decided by the trial Court against the appellants.
23. On Issue No. 6, the case of the appellants appears to be that no separate suit lay on the basis of the agreement dated 25-2-1965 which had already been incorporated in the decree passed in the suits for recovery of money. We do not find any reason to suppose that matters extraneous to the suits which had been included in the compromise agreement, became parts of the decrees, in those suits. The sale of one square of land which was agreed to between respondent No. 1 and Siraj Din was a matter wholly extraneous to the two suits for recovery of money, in which that agreement had been arrived at by way of compromise. The agreement to sell could not form a portion of the decree that had been passed. A reference in this behalf may be made to rule 3 of Order XXIII, which deals with compromises made in suits. It is reproduced for facility of reference: "Where it is proved to the satisfaction of a Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suits."
It is, therefore, obvious that no decree was to be passed in respect of the matter which did not relate to the suit. However, the agreement which was arrived at could validly be enforced through a separate suit. It has been so held in Messrs Cotton Company Ltd. v. Mahmood Jamil ec Co. PLD 1967 Kar. 795, as follows: "A compromise decree is a contract between the parties and its breach would give cause of action to the other party to approach the Court to seek remedy. Compromise decree is but a contract with superadded command of a Judge."
The present suit could not be regarded, therefore, as an attempt to execute the compromise decree. The terms of the agreement which are sought to be enforced through the present suit could not have been a part of the decree that had been passed in the money suit. The effect of this finding is that respondent No. 1 was not prevented from bringing the present suit for specific performance of contract. We decide Issue No. 6 against the appellants.
24. On Issues Nos. 1 and 7 the appellants' learned counsel contended that the agreement Exh. P. W.
9/27 is not capable of being specifically enforced, because it lacks certainty. It does not specify with exactitude the land agreed to be sold, and that in any case the land mentioned in the plaint does not answer the scanty description which is given in the agreement of the property to be sold.
25. It cannot be denied that the agreement does not specify any. Khasra numbers of the land agreed to be sold. What is said about the land is that, it measures 1 square; it is adjacent to the orchard of Lal Din; it is cultivable, but if the cultivable area be less than one square, adjacent barren land will be included so as to make one square. In Aks Shajra, Exh. D-4, which was produced by Muhammad Akram Patwari, most of the land in dispute is shown at Exh. D. W. 4/4. The question which anises is whether it is the same land which is mentioned in the agreement. It is not disputed that the land owned by Lal Din is in one piece of which the eastern portion is marked in the Aks Shajra as Exh. D. W. 4/3, the western portion as Exh. D. W. 4/2 and the middle portion, as Exh. D. W.
4/1. The land of Siraj Din is in two parcels and is located towards the south and south east of Lal Din's land. The eastern parcel is marked as Exh. D. W. 4/4 and the western as Exh. D. W. 4/5. As already observed above most of the land in suit is shown Exh. D. 4/4. The remaining suit land is Khasra No. 34, which measures only 8 Kanals and is included in the portion marked as D. W. 4/5.
The portion marked as D. W. 4/4 is not adjacent to any of Lal Din's land, though it is near its eastern edge i. e. Exh. D. W. 4/3. Parcel Exh. D. W. 4/5 however, is adjacent to the western edge of Lal Din's land i. e. Exh. D. W. 4/2, and is situated towards its south. Khasra No. 34, actually adjoins Lal Din's land. Incidentally it may be observed that Khasra numbers of Siraj Din's land are all mentioned in Aks Shajra as also in the jamabandi for the year 1965/66, as also in the 3 mutations of sale Exh. D. 3 to D. 5, entered to give effect to the sale-deed Exh. D-2 executed in favour of the appellants by Siraj Din.
26. Now what is significant is that suit was instituted in respect of 201. kanals, 15 marlas of land, which means that it is 1 kanal and 15 marlas in excess of one square that had been agreed to be sold. Secondly the land in suit is in two parcels, whereas what is stated in the agreement is that if the cultivated land be less than 1 square, adjacent barren land will be included so as to make one square. Khasra No. 34, which is located at quite some distance from the remaining suit land, cannot be said to be covered by the description: adjacent bunjar land added to make- one square, because it is neither adjacent nor barren. Thirdly the main portion of the suit land which measures 193 kanals, 75 marlas, is far from being adjacent to Lal Din's any land, much less his land under orchard. It is, therefore, obvious that most of the attributes of the land agreed to be sold as mentioned in the agreement are missing in the suit land.
27. The case of respondent No. 1 is that plot marked as Exh. D. W. 4/4 is to the orchard of Lai Din and as such it is the same land which has been identified in the agreement. His learned counsel has attempted, With the aid of dictionaries, to argue that can also mean near. We regret our inability to accept this interpretation. This land is at least one acre away from LAI Din's land and in-between there is a village settlement. This fact was admitted by Lal Din himself, while' appearing as P. W. 9.
Even if there be any orchard in the easters strip of the respondent's land, the suit land marked on the Aks Shajra as Exh. D. 4/4 cannot be regarded as or adjacent to it. Khasra No. 34 which is located at quite some distance from the remaining suit land, cannot be said to answer the descrip-- petition: adjacent banjar land, added to make 1 square. The above facts lend considerable force to the contention that the suit land is not the same as mentioned in the agreement.
28. The respondent's learned counsel referred to other evidence on record to establish the identity of the suit land. He stated that land marked as Exh. D. W. 4/4 was the one which had been given on lease by Siraj Din to Muhammad Sharif, and it was this land in respect of which Lal Din had paid Rs.52,500, to Muhammad Sharif, at the instance of Siraj Din, to obtain- possession; thereof. It is true that this piece of land is in posses--sion of respondent No. 1, and his possession stands established from Exh.D. W. 4/8 which is a copy of an order passed by Additional Commis--sioner (Revenue) in revision. The revision had arisen out of a suit which had been filed by the appellants for the ejectment of respondent No. 1 and Muhammad Sharif from this land. This evidence, however, does not establish that it was this land which had been agreed to be sold.
29. The respondent's learned counsel then referred to memorandum Exh: P. W.- 8/l, allegedly signed by Siraj Din. It purports to have been written at the time the possession of that land was taken by Lal Din after paying Rs. 53,500, to Muhammad Sharif. 1n this memorandum it is stated that it was this one square of land which Siraj Din bad agreed to sell to LAI Din.
30. The case of the appellants however is that this memorandum is a forged document, and that it was never signed by Siraj Din. Their contention appears to be correct because Wasiqa Navis Sikandar A.I who appeared as P. W. 8 to prove this document miserably failed to do so. A perusal of his statement leaves no room, for doubt that he was making a false statement. He made contradictory assertions and the trial Court recorded his observation that he was committing perjury. He was also proceeded against for doing so, and it was so recorded on the file. Under these circumstances Memo--randum Exh. P. W. 8/1 cannot be regarded as having been proved. We therefore, hold that the land in suit is not proved to be the same which had been agreed to be sold to respondent No. 1. Issues Nos. 1 and 7 are, therefore decided against respondent No. 1.
31. The respondent's learned counsel realising that Khasra No. 34, is neither barren land, nor adjacent to land marked as :Exh. D. W. 4/4, filed an application (C. M. No. 5359/C-79) for amending the plaint so as to substitute Khasra No. 248/203/2 for Khasra No. .
34. Learned counsel for respondent No. 1 also stated that in case the prayer for amendment is refused, Khasra No. 34 may be treated as deleted from the plaint altogether.
32. From this application, at least one thing is manifested that even the respondent did not know for all these years as to which was the land that Siraj Din had agreed to sell. Section 21(c) of the Specific Relief Ac lays down that "a contract the term of which the Court cannot find wit reasonable certainty," cannot be specifically enforced. The uncertainty in the present case arises on account of the subject-matter of the agreement. This uncertainty in the agreement could certainly be removed by the respondent by producing extrinsic evidence. The evidence brought on record however does not do so. The respondent's suit must fail on this ground alone.
33. However, as already observed above, the suit land does not answer the description of the land given in the agreement to sell. Even the portion marked in Aks Shajra Exh. D. W. 4/4 does not answer that descrip--petition. There is, therefore, no point in allowing the respondent's application for amendment of the plaint and the same is therefore dismissed. In view of our finding on Issues Nos. 1 and 7, this appeal is accepted. The judgment and decree of the trial Court is set aside and the respondent's suit dismissed. In view of the circumstances of this case, there shall be no order as to costs.
S Q. Appeal accepted.