' NAIMUDDIN, J.-This First Appeal under section 96, C. P C. Arises out of the judgment dated 29th April, 1967, passed by the Sub-Judge, 1st Class, Larkana in Suit No, 21 of 1964, whereby the appellant's suit for specific performance of the contract for sale of agricultural lands was dismissed with costs.
2. The appellant's case as set out in the plaint briefly stated was that Jiand Rai son of Pheroomal, respondent No. 1 owned 12 annas share in the agricultural lands bearing survey Nos. 123/1 and 2, 160/1, 1-A, 4, 161/1, 2, 3 & 4, 162/1, 2, 3, & 4, 163/1, 2, 3 & 4, 164/1, 2, 3 & 4, 165/1, 2 & 3, 166/1, 2 3, 167/1, 2, 3 & 4, 168/1, 2, 3 & 4, 169/1, 2, 3 & 4, 170/1, 2, 3, 4, 171/1, 2, 3, 4, 172/1, 4, 205/1, 4, 206/1, 2, 3 & 4, 207/1, 2, 3, 4, 208/1, 2, 3, 4, 209/1, 2, 3, 4, 211/1, 2, 3, 4, and 212/1, 2, and measuring in all 1783 acres situated in Deh Kot Shah Beg, Taluka Shandadkot.
3. Respondent No. 1 by an agreement dated 21st September, 1962, agreed to sell the lands to the appellant for a consideration of Rs, 55,100 out of which, he according to the recital in the agreement, received Rs, 10,000 as advance and agreed to receive the balance amount of Rs, 45,000 before the Sub-Registrar at the time of execution and registration of the sale deed, which was to be executed after respondent No. 1 got the records of rights mutated in his favour.
4. It was further the case of the appellant that respondent No. 1 in part performance of the contract transferred the possession of lands to him (appellant) and ever since then he was cultivating the land and enjoying the possession and produce of the lands. He joined Mohammad Bux son of Karim Bux Khoso respondent No, 2 as defendant No, 2 to the suit alleging that he was thereatening to interfere with the possession of the appellant of the lands on the strength of an alleged sale deed in his favour by respondent No. 1 and claiming that sale if any was illegal, as respondent No, 2 had notice of the appellant's title to the land. However, it appears that subsequently Molvi Wahid Bux son of Mohammad Khan Chandio who jointly purchased the lands with respondent No, 2 was joined under the Court's order dated. 10th February, 1964 as defendant No, 3.
5. Respondent No. 1 in his written statement admitted the claim of the appellant in toto and expressed his readiness and willingness to convey the Lands to the appellant as soon as he could do so and pleaded that he could not finalize the performance of the contract as the appellant's father fell ill and could not come to him to pay the balance amount of sale consideration since he needed money due to involvement into various cases he sold the lands to respondent No, 2 and executed the sale deed but, at the same time informed him that he had already contracted to sell the lands to the appellant and transferred the possession to him whereupon respondent No, 2 assured him that he would make the appellant agree to forego the contract and if he (appellant) was unable to do so he would recovery the lands to respondent No. 1 if he repaid the money to him.
He further stated that Mohamm ad Bux Chandio, respondent No, 3 also had notice of the transfer of the land to the appellant.
6. Respondent No, 2 in his written statement denied the case of the appellant and pleaded that if there was any agreement in written that was fake, false and a result of collusion and conspiracy and was not executed on 21st September, 1962 but some days before the suit. He further pleaded that the lands were in his possession and in possession of respondent No, 3 and that had no notice of any agreement between the appellant and respondent No. 1. The plea of Respondent No, 3 was also on identical lines.
7. On the pleadings of the parties the following issues were framed :
(1) Whether defendant No. 1 entered into an agreement with the plaintiff to sell the suit land to him?
If so, whether the possession of the suit land was transferred to him in part performance of the contract ?
(2) Whether defendants 2 and 3 are bona fide transferees for value without notice of any previous transfer? If so, what is the effect?
(3) Whether the sale in favour of defendants 2 and 3 is valid ?
(4) Whether the plaintiff is entitled to specific performance of the contract ?
(5) What should the decree be ?
' The learned Sub-Judge decided all the issues against the appellant. Therefore, the appellant has come up in this First Appeal.
8. We have heard Mr. S. M. Sadiq, learned counsel for the appellant and Mr. Wajihuddin Ahmed, learned counsel for respondents Nos, 2 and 3, Respondent No. 1 has not appeared.
9. The following points need determination.
( I) Whether the agreement (Exh. 102) was executed on 21st September, 1962, the date mentioned in the agreement.
(2) Whether respondent No. 1 gave possession of the lands to appellant as the time of execution of the agreement.
(3) Whether respondents Nos. 2 and 3 had nbti1e of the 'transaction between the appellants and respondent .No. 1 ?
10. We would take up the first two points together. The only evidence on these points is that of appellant and Amanullah, Tapedar. In his deposition the appellant stated that on 2nd September, 1962, respondent No, I executed the agreement for sale of the lands for a consideration of Rs, 55,000 and he paid to him Rs, 10,000. 1n his cross-examination he stated that he had purchased the stamp paper of the agreement at Qamber from Ali Gohar, Stamp Vendor and Petition Writer, who had a shop near the office of the Sub-Registrar, though he was not sure of this name. He, however, admitted that at Shandadkot there were three stamp vendors but pleaded that they had no stamp papers available with them but immediately changed his statement and said that he enquired from one stamp vendor only and then went to Qamber. He admitted that Larkana was District Headquarter and much bigger than Qamber. He denied the suggestion that he purchased the stamp paper from Larkana and stated that he did not go to Larkana. He admitted that the agreement was written by Nabi Bux at Shandadkot at the house of respondent No, I. He denied the suggestion that the stamp paper was purchased by him after the sale of the lands to respondents Nos. 2 and 3 and the date of issue of the stamp paper was ante-dated. He stated that he purchased the stamp paper of Rs, 5 on which the agreement was written of his own accord. He did not remember, if his signature was obtained by the stamp vendor. He, however, stated that the agreement was written on the next day of purchase at 10-00 a.m. It may be mentioned here that stamp paper bears the date of 19th September 1962. On the question of possession he stated on payment. Of Rs, 10,000 he got the possession of the lands. He, however, admitted that the Record of Rights was not mutated in his name but the same was mutated in the name of respondents Nos. 2 and 3 but claimed the land revenue assessments for the year 1962-63 Kharif and Rabbi were paid by Jianand in his own name though the money was his. He, however, admitted that he did not take the receipts from Jianand. He also admitted that a new watercourse was dug in the lands and the order for excavation. Was obtained by respondent No, 2 but claimed- that excavation work was done by 'them' that means by Jianand and himself. He admitted that respondent No, 2 paid the fee for the new watercourse to be excavated. He also admitted that respondent No, 2 had given an application under the Tenancy Act to get the Haris evicted from the disputed lands. He, also admitted that Shah Nawaz, one of the Haris, was his brother and other Haris were his relatives. He also admitted that Ali Hassan who was his `phuphat' and respondent No, 2 had contested the elections and the latter had won the elections. It is the case of Mohammad Bux (Respondent No, 2) that because of enmity and election dispute the appellant came forward to file the false suit against respondents Nos. 2 and 3.
' In support of his claim of possession he examined Amanullah Khan son of Abdultah Khan Tapedar of Shandadkot who deposed that he came as Tapedar on 23rd March, 1968 and before him Amir Bux was Tapedar who was at the time of recording his evidence posted at Qamber and that he had all along been seeing the appellant in possession of the lands and enjoying the produce but, he stated, Muhammad Bux (Respondent No, 2) paid the land revenue assessments. He also stated that he did write in the field book the result of his Partal but he did not produce the field book or any other revenue records and further stated that he gave evidence from his memory and did not remember the survey numbers of the lands and/or- the survey number of the lands over which the cultivation was carried on. He also did not remember which Hari cultivated which survey number.
He, however, admitted that the bills of land assessments were issued in the name of respondent No, 2 and Khata also stood in his name.
' As regards these points the learned trial Judge decided the first issue which covers the point under discussion against the appellant for the reasons that the appellant had neither examined the executant i. e. Respondent No. 1 nor the attesting witnesses nor the scribe of the agreement. The learned Judge therefore, reached the conclusion that the appellant did not examine these witnesses-to avoid contradictions in their testimony. The learned Judge from several circumstances disclosed in the evidence of the appellant came to the conclusion that the stamp paper for the agreement was not purchased on the date mentioned thereon but on a later date and he did not believe the evidence of the appellant. The name and address of the stamp vendor on the stamp paper, he found was that of Larkana and not of Qamber. He could not find any reason as to why the appellant would go to Qamber for purchasing stamp paper from a place much smaller than Shandadkot where the agreement is said to have been written and executed, except that the stamp paper for agreement, with back date written on it could not be obtained at Shandadkot. He also noticed that the agreement was written on stamp paper of Rs, 5 although for an agreement stamp paper of Rs, 2 was then required and also that the stamp paper did not bear the Serial number and reached the conclusion to quote his words : "It is not uncommon that the stamp vendor and some other persons who indulge in unhealthy and mischievous practices of forgery, keep such stamp papers with them for using the same on such occasions."
' Mr. S. M. Sadiq the learned counsel for the appellant questioned the finding on issue No. 1, as according to him, the examination of the executant or the attesting witnesses was not necessary because respondent No. 1 had admitted in his written statement the execution of the agreement. It is true that the agreement was not one of those documents which require to be proved by any attesting witnesses but when the question was, when the document was executed, it was necessary for the appellant to have examined the stamp vendor, the scribe, the executant or the attesting witnesses or some of them in corroboration of his evidence particularly, when the attending circumstances were such that they tended to affect the veracity of his evidence. In or opinion on the points under consideration the evidence of the appellant is very unsatisfactory and the circumstances are such that they do not inspire any confidence in his testimony for, firstly, there was no reasons for the appellant to go to Qamber to purchase the stamp paper when according to him there were three stamp-vendors selling the stamp papers at Shandadkot and he had contacted only one of them, who, according to him, had no stamp papers, but he did not contact the other two stamp-vendors. Therefore, it cannot be said that the stamp paper was not available at Shandadkot. Secondly, there was no reason why he purchased the stamp paper of Rs, 5 on his own when only stamp paper of Rs, 2 was required for such an agreement, there is no explanation for the same. Thirdly, the stamp paper does not have the serial number of the register for no stamp paper could be issued by a stamp vendor under the stamp Rules without writing thereon the serial number of its entry in the register of Stamp and putting the serial number on the stamp paper. The agreement in question is the only agreement which has come to or knowledge which does not bear the serial number, otherwise, we have not come across any stamp paper which does not bear the serial number. Fourthly, the appellant had stated that he had purchased the stamp paper at Qamber while the address of the stamp vendor written thereon is that of Larkana. There is no explanation as to how the stamp-vendor of Larkana sold the stamp paper to the appellant at Qamber. Fifthly, according to the appellant he purchased the stamp paper at Qamber on 19th September, 1962 and the same was written next day at 10 a m. But then why it bears the date of execution as 21st September, 1962. In these circumstances it was necessary for the appellant to have examined some of the above-named witnesses to prove the date when the agreement was executed. The fact that respondent No. 1 admitted the entire case set up by the appellant and showed his readiness and willingness to convey the property makes us to think that respondents Nos. 2 and 3's plea that the suit was filed collusively, is not without substance and if the learned Judge has come to the conclusion that the agreement is bogus and was not written or executed on the date written thereon the same is unexceptional. Further, the agreement recites that the appellant has paid Rs, 10 000 to respondent No. 1 who has delivered the possession of the land. But no receipt was produced acknowledging the receipt of Rs, 10,000. It is not easily believeable that respondent No. 1 would have given possession to the appellant only on receipt of Rs, 10,000 out of Rs, 55,000. Moreover, the agreement recites that the possession has been delivered by the appellant although the lands were in physical possession of haris who were cultivating the same for there is ample evidence to that effect on record. Therefore, if by delivery of possession the parties to the agreement meant the constructive possession then that could be given only by attornment by haris in favour of the appellant for which there is no allegation much less proof. Even otherwise, no hari was examined in support of the claim for delivery of possession. Further, the statement in the agreement is also belied by the facts and circumstances of the case. It was, therefore, necessary for the appellant to have examined the stamp vendor to prove when and where the stamp paper was issued and some other witnesses mentioned therein before to prove as when it was written or executed. There is no explanation why these witnesses were not examined. The evidence of the appellant does not at all inspire confidence for the further reason that in his deposition he changed or modified several statements.
' As regards the evidence of Amanullah, it is in or opinion of, no evidentiary value, whatsoever. As already, stated, respondents Nos. 2 and 3 after the transfer of the lands got the records mutated in their names and they paid the land revenue. There was dispute between them and the haris who were cultivating the land. The appellant failed to substantiate his claim for possession by any cogent evidence. Nor did he state how and in what manner the possession of the land was given to him. We agree with the finding of the learned Judge that the appellant was not given possession of the lands for if he was in possession of the land then how respondent No, 2 would have got new watercourse dug for which he paid fee vide Exh.
178.
However, Mr. Sadiq heavily relied on the statement as to delivery of possession of the disputed lands contained in the agreement Exh.
102. But it is well settled that every recital in a deed is not evidence of the statement contained therein. If any authority is needed reference may be had to the case of Ghulam Hassan and others v. Sarfraz Khan and others (1), wherein it was observed at page 315 of the report by Amiruddin Ahmed, J. Who wrote the opinion of the Court, as follows :- "Lastly, we were referred to the headnote in the case of Safi Ullah v. Ghulam Jabbar (P L R 1955 Lah.
57=PLD 1955 Lah. 191) in which Akhlaque Hussain, J. Is reported to have held that 'A solemn declaration by the donor, contained in a registered deed that the possession had been delivered to the donee, should be considered as sufficient and indeed conclusive of the delivery of constructive possession'. But the other learned Judge Kaikaus, J. Held a different view, namely, 'that the question whether there was delivery of possession by the donor to the donee should be decided in any other case, and that the recital as to delivery of possession in a deed has two aspects. It may be evidence of delivery of possession and it may be by its own force transfer possession. As evidence its value may be practically nil if it is otherwise clear that the donor did nothing further to transfer possession, but though it has no value as evidence, it may, in some cases be effective by itself in transferring possession'. The view on this point held by Akhlaque Husain, J. Appears to us to be an extreme view, as at best the recital raises only a rebuttable presumption of fact, which can be proved to be incorrect by evidence in cases in which delivery of possession is questioned as in the present case. Besides, in the case before him the learned Judge held at page 85 of the Report that 'even if the onus lay on the donees to affirmatively prove that possession had been delivered to them I would, in the circumstances of this case, have no hesitation in holding that the donee have satisfactorily discharged that onus'. In the present case in the document it is stated that the donor gave delivery to the donees themselves, who were minors and could only act or accept the gift through their guardian (the father) who was alive. Even if he had said that he retained possession on behalf of the minors after divesting himself of the ownership, the appellants could have something to say in the matter, hut, as it is, we do not think that the argument that a mere recital is conclusive evidence of the delivery of possession it the present case, is tenable." {{FOOT NOTE}}
(1) PLD 1956 SC (Pak.) 309 {{FOOT NOTE}} ' his case later on was followed by the Supreme Court in Shamshad All Shah and others v. Syed Hassan. Shah and others (1) and in Ashiq Hussain and another v. Ashiq All (2).
' Mr. M. Sadiq also relied on Site Inspection Note by the learned Judge which reads as follows : - "The village of Mohammad Amin Brohi where the house of Mohammad Nawaz's relatives are situated is about 2 acres away from the boundary of the land in question. The starting point of that boundary is about 4 acres away from that village, on the Western side of it and about 4 acres away from the channel called Idan. In the land in question there is a house of one man who claimed to be the hari of Mohammad Nawaz of the land in question.
' There are also houses of Mohammad Nawaz and other haris on the South border in the land.
These haris also claimed to be the haris of Mohammad Nawaz of the land in suit."
' But this Note is also of no help for it contains no finding, nor would it establish that the appellant is in possession of the lands. Further, such note would not prove the possession of the appellant for the issue as to who was in possession of the lands could be decided on evidence of witnesses for, unless the disputed property was such that its physical occupation by a person could be visible to naked eye, as in the case of a room in exclusive possession of person the note of inspection of such property could not be evidence of such a fact. Any statement recorded by Judge during the course of inspection is also of no evidentiary value C unless the person whose statement was recorded was subjected to cross-examination or the opposite party had opportunity to do so.
' We may here refer to a Division Bench case of or own Court namely, Muhammad Amin and another v. Chief Judge, Small Causes Court, Karachi and others (3) where the Rent Controller while inspecting the disputed premises had accepted affidavit of sub-tenant and had based his finding on such an affidavit and the learned Judges had disapproved such a course although the other party was given an opportunity to controvert the allegations made therein. The relevant observations are as follows :- "We nevertheless feel that such a procedure of accepting as judicial evidence in the course of what are quasi-judicial proceedings as uncalled for."
' As regards third point it would suffice to say that the appellant gave no written notice to respondents Nos. 2 and 3 informing them that he had prior agreement of sale with respondent No.
1. His story that he informed respondent No, 2 in the presence of respondent No. 1 is also unsubstantiated and unbelieveable. It is not even alleged that respondent No, 3 who is co- purchaser of the lands with respondent No, 2 had any notice. Only respondent No, I has so stated in his written statement but the written statement in this case cannot be treated as evidence for ir. Is not verified on oath and respondent No. 1 was not examined. ##TEt#Reference {{FOOT NOTE}}
(1) PLD 1964 SC 143 (2) 1972 SCMR 50 (3) PLD 1963 Kar. 695 {{FOOT NOTE}} may be had to Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaq and 2 others (1), wherein Wahiduddin Ahmed, J. Who wrote the opinion of the Court at page 31 of the report observed as follows "Written statements cannot be the exhibits in the case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and therefore, they cannot be treated as evidence in the case. This view finds support from the case of J. B. Ross & Co. v. C. R. Servien and others (AIR 1917 Cal. 269) and Muhammad Siddique v. Bhupendra Narayan Roy Chowdhury (PLD 1962 Dacca 643). It was held in the former case as under :- "A verification is required with a view to discourage if not to prevent, the institution of false suits, the Legislature never contemplated that verified statements should be treated as evidence on behalf of a plaintiff against a defendant. The inference may legitimately be drawn from the language used in section 191, I. P. C., that a verified statement would not be "evidence" but for the special provision of section 191 which has been enacted for a special purpose."
' Even if the written statement would have been verified on oath any admission made therein would not be the proof of the allegation so far as respondents Nos. 2 and 3 are concerned, more so when the case of respondents Nos. 2 and 3 has been that the suit was brought collusively. Even otherwise, under the proviso to section 58 of the Evidence Act, E the Court is empowered to require the fact admitted to be proved otherwise than by such admission. M. Munir in his book 'Principles and Digest of the Law of Evidence (Pakistan Edition) at page 163 has commented as follows : - "In case the Court is satisfied that the admission is fraudulent or erroneous or where the admitted document is inoperative for want of registration or proper attestation the Court may in its discretion call for evidence to prove the fact admitted."
' We may also refer to the provisions of Order VIII, rule 5, C. P. C. That also contain similar provisions.
We may here quote them too :- "5. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :.
' Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."
(Underlining* is ours for emphasis)
' This is one of those cases in which Court should insist for proof other than admission.
' Now, on consideration of the entire evidence which we have not deemed necessary to discuss in full here for the sake of brevity, we have {{FOOT NOTE}}
(1) PLD 1972 SC 25 * (Here in italics) {{FOOT NOTE}} come to the conclusion that respondents Nos. 2 and '3 are bona fide and legal purchasers without any notice of appellants alleged agreement. It is not at all disputed that they are purchasers for valuable consideration.
' During the pendency of this appeal Mr. Wajihuddin Ahmed, the learned counsel for respondents Nos. 2 and 3 filed an application under Order XLI, rule 27, C. P. C. For recording additional evidence by allowing the production of agreement purporting to be between the appellant and respondent No. 1 which agreement showed the falseness and collusiveness of the claim of the appellant but after going through the evidence already on record and having come to the conclusion that there was sufficient evidence to dispose of the appeal we did not consider it necessary to take any additional evidence.
' The appeal for the reasons given hereinabove is liable to he rejected and we accordingly, reject the same with costs. .