SAIIAD ALI SHAH, J.-'Ibis First Appeal is directed against the Judgment dated 22-1-1975 of learned Senior Civil Judge. Dadu, in a F. C. Suit for specific performance, possession and mesne profits valued at Rs.1,04,170 whereby the said suit with regard to the relief of specific performance, posses- -sion and mesne profit has been dismissed but decreed for Rs.61,000 for recovery of earnest money and part payments made to judgment-debtor.
Shortly stated the relevant facts are that the appellant/plaintiff namely Abdul Kadir son of Haji Khan filed a suit as stated above on 29-3-1968 in the Court of District Judge, Dadu against respondent No. 1 Mir Ashraf Ali Khan on the averments that the said respondent entered into an agreement with the appellant on 14-9-1967 at Karachi to sell 94-24 acres of agricultural land situate in Village Saidpur, Taluka Mehar, District Dadu, which is specified in the plaint, for a total sale price of Rs.1,04,170 out of which the appellant paid Rs..31,000 as earnest money. The agreement further provides that the appellant will pay 2/3rd of Rs.73,170 the remaining balance of consideration amount in the month of January, 1968 and Rs.24,390 the remaining con--sideration amount, at the time of registration of sale deed before the Sub---Registrar. The agreement further stipulates that the respondent shall give possession of the aforesaid land to the appellant before the commencement of Kharif season of 1967-68 after the expiry of the then existing `Maqata' and if the said respondent failed to give possession, be would pay one year lease money of the whole land. The said agreement also provides that the said respondent shall procure all the necessary documents and shall inform the appellant for getting the registration of sale deed and if he failed in that regard or the registration of the sale-deed got protracted on the part of the appellant the said respondent will recover Rs.5,000 for a year as penalty. It is further stated in the plaint that the said respondent Mir Ashraf Ali Khan realized further amounts on different occasions from the appellant through his Mukhtar Kabir Khan and on one occasion he himself realized Rs.30,000 from the appellant on 7-3-1967. It is further stated in the plaint that Mir Ashraf Ali Khan did not inform the appellant about the procurement of the necessary documents nor delivered possession of the said land. In these -- circumstances as stated above the appellant sent a notice to the said respondent on 1-8-1967 calling upon him to receive the remaining unpaid balance of the sale-price and to execute and register sale-deed in his favour. Mir Ashraf AR Khan sent his reply dated 11-$-1957 denying the allegations and cancelling the agreement of sale. The prayer in the plaint is that respondent Mir Ashraf Ali Khan be ordered to execute sale-deed in favour of the appellant and hand over possession of the land in dispute with mesne profits by way of compensation at the rate of Rs.5,170 annually or such amount as the Court may determine from the date of the suit till the delivery of the possession on the appellant's paying to the respondents or depositing in the Court Rs.27,500 or any other amount determined by the Court within such time as the Court may deem proper.
Mir Ashraf Ali Khan filed his written statement on 19th July, 1968 in which he has denied that he entered into any agreement to sell with appellant and further stated that the said agreement was in fact a collateral security for a loan taken and inflated amount has been shown therein. It is further stated in the written statement that the said respondent had taken a loan of Rs.25,030 from the appellant and Rs.31,000 have been shown to include interest of Rs.6,000. All other assertions made in the plaint have been denied including the receipt of notice from the appellant and reply sent thereto by the respon--dent.
On 27th August, 1968 an application under Order 1, rule 10, Order VI, rule 17 and Order XXII, rule 10 read with section 151, C. P. C. Was filed in the Court by the appellant praying for allowing amendment in the plaint to include and join as parties Ali Nawaz, son of Haji Rasool Bux as defendant No. 2 and Nusrat Ali son of Mir Aftab Ali Khan as defendant No. 3 for the reason that they in conspiracy with respondent Mir Ashraf Ali Khan have filed a Collusive Suit No. 73/68 in the Court of First Class Civil Judge, Hyderabad for specific performance of an alleged fictitious agreement of sale in respect of suit land executed on 22-4-1968 and the said suit has been declared in favour of Ali Nawaz on the admission of claim by Mir Ashraf Ali Khan and his attorney Nusrat Ali Khan, who were impleaded as defendants in that suit. This application was resisted and objections were filed by Ali Nawaz on 5-10-1968 taking the plea that objector is neither necessary party nor a proper party on the ground that there was no privity of contract between the objector and the appellant.
Finally the application utrder Order I, rule 10, C. P. C. Was allowed by the trial Court on 13-11-1968 in consequence whereof amended plaint was filed oil 23-11-1968 and amended written statement was filed by respondent No. 1 and Ali Nawaz and Nusrat Ali Khan who were joined as defendants Nos. 2 and 3 respectively also filed their written statements. Respon--dent No. 2 Ali Nawaz has taken a plea in his written statement that the land in question was agreed to be sold to him by an agreement dated 29-5-1966 and the possession has been banded over to him, which fact was within the knowledge of the appellant who is a neighbouring Zamindar. It is further stated in the written statement that the Court at Dadu had no jurisdiction to question the validity of the decree passed in suit at Hyderabad. The other two respondents Mir Ashraf Ali Khan in his amended written statement and Nusrat Ali Khan in his written statement have denied that suit filed at Hyderabad was collusive and decreed without jurisdiction and further averred that Court at Dadu has no jurisdiction in view of the decree passed by the competent Court having coordinate jurisdiction.
(1) Whether the defendant No. 1 entered into an agreement of sale of the suit land with the plaintiff or whether it was an agreement of collateral security?
(2) Whether the plaintiff paid Rs.71,500 towards the consideration amount of Rs.1,04,170 of the suit land to the defendant No. 1 as shown in paras Nos. 3 and 5 of the plaint ?
(3) Whether Rs.5,470 was annual interest and not lease money, if so, what is its effect and can the defendant maintain such plea ?
(4) Whether the defendant No. 1 failed to perform his part of agreement, if so, is the plaintiff entitled to specific performance of the contract, possession and mesne profits by way of compensation as prayed ?
(5) Whether the plaintiff had knowledge of defendant No. 2's agreement with defendant No. 1 and the possession thereof ?
(6) Whether decree in Suit No. 73 of 1968 of the Court of Civil Judge, First Class Hyderabad obtained by defendant No. 2 against defendants Nos. 1 and 3 is collusive and fraudulent and ineffective against the plaintiff and being without jurisdiction and void?
(7) Whether the suit is barred by the principles of res judicata?
(8) Whether this Court has no jurisdiction to sit in judgment over the judgment and decree of a Court of co-ordinate jurisdiction of Hyderabad?
(9) Whether-there is privity of contract between the plaintiff and the defendants Nos. 2 and 3 and if so, what is the effect?
(l0) Whether the suit is maintainable as there is no prayer for the can--cellation of the judgment and decree of senior Court Hyderabad?
(11 ) Whether the suit is not properly stamped?
(12) What should the decree be?
Subsequently an additional issue was also framed as Issue No. 13 with the consent of the parties which is to the effect "whether the parties to the suit are agriculturalists and with what effect" but this issue was not pressed by the parties hence the trial Court has refrained from giving finding on this issue.
Before the trial Court appellant Abdul Kadir has examined himself and four other witnesses. On the other side the respondents have examined themselves and two other witnesses. Appellant Abdul Kadir has deposed that respondent Nusrat Ali offered to sell the suit land to him and he executed such agreement on 14-9-1966 which he has produced as Exh,
126. Appellant paid him Rs.31,000 in cash, The agreement was attested by Ghulam Hussain and by one Oath Commissioner. He has also stated that at that time the suit land was on lease with his father and respondent Ali Nawaz, which was to expire in `Rabi' 67-68. He has produced letter of Mir Ashraf Ali Khan dated 4-11-1966 as Exh. 127 demanding from him Rs.10,0j0. He has produced receipt dated 4th November, 1.966 showing acceptance of payment of Rs.3,000 by Kabir Khan attorney of respondent Mir Ashraf Ali Khan on his behalf. He has also produced another receipt dated 20th November, 1966 showing acceptance of payment of Rs.7,000 by Kabir Khan on behalf of Mir Ashraf Ali Khan. He has further produced another receipt dated 7-3-1967 showing payment of Rs.30,600 to Mir Ashraf Ali Khan, which is Exh.
129. It is further stated by the appellant in his evidence that when Mir Ashraf Ali Khan did not execute registered sale-deed, on 1-8-1967 he sent him a notice through Advocate and produced the same as Exh.
131. Mir Ashraf Ali Khan sent him a reply through his Advocate, which is Exh. 132, whereby the agreement of sale was cancelled. Appellant Abdul Kadir has also deposed that he came to know subsequently that respondents Ali Nawaz and Nusrat Ali in conspiracy with respondent No. 1 Mir Ashraf Ali Khan got fraudulently a decree passed by civil Court, Hyderabad in favour of Ali Nawaz in respect of the same suit land. Respondent No. 2 Ali Nawaz knew that the appellant had purchased the suit land from Mir Ashraf Ali Khan, who has executed such agreement.
Witness Ghulam Hussain has deposed that he accompanied Abdul Kadir to Karachi and in his presence agreement of sale of the suit land was executed between Mir Ashraf Ali Khan and Abdul Kadir. He has also stated that he was witness to 'payment of Rs.30,000 to Mir Ashraf Ali Khan at Karachi and he had attested receipt Exh. 129.
Witness Maula Bux, who is Stamp Vendor had deposed before the trial Court that in April, 1968 respondent Ali Nawaz and his father Rasool Bux came to him with a stamp paper of Rs.4 dated 29- 5-1966 in the name of Ali Nawaz. It was a blank paper and Ali Nawaz asked him to write an agreement of salt' which be refused to write on the old stamp paper. There--after Ali Nawaz and his father brought Mr. Amir Ali, an Advocate and Notary Public and one other man, who urged him to write agreement, which lie did. He has produced that document as Exh.
140. It is stated by him chat respondent Nusrat Ali signed that agreement as an executants.
Witness Muhammad Hashim had deposed in the trial Court that Abdul Kadir and his father had come to him at Hyderabad in February, 1968 and he accompanied them to Mir Hassan Marri rind K.
B. Ghulam Muhammad Wassan, who called Nusrat Ali and asked him to approach his father-in- law Mir Ashraf Ali Khan to finalize the sale of suit land with Abdul Kadir as Mir Ashraf Ali had already accepted the consideration. It is further stated by the witness that Nusrat Ali later on demanded Rs.10,000 as his commission to do the needful. The said money was brought after about a week but Nusrat Ali refused to execute the receipt with full description of the bargain.
Haji Khan Muhammad is father of appellant Abdul Kadir and had deposed before the trial Court that the suit land belonging to Mir Ashraf Ali Khan was on lease with him and respondent Ali Nawaz jointly. Mir Ashraf Ali Khan executed the agreement of sale of the suit land with his son appellant Abdul Kadir. He has also deposed about the payments made to Kabir Khan on behalf of Mir Ashraf Ali Khan and also payment made by Abdul Kadir to Mir Ashraf Ali at Karachi. He has further stated in his evidence about the refusal of Mir Ashraf Ali Khan to execute registered sale. Deed and seeking intervention of K. B. Ghulam Muhammad Wassan in the Court. He has also stated about the suit filed at Hyderabad and decreed in favour of Ali Nawaz in respect of the suit land. He has further stated that his son Abdul Kadir filed appeal in the High Court against the decree passed by Hyderabad Court in favour of Ali Nawaz and has filed a copy of the order of the High Court dated 1- 5-1970 which is Exh. 143 on the record. It appears from this order teat L. I'. A. Was filed before the High Court by Abdul Kadir against Mir Ashraf Ali Khan, Ali Nawaz and Nusrat Ali which was dismiss-- ed in limine with the remark that observations of the learned Single Judge that the proper remedy for appellant is to file a suit for cancellation of decree will not be binding and this point will be decided by the Court below on its merits.
On the other side respondent No. 3 Nusrat Ali had testified before the trial Court that respondent Ashraf Ali Khan is his father-in-law and had some land in Taluka Mehar which was looked after by him. Abdul Kadir and his father wanted to purchase the suit land and made offer which he rejected.
He sold the land in question to Ali Nawaz, who offered better price of Rs.1,100 per acre. He has further stated that the suit land was already in possession of Ali Nawaz and agreement of sale was executed by him. Ali Nawaz filed a suit in Civil Court, Hyderabad which was decreed on his admission. He produced the copy of decree as Exh.
150. He has further stated that he was never called by K. B. Ghulam Muhammad Wassan nor had any talks with him in presence of Abdul Kadir in respect of the suit land.
Witness Qaim Din examined on behalf of the respondent has deposed before the trial Court that he was petition writer and has scribed sale deed dated 18-9-1968, which was executed by Nusrat Ali in favour of Ali Nawaz. He got the same document registered on 31-12-1968. He produced the docu-- ment as Exh.
158. Witness Muhammad Saleh had deposed that he has attested Exh.
158. Witnesses Wahid Bux and Nizamuddin have deposed that they have attested agreement of sale Exh. 140, which was executed by Nusrat Ali in favour of Ali Nawaz. Respondent Mir Ashraf Ali Khan in his deposition before the trial Court has denied execution of agreement of sale of the suit land with the appellant. It is further stated by him that this document Exh. 126 was written by the appellant himself in Sindhi at Karachi and he does not know Sindhi language and the contents of the documents were never explained to him in Urdu. He has admitted having taken a loan of Its. 25,000 from the appellant but Rs.31,000 were shown in the document because the appellant wanted to charge interest of Rs.6,000. Ashraf Ali Khan has further admitted having signed this document in presence of appellant, Kabir Khan and Mujtahid Khan. Presence of Ghulam Hussain is denied. He has admitted having given the suit land on lease to Ali Nawaz and Haji Khan Muhammad father of appellant. Nusrat Ali is his attorney and not Kabir Khan. He denied having received payments from appellant through Kabir Khan. He has further stated that signature on Exh. 129 (receipt of Rs.30,000 dated 7-3-1967) purports to be his is a bit doubtful. He admits having sent letter Exh. 127 to the appellant but further states that it does not relate to the suit land but to the land of his were. He has further denied that decree in suit No. 73/68 by Civil Court, Hyderabad was collusive and he received notice from the appellant or gave reply to it.
Lastly respondent Ali Nawaz has deposed before the trial Court that the suit land was leased out in favour of his father in 1958 and subsequently to him from time to time. Respondent No. 3 leased out the suit land to him in the year 1963 for three years. He has produced general power of attorney in favour of respondent No. 3 executed by respondent No. 1 as Exh. 208 and also sale deed Exh. 209. He has further stated that father of appellant was not partner with him in the lease of the suit land which be subsequently purchased according to the market, price from respondent No. 3 by way of agreement for sale executed at Hyderabad. Thereafter respondent No. 3 avoided finalization of the sale deed and he filed a suit for specific performance of agreement in civil Court at Hyderabad.
The suit was decreed on admission by respondents 1 and 3. He produced certified copy of the decree Exh.
120. He paid the balance and the sale deed was registered at Dadu. He further claimed no knowledge of agreement of sale of the suit land between Mir Ashraf Ali Khan and the appellant.
The appellant knew about the transaction of the sale which he made with respondent No. 3 in respect of the suit land which was already in his possession. He has also stated that he has orally informed the appellant about the transaction of the suit land by means of agreement of sale with respondent No. 3. He has also produced about 81and revenue receipts Exh. 210 (1 to 8) and two Remission Fardies Exhs. 210/9 and 10. He has also produced 6 land revenue bills Exhs. 210/11 to 16 and true copy of the Record of Rights of Form No. VII, Exh. 211.
It appears that initially the plea of -the appellant before trial Court was that his agreement executed on 14-9-1966 Exh. 126 on the record was prior in time than the second agreement executed on 22-4-1968 (Exh. 140) by respondent No. 3 Nusrat Ali in favour of respondent Ali Nawaz in respect of the same suit land. Originally appellant Abdul Kadir had filed suit in the trial Court at Dadu on 29-3-1968 against Mir Ashraf Ali Khan only and subsequently on 27-8-1968 he filed an application under Order I, rule 10 and Order VI, rule 17 and section 151, C. P. C. For amendment of plaint and for impleading Ali Nawaz and Nusrat Ali as defendants in the suit before trial Court on the ground that he had come to know that a collusive Suit No. 73/68 was filed at Hyderabad by Ali Nawaz against Ashraf Ali and Nusrat Ali for specific performance in respect of the same suit land on the basis of agreement of sale allegedly executed by Nusrat Ali in favour of Ali Nawaz on 22-4- 1968 at Hyderabad and the said suit was decreed on 23-5-1968 on the admission of claim made by Ashraf Ali Khan and Nusrat Ali. This application was contested but later on vide order dated 13- 11-1968 prayer in the application was granted in consequence whereof amended plaint was filed on 23-11-1968 and Ali Nawaz and Nusrat Ali were joined in the proceedings as defendants Nos. 2 and 3 respectively. Respondent No. 2 Ali Nawaz filed his written statement before the trial Court at Dadu and took the plea that his agreement was executed on 29-5-1966 at Hyderabad and the possession of the suit land was also banded over to him and further this fact was within the knowledge of the appellant Abdul Kadir, who is a neighbouring Zamindar. Respondent No. 2 Ali Nawaz in his written statement also challenged the jurisdiction of the trial Court to call in question the validity of decree passed by a competent Court at Hyder--abad with co-ordinate jurisdiction.
The trial Court inter alia framed Issue No. 5 to the effect whether plaintiff (appellant before us) had the knowledge of defendant No. 2's agreement with defendant No. 1 and the possession thereof. It is contended on behalf of the appellant before us that finding of the trial Court on the - issue mentioned above against the appellant is based upon incorrect appreciation of evidence and misapplication of the relevant provisions of law. It was submitted in this context that the case of the appellant before the trial Court was that his agreement dated 14-9-1966, which was executed at Karachi was prior in time and the agreement executed in favour of respon--dent No. 2 Ali Nawaz at Hyderabad was subsequent in point of time and was executed on 22-4-1968 but has been made to appear as having been executed on 29-5-1966 by interpolation. Now there is no specific issue on this particular assertion that the agreement in favour of Ali Nawaz is subsequent in time and/or is a forged document. Issue No. 5 speaks only about the knowledge of the plaintiff (appellant) of this agreement of respondent No. 2 Ali Nawaz. Now if the evidence is evaluated by the trial Court only to ascertain knowledge of the plaintiff (appellant) of the agreement executed at Hyderabad, then the scope of inquiry is limited only to the factum of knowledge and further probe beyond the execution of this agreement was not contemplated. So far the evidence produced by the parties on this point is concerned, as stated above the appellant in his application for amendment of the plaint and for impleading Ali Nawaz and Nusrat Ali as defendants in the suit before the trial Court and affidavit in support thereof claimed that the agreement in favour of Ali Nawaz was executed at Hyderabad on 22-4-1968 but subsequently when the plaint way allowed to be amended and Ali Nawaz and Nusrat Ali were impleaded as defendants, written statement was filed by Ali Nawaz in which he stated that he has a decree in his favour granted bar the competent Court at Hyderabad in a suit filed for specific performance on the basis of agreement of sale which was executed on 29-5-1966.
Appellant has examined witness Maula Bux who has deposed before the trial Court that he was stamp vendor and petition writer at Hyderabad in 1968, when Ali Nawaz and his father Rasul Bux brought to him a stamp paper of Rs.4 which was blank and bore the date 29-5-1966 issued in the name of Ali Nawaz. He was asked by Ali Nawaz and his father to write an agreement of sale on that paper which he refused because the stamp paper was old. Then they brought Amir Ali, an Advocate and Notary Public and one other --man, who prevailed upon him to write the agreement which be did. It was signed by one Nusrat Ali as executant. Rasul Bux, Lutaf Ali and Amir Ali attested the said paper in his presence. He produced this document as Exh.
140. In the cross-examination, this witness has stated before the trial Court that he was a matriculate and had charged Rs.25 from them and made a mention of this document in his personal diary. He did not produce that diary. He has further stated that he left the space in the document as the parties insisted that they would get endorsement of the witnesses themselves. He has further stated that he has signed the document at the end and has given the date and he did not com--plain to anybody. The trial Court has disbelieved this witness on his own admission in evidence that he had scribed the document in April, 1968 when the stamp paper was dated 29-5-1966 as such this reflects upon his conduct as petition writer and additionally for the reason that he had sworn an affidavit before Mukhtiarkar, Hyderabad for this purpose, which indicates his having been won over by the appellant.
We have checked the original agreement Exh. 140 on the record. It appears that four-rupee stamp , paper has been issued on 29-5-1966 vide Serial No. 250 in the name of Ali Nawaz son of Haji Rasul Bux. It is signed by the stamp vendor. The signature of stamp vendor in English is illegible. The remaining contents of the agreement are in Sindhi language which witness Maula Bux claims to have written as scribe of the agreement. At the end of the body of the agreement the date is mentioned as 29-5-1968. Like this on the same page this date is mentioned at four other places. At two places under the signatures of Nusrat Ali and Mir Ashraf Ali, at the third place under the signature of Maula Bux and at the fourth place under the signature of Amir Ali Notary Public this date is mentioned and at all these five places there is interpolation in the year and the last digit that is 6 appears to have been converted into 8 purporting to show the year 66 originally written to be read as 68.
Now the question that arises for consideration is as to who is responsible for interpolation. The agreement in which the interpolation has been made has come from the possession of respondent No. 2 Ali Nawaz, who filed his written statement in the trial Court on 4-1-1969. The paper book does not show the endorsement with regard to the documents filed or relied upon but the original written statement of Ali Nawaz shows such endorsement in type, which is to the effect that documents filed are (1) decree in Suit No. 73/68, (2) original agreement dated 29-5-1966 and (3) L.
R. Receipts and bills. The typed word "filed" has been scored of in ink and replaced by words "relied upon". There is no other indication in the record as to when this agreement was physically produced in the Court but it appears that when plaintiff's witness No. 3 namely Maula Bux was being examined before the trial Court, this document was shown to him end he admitted to be its scribe. It was brought on the record as Exh. 140 under the initial of the trial Judge on 9-1-1971.
Evidence of Maula Bux does not indicate that the dates in Exh. 140 were tampered with.
Subsequently respondent No. 2 Ali Nawaz was examined by the trial Court on 16-3-1973 and the agreement Exh. 140 was shown to him and he has stated very clearly in his evidence that there were no over writings in Exh.
140. It appears that till that date tile document in question was intact as originally written and bearing the date of attestation as 29-5-1966. Respon--dent No. 3 Ali Nawaz was recalled and re-examined on 24-5-1973 and it appears that before that date over writings were made in the said agreement as stated above and this fact was revealed hence respondent Ali Nawaz produced in his evidence photostat copy of Exh. 140 as Exh. 232 to show that when the document was produced in the Court through witness Maula Bux it had no over writings.
Photostat copy of Exh. 232 clearly shows the dates of attestation as 29-5-1966. On this point the learned trial Court has held that the interpolations have been made after the document was received in evidence and the responsibility cannot be fixed on any particular party for it. We have also checked the record and there is no further indication in it to help us to arrive at any conclusion as to which party is responsible for this manipulation. One thing is strikingly clear that the interpolation of dates as they now stand is in favour of the appellant because it is his case that his agreement Exh. 126 is prior in time. There is no further evidence on the record by which the appellant/plaintiff can be said to have proved before the trial Court that his agreement Exh. 126 was the first and original agreement.
Now so far the knowledge or notice is concerned, the appellant when examined in the trial Court as plaintiff has stated in his evidence that after he filed the suit for specific performance, he learnt that respondents conspired together and respondent No. 3 entered into agreement for sale of the suit land with respondent No. 2 after his agreement by ante-dating the second agreement and further that respondent No. 2 Ali Nawaz knew that the plaintiff had already purchased the suit land and executed the agreement. In the cross- examination suggestive questions were put to him that respondents Nos. 1 and 3 had executed sale deed in favour of respondent No. 2 on 29-5-1966 and that he and his father were present when the said agreement was reduced into writing and that he and his father wanted a portion from the suit land propos--ed to be purchased by respondent No. 2 Ali Nawaz but these questions have been denied by him. As against this subsequently when Ali Nawaz was examined by the trial Court, he stated that on 29-5-1966 agreement Exh. 140 was executed at Hyderabad and at that time he did not know that there was any agreement for sale of the suit land between Abdul Kadir and Mir Ashraf Alt Khan. He has further stated that on the other hand appellant knew about the transaction of sale which he had made with respondent No. 3 and the possession of the suit land to be with him. He has further stated that appellant resides at a call's distance from his (All Nawaz's) residence. Some of the lands belonging to the appellant are situate in the neighbourhood of his land and in some agricultural land appellant is shareholder with him. He orally informed the appellant about the transaction of the suit land by means of agreement of sale with respondent No. 2. The appellant demanded share in the suit land, which he refused. In the cross-examination of Ali Nawaz the assertion made by him as stated above is not challenged by the appellant and no question has been put to him with regard to the knowledge of the appellant concerning the agreement of sale between Ali Nawaz and Nusrat Ali. On the other hand it has been suggested to Ali Nawaz in his cross-examination by the appellant that Exh. 140 is the bogus document but there is no specific assertion that Exh. 140 was executed after Exh. 126 in point of time. There is one other factor, which needs consideration. Appellant in his evidence before the trial Court has stated that at the time when he entered into agreement Exh. 120 with Mir Asbraf Ali, the suit land was on lease with his father and respondent Ali Nawaz jointly in equal shares. He did not know exactly about the date of expiry of the lease but it Apired after 'Rabi' 1967-1968, In the plaint also he has stated that it was agreed in the agreement of sale Exh. 126 that he would get the possession of the suit land after Kharif season of 1967-68 but he gave legal notice to Mir Ashraf Ali on 1-8-1967 and filed suit in the Court against Mir Ashraf Ali on 29-3-1968. It appears from the plea taken by the appellant in the plaint that at the time when the suit was filed initially, the suit land was in the joint possession of his father and Ali Nawaz on the lease asserted by him, which had not expired till then. This plea is falsified by Ali Nawaz who has deposed that the suit land was originally leased out to his father vide lease deed Exh. 207 and subsequently was leased out to him froth time to time by- the Ashraf Ali. Respondent No. 3 who was attorney of respondent No. 1, leased out the suit land to him for three years in 1966. He has produced general power of attorney of respondent No. I in favour of respondent No 3, Exh. 208 and lease deed Exh. 209. Ali Nawaz has further specifically stated that appellant and his father were not partners in the lease deed of the suit land.
Document Exh. 209 fully supports Ali Nawaz in that assertion. He has further stated that prior to the filing of the suit, he used to pay land revenue of the suit land and has produced 8 land revenue receipts Exh. 210/128. He has also produced remission fardies Exhs. 210/9 and 210/10. He has produced 6 land revenue bills as Exhs. 210/11 to 16. He has produced true copy of Record of Rights of Form No. VII. This documentary evidence clearly shows that the fruit land was in possession of Ali Nawaz on lease when he entered into agreement with respondent No. 3 Nusrat Ali for purchase of the suit land vide agreement Exh. 140 executed on 29-5-1966 as claimed by him. The evidence discussed above proves three things clearly. Firstly that agree--ment of respondent No. 2 Ali Nawaz is prior in time and the appellant has failed to prove the allegation that the said document Exh. 140 is forged. Secondly Ali Nawaz was in possession of the suit lard before the execution of agreement Exh. 140 and even at the time of execution of agreement Exh.
126. Thirdly the appellant has failed to prove by way of evidence that be had no knowledge of the transaction in respect of Exh. 140.
It was then contended by the learned counsel for the appellant that suit filed at Hyderabad was collusive in nature for the reason that suit land was situate within the territorial jurisdiction of the Court at Dadu as such the find--ing of the trial Court on this issue as well as other connected Issues Nos. 7 to 1 t is not proper. In this context it appears that suit at Hyderabad was decreed on 23-5-1968 and appellant before us namely Abdul Kadir was not a party to that suit. Appellant sought to implead Ali Nawaz and Nusrat Ali as respondents in the suit at Dadu and also sought to amend the plaint and the permission was granted. Appellant amended the plaint and introduced paragraph 9-A in the plaint in which it is stated that decree obtained by Ali Nawaz in suit No. 73/68 is collusive and as such of no consequence against the interest of plaintiff in the suit land. The said decree is also without jurisdiction and the sale if any executed in pursuance of the decree is void against the plaintiff. Our attention has also been drawn to the certified copy of the order passed by the High Court on 1-5-1970 in L. P. A. No. 66 of 1970, which is on the record. It appears that this L. P. A.
Was filed by the appellant plaintiff against the present respondents and the said L. P. A. Was dismissed to amine. We have checked the record of the L. P. A, and have found that appellant had moved the High Court for transfer of the suit under consideration to the Court at Hyderabad for the reason that the Court at Dadu could not adjudge that decree passed by the Hyderabad Court was collusive and ineffective on the ground that the Court at Dadu had no jurisdiction or power to nullify the decree passed by the Court at Hyderabad. The said transfer application was dismissed as stated above with the remark that observations made by the learned Single Judge, while dismissing the transfer application, to the effect that the proper remedy for the appellant was to file a suit for cancellation of decree will not be binding and it was left open to the trial Court to decide the point on merits. In this context it is rightly held by the trial Court that there is no allegation in para. 9-A of the plaint (after amendment) of fraud, neither any evidence has been produced to prove that fraud was committed. On the other hand evidence has been produced by the respondent to show that decree has been obtained on the basis of agreement Exh. 140, which was duly proved by witnesses Nizamuddin and Wabtd Bux and admitted by defendants 1 and 3.
There is adequate evidence to show that payments were made by two cheques to defendant No. 1 by defendant No. 2 on 1-3-1963. These payments are not disputed. Plaintiff was not able to disprove the payments p of these cheques. It is also held that in view of section 16 of C. P. C. The Court at Hyderabad has jurisdiction to entertain the suit as respondent No. 3 Nusrat Ali resided at Hyderabad. Plaintiff in the suit from which the present appeal arises served Nusrat Ali at his address in Hyderabad and has shown his address at Hyderabad in the amended plaint. Moreover the appellant before us has not been able to prove that agreement Exh. 140 was a forged document and was not executed on 29-5-1966 as we have held above. The trial Court has also considered the fact that although amendment has been made in the plaint and Ali Nawaz and Nusrat Ali have been impleaded as defendants in the suit and paragraph 9-A has been added in the plaint regard--ing the decree obtained from the Court at Hyderabad but no prayer has been made specifically in the plaint for setting aside the decree. While we agree with the reasons given by the trial Court, we may add here that in the scrutiny of the evidence produced by the trial Court we have found that appellant has failed to prove his assertion that agreement Exh. 140 -was not executed on 29-5-1966 and further that decree at Hyderabad was not obtained in a legal-manner.
It appears from the record that respondent No. 1 Mir Ashraf Ali Khan, who as the owner of the suit land should not have kept in dark the appellant and should have mentioned the facts with regard to the contract in favour of Ali Nawaz particularly in the written statement filed by him in the suit before the amendment was sought in the plaint. In any case having considered the facts of this case and the evidence produced by the parties we are of the view that as provided under section 22 of the Specific Relief Act jurisdiction to decree specific performance is discretionary but this discretion is to be exercised by the Court not in arbitrary manner but in a o manner guided by judicial principles. We are satisfied with the reasons given by the trial Court in coming to the conclusions as it has. Additionally we may also point out that in the agreement Exh. 126 it is clearly stipulated to which the present appellant is the party that if the vendor could not give possession of the suit land within the time stipulated, the vendee shall be entitled to receive lease money for one year in respect of the suit land. It is also stipulated therein that the vendor would inform the vendee about the registration after obtaining the necessary papers and if the vendee failed in finalization of the registration then the vendee would pay Rs.5,000 as penalty. These conditions in the agreement Exh. 126 have been reflected in the plaint. In these circumstances we considered that the trial Court has rightly not grant--ed decree of specific performance. We therefore, uphold the judgment impugned before us and dismiss the appeal with no order as to costs.