1. MASOOD AHMED SHEIKH, J.---The captioned appeal by leave of the Court arises out of the judgment and decree of the High Court dated 11.3.2014, whereby the appeal filed by the appellants against the judgment and decree passed by the District Judge Bhimber, has been dismissed.
2. The background of the case is that Ashiq Hussain son of Barkat Ali, plaintiff-respondent No,1, herein, filed a suit for declaration and specific performance of contract against respondents Nos. 2 and 3 and Mst. Aftab Bibi (now deceased) in the Court of District Judge, Bhimber on 10.10.2003 alleging therein that the land measuring 8 marla, Khasra No,509/377 Khata No, 380/345, Khewat No, 120/79, along with the house built upon it consisting of five rooms, kitchen and bathroom, situate in village Gulshan Colony Qasimabad, Bhimber is in his ownership and possession according to agreement-to sell dated 16.6.2003 against a consideration of Rs,800000/-. It was averred in the plaint that Muhammad Hussain, defendant respondent No,2, herein, had promised at the time of contract that after two days, he will execute the sale-deed in favour of the plaintiff.
2. But with mala fide intention, he transferred the said land in favour of the predecessor-in-interest of the appellants, herein, Mst. Aftab Bibi, defendant No,2, therein, through a gift-deed dated 7.10.2003.
3. The said gift-deed is liable to be cancelled on the ground that the land and the house built upon it is in the ownership and possession of the plaintiff according to the agreement-to-sell, which could not be transferred to any other person. The trial Court framed issues and after necessary proceedings, dismissed the suit on 9.3.2007 filed by the plaintiff to the extent of declaring him as owner of the land and the house built upon it, however, an alternate relief in shape of decree for cancellation of gift-deed dated 7.10.2003 along with specific performance of the agreement- tosell was issued and it was also ordered that defendant-respondent No,2, herein, will be bound to get the sale-deed registered in favour of the plaintiff-respondent No,1, herein, in lieu of an amount of Rs,800000/-. If defendant-respondent No,2 is failed to do so, then the plaintiff will have right to get the sale-deed registered through the reader of the Court. The said judgment and decree of the District Judge was challenged by the appellants through an appeal in the High Court.
4. The learned Chief Justice in the High Court while concurring with the findings recorded by the District Judge, has dismissed the appeal, hence this appeal by leave of the Court.
3. Raja Imtiaz Ahmed Advocate, the counsel for appellants, argued that the judgment of the High Court and that of the trial Court is against law and the record. The respondent failed to prove authenticity of the alleged agreement-to-sell by cogent evidence. The registered gift-deed was ignored by the Courts below and an unregistered document was made basis of the judgments, therefore, the judgments of both the Courts below are not maintainable. The learned counsel further argued that respondent No,1 was neither in the possession of the land nor he ever prayed for possession of the house built over it, therefore, the suit for specific performance of contract could not be decreed in favour of the respondent under section 42 of Specific Relief Act, 1877. He further argued that under Order II Rule 2 of the Civil Procedure Code, the whole of the claim has to be incorporated in the suit and if some portion of the claim is left by the plaintiff in the suit, then no further suit can be filed, but this aspect of the case was also over-looked by the Courts below while delivering the impugned judgment, therefore, the same are not maintainable. It has been further argued by the learned counsel that the suit of plaintiff-respondent No,1 was dismissed by the trial Court while not accepting his ownership and possession over the suit land. One of the marginal witnesses Abdul Farooq was not present at the time of attestation of the agreement-to-sell before the Notary Public, whereas, the other witness Javed was accused person in a criminal case initiated by Muhammad Hussain Shah, therefore, he was appeared before the trial Court as witness under coercion and with mala-fide intention to get rid of the said criminal case. He further stated that the land in dispute along with the built up house has rightly been transferred by Muhammad Hussain Shah in favour of his mother-in-law. The learned counsel lastly requested for acceptance of appeal. The learned counsel relied upon cases reported as Muhammad Riaz v. Muhammad Riyasat and 8 others (2008 SCR 308), Manzoor Hussain v. Muhammad Fazal and 8 others 2002 CLC 1165, Muhammad Najeeb v. Muhammad Javed and 4 others (2013 SCR 172), Said Muhammad Khan v. Muhammad Yousaf and 2 others (2007 SCR 235) and Rana Ishtiaq Ahmed v. M.H. Industries (Pvt.)
5. LTD., Faisalabad through Chief Executive (2005 CLC 955).
4. Conversely, Mr. Bostan Chaudhry, Advocate, the counsel for plaintiff-respondent No, 1, argued that the judgment of the High Court and that of the trial Court is perfectly legal. Ashiq Hussain, respondent No,1 purchased from Muhammad Hussain Shah the land measuring 8 marla including a house built upon it consisting of five rooms after full payment of consideration amount Rs,800000/- through the agreement-to-sell dated 16.6.2003 executed in presence of the witnesses.
6. But after receiving the consideration amount, Muhammad Hussain Shah, respondent No,2 instead of executing the sale-deed in favour of Ashiq Hussain, transferred the same through gift-deed in favour of Mst. Aftab Bibi, his mother-in-law, with mala fide intention. The learned counsel further argued that Ashiq Hussian, produced witnesses in support of his claim in the trial Court and the trial Court rightly decided the case while considering the evidence and the High Court has committed no illegality while up-holding the judgment of the trial Court as the execution of agreement-to-sell and receiptof Rs,800000/- was not denied even during the cross-examination.
7. Muhammad Hussain Shah deliberately and intentionally did not appear in the trial Court, the High Court and before this Court to rebut the version of the plaintiff. The Notary Public has correctly verified the attestation of the agreement. When the counsel for respondent No,1 was confronted with the point that the suit of plaintiff-respondent No,1 before the trial Court was filed to the extent of declaration/cancellation of gift-deed and specific performance of contract but no prayer for grant of possession of the suit property has been made in the plaint, the learned counsel stated that the suit for specific performance of agreement-to-sell without claiming of possession was competent under law. The learned counsel further argued that there are concurrent findings of the fact by the two Courts below, which cannot be disturbed by this Court. Even otherwise, the appellant failed to point out any illegality, misreading or non-reading of the record in the impugned judgment, therefore, the appeal merits dismissal. He has relied upon the cases reported as Dilnawaz Begum and another v. Muhammad Akbar Khan Afridi and 4 others (2013 SCR 1184) and Rashid Ahmed Barry through legal Heirs and 7 others v. Muhammad lqbal and another (PLD 2009 Karachi 382) and Rashid Naseem through Attorney v. Mrs. Amnia Fahim and another (PLD 2009 Karachi 390).
5. We have heard the learned counsel for the parties and also perused the record minutely. First of all, we would like to take up the matter of possession of the suit property as plaintiff-respondent No,1 has filed suit for declaration and cancellation of gift-deed dated 7.10.2003 and for the specific performance of contract dated 16.6.2003 but he has not prayed for possession of the suit property.
8. The present appellants, in their memorandum of appeal/petition for leave to appeal and also in their concise statement have taken the ground that the suit for performance of agreement-to-sell of respondent could not be decreed as the plaintiff was out of possession but he did not pray for possession. This ground is of a significance nature. The preposition whether without prayer of possession in the plaint, the suit for specific performance of the agreement to-sell was competent or not requires reflective deliberation of the Court. During the course of the arguments, the Court inquired from the counsel for the respondent that what is the legal effect of absence of the prayer for possession by the respondent-plaintiffs in his plaint. He just stated that the suit of the respondent-plaintiff was competent without prayer of possession. To resolve this legal issue, we take up the task ourselves to go through the provisions of the Specific Relief Act, 1877 and the case law enunciated by the apex Courts of Pakistan, India and also of Azad Jammu and Kashmir jurisdiction. Section 42 of the Specific Relief Act, 1877 deals with the suit for declaration. For convenience, section 42 of the said Act, is reproduced as under:-- "42. Discretion of Court as to declaration of status or right. Any person entitled to any legal character or to right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
9. Bar to such declaration. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief that mere declaration of the omits to do so."
10. The proviso of section 42 clearly imposes an embargo on grant of mere a decree for declaration if a plaintiff fails to pray for consequential relief in his plaint, which he is otherwise able to pray for. In other words if a person files suit for declaration without praying for consequential relief he shall definitely face dismissal of his suit.
11. Under the provisions of section 42, declaration prayed for must relate to legal character, title or right as to any property and if one prays for mere declaration in his plaint but does not opt to pray for the consequential relief, the one which he was able to pray for, the prayed declaration shall not be granted and his suit must be failed.
6. Section 39 of the Specific Relief Act, 1877, confers a right to a person to approach the competent Court for cancellation of a instrument about which he apprehends that such instrument, which is otherwise void or voidable, if remains operative, the same may adversely be used against him. The provisions of section 39 incorporated in the enactment speaks as follows:-- "39. When cancellation may be ordered. Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it to be delivered up and cancelled.
12. If the instrument has been registered under the Indian Registration Act; the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy, of the instrument contained in his books the fact of its cancellation."
13. A bare reading of section 39 of the Specific Relief Act, clearly reflects that there is no such condition as of praying for further or consequential relief in the plaint which is required to be prayed under section 42 when a declaration is sought. The suit for cancellation of a deed or instrument is filed under section 39, which confers a right being independent of the provisions of section 42. Under this section the plaintiff was not bound to pray for possession in his suit along with the prayer for cancellation of gift-deed purported to be made to defeat his right. Before further discussion on the subject, we need to discuss the provisions of Specific Relief Act regarding the specific performance of contracts. Sections 12 to 30, Chapter No, II of Specific Relief Act, 1877 deal with the specific performance of contracts. Section 12 deals with the cases in which specific performance is enforceable. The relevant provision is reproduced as under:-- "12. Cases in which specific performance enforceable.---Except as otherwise provided in this chapter, the specific performance of any contract may in the discretion of the Court be enforced: (a)when the act agreed to be done is in the performance, wholly or partly, of a trust; (b)when there exists no standard for ascertaining the actual damage caused by non- performance of the act agreed to be done; (c)when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; or (d)when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done.
14. Explanation.---Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensating in money, and that the breach of a contract to transfer movable property can be thus relieved."
15. After deep study of the aforementioned provisions of Specific Relief Act, we are of the firm view that the plaintiff-respondent No,1 has competently filed the suit for cancellation of gift-deed dated 7.10.2003 and specific performance of contract dated 16.6.2003 as consequential relief. A bare reading of the above provision shows that if a contract of sale would have been executed between the parties, then it was incumbent upon the plaintiff to claim the possession of the suit property as well, whereas he has filed suit just for the enforcement of agreement-tosell after cancellation of the gift-deed which was executed subsequently, therefore, the prayer for possession was not necessary as it was the case for enforcement of the agreement only to execute the sale-deed. It is also clear that the requirement of execution of contract of sale and requirement of execution of sale-deed are entirely different for the purpose of possession of the suit property. Although, the relief for possession may also be prayed by the plaintiff-respondent in his suit but asking for such relief is not at all necessary as the same springs out of contract of sale and would be incidental to main relief of specific relief granted in the suit. Under the scheme of law when such a suit is decreed then the plaintiff in his execution of sale-deed would also be entitled to get the possession of the suit property without further filing of suit. It is open for the plaintiff-respondent that he may claim the possession of the suit property in the execution petition or to file another independent suit for possession after execution of the contract into sale-deed. It is not necessary to make a prayer for possession in the suit for specific performance of agreement-to-sell because the relief by way of delivery of possession of the suit property in the suit for specific performance springs out of the contract of sale and it is incidental to the main relief of specific performance granted in the suit, even though such relief has not been prayed for in the plaint. Our this view finds support from a judgment reported as Khadim Hussan and 2 others v. Waris All and anther (2005 CLC 1144)
16. (Lahore), wherein it was held as under:-- "I have given some thought to the contention of the learned counsel. To my mind, he is right in contending that it is not at all necessary to make a prayer for possession in a suit for specific performance because it is well-settled that the relief by way of delivery of possession in a suit for specific performance springs out of the contract for sale and is incidental to the main relief of the specific performance granted in the suit, even though such a relief may not actually have been asked for in the plaint or incorporated in the decree passed in the suit for specific performance."
17. The delivery of possession in the instant case is incidental to the relief of which the plaintiff- respondent is entitled for decree of specific performance arisen out of a contract for sale, the Court has right to grant possession of the property, therefore, the contract for sale includes not only the execution of the necessary documents but also putting the vendee for possession of the property, hence the omission in the plaint for grant of possession the Executing Court is not debarred from granting the plaintiff the possession of the property as well. There would be no bar under Order II Rule 2, C.P.C., if the respondent-plaintiff opts to file subsequent suit for possession based on the sale-deed executed in pursuance of the decree for specific performance of contract in the first suit because this cause of action in the suit for possession will be distinct from his earlier suit in hand.
18. Our this view finds support from a judgment report as Arjun Singh v. Sahu Maharaj Narain (AIR 1950, Allahabad 415), wherein it was held as under:-- "Where a person sues another for specific performance of an agreement to sell, and subsequently on the basis of the same agreement, sues for possession, the second suit would be barred by 0.II, R.2 but if the subsequent suit is based on the cause of action flowing from the conveyance obtained in pursuance Of the decree in the first suit, it will not be barred by 0.IL R.2 as the cause of action for the second suit is quite distinct.
19. Where in a suit for specific performance of a contract of sale no relief for possession is claimed and consequently the decree passed in the suit contains no relief for delivery of possession, the Court executing the decree is competent to deliver possession, an order directing delivery of possession being merely incidental to the execution of the deed of sale."
20. In case reported as Nur Muhammad v. Mst. Karim Bibi (PLD 1959 (W.P) Lahore 932, it was observed as under:-- "Under section 39 of the Specific Relief Act, any person against whom there exists a deed which is either void or voidable can file a suit to have the deed adjudged void and the right to file to which the party may be entitled. The condition about further relief exists only in section 42 where a declaration is sought. A suit for cancellation is not filed under section 42 of the Specific Relief Act but under section 39, which creates an independent right. Even though the plaintiff does become entitled by virtue of the cancellation of the deed to possession of the property, he is not bound to sue for possession in this suit."
21. Similarly, in the case reported as Wali Muhammad, and others v. Zaib-UnNisa (2001 MLD 1705), it was held as below:-- "It was categorically held that relief for possession though not prayed for specifically in a suit for specific performance of contract of sale and consequently the decree passed in the suit also silent as to delivery of possession even then such an omission cannot debar the executing Court from granting relief or possession. It was further held that a decree for specific performance includes not only the execution of necessary documents but putting the vendee in possession as well.
22. In para 24 of the case reported as Birgis Jahan Bajiga Malik v. Muhammad Hasan and others (PLD 1964 Dacca 202), it was held:-- "Having considered these decisions, it appears to us that the preponderance of judicial opinion is in favour of the view that the relief by way of delivery of possession in a suit for specific performance springs out of the contract for sale and is incidental to the main relief of the specific performance granted in the suit, even though such a relief may not actually have been asked for in the plaint incorporated in the decree passed in the suit for specific performance. The executing Court had, therefore, in our view, abundant authority to execute the decree for specific performance by ordering delivery of possession of the property even after the deed had been executed on the failure of the judgment-debtors, under the authority of the Court."
23. In the case reported as Momtazul Karim and others v. Abu Hussain and another (1970 SCMR 816), it was held as under:-- "It appears that the High Court also decreed that the plaintiff shall get khas possession of the property on execution and registration of conveyancer This decree for khas possession in a suit for specific performance of contract of sale is redundant.However, the petitioners cannot be said to have been prejudiced by this decree for khas possession inasmuch as in execution of the decree for specific performance of the contract, the plaintiff can also get recovery of possession." In the light of above discussed substantive law and reported case law, we arrive on the conclusion that plaintiff-respondent No, 1's suit for cancellation of gift-deed dated 7.10.2003 and for specific performance of contract dated 16.6.2003 was competent without asking for further relief of possession.
7. Now, we advert to the other merits of the case. Ashiq Hussain, plaintiff-respondent No,1, herein,- filed a civil suit on 10.10.2003 on the basis of an agreement-to-sell dated 16.6.2003 before the District Judge, Bhibmer. In his plaint he alleged that he purchased the land survey No, 509/377 measuring 8 marla along with built-up house, situate at Mozia Gulshan Colony, Qasimabad, Bhimber, in consideration of Rs, 800000/- through an agreement-to-sell dated 16.6.2003 from Muhammad Hussain, defendant No,1 (respondent No,2, herein). He has stated in the plaint that Muhammad Hussain, defendant No,1 promised to transfer the suit property through sale-deed after two days. But in violation of agreement defendant No,1, Muhammad Hussain has transferred the suit property in the name of defendant No,2 (ancestor of the appellants, herein). It has'been further alleged that defendant No,1 with mala fide intention deliberately transferred the said land through gift-deed in the name of his real mother-in-law, 'defendant No,2. He further alleged that the gift- deed does not fulfill the ingredients under law for completion of a valid gift-deed. The plaintiff is a purchaser of the property, therefore, he is entitled for decree of specific performance. He has also requested the trial Court to refrain the revenue officials from changing or altering in the revenue record. The plaintiff prayed in his plaint for execution of agreement-to-sell regarding the suit land and requested for cancellation of gift-deed being against law and the facts. On filing of this suit, the trial Court summoned the defendant in accordance with law. From the perusal of interlocutory order of the trial Court it reveals that the process server of the trial Court reported that Muhammad Hussain, defendant No,1, who was vendor/executor of the agreement-to-sell is not available. The trial Court issued another summon in duplicate to defendant No,1 on 10.11.2003, the process server of the trial Court pasted one of the summons on the house of defendant No,1 and reported the Court on the other counterpart of the summon that he has pasted one page of the summon on the house of the defendant No,l. Any how, on 25.3.2004, Aftab Bibi, defendant No,2 (ancestor of the appellants) filed written statement, wherein she alleged that the suit property including the built up house is in her possession in compliance of the gift-deed. She alleged that agreement-to-sell was not registered deed, it is fraudulent and obtained by committing forgery. The contents of agreement are not clear. In parawise comments the defendant has not categorically and expressly denied the allegation levelled by the plaintiff. After written statement, the trial Court on 5.5.2004 framed issues in the light of the pleadings of the parties. It may be mentioned here that during the proceedings after permission of the trial Court the respondent-plaintiff filed an amended plaint on 12.1.2005. The defendant on 19.4.2005 filed an application for amendment of written statement, but the same was dismissed on 7.12.2006 by the trial Court. In evidence the plaintiff produced in the trial Court as witnesses, Sadheer Iqbal, Stamp Vendor, Iftikhar Bashir, Deed-Writer, Muhammad Aslam, Notary Public, Muhammad Javed and Abdul Farooq, marginal witnesses of the agreement- to-sell. The plaintiff also got his statement recorded in support of his version. The original deed of agreement-to-sell was tendered as Exh. "PA" in the trill Court. All the witnesses have categorically supported the contents of the plaint and the documents vis--vis stamp paper, issuance of stamp paper, draft of agreement-to-sell on stamp paper, the deed witnessed by the marginal witnesses; attested by the Notary Public and consideration amount paid by the plaintiff. These all are the statements categorically stated by the witnesses of the plaintiff-respondent No,1 which remained unrebutted by the defendant in any manner. On the other hand, the defendant, Aftab Bibi with her witness Zahida Begum, who is wife of Muhammad Hussain-defendant, along with two other witnesses, namely Javed Iqbal and Mallick Mir Muhammad appeared as defendants' witnesses. It may be mentioned here that the witnesses of the defendant including the defendant herself have stated that the land in dispute is in possession of Aftab Bibi, wherein along with Aftab Bibi, Mst.
24. Zahida Begum, the wife of Muhammad Hussian and his children are living. However, they have not denied the payment of consideration amount paid by the plaintiff and received by Muhammad Hussain. They have not denied the execution of the agreement-to-sell of the suit property as well.
25. The defendant, who is real mother-in-law of Muhammad Hussain-defendant has stated in her statement that she has no contact with Muhammad Hussain for the last 3/4 years. Although, it is an admitted fact that Muhammad Hussain, is the husband of her real daughter, Zahida Begum.
26. Zahida Begum, in her statement stated that she, her children and mother are living in the suit property. She also stated that she and her mother are owner and in possession of the suit property while Javed Iqbal, the defendant witness stated that Zahida Begum is the owner of the suit land but he does not know the fate of Muhammad Hussian. He also stated that he does not know when the house was constructed. He has stated in his statement that he doesn't know about the deed of agreement-to-sell. Another witness Mallick Mir Muhammad stated that the suit land is owned by both Aftab Bibi and Zahida Begum (mother and daughter). The trial Court on conclusion of proceedings, vide judgment and decree dated 9.3.2007 concluded the case in the terms that the possession of the respondent-plaintiff over the suit land is not proved and issue No, 1 for particular purpose, was partially decided in favour of plaintiff-respondent to the extent of agreement-to-sell and the issue regarding the possession was decided against the plaintiff-respondent. The trial Court vide judgment and decree dated 9.3.2007 held that the agreement-to-sell is proved and it is also proved that the gift-deed was subsequently executed with the connivance of the defendants and declared the gift-deed as cancelled and plaintiff-respondent was declared entitled for specific performance of the contract. This judgment and decree was challenged before the High Court by filing appeals, which was dismissed vide judgment and decree dated 11.3.2014 while concurring with the finding recorded by the trial Court.
8. The plaintiff-respondent No,1, has proved his case by leading oral as well as the documentary evidence. It was enjoined upon the defendant to prove the agreementto-sell as forged and fraudulent document. It was also the duty of the defendant to prove that the said agreement-to- sell was not executed. The defendant has also failed to establish the transfer of the suit property in favour of mother-in-law by defendant No,1, Muhammad Hussain, with good and bona fide intention. The statements of the witnesses of the defendants are contradictory and not inspiring.
27. These statements do not rebut the version of the plaintiff. It is also correct that the agreement-to- sell does not create any title and the trial Court rightly dismissed the suit to the extent of declaration for ownership of the plaintiff. The suit has been filed to create a right in favour of the plaintiff for obtaining sale-deed as a consequential relief. Muhammad Hussain, vendor, is under legal obligation to fulfill the conditions of agreement-to-sell. The authorities referred to by both the counsel for parties are distinguishable to the case in hand as the circumstances of the instant case are quite different.
28. In view of what has been discussed above, the conclusion drawn by the trial Court and concurred by the High Court doesn't require any interference by this Court. Thus, finding no force in this appeal, it is hereby dismissed with no order as to costs.