' By this first appeal the judgment and decree dated 4-10-1981 passed by the District Judge, Sibi in Civil Suit No, 14 of 1978 has been challenged and arises in the following circumstances,
2. The present respondent Shahbuddin had filed a suit on 21-9-1978 on the basis of an agreement dated 23-12-75 allegedly executed by respondent No, 2 Khursheed Ahmad. The suit was initially filed against Khursheed for the specific performance of the agreement and it was avered in the plaint that the defendant/respondent Khursheed Ahmad son of Muhammad Ramzan had obtained a sum of Rs, 5,500 from the plaintiff Shahbuddin and had agreed to sell the house Nos. 1103 and 1103-A situated at Muhallah Kasaban, Sibi for a consideration of Rs, 20,000 and the sale-deed was to be executed on handing over the possession by Khursheed Ahmad to Shahbuddin. The defendant Khursheed Ahmad in his written statement took up the plea that the amount received by him was a personal loan and the property belonged to his brothers and sisters and he had no authority to sell the same. On the basis of the pleadings the issues were framed on 24-3-1979 which are reproduced below :-
(1) Whether the suit is not in proper form ?
(2) Whether the suit is not maintainable in law ?
(3) Whether the suit is bad for non-joinder of the parties ?
(4) Whether the suit is under-valued and insufficiently stamped ?
(5) Whether the defendant No, 1, agreed to sell house bearing Nos. 1103, 1103-A, situated in Sibi, to plaintiff and executed such agreement dated 23-12-1975 ?
(6) Whether the plaintiff paid Rs, 5,500 to defendant No, 1, as advance towards the part performance of his contract or as a loan ?
(7) Whether the defendant No, 1, has got a brother and five sisters who are owners of the houses in suit with him, if so, what is the effect ?
(8) Whether the sisters and brother of defendant No, 1, by their conduct are estopped from challenging this transaction ?
(9) Whether the defendant No, 1, has failed to perform his part of contract ?
(10) What should the decree by ?
3. While the suit was being contested an application on behalf of the present appellants was filed praying that they be impleaded as defendants in the suit. This application was mainly on the ground that the property in respect of which the suit has been filed is owned by them, being the legal heirs of Muhammad Ramzan. This application was Vehemently contested by respondent Shahbuddin meaning thereby that he did not consider that the appellants had any connection with the property which was agreed to be sold by Khursheed, but subsequently the present appellants were allowed to be impleaded as party by the order of the Courts as they were found to be necessary party and Shahbuddin plaintiff was required to file amended plaint on 10-4-1980 and the amended plaint was filed. At this stage it would be-pertinent to note that while impleading the prestvitt appellants as defendants Nos. 2 to 6 it was alleged in para. 2 of the amended plaint that defendant No, 1 Khursheed Ahmad had told that he held the defendants' power of attorney to sell the house on behalf of the other defendants also and in the prayer clause a decree for specific performance of the agreement dated 28-12-1975 was prayed jointly and severally. Even after the filing of the written statement by the present appellants no issue was recast and parties led the evidence. The plaintiff examined only himself and the attesting witnesses of the agreement.
Deciding the issues Nos. 7 and 8 in favour of the plaintiff the suit was decreed. Against this juknent and decree, this present appeal is filed in this Court.
4. This learned counsel for the appellant has challenged the judgment and decree and has contended that the same is contrary to the facts on record and the learned District Judge has not applied his mind to the Actual evidence. (ii) that neither the estoppel against the present appellants was pleaded nor proved and according to him the issue No, 8 does not arise out of the pleadings. The learned counsel has referred to the averments contained in the plaint originally filed wherein there is no mention that the defendant Khursheed had ever claimed to have acted on behalf of the present appellants and in that connection has referred to the agreement which is the basis of the suit and on that basis it has been contended that it was not the case of the present respondent that he claim any estoppel against the present appellants. Even in the amended plaint there is no such averment, I find force in the contention. The agreement is so clear that it could not be possibly urged with any justification that Khursheed was acting on behalf of the present appellants i. e. Defendants 2 to 6. Even if such an assertion had been made in the plaint that assertion being at variance with the agreement on the terms of the written agreement, could, be admissible in view of section 92 of the Evidence Act and as such this issue did not arise from the pleadings especially when by the time this issue was framed the present appellants were not even impleaded as defendants nor any such averments made in the plaint and it was not the case of the plaintiff even that Khursheed has acted as agent of the appellants. The basis of the learned District Judge for his finding on issue No, 8 is his assumption that all the defendants were residing at Lyallpur, and defendant Khursheed had been leasing out property to the tenants on behalf of all.
As I have said above in this judgment that no such fact has been established by the plaintiff/ respondent No, I on the basis of which such a finding could be sustained, the finding of the learned District Judge is, therefore, nothing but a conjecture. The plaintiff on the other hand by his conduct knew that the person with whom he had entered into an agreement was not the sole owner and the document itself did not contain any such representation. Had it been so as it was being urged in the arguments before the learned District Judge there could have been no difficutly in getting the facts incorporated in the agreement. The plaintiff Shahbuddin knew fully well that Khursheed was not the sole owner yet he persuaded himself to get incorporated in the agreement that Khursheed was the sole owner of the property he was dealing with. In the face of this situation I have not been able to find myself in agreement with the learned District Judge, Sibi that there is any evidence on record from which it could be reasonably inferred that Khursheed was acting on behalf of the others. Further there is also no evidence on record that the money was received by the present appellants. The mere fact that defendant Khursheed had gone to Lyallpur does not necessarily establish that the transaction was in the knowledge of the present appellants or that they had rectified the act of Khursheed. If there has been any assertion by the defendant Khursheed that he was holding a power of attorney as alleged in the amended plaint there could have been no difficulty in getting it incorporated in agreement. The assertion that Khursheed had initiated proceedings for the eviction of the tenants from the house in dispute on behalf of the appellants it could have been easily established by the production of record of eviction proceedings. I enquired from the learned counsel appearing for the respondent about this aspect of the matter and he was frank enough to admit that no such power of attorney could be found in favour of Khursheed Ahmad. From this it cannot be asserted with any justification that any apparent authority in favour of Khursheed had been established. It is well-settled that the plaintiff can succeed on the strength of his own case and for that he has to first allege a fact and substantiate the same by evidence or establish circumstances from which reasonable inference in his favour can be drawn. Before .The doctrine of estoppel can be applied in a case it must be found that a person by his unambiguous and unequivocal declaration, act or omission intentionally caused or permitted another to believe a thing to be true and to act upon such belief.
' In the present case there is no such evidence and on the evidence produced by the plaintiff/respondent a plea of estoppel is not available to him. That where no case of estoppel is set up in the pleading the same should not be allowed to be put forward at the hearing. Lal Mohan Presad v. Govind Sabu and others (1) and Hasan Ali v. Azmaluddin and others (2) may be referred.
The learned counsel appearing for the present respondent/ plaintiff has placed reliance on (i)
Commerce Bank Ltd. v. Habib Bakhsh (3) (ii) Sarsher Ali v. Roberts Cotton Association Ltd. And another (4) and (iii) Moosa Bhoy v. Kristia (5). I have considered these precedents but have not been able to find anything on record on which the principles laid down in these authorities could be applied. In PLD 1978 Quetta 45 the dispute with regard to the payment of rent of shop obtained by one Commander Sajjad a development officer of the Commerce Bank for a particular period was the main issue for which the suit for the recovery was filed and from the correspondence exchanged between the landlord and the bank it was indicated that at no stage the bank disowned the liability incurred through his development officer. It was thus held that Commandar Sajjad was considered all along by the appellant bank as their agent and this finding was based on the fact that Commandar Sajjad was an employee of the Bank. The silence of the bank to disown the act of Sajjad was considered a circumstance for implied ratification of his act. In Sarshar Ali v. Roberts Cotton Association Ltd. And another a suit for breach of contract and for return of earnest money was filed. In this case the agent had admitted the contract and had received the advance and according to the agent this was after securing the written consent of the principal and the money was lying with the agent which was later refused by the principal. The principal had accepted the agent as their commission agent but pleaded that the agent was not entitled to enter into any contract without the written consent. Some evidence was found that the contract was made by the agent with the consent of the principal and it was thus found that the contract was not repudiated and in view of the circumstances of that case it was held that the contract had come into existence and in accordance with section 237 of the Control Act if the agent had apparent authority to enter into a particular contract it is valid even though in fact he had no authority. In AIR 1952 Hyd. 79 the agent had received some amount and he had admitted the claim of the plaintiff and in the circumstances of the case it was held that the agreement entered into by the agent who had been working as gamashta of the Principal for 5 years and evidence in that behalf was on record which was believed by the Court. None of such circumstances or facts are found in the present case. The authorities relied upon by the learned counsel for the respondent are thus of no avail to him. At the best it can be said that Khursheed the defendant had mis-represented to the plaintiff. The suit for specific performance could have been amended in the circumstances and suit for breach of contract and damage or for the return of the money and {{FOOT NOTE}}
(1) AIR 1940 Pat. 620
(2) PLD 1963 Dacca 486
(3) PLD 1978 Quetta 45 (4) PLD 1963 SC 244
(5) AIR 1952 Hyd. 79 {{FOOT NOTE}} against Khursheed could have been filed. The parties to the agreement are resident of Sibi a small town. It was well-known that the house.In respect of which this agreement was being made was entered in the record in the name of Ramzan and if not known this fact could have been easily verified from the Tehsil record and if any assertion contrary to the entries in the record of rights was being made by Khursheed this could have been mentioned in the agreement so as to infer thereform that Khursheed was acting on behalf of the other co-sharers. These circumstances were sufficient to put the purchaser on guard. No representation, act or omission on the part of the present appellant is found on record on the basis of which the plea of estoppel under section 115 of Evidence Act could be reasonably based I am, therefore, constrained to say that the learned District Judge, Sibi has referred to the evidence of the plaintiff's witnesses but without applying his mind as to what their actual evidence was and has thus fallen into error.
' For the above reasons the suit for specific performance has no merits which deserves dismissal, consequently the appeal is allowed, the judgment and decree of the District Judge, Sibi is, therefore, set aside, but in view of the circumstances of the case the parties shall bear their own costs.