' NAIMUDDIN, J.-This High Court Appeal and High Court Appeal No, 62 of 1982, are from the judgment and decree, dated 12-6-1982, passed by a learned Single Judge of this Court-in Suit No, 158 of 1971, in the following circumstances.
2. Muhammad Hussain Khatawala and Ahmed Hussain Parvaiz Khatawala (hereinafter called the respondents 1 and 2, respectively) filed the above-mentioned suit against Ghulam Ali, appellant in this appeal and Mst. Razia Mohsin Ali, appellant in High Court Appeal No, 62 of 1982, (hereinafter for convenience sake called appellants 1 and 2, respectively), claiming a decree for (a) partition of plot of land with buildings etc., thereon bearing No, 420, G. W. R., Lawrence Road, Karachi (hereinafter called the property) and delivery of separate possession of half share of the respondents to them,
(b) rendition of accounts of the principal amount held in trust by appellant 1 (c) the amount that might be found due from appellant 1 on account of principal and profit and 50 per cent share in the rent of the property from the date of the purchase of the property till realization thereof with interest at 9 per cent per annum from the date of the suit till realization of the decretal amount by the respondents.
3. The case set up by the respondents in the suit was that on or about 8-8.1949, respondent 1 on his own behalf and on behalf of his younger brother, respondent 2, entrusted a sum of Rs, 2 lacs to appellant 1 out of which on 25-10-1959, he invested on behalf of respondent 1 some amount as 6/16 share in partnership firm known as "Pakistan Cement Pipe Construction Company" (hereinafter for convenience sake called the 'Firm') and that on or about 12-3-1951, he purchased in his own name as Benamidar of the respondents, and his own wife the property for cash consideration of Rs, 1,27,000 wherein the respondents had a 50 per cent share and appellant 2, 25 per cent. Share. It was claimed that a sum of about Rs, 65,000 out of balance amount of money of respondents entrusted to appellant 1 was invested in the property by him. It was also claimed that appellant 1 had not informed the respondents as to how much of the said sum of rupees 2 lacs had been invested on their behalf in the purchase of the property or properties and how much he had invested in business and what profits and rents accrued to them except that the profit of the investment in the firm had been received by the respondents. It was further claimed that appellant .1 as a trustee or agent of respondents was liable to render true and complete accounts. It was pleaded that appellant 2, who had acted and was acting as agent of appellant 1 claimed to be the owner of 25 per cent share in the property and, therefore she was joined as a party to the suit.
4. The appellant 1 in his written statement denied the claim of the respondents in toto and pleaded that he purchased the property and took possession thereof from Mr. Shiv Ratan Mohatta after making full payment much before the alleged date of entrustment of the, alleged sum of Rs, 2 lacs to him though he admitted that the sale-deed was registered on 12-3-1951. He further pleaded that he was enjoying the property as sole owner thereof for over two decades to the knowledge of the respondents and that in any case the suit as barred by time.
5. The appellant 2 in her written statement denied the claim of the respondents and stated that respondent 1 had invested Rs, 50,000 in the firm and was holding share to the extent of 6/16 share as a partner for some time. She denied that appellant 1 had purchased the property as benamidar for the respondents or for herself. She stated that the property was purchased by appellant 1 entirely from his own source and the respondents had nothing to do with the property.
6. On the pleadings of the parties the following issues were framed :- "(1) Whether on or about 4-1-1949, plaintiff No, 1 on his own behalf of plaintiff No, 2 entrusted a sum of Rs, 2,00,000 (Rupees two lacs) to defendant No, 1 ?
(2) Whether on or about 12-3-1951, defendant No, 1 purchased in his own name. As a Benamidar for the plaintiffs (for 50% share) and defendant No, 2 (for 25 % share) plot of land, measuring 20,660 sq. Yards bearing No, 420/GWR, situated at Lawrence Road, Karachi, out of the alleged sum of Rs, 2 lacs referred to hereinabove or as the sole owner ?
(3) Whether defendant No, 1 is liable to render account in respect of the alleged sum of Rs, 2 lacs or the rent and mesne profits of the Property No, 420/GWR ?
(4) Whether the plaintiffs alleged claim is time-barred ?
(5) What relief or reliefs the plaintiffs are entitled to ?"
7. The learned Single Judge by the judgment impugned in these appeals decided issues Nos. 1, 2 and 3 against the respondents. On issue No, 2 he found that appellant 1 had entered into the agreement of sale with the vendor of the property on 12-5-1949, for Rs, 1,27,000. While giving finding on issue No, 2, in favour of appellant 1, the learned Single Judge relied on the sale-deed, dated 12- 3-1951, wherein it is recited that appellant 1 had entered into the agreement of sale with the vendors of the property on 12-5-1949, for a consideration of Rs, 1,27,000 which amount was paid to the vendors ,of the property on the same date and possession of the property was delivered. He also pointed out that the sale-deed recites that the appellant No, 1 had been in possession since 30-10-1947. He, therefore, concluded that appellant 1 did not purchase the property as Benamidar for the respondents. He also relied on the admission made by respondent No, .2 in evidence that they had been paying rent of property to appellant 1 and did not accept their explanation that they were paying rent to him as trustee of the property and concluded, to quote his words, "in view of my finding on issue No, 2 and the evidence, my finding on this issue is that defendant No, 1 did not purchase the property as Benamidar out of the alleged payment of Rs, 2 lacs". On issue No, 3, he held that in view of his finding on issues Nos. 1 and 2 in the negative the question of rendering account did not arise.
8. It is, however, the findings on issue 4 which concerns limitation and issue 5 that have given rise to these appeals. In his finding on issue No, 4 the learned. Single Judge relied on Exh. 23/3, which is a copy of the minutes of the meeting held on 2-7-1961, wherein amongst others a resolution was passed which assigned the respondents 50 per cent share in the property. It may be convenient for future reference if we set out the contents of Exh. 23/3 herein below : "A meeting attended by the following was held at 16.00 hrs. On Sunday the 2nd July, 1961 at the factory to transact the following business.
' Present :
(1) Seth Ghulamaliji Kathawala (Representing Rasulji Buxji)
(2) Mr. M. Ghulam Ali (Representing Esmailji Tayabji)
(3) (a) Mrs. Razia Ghulam Ali ) Partners of Pakistan
(b) Mr. Mohammad Hussain ) Cement Pipe & Cons-
(c) Mr. Abdul Husain ) truction Co.
1. Resolved.-That the following shares in the business in Pakistan is unanimously confirmed.
(1) Rasulji Buxji 50%
(2) Esmailji Tayebji 25%
(3) Mrs. Razia Ghulam Ali 25 %
2. Resolved.-That on the authority of Seth Ghulamaliji Kathawala (Representing Rasulji Buxji) the entire interest of Seth Rasulji Buxji will vest in Messrs Muhammad Husain and Abdul Hussain as the sole heirs to Seth Rasulji Buxji in Pakistan.
' That the factory land (420/GWR) now held as trust in the name of Mr. M. Ghulam Ali is the property of the following :
(1) Mr. Muhammad Hussain and Mr. Abdul Hussain 50%
(2) Mrs. M. Ghulam Ali 25%
(3) Mr. M. Ghulam Ali 25% (Nominee of Ismailji Tayebji)
' It is further resolved that Mr. Ghulam Ali can be called upon at any time to hand over the land freely to the above-named jointly when called for.
(4) Resolved-That for case of working Pakistan Cement Pipe and Construction Company shall take over the assets of Sind Minerals and Refractories at Karachi at a negotiated price and will be exclusively, owned by the following partners :
(1) Mrs. Razia Ghulam Ali
(2) Mr. Muhammad Hussain
(3) Mr. Abdul Hussain
(5) Resolved.-That Sind Minerals and Refractories now defunct in Karachi will operate at Khairpur and Jungshahi and will be owned by the nominees and heirs of Esmailji Tayabji.
(6) Resolved.-That Pakistan Cement Pipe and Construction Company agrees to Sind Minerals and Refractories to carry on concrete pipe business same as Sind Minerals and Refractories agrees to Pakistan Cement Pipe and Construction Company to manufacture S. W. Pipes and Fire-bricks in Karachi."
' The learned Single Judge on issues Nos. 4 and 5 held that respondents were entitled to 50 per cent share in the property and for partition of the property. He, however, rejected the claim of the respondents for rendition of accounts and share in the rent of the property.
9. We heard Mr. S. Nasiruddin learned counsel for the appellant, Mr. Asif A. Zahidi, learned counsel for the respondents in Appeal No, 58 of 1982, on 18-9-1984, and 26-9-1984, and reserved the judgment. We have heard Mr. Nizam Ahmed learned counsel for the appellant and Mr. Asif A. Zahidi learned counsel for the respondents in Appeal No, 62 of 1982, today and propose to dispose of both the appeals by this judgment.
10. It is submitted by the learned counsel for the appellants that after finding on issues Nos. 1, 2 and 3 in the negative, the learned Single Judge erred in relying on Exh. 23/3 for giving the aforesaid relief to the respondents. They further submitted that firstly, the relief in the suit was not claimed on the basis of Exh. 23/3, secondly, the said document was not referred or relied upon in the plaint. It was submitted that the case setup by the respondents was that respondent 1 had paid Rs, 2 lacs to appellant 1 in trust for investing it in the partnership firm and purchase of the property and the finding of the learned Single Judge is that the property was purchased by appellant 1 much before the alleged payment and out of his own funds. In reply it was submitted by Mr. Asif A. Zahidi that the respondents in their plaint had relied on Exh. 23/3 and, therefore, the learned Single Judge could consider the same and give relief to the respondents on its basis.
11. Now, considering the respective contention of the learned counsel for the parties it may be stated that in the plaint the respondents did not base their claim at alt on Exh. 23/3. They even did not file this document along with the plaint although under Order VII, rule 14, C. P. C. They were required, if they were suing upon this document to produce it in Court when the plaint was presented and at the same time deliver the document or file a copy thereof along with the plaint.
They have simply mentioned in the plaint under the heading 'Documents relied upon' Minutes of the Meetings. They have not even mentioned the dates of the Meetings. They have not mentioned in what connection the meetings were held and who were present in these meetings. - Therefore, it cannot be said that the respondents based their claim in the suit on Exh. 23/3. Consequently this document could not be used by them in evidence or in support of their claim in the suit for their claim was based on payment of Rs, 2 lacs in trust to appellant 1 and purchasing of the property out of the sum which claim was not accepted by the learned Single Judge.
12. It may be stated here that a party's case may be disclosed-
(1) by his allegation in the pleadings,
(2) by his answer to interrogatories delivered to him by the opposite party in suit,
(3) by allegations made on oath by him or by any person present on his behalf, or made by his pleader, and
(4) by the contents of the documents produced by him.
' Issues are framed on the case of the parties so disclosed and evidence is directed at the trial to the proof of the case so set up and covered by the issues framed thereon. Accordingly, a party is expected and is bound to prove the case as alleged by him as covered by the issues framed. This is in accordance with the principle of Secundum allegata et ' probaia i,e, a party can only succeed according to what it has alleged and proved, therefore, a party cannot succeed on a case not set up by him and cannot be allowed at the trial to change his case or to set up a case different from the one set up without amendment of the pleadings under Order VI, rule 17, C. P. C. It may be of great advantage if we may here refer to the observations of Lord Westbury in the Privy Council case of Eshenchunder Singh v. Shamachurn (1) : "This case is one of considerable importance, and their Lordships desire to take advantage of it, for the purpose of pointing out the absolute necessity that the determinations in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case whereby made. It will introduce the greatest amount of uncertainty into judicial proceedings if the
(1) 11 Moo Ind. App. 7 ' final determination of causes is to be founded upon inferences at variance with the case that the plaintiff has pleaded, and, by joining issue in the cause, has undertaken to prove. They desire to have the rule observed, that the state of facts, and the equities and ground of relief originally alleged and pleaded by the plaintiff, shall not be departed from."
' Reference may also be made to two other decisions of the Privy Council in Lala Hem Chand v. Lala Pearey Lad and others (1) and Kanda and others v. Waghu (2). In the first named case it was observed as follows : "Their Lordships desire to observe that, though the case has been decided on all the points which arose on the evidence led by the parties, the procedure adopted by the trial Court of allowing the parties to adduce evidence on points not raised in the pleadings or issues was irregular and should not have been allowed without amending the pleadings and raising the necessary issues."
' In the second named case the Privy Council followed the case of ' Eshenchunder Singh v.
Shamachurn. We may also refer to a case of our Supreme Court in Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Co-operative Bank Ltd., Jaranwala (3), wherein S. A. Rahman, J.
While delivering the opinion of the Supreme Court referred the aforementioned two cases of the Privy Council and observed at page 809 of the report as follows : "No evidence should have been allowed to be adduced on facts, which had not been raised in the pleadings or incorporated in- the issues framed."
12. More or less to the same effect are the following judgments of various High Courts in Pakistan referred to by Mr. S. Nasiruddin and Mr. Nizam Ahmed, learned counsel for the appellants : ' Ghulam Mustafa v. Haji Mian Muhammad and another (4), Messrs Fairland Export Syndicate v.
Messrs Bengal Oil Mills Ltd. Karachi (5), Begum Fakir alias Kafuluddin (Represented by Heirs) v.
Naseruddin Sarkar (Represented by Heirs) (6),,Amin Yousuf Nizami v. Rashid Rayon Mills, Karachi (7) and Deutsche Dampschifjfaharts Gesellschaft and another v. Central Insurance Co., Ltd. (8).
13. It was, however, urged by the learned counsel for the respondents that on equitable consideration the decree passed in favour of the respondents might not be disturbed. We regret we cannot accept this plea for firstly, the respondents have accepted the findings on issues 1, 2 and 3 as they have neither filed any appeal against the judgment and decree nor any cross-objections to the appeal. Further, the findings on Issues Nos. 1; 2 and 3 have not even otherwise been questioned before us. Moreover, the appellants were never before confronted with the case set up by the respondents in the evidence. They neither did it in the pleadings nor even in the correspondence filed by them In the suit. At this stage it may be stated that the respondents through their Advocate's letter, date 8-1-1971, a copy whereof is annexed to the plaint, had set up the same case pleaded in the suit. Before that another. Advocate on their behalf had
(1) AIR 1942 P C 64 (2) AIR 1950 P C 68
(3) 1968 SCMR 804 (4) PLD 1969 Pesh. 241
(5) PLD 1970 Kar.
125. (6) 1971 D L C 401
(7) PLD 1971 Kar. 505 (8) PLD 1975 Kar. 819 served a notice, dated 22-10-1961 (Exh. 13) on appellant 1 claiming that the property which was then held by him in trust was a joint property, the respondents having 50 per cent share and the rest 50 per cent belonging to him and his wife as nominee of Ismail Tayabji which fact, according to the notice, was acknowledged by him on a stamp-paper duly signed by all concerned parties and attested by a Notary Public of Karachi. We may reproduce the letter in extenso herein below.
"Regd. Ack. Due. 22nd October, 1968.
' To ' Mr. M. Ghulam Ali c/o Messrs Hazara Pipe and Construction Company Station Road, Taxila.
' Dear Sir, ' Under instructions of my client, Messrs Muhammad Hussain and Abdul Hussain son of Seth Ghulamaliji Kathawala, of 131/B and 156/B, Shabbirabad. K. C. H. S. Union Ltd., Karachi-18, I have to address you as under
(1) That, the factory land (420/GWR) situated at Lawrence Road, New Town, Karachi-5, now, held in trust with you, is a joint property 50 per cent of which belongs to my both the above-named clients
(torn) the rest of the 50 per cent belong to your wife Razia and to yourself as the Nominee of Ismailji Tayyabji, which fact has also been acknowledged by you on a stamped paper duly signed by all the concerned parties and attested by a Notary Public at Karachi.
(2) That, my clients, therefore, call upon you to finalise the mutation of the 50 per cent land of the above factory (420/GWR) in their names within 30 days of the receipt of this letter, failing which my clients would be constrained to take legal steps in the matter entirely at your risk as to costs and consequences when you will be solely responsible for the ensuing litigation which please note."
' It will be seen from the contents of the letter (Exh. 13) that the case set up in this letter was that 50 per cent share belonged to the appellants as nominee of Ismailji Tayyabji and reference was made to a stamp-paper duly signed by all the parties concerned and attested by a Notary Public of Karachi. But no document on stamp-paper duly signed by the parties concerned was produced in the suit. It was, however, argued by Mr. Zahidi that Exh. 23/3 i,e, Minutes of the ,Meeting held on 2-7- 1961, is that document. In our opinion it cannot be the same documents as it is not on a stamp- paper. Further, Exh. 23/3 was challenged by appellant 1 in a suit being Suit No, 1992 of 1976, filed by him in the Court of XX Civil Judge, III Class, Karachi as being only a proposal and nothing else which was dismissed by an order, dated 20-9-1977 (Exh. 23/5) on an application filed under Order VII, rule 11, C. P. C. By the respondents, wherein it is stated by the learned Civil Judge as follows :- "(a) The plaintiff has simply prayed for the cancellation of the Minutes of the Meeting dated 2-7- 1961. However, he has admitted that this writing was only a proposal and nothing else-one which was to be ratified (but never was) by principals in India. The proposal, I hold does not create any legal interests in any party as the principal never accepted it and therefore has no legal force."
' It will, therefore, be seen that the appellants had no notice of the new case or any opportunity to meet the same till they went to the trial of the suit.
' It may be stated that the letter (Exh. 13) was followed bY a reminder dated 15-11-1969 (Exh. 15) and in reply whereof appellant 1 in his letter dated 2-11-1969 (Exh. 16) from Taxila had taken a clear stand that he was the sole owner of the property and he had referred to several other matters which show that the parties were involved in a number of dealings, transactions or concerns, and in different capacity.
14. There is yet another aspect of the matter which is that the resolution contained in Exh. 23 does not by itself create any right, title or interest in favour of the respondents in the property which was claimed by appellant 1 as his own and exclusive property vide Exh.
16. Further, it is not shown that this document was ever acted upon or pursuant to the same any legal documents were executed creating any right, title or interest of the respondents in the property. Therefore, no claim could succeed on such a document. Further, the learned Single Judge rejected the claim of the respondents under Issues Nos. 1 to 3 also being influenced by the fact that the respondents on their own admission had been paying the rent of the property to appellant 1 and he did not accept the plea of the respondents that the rent of the property was paid to appellant 1 as trustee of the property. Further, Exh. 23/3 could not be used as an admission of the right, title to or interest of the respondents in the property as it did not admit the claim of the respondents as pleaded in the suit that is, on the basis of trust or as their Benamidar of half share in the property.
15. In the view that we have taken it is not necessary to discuss the oral evidence of respondents or their witness Mansoor Ali Taj or the deposition of appellant 1 or the letters (Exhs. 26/1 and Exh. 26/2) written by appellant 1 during the pendency of the suit or any other letters for no judgment could be based on these letters for the same reasons as stated in connection with Exh. 23/3.
' It is also not necessary to go into the question of limitation in view of unquestioned findings on Issues Nos. 1, 2 and 3.
16. In the result we allow the appeal of appellant 1 and set aside the judgment and decree of the learned Single Judge and dismiss the suit of the respondents.
17. The grievance of appellant 2 in her appeal is that if the resolution contained in Exh. 23/3 is to the given effect to then she is entitled to 25 per cent share in the property as provided therein. The learned Single Judge refused to grant relief to her on the basis of Exh. 23/3 because she had in her written statement taken the stand that the entire property belonged to appellant 1. However, in view of the success of, appellant 1, in his appeal appellant 2 should now have no grievance, therefore, her appeal has become infructuous and it is disposed of as such.
18. In the circumstances of the case parties are left to bear their own costs in both appeals.