' MUHAMMAD SHARIF, J.--The appellants have sought the appellate jurisdiction of this Court to get annulled the judgment and decree, dated 22-1-1976 pronounced by Mr. Masoodur Rehman, the then learned Administrative Civil Judge, Rahim Yar Khan who had passed a decree in favour of the respondents for the specific performance of the contract.
2. The facts giving rise to this appeal in substance are that Sh. Muhammad Hassan, appellant No. 1 was the owner of land measuring 34 Acres 5 Kanals and 9 Marlas situate in Chak No. 136-P, Tehsil and District Rahim Yar Khan. He covenanted to sell this land in favour of Ch. Fateh Muhammad, respondent No. 1 at the rate of Rs.2,800 per Acre. A deed of agreement was executed on 30-9-1971.
The said contract contains two parts. According to first part, the vendor was to deliver the possession of 124 Acres of land on 15-2-1972 after the receipt of Rs.35,000. Rs.4,000, the earnest money was to remain intact and it was to be adjusted during the performance of the second part of the contract. The second part of the contract was that the remaining land was to be mutated in favour of Ch. Fateh Muhammad on 15-2-1973 after the receipt of Rs.60,707.
3. The first part of the contract was performed but appellant No.1 is stated to have donated the remaining land in favour of Mst. Rashida Bano, his daughter and a mutation was attested in her favour. The plaintiffs-respondents insisted for the performance of the latter part of the contract after 15-2-1973 and on the refusal of Sh. Muhammad Hassan, the respondents sought the assistance of the learned trial Court for the specific performance of the second part of the contract.
4. The appellants contested their suit. They admitted the execution of the agreement deed, dated 30-9-1971, but contended that the original contract was novated and the plaintiffs-respondents had themselves rescinded the second part of the contract and a donation of the said land was made by Muhammad Hassan, the original owner of the land in dispute in favour of his daughter.
They also contended that Mst. Rashida Bano was a bona fide transferee for value without notice and the specific performance of the contract could not be sought. The learned trial Court formulated the following issues.
(1) Whether the suit is maintainable in the present form? O.P.P.
(2) Whether the agreement dated 30-9-1971 was annulled by mutual consent of the parties and the plaintiffs are estopped from bringing the suit? O.P.D.
(3) Whether the defendant No. 2 is bona fide transferee without notice? If so, its effect? O.P.D.
(4) Whether the plaintiffs failed to perform their part of the contract? If so, its effect? 0.P.D.
(5) Whether the plaintiffs are entitled to the specific performance of the agreement, dated 30-9- 1971? If so, in what manner? O.P.P.
(6) Relief.
5. Learned counsel for the appellants did not press issues Nos.1 and 3. He mainly stressed the point that the plaintiffs had failed to perform the second part of the contract and had cancelled the same by mutual consent and were not entitled to the impugned decree on the basis of the agreement deed, dated 30-9-1971. He has referred to section 62 of the Contract Act, 1872 and has submitted that the parties to the contract could substitute a new contract and could rescind or alter the original contract and the original contract could not be performed. In accordance with section 92 proviso 4 of the Evidence Act, 1872, the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property may be proved by oral evidence unless a contract is required by law to be in writing and registered.
6. The parties have led oral evidence on this point. The onus to prove this issue was on the appellants. Qutab Ali, Record Keeper, D.C. Office, Rahim Yar Khan P.W.1 simply produced the original Mutations Nos. 120 and 121. Muhammad Siddique, an ex-Patwari deposed that Mutations Nos. 120 and 121 were entered by him at the instance of both the parties when Mukhtar Rasool, Imtiaz Ahmad and Muhammad Aslam, the sons of Ch. Fateh Muhammad were present and were attested in their presence. He has added that both the parties had rescind the contract and, therefore, Mutation No. 121 regarding gift in favour of the daughter of Sh. Muhammad Hassan was attested. He has admitted that he was retired from service as a sequel to a bribery case. The statement of this witness needs castigation on three points. Firstly, he has stated that the mutations were entered at the instance of the parties but Mutations Nos. 120 and 121 show that they were entered at the instance of Sh. Muhammad Hassan only. Secondly, he has stated that Imtiaz Ahmad, the son of Ch. Fateh Muhammad was also present when the mutations were sanctioned. No other witness has stated the presence of Imtiaz Ahmad who appeared as D.W. 2 and has stated that on the 27th and 28th of February, 1972, he was a trainee of the Finance Academy and was present there. It shows that Muhammad Siddique D.W. is a mendacious witness. Lastly, this witness was involved in a bribery case and was retired. He is a person of questionable respectability and his statement lacks credence. All Muhammad D.W.3 has stated that the remaining land was given to defendant No. 2, the daughter of Sh. Muhammad Hassan with the permission of Muhammad Aslam and the first contract was rescinded. Ali Muhammad managed the land in dispute on behalf of Sh. Muhammad Hassan and he is an interested witness. He has also stated that Fateh Muhammad was not present at the time of the cancellation of the original contract.
7. Sh. Muhammad Hassan, appellant No. 1 figured in the witness-box as D.W.4 and has borne testimony to the fact that Mukhtar Rasool could not make payment of the sale price on 24th or 25th of February, 1972 and they rescinded the impugned contract. When subjected to cross- examination, Muhammad Hassan has admitted that he did not serve any notice to Ch. Fateh Muhammad for the payment of the price nor did he ever contract him and no new agreement was got executed depicting the cancellation of the original one. He has added that the contract was cancelled in Pak Ginning Factory owned by Latif and Islam, but at that time Munshi Abdul Ghafoor and All Muhammad were only present.
8. Mahmood Ahmad D.W. 5 is the attorney of defendant No. 2 who does not state anything regarding the cancellation of the second part of the contract. It is pertinent to note that when Mutations Nos. 120 and 121 were entered, the vendor did not make even a whisper of the complaint that the original contract had been novated or rescinded. It was not told to the Revenue Officer and furthermore no writing exists regarding the cancellation of the original contract and the oral evidence as referred to supra is not sufficient to prove the stand of the appellants.
9. In rebuttal Muhammad Younas who identified the parties before the Revenue Officer at the time of attestation No. 120, has stated that mutation in favour of Mukhtar Rasool and others was attested and he had identified them and that mutation was regarding 13 Killas of land and he had returned home after identification. He has added that he was persuaded by Munshi All Muhammad to affix another thumb-mark on the same mutation and no talk took place for the cancellation of the original contract. No question was put to this witness to impeach his credit. Ghulam Qadir P.W.4 who is a relative and a commission agent of Ch. Fateh Muhammad has stated that he had managed the sale price on behalf of Ch. Fateh Muhammad and no negotiation regarding the cancellation of the original contract was ever made. Ch. Fateh Muhammad P.W.5 and Mukhtar Rasool P.W. 6 have denied that the parties had rescinded the second part of the contract. A suggestion was put to Mukhtar Rasool that Sh. Muhammad Hassan had been demanding the sale price from the purchasers and they had stated that they had no money. This suggestion is meaningless because the second part of the contract was to be performed after a year and there was no question of demanding the sale price before hand.
10. The appellants have examined Muhammad Siddique, Patwari who is not a truthful witness.
Munshi All Muhammad is the agent of Sh. Muhammad Hassan and his deposition cannot safely be relied on. The interest of Sh. Muhammad Hassan in this litigation needs no specific emphasis. The appellants have stated that the negotiation for rescinding the contract was made in a ginning factory owned by Latif and Islam, but surprisingly no witness except his own Munshis was present there. The statements of the D.Ws are of sub-standard type.
11. It has been contended that Rs.4,000, the earnest money was adjusted towards the price of half an Acre of land at the time of the performance of the first part of the contract and instead of 121 Acres of land, a mutation regarding 104 Kanals of land was sanctioned and it can fairly be infered that the second part of the contract was rescinded at that time. We do not countenance this argument because only 4 Kanals of land were mutated in excess of 12/ Acres and the land was sold at the rate of Rs.2,800 per Acre and it is not credible that half an Acre of land could fetch Rs.4,000 as its price. It may be noted that according to the terms of the contract, the parties to the contract were Sh. Muhammad Hassan and Ch. Fateh Muhammad. The consent of Ch. Fateh Muhammad was never obtained for the cancellation of the disputed part of the contract and his son Mukhtar Rasool had no locus standi to rescind the contract on behalf of the original party Fateh Muhammad, his father. in this manner the contract stood not rescinded.
12. With reference to section 22 of the Specific Relief Act and Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1 and Mir Hasmat All v. Birendra Kumar Gosh and others PLD 1965 Dacca 56, it has been argued that even if a party proves the contract, discretionary relief may not be granted in favour of the plaintiff. In accordance with section 22 of the Specific Relief Act, the trial Court had the discretion to grant a decree for the specific performance of the contract, but it cannot be arbitrary and should be sound and reasonable guided by judicial principles and capable of correction by a Court of appeal. The appellants could not prove their case. Mst. Rashida Bano, defendant No. 2 did not cross-examine the P.Ws., and it can be presumed that she admitted the statements of the P.Ws. The plaintiffs are not in a position to earn an unfair advantage over the appellants in this case and the equity leans in favour of the vendee and not in favour of Sh.
Muhammad Hassan who has filed this appeal with tainted hands.
' We, therefore, see no merit in this appeal and dismiss the same with costs throughout.
Regular first .