1. ' ALLY MADAD SHAH, J.--This High Court appeal is directed against the judgment and decree, dated 18-5-1977 passed by a learned Single Judge of this Court in Suit No,513 of 1973 filed by the appellant.
2. Facts in the background are as under: ' The appellant Yaqoob had acquired from Sindhi Muslim Cooperative Housing Society Ltd., Karachi, a plot bearing No,B-137, somewhere in the year 1959. He put up construction thereon. He entered into agreement with the respondent Mst. Zamarud Bano on 8-8-1961 for sale of the plot and the construction thereon to her at the consideration of Rs,95,000 and, in pursuance thereof, executed a registered sale-deed in her favour on 30-11-1961 and delivered possession to her and thereby transferred to her all the proprietary rights. He conveyed to the said Sindhi Muslim Co-operative Housing Society Ltd. (herein after referred to as the "Society") the fact of the transfer of the plot and the construction thereon to the respondent, on 29-1-1962. The Society objected to the transfer of the plot without its permission and initiated proceedings against the appellant under the Co- operative Societies Act. He resisted the proceedings at all the forums but could not succeed.
3. Ultimately, the society issued him a demand notice for payment of a sum of Rs,33,340.50. He called upon the respondent to pay the amount demanded by the Society, she declined contending that she was not liable to pay it. He, therefore, filed the suit No,158 of 1973 for the following reliefs: "(a) to cancel the conveyance deed, dated 30th November, 1961, as the suit plot ordered to be forfeited in favour of the society and declare/order the defendant to handover the possession of the suit property to the plaintiff;"
(b) decree in the sum of Rs,58,340.50 against the defendant,
(i) Rs,33,340.50 payable by the plaintiff to the society on behalf of the defendant;
(ii) and Rs,25,000 as pecuniary damages against the defendant for causing mental and financial loss to the plaintiff and for the breach of the sale agreement;
(iii) cost of the suit and interest at the rate of 12$6 per annum till the amount is paid, and or further order to pay the amount so accrued as mesne profits by the society on 'the plot till the finalisation of the suit, and the plaintiff is ready and willing to pay the additional Court fee, if any; and
(c) any and further reliefs, as it may deem fit and proper, by this Hon'ble Court in the circumstances of the case.
4. ' The respondent contested the suit in all respects. She also raised legal pleas that the suit was not maintainable and was also hit by the law of Limitation.
5. The suit was tried on the following 10 issues:
(1) Whether the defendant failed to get the named entered into the record of Society, and if so, to what effect ?
(2) Whether the Defendant, was bound by sale agreement, dated 8th August, 1961, to get the plot legalised, at her own cost, which the defendant refused, if so, to what effect ?
(3) Whether the notice, dated 9th July, 1963 was served upon the Defendant, if so, to what effect ?
(4) What is the effect of the Award of the demand of Rs,33,340.50 against the plaintiff ?
(5) Whether the plot has been forfeited on account of non-legalization of the plot by the Defendant ? If so, has the Defendant any right over the suit property ?
(6) Whether the Plaintiff is entitled to the cancellation of the agreement because of the breach of condition of agreement to sell by the Defendant and the possession and damages for the suit amount?
(7) What should the decree be ?
(8) Whether the suit is barred by time ?
(9) Whether the suit is barred by provision of Specific Relief Act?
(10) Whether the suit as framed is not maintainable?"
6. ' The appellant gave evidence . Himself (Exh.P.5) and produced number of documents marked Exhs.
7. P.5/1 to P.5/23. The respondent gave evidence herself.
8. ' The learned Single Judge dismissed the suit by the impugned Judgment, holding that the suit was time-barred and the respondent/ defendant was not bound to take any steps for regularisation of the transfer of the plot and the construction to her by the appellant. The learned Judge did not give his findings on the issues relating to the proceedings taken by the society against the appellant on the ground that neither the society nor the Registrar Co-operative Society was a party to the suit.
9. ' We have heard the learned counsel for the parties. Mr. N.A. Farooqui, Advocate appearing for the appellant has assailed the judgment of the learned Single Judge on the grounds that the respondent stood committed by the terms of the agreement of the sale to bear the charges payable for the transfer of the suit property to her and on her failing to discharge that obligation, she had forfeited the proprietary rights derived by her under the sale agreement and the learned Single Judge erred in holding that she had not committed any breach of the terms and conditions of the agreement. He has made pertinent reference to clause 9 of the agreement. He has urged that suit was not time-barred. He has also urged that the learned Single Judge dismissed the suit without recording his findings of material issues Nos.4 and 5. On the other hand, the learned counsel for the respondent has contended that the respondent had not made any covenant with the appellant that she would bear any transfer charges claimed by the Society and the appellant had transferred to her unrestricted title over the property and the appellant did not have any cause of action for filing the suit against her.
10. ' We have thoroughly examined the pleas of the parties and the evidence adduced by them as well as the impugned judgment. The appellant's alleged cause of action is reflected in paragraphs Nos.10, 11 and 12 of the plaint which are reproduced below:-
(10) That the Society after forfeiting the plot, in accordance with the decision served upon the plaintiff a demand notice for an amount of Rs,33,340.50 to be paid within thirty days, the demand is made because of the failure of the defendant in getting the plot legalised in terms of the sale agreement.
11. ' That the plaintiff finally served a legal notice, dated 7th November, 1973 (a 'photostat copy of the notice is enclosed herewith and marked 'C') upon the defendant demanding the possession of the suit property, as the same being forfeited because of the defendant's failure and neglect to abide by the sale agreement, to get the same transferred in her name and a further sum of Rs,58,340.50 to be, paid to the plaintiff, Rs,33,340.50 as payment to be made to the Society and Rs,25,000 as pecuniary demages for the breach of the main condition of the agreement (Annexure 'A') and for loss and mental torture and worry caused by the defendant to the plaintiff.
12. ' The plaintiff is willing and agrees to refund the purchase amount in the sum of Rs,95,000 against the possession after deducting the amount so found due by this Hon'ble Court against the defendant.
(12) That the defendant in spite of the notice failed to reply or deliver the possession of the property or pay the amount due and damages as sought through the legal notice, hence this suit."
13. ' It would appear that appellant's cause of action is based on clause 9 of the sale agreement which reads as under: "(9) That the costs of attending the sale-deed, stamps registration, transfer charges etc. Shall be borne by the Vendee."
14. The learned counsel for the appellant has laid stress on the expression" transfer charges etc" and advanced an argument that the demand raised by the Society to the tune of Rs,33,340.50 was incidental to the transfer of the title over the property by the respondent and she, having failed to meet the demand, had forfeited her right ove the property acquired under the said sale agreement. The argument is quite fallacious in as much as that the words "transfer charges" referred to above had obvious reference to the charges which were incidental to the execution of the sale-deed. The demand raised by the society was against the transfer of the suit property by the appellant without A permission of the society. Clause-9 of the sale agreement reproduced and referred to above casts obligation upon the respondent to bear only registration and other incidental charges for completing the sale-deed. The sale-deed was actually executed and the terms and conditions contained in the sale agreement stood fulfilled when the sale-deed was executed. It would be pertinent to mention that the appellant had made covenant in the sale- deed, at clause (a), that the property was free from all claims, liabilities, liens, charges etc, and he had good marketable right and title over the property with full power and lawful authority to so convey, sell, transfer and assign, assure and grant the said property to the vendee and that he had not done or omitted or committed to do any deed or thing or cause to be done, committed or omitted any deed or thing whereby his rights to so sell, convey, transfer, grant and assign the said property had been impaired. It was further covenanted by him at clause (d) of the covenants in the sale-deed that he had paid all the amounts, taxes, cesses, charges and, dues in respect of the said property and undertaken the liability of paying all the taxes, charges, etc., if found due. It follows that whatever the demand was raised by the Society against the transfer of the said property, the appellant was liable to have paid it up. We are constrained to observe that suit of cancellation of the conveyance deed has been based on the ground that appellant had transferred the suit property to the respondent without obtaining the permission of the society, which was his own fault. The appellant did not only seek cancellation of the conveyance deed executed by him under the aforesaid covenants but also raised a fictitious claim of Rs,25,000 as pecuniary damages for causing his mental and financial loss.
15. ' We are of the view that appellant did not have any ,cause of action against the respondent for filing the suit and the view adopted by the learned Single Judge is unexceptionable.
16. We also agree with the view of the learned Single Judge that suit filed in November, 1973 for cancellation of sale-deed executed in the year 1961, and recovery of possession consciously handed over a the time of the execution of the sale-deed was obviously time-barred.
17. As regards the grievance of the learned counsel for the appellant that the learned Judge did not record his findings on issues Nos.4 and 5, we find in the impugned judgment, at its paragraph No,15, that learned Single Judge refrained from recording his findings on these issues involving the society and the Registrar, Co-Operative Society, without hearing them and no exception can be taken to, the view adopted by the learned Single Judge.
18. ' The appeal was dismissed with no order as to costs by a short order, dated 26th March, 1985, These are the reasons therefor.