1. ' This suit for declaration, cancellation of documents and possession was originally filed by Syed Sajid Asif (since deceased) and on his death during the pendency of the suit his legal representatives were joined as plaintiffs (a) to (e). Out of the four defendants only defendant No,1 contested the suit while the other three defendants, namely, defendants Nos.2, 3 and 4 were ordered to be proceeded ex parte by order dated 1-9-1979.
2. ' The facts of the case briefly are that, the Karachi Development Authority (K.DA.) allotted to the deceased plaintiff the plot of land bearing No,C-20, situated in Block V of North Nazimabad, Karachi, admeasuring 600 sq. Yds. By letter dated 2-6-1956 and subsequently in respect of that plot executed a lease deed dated 26-4-1966 in favour of the said plaintiff which was registered with the Sub-Registrar at Karachi at Serial No,4272. It is alleged that in or about 1967 the deceased plaintiff constructed on the plot two rooms with asbestos sheet roof, accessories and due to financial difficulties could not complete the construction according to plan. In about May, 1972, the said construction was rented out by the plaintiff to Muhammad Naqi, the defendant No,4, at a monthly rent of Rs,100 on the assurance that if and when further construction would be undertaken by the plaintiff the said defendant would help him. It is also alleged that in December, 1973 the deceased plaintiff paid a sum of Rs,4,000 to defendant No,4 for the purchase of construction material to start further construction, but soon thereafter the said defendant is said to have disappeared. On enquiry the plaintiff learnt that as the said defendant was required by police in some theft case he locked the house and along with his family left it in February, 1974. On or about 17-1-1975 the plaintiff filed a rent case being No,246-76 before the Rent Controller at Karachi against the defendant No,4 for his eviction from the house, inter alia, on the ground of default in the payment of rent. It seems that in his written statement filed in the said rent case the defendant No,4 took the plea that he was occupying the premises in question as owner alleging that the plaintiff had sold the plot to him and he raised the construction thereon. In support of his plea in the said rent case the defendant No,4 produced certain documents which, the Rent Controller found to be forged and held that the said defendant No,4 was the tenant of the plaintiff. The plaintiffs' case is that from January, 1978 to May 1978 the deceased plaintiff was out of Karachi in connection with business and also due to his visit to India and when in the first week of June, 1978 he came back to Karachi he found that the said defendant No,4 was not in the house and the house was lying vacant with a lock on the door. On enquiries the plaintiff later learnt that one Muhammad Nisar, the defendant No,3, wrongly posing himself to be the attorney of the plaintiff executed a sale-deed in favour of Majecd Kamal Qureshi, the defendant No,2, in respect of the suit property and got the same collusively registered with the Sub-Registrar on 13-5-1978. On Coming to know of this the plaintiff approached the defendant No,2 and informed him of the correct position impressing upon him that he was the owner of the property and had never given any power of attorney to any one. By application dated 8-6-1978 the plaintiff is said to have informed the Superintendent of Police, Liaquatabad, Karachi, of the fraud and requested him to prosecute the defendants Nos.2,3 and 4 and also got a public notice published in the daily newspaper Jang to the effect that some persons were trying to dispose of his aforesaid plot on forged documents.
3. On 10-6-1978 the plaintiff filed in the Court of XVIII Civil Judge, Karachi, Suit No,1705 of 1978 against the defendants Nos.2, 3 and 4 for declaration and permanent injunction. It is alleged that on 13-6- 1978 when the plaintiff was in Court in connection with his suit he learnt of the filing of a suit of Mumtaz Ahmed, the defendant No,1, alleging that he had purchased the said plot from defendant No,2. The plaintiff waived notices of both the suits, No,1473 of 1978 filed by defendant No,2 and No,1726 of 1978 filed by defendant No,1, and received copies of plaints and documents from which he learnt about the collusion between the defendants. The plaintiff also came to know that the defendant No,2 had got his name mutated in the record of rights maintained by the KDA. The plaintiff claims that both the sale-deeds, the one dated 13-3-1978 executed by defendant No,3 in favour of defendant No,2 and the other dated 5-6-1978 executed by defendant No,2 in favour of defendant No,1 are the result of collusion between the defendants and others, based on forged documents and are illegal and void.
4. ' In these circumstances the present suit was filed by the plaintiff, inter alia, seeking declaration with regard to his ownership of the suit property, its possession and cancellation of documents.
5. ' The defendants Nos.2, 3 and 4 were served by substituted service but failed to appear and are being proceeded ex parte. Defendant No,1 alone is contesting the case and has filed written statement. This defendant does not deny the original allotment of the plot in favour of the plaintiff but defends his title on the ground that he is an innocent purchaser for value. He claims that he purchased the plot and before the finalisation of the deal took all precautions that a prudent man could take in the circumstances. It is claimed by this defendant that after the filing of the present suit negotiations were held between the plaintiff and the defendant No,1 for amicable settle lit .1 the dispute and as a result of such negotiations the plaintiff and the defendant No,1 agreed on the terms of a compromise and an agreement to that effect was signed by them. Under the terms of compromise the defendant No,1 agreed to pay Rs,2 lacs to the plaintiff by 15th December, 1978 and on such receipt the plaintiff agreed to pass a clear and unencumbered title over the said property in favour of defendant No,1, to hand over original papers to him and then to file the compromise application for the disposal of the suit in terms of the said agreement. In pursuance of the said agreement the defendant No,1 paid a sum of Rs,50,000 to the plaintiff, but later it appears that the compromise did not materialise. It is alleged by the defendant No,1 that he contacted the plaintiff in the first week of December, 1973 for having the compromise drafted but plaintiff on the pretext of his illness asked for further time and thereafter refused to compromise the suit. The defendant No,1 claims to be a bona fide purchaser for value and prays for the dismissal of the suit.
6. ' On the pleadings of the parties, the following issues were initially framed:-- "(1) Whether the plaintiff is the owner of plot No,C-20 Block 'L', North Nazimabad, Karachi, and the plaintiff raised constructions over it out of his own funds?
(2) Whether Muhammad Naqi defendant No,4 was a tenant of incomplete constructions on the plaintiffs plot No,C-20 Block 1', North Nazimabad, Karachi, in 1972?
(3) Whether the plaintiff gave Rs,4,000 in December, 1973 to Muhammad Naqi defendant No,4 for construction materials for fuser construction over the said suit premises?
(4) Whether the defendant No,4 disappeared in February, 1974 after taking money, and left the suit premises after putting his lock on them?
7. (5)Whether any Sale Agreement in respect of suit premises was executed between the plaintiff and defendant No,4 Muhammad Naqi?
(6) Whether the Sale Agreement was produced by defendant No,4 in Rent Case No,246 of 1975 and whether this Sale Agreement was held as forged document by the Rent Controller No,2, Karachi in said Rent Case in his order dated 3-10-1977?
(7) Whether Muhammad Nisar defendant No,3 forged power of attorney dated 28-6-1975 on behalf of the plaintiff while he was out of Pakistan in January 1978 to May, 1978 in his favour?
(8) Whether sale-deed dated 13-5-1978 executed and registered by Muhammad Nisar defendant No,3 in favour of Majid Kamal Qureshi defendant No,2 has been executed and registered without any lawful authority and is void?
(9) Whether the sale-deed dated 5-6-1978 executed and registered by Majid Kamal Qureshi defendant No,2, in favour of Mumtaz Ahmad defendant No,1 has been executed and registered without lawful authority and is void?
(10) Whether the defendants in collusion with each other forged power of attorney dated 28-6-1975 and executed and registered sale-deed dated 13-5-1978 and sale-deed dated 5-6-1978 illegally in favour of defendants Nos.3, 2 and 1 which are void and liable to be cancelled and delivered up?
(11) Whether the defendants Nos.2 and 1 are bona fide purchasers for value without notice?
(12) Whether the plaintiff and defendant No,1 had settled entire matter outside the Court in terms of agreement dated 9-10-1978?
(13) Whether the defendant No,1 committed breach of contract by failing to make payment of the balance on the stipulated date i,e, 15-12-1978?
(14) Whether the agreement dated 9-10-1978 stands cancelled because of the breach of contract committed by defendant No,1 and, therefore, amount of Rs,50,000 stands forfeited?
(15) What should the decree be?
8. ' Later, the following additional issues were added:--
(1) Whether the suit as framed is maintainable in law?
(2) Whether failure to comply with the demand made by plaintiff through his notice dated 26-12- 1978 (Exh.14) to defendant No,1 tantamounts to breach of contract?
9. ' As stated earlier, during the pendency of this suit but after conclusion of his evidence the plaintiff Syed Sajid All Asif expired and accordingly his legal heirs were brought on record as plaintiffs (a) to (c).
10. ' Taking up the above issues, it may be stated that at the time of arguments the counsel for the defendant No,1 submitted that there was no dispute with regard to issue No,1 as such this issue is answered in the affirmative.
11. ' Issues Nos.2 to 6 may be dealt with together as in respect of all these issues the contention of the defendant's counsel was that the defendant No,1 was not concerned with these issues. With regard to issues Nos.2, 3 and 4 the relevant paras. Of the plaint are paras. 2 and 3 where the plaintiff stated that in May, 1972 he rented out the two rooms constructed by him to defendant No,4 at a monthly rent of Rs,100 and that in December, 1973 he paid a sum of Rs,4,000 to defendant No,4 for purchase of construction material and to start construction and soon thereafter the defendant No,4 disappeared. On enquiry the plaintiff learnt that the said defendant along with his wife and children left the house in February 1974 after locking the suit premises. The contents of paras. 2 to 4 of the plaint are formally denied, "for want of knowledge" in para.2 of the written statement of the defendant No,l. The assertions made by the deceased plaintiff in the abovementioned paras.2 and 3 of the plaint are reaffirmed in his deposition and there is nothing on record to show that these facts arc not correct. As such issues Nos.2, 3 and 4 are answered in the affirmative.
12. ' As regards issues Nos.5 and 6 it would appear from the plaint that the plaintiff had merely given the suit property to the said defendant No,4 on rent and in his deposition the plaintiff has denied having sold the property or created any encumbrance thereon. In para.3 of the plaint the plaintiff stated that in the Rent Case No,246 of 1975 filed by the plaintiff against the defendant No,4 the said defendant claimed ownership of the property on the basis of sale agreement which was considered by the Rent Controller to be a forged document in his order dated 3-10-1977. A photo copy of this order was filed as Annexurc 'D' to the plaint. On page 5 of this order the Rent Controller observed that "on the basis of this evidence it is not difficult to hold that the partnership deed as well as agreement of sale arc made up documents by the opponent so as to save himself from the consequences of ejectment application." Even otherwise it may be stated that the defendant No,1 is not claiming title to the property through defendant No,4 but from defendant No,2 who is said to have acquired the property from the plaintiff through defendant No3 the alleged attorney of the plaintiff.
13. ' In view of the above finding issue No,5 is answered in the negative. With reference to issue No,6 it may be observed that the alleged agreement to sell produced by the defendant No,4 before the Rent Controller was held to be made up document in his above-referred order dated 3-10-1977.
14. Issue No,6 is answered accordingly.
15. ' Coming now to issue No,7, a reference may be made to paras.4 and 5 of the plaint where the plaintiff has stated that he was out of Karachi between January and May, 1978 and when in June on his return to Karachi he made enquiries he learnt that defendant No,4 had left the house which was vacant but locked and it was then that he further learnt that the defendant No,3 posing himself to be the attorney of the plaintiff had sold the said house to defendant No,2 under a sale-deed which was registered with the Sub-Registrar on 13-3-1978. The plaintiff has further stated in para. 5 of his plaint that on learning this he approached the defendant No,2 and apprised him of the correct position. He told him that the plaintiff had never given any power of attorney to any one and the alleged power of attorney on which the deal was concluded was a forged document. In para. 6 of the plaint the plaintiff has stated that he submitted an application dated 8-6-1978 to the Superintendent of Police, Liaquatabad, Karachi, for prosecution of defendants Nos.2, 3 and 4. The Report is Exh.11. In the said report (Exh.1i) the plaintiff alleged that the power of attorney in favour of defendant No,3 is a forged document. On the same day he also pt published a notice in the daily Jang Karachi (Exh.10). In his deposition the plaintiff has denied having executed any power of attorney at any time in favour of defendant No,3 and has stated that he had never seen the said defendant. The plaintiff has alleged in his deposition that defendant No,3 is a fictitious person and the power of attorney in his favour has been forged by defendants Nos.1, 2 and 4 in collusion. It may be mentioned here that except for defendant No,1 none of the other three defendants have contested the suit. In his cross-examination the plaintiff categorically denied that the power of attorney, a photo copy whereof is Exh.26, bears his signature. It will be interesting to note that the original of this power of attorney has not been produced by the defendant No,1 and Icon being questioned about this in his cross-examination he stated that "I was not supplied the original of this document by the defendant No,2". It will be appropriate to reproduce herein below the relevant portion of the cross-examination of the defendant No,1: "Q. Have you filed Exh.26, which purports to be a copy of power of attorney? Where is the original of this document?
16. A. I was not supplied the original of this document by the defendant No,2.
17. Q. Did you ask the defendant No,2 for the original power of attorney at the time of agreement with him?
18. A. Yes, I did but he informed me that the documents had been stolen from his house and he had lodged a report with the police for this loss-- theft."
19. A copy of the police report has been produced by the defendant No,1 as Exh.25 and this report appears to have been made by one Nisar Ahmad son of Muhammad Ahmed in respect of the loss of certain documents near Ranchorelines Market. As against this the defendant No,1 stated in his cross-examination reproduced above that the documents were stolen from the house of defendant No,2. The said Nisar Ahmed neither himself appeared nor was by the defendant No,1 to support his contention. The photo stat copy produced cannot even otherwise in the absence of the original be taken into consideration. As against the contentions of the plaintiff on this point the defendant No,1 has merely formally denied the contents of paras. 4 to 7 for want of knowledge. In view of all these circumstances, in my view, the said power of attorney was a forged document. It would, however, be immaterial in the circumstances of the present case as to who forged that document and it is also not easy to determine that question for defendants Nos.2, 3 and 4 have remained absent and while the ultimate beneficiary of the forgery is the defendant No,1 there is no proof that the said power of attorney was forged at his instance. Issue No,7 is answered accordingly.
20. ' As to issue No,8, in view of my finding on issue No,7 there is little doubt that he defendant No, 3 had no authority to execute any sale-deed on behalf of the plaintiff and therefore the sale-deed dated 13-3-1978 purported to have been executed by the said defendant No,3 was without authority. In this regard it may again be mentioned that defendant No,2 in whose favour the sale deed was executed has remained absent and even the defendant No, 1 has apparently made no efforts to produce him as witness to support his case. The defendant No,1 admittedly has no knowledge of these facts. In the circumstances, there is no reason to discard plaintiffs contention that the so- called sale-deed dated 13-3-1978 (Exh. 26/1) was executed by an unauthorised person without the knowledge of the plaintiff. Accordingly this issue is answered in the affirmative.
21. ' Issue No, 9 is closely connected with issue No, 11 and therefore, it will be appropriate to deal with both these issues together. It was argued by defendant's counsel that the defendant No, 1 while purchasing the suit property had taken necessary care and precaution expected of a prudent man in such deals. He stated that the deal between the defendants Nos.1 and 2 was a normal deal and there was no reason for the defendant No,1 to suspect any defect in the title of defendant No,2 or any fraud on his part. His contention was that before entering into the agreement to sell the defendant No,1 had examined the title documents of thc defendant No,2 which were found to be satisfactory and accordingly an agreement to sell was entered into and advance payment was made. The defendant No,1 thereafter, checked from KDA and found that the property was duly mutated in the name of the defendant No, 2 on the basis of the earlier sale-deed. The question of failure of the defendant No, 2 to produce the original lease deed and the original power of attorney was raised by the defendant No, 1 but was satisfactorily explained by the defendant No,2 as having been lost and in that regard he handed over to the defendant No, 1 the police report. Not only that the defendant No,1 also got a public notice issued in the newspaper with regard to the proposed sale of the suit property and in reply to this public notice no objection whatsoever was received either from the plaintiff or from any other party. The counsel submitted that these are the usual steps that are taken by a bona fide purchaser and therefore, even if the defendant No, 2 had a defective title the sale in favour of defendant No,1 cannot be challenged for the defendant No,1 was a bona fide purchaser for consideration and the case is fully covered under section 41 of the Transfer of Property Act.
22. ' In reply Mr. Usman Ghani Rashid, learned counsel for the plaintiff submitted that on its face the defendant No, 1, if not in collusion with the other defendants, had been extremely, negligent in entering into the deal. The defendant No,1, he argued ought to have insisted on the original lease deed and original power of attorney and if these were not available, as stated by the defendant No,1 for having been lost, the said defendant in the ordinary course, should have suspected foul play and in that case ought to have made an attempt to contact the original allottee namely, the plaintiff. He also pointed out that the photo copy of the power of attorney (Exh. 26) would show that the same was not registered and for that reason too the sale of the property and its transfer on the basis of such power of attorney was in conflict with section 33 of the Registration Act. He stated that it was incumbent upon the defendant No,1 to have made enquiries from the Registrar's office but this admittedly he did not. He referred to the case of Mohmad Sujat v. Mst. Chandbi reported in AIR 1927 Nagpur 41 where it was held that a mutation did not create any title and that it was essence of section 41 of the Transfer of Property Act that the real owner must induce belief in transferee that his transferor had power to transfer. It was contended that in this case the defendant No,1 failed to make sufficient enquiries with regard to the title of the property.
23. ' I am unable to agree with the contentions of the counsel for defendant No,
1. In the first place the defendant No,1 ought to have suspected the deal as it was apparent that the defendant No,2 was trying to dispose of the property in haste. He had purchased the property under sale-deed dated 13-3-1978 and was making attempt to sell the same soon thereafter. This coupled with the fact that the defendant No, 2 was unable to produce the original power of attorney and the original lease deed was enough for a prudent man to become suspicious, all the more when the power of attorney was unregistered document. Even the police report (Exh. 25) which according to the defendant No, 1 was handed over to him by the defendant No, 2 to explain the absence of the original lease deed and the original power of attorney is far from satisfactory. Not only that it does not show that it relates to the originals of these two documents but also that it appears from this report that the documents were lost in the market while the defendant No,1 stated in his deposition that he was informed by the defendant No,2 that the documents had been stolen from the house. It may be mentioned that the defendant No, 2 was not called to support the defendant No,1 on this point. In these suspicious circumstances it was not only necessary to have made out a search in the Registrar's office but also to have made an attempt to contact the plaintiff who was the original allottee. It was next contended by the defendant's counsel that actually the plaintiff was in collusion with the other defendants, as he failed to have the order of the Rent Controller executed against defendant No,4, for had he done so, the property in question would not have been in the possession of the defendant No,4. The contention is without force for the simple reason that when the order of the Rent Controller was passed on 31-7-1978 all these deals had already taken place and as stated by the plaintiff, at that time the defendant No, 4 was not in possession of the property. On coming to know of this situation the plaintiff filed a suit before the Civil Judge against the defendants Nos.2, 3 and 4 as the plaintiff till then had learnt that the property was in possession of the defendant No,2. Later, however, when he learnt that the property had been further sold to defendant No,1 he filed the' present suit. It is pertinent that the defentants Nos.2 to 4 have throughout remained absent and consequently have been proceeded ex parte. Not only that the defendant No,1 who claims to have purchased the property from defendant No,2 did not even call that defendant as a witness in the case to support him. In a case like the present a man of ordinary prudence would have examined the person from whom he purchased the property all the more, when original title documents and power of attorney were claimed to have been lost by his predecessor in title. Apparently, the reason for not producing such vital evidence was that if called the defendant No,2 would not have supported defendant No,1's case. It was then contended by Mr. Shaikh Usman, learned counsel for defendant No,1, that on the face of the agreement (Exh. 13) the defendant No, 1 was a bona fide purchaser. I am, however, unable to agree with him as this agreement also says that Majid Qureshi defendant No, 2 played fraud and therefore if the defendant No, 1 admits that defendant No,2 along with defendant No,4 had played fraud I do not see how he can at the same time say that he was a bona fide purchaser. Moreover, under clause 1 of the agreement the defendant No,1 had also agreed to pay to the plaintiff a sum of Rs, 2,00,000 "as consideration for his claim, right title and interest in the said property and the seller has agreed to transfer and convey the property unto the purchaser". This provision shows that the defendant No,1 was accepting plaintiff's title in the property, and was prepared to pay to the plaintiff consideration for the transfer of plaintiff's title. Had the defendant No, 1 been a bona fide purchaser for value, as claimed, what was the necessity of the agreement Exh. 13 or the above provision therein.
24. For the reasons discussed above the defendant No, 1 cannot be held to be a bona fide purchaser, for consideration, of the suit property, to say the least, the said defendant acted with undue haste and with utmost carelessness and negligence if not dishonestly and in collusion with other defendants. In so far as the purchase of the suit property by defendant No, 2 is concerned, the deceased plaintiff had clearly denied the execution of the alleged power of attorney by him in favour of defendant No,3, both in the plaint and in his deposition and his assertion remained unchallenged, for, the defendants Nos.2, 3 and 4 remained absent and no attempt was made by the defendant No,1 to produce defendant No, 3 to prove the power of attorney. As such, as already held by me while dealing with another issue earlier, there is no escape from the conclusion that the defendant No,2 had no valid title to the suit property and consequently had no authority to sell the same. In the result the sale-diced dated 5-6-1978 said to have been executed by the defendant No, 2 in favour of defendant No,1 was without authority. Accordingly, issue No, 9 is answered in the affirmative and issue No, 11 in the negative.
25. ' As regards issue No, 10, this issue is covered by the findings on issues Nos. 7, 8, 9 and.
11. As held earlier, there is little doubt that the power of attorney (Exh. 26) was forged, as to whether the forgery was with the connivance of all the defendants or not, is not very material in the case, however, the fact that defendant No,2 to whom the property was sold by the defendant No,3 on the basis of power of attorney has chosen to remain away from the Court so also the defendants Nos.3 and 4 would show that in so far as these defendants are concerned there was collusion between them. The conduct of defendant No, 1 is also highly suspicious and by no means aboveboard.
26. Defendants Nos.2, 3 and 4 had nothing to lose by their absence in the suit, but this was not so in the case of the defendant Not whose title in the property was at stake and, therefore, his failure to call the other defendants and the estate agent through whom the property was alleged to .Havc been purchased by the defendant No, 1, as witnesses in the case cannot be brushed aside just as inadvertence, it was seemingly his fear of his case falling through that he did not call any of these defendants as witness.
27. ' Issues Nos. 12 and 13 are also inter-related and are being dealt with together. There is no doubt that an agreement dated 9-10-1978 (Exh. 13) was entered into between the plaintiff and the defendant No, 1 which set out the terms of the proposed compromise. However, the said agreement was not acted upon inasmuch as the suit was not compromised. Both the parties have alleged breach of the agreement by the other. The agreement, Exh. 13, has been described as 'Agreement of Sale' and it contemplated payment of Rs, 2 lacs by the defendant No,1 to the plaintiff whereupon the plaintiff was to transfer and convey the property in question to the defendant No,1.
28. Out of the said Rs, 2 lacs, Rs, 50,000 was admittedly paid at the time of the execution of the said agreement and the balance of Rs, 1,50,000 was to be paid on or before 15th December, 1978, or on such other date as may be mutually agreed upon between the parties. On such payment the parties were to file a compromise application in the present suit. The agreement further provided that the plaintiff "shall pass a clear and marketable and unencumbered title over the said property in favour of the purchaser", and that, on receipt of said Rs, 2 lacs the purchaser will relinquish all his claim, rights, title and interest in the said property in favour of the defendant No,1. It was also agreed that the earlier sale deed dated 5-6-1978 would be treated as valid sale-deed and suit property, on filing of the compromise in the Court, would stand transferred in favour of the purchaser. In the recital of this agreement it was mentioned that Muhammad Naqi, defendant No,4, and Majid Quershi, defendant No,2, played fraud in regard to the said property and got the name of Majid Qureshi mutated in the records of K.D.A. Without the knowledge and the permission of the plaintiff and also that the defendant No,1 purchased the property from Majid Quershi (defendant No,2) for consideration in good faith and as a bona fide purchaser for value. It was submitted by defendant's counsel that it should be taken as an agreement to sell on which the defendant No,1 had acted upon by paying the amount of Rs, 50,000. It was claimed that deal being for an immovable property time was not essence of the contract. This, he stated, is also clear from para. 3 of the agreement where there is provision for extension of time. He relied upon the cases of Tanzcem Overseas v. Mst. Zainab Bai and another PLD 1965 Karachi 274 and Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 to show that time was not essence of the contract where sale of immovable property was involved.
29. ' Plaintiffs counsel admitted the agreement but stated that although it was titled as 'Agreement For Sale' in effect it contained the terms of proposed compromise and therefore time was very much essence of the contract. 11e referred to the cross-examination of the plaintiff where the plaintiff has stated that, "It would be correct to say that if the defendant No,1 had paid the balance of the consideration according to the agreement in 1978, the controversy would have ended and I was keen to avoid the harassm ent and torture of litigations", then "It is not correct that in first week of September, 1978 the defendant No,1 had approached me and requested me to prepare a compromise application for filing in this suit in Court. As a matter of fact f several times reminded the defendant and asked him to make payments and it is he who avoided payments. It is not correct that I ever said to the defendant No,1 that my Advocate was demanding Rs,10,000 for drafting of the document and the defendant was to pay this money which he refused".
30. ' From the above cross examination, it appears that the defendant No,1 was trying to build up a case different from that he put up in his written statement. There was no mention of the plaintiffs Advocate demanding Rs,10,000 for preparing a compromise in the written statement of the defendant No,1. The circumstances in which the agreement, Exh.13 was entered into, in so far as this suit was concerned it can only be taken to be an agreement setting out the terms for the proposed compromise and not an agreement for sale of immovable property. The payment of the balance Rs,1,50,000 was a crucial step for finalising the compromise and if the plaintiff was avoiding to accept that amount as alleged by the defendant there was nothing to stop the defendant No,1 from making the payment in Court and filing an application for compromise on the basis of that agreement. While no payment was ever made by the plaintiff in Court it would seem that an application for compromise was presented in Court but that was never pursued and was allowed to be dismissed for default. That being so, there can hardly be any justification for the grievance that the plaintiff failed to act upon the agreement. The defendant No,1 even thereafter never made any attempt to act on Exh.13. He contested the suit and now after more than 12 years wants that agreement to be acted upon. It would seem that the agreement lost its force once the compromise application filed by the defendant No,1 was allowed to be dismissed and not pursued.
31. If the defendant No,1 wants to treat this agreement as an agreement for the sale of immovable property he should have taken steps for the specific performance of the agreement in a separate suit and cannot seek the remedy of specific performance of that agreement in the present suit which was filed by the plaintiff. As stated above, in so far as the present suit is concerned, Exh.13 was nothing more than a document setting out the terms of the proposed compromise.
32. ' His next contention was that, as, in the agreement (Exh.13), which was entered into between the parties subsequent to the filing of the suit, the plaintiff had accepted the defendant No,1 as a bona fide purchaser for value, the plea taken by the plaintiff originally in the plaint contrary to this admission, lost its force and consequently the prayer for the cancellation of the sale-deed in favour of the defendant No,1 could not be granted. For this proposition he sought support from the case of Mst. Jana Bai v. Mst. Gulshan and another 1984 CLC 1061. In that case it appears that two joint owners of a premises filed ejectment application on the ground that one of the owners (respondent No,1) required the premises for her own use and that of her children and spouse, however, in the evidence the original case was abandoned and it was stated that the premises was required by the other owner (respondent No,2) for his use. It was in these circumstances that the learned Judge held that ejectment cannot be ordered on ground not taken in the pleadings.
33. The instant case is clearly distinguishable from that case. Here the evidence of the plaintiff supports his averments in the pleading. The mere mention in Exh.13 that the defendant No,1 was a bona fide purchaser would, in the circumstances of the case, have no bearing on the averments made by the plaintiff in his pleading. As already discussed above, a bare reading of Exh.13 as a whole would refute defendant's contention that the plaintiff had accepted the defendant No,1 as a bona fide purchaser.
34. Accordingly my finding on issue No,12 is that in agreement, Exh.13, the plaintiff and the defendant No,1 had set. Out the terms of the proposed C compromise but the agreement was not acted upon and lost its force. Issue No,13 is answered in the affirmative.
35. ' In so far as issue No,14 is concerned, neither any submission was made by the counsel for the parties on this issue nor any relief in that regard has been claimed by the defendant No,1 in his written statement nor even court-fee paid and therefore apparently the issue was abandoned by the counsel. Similarly, the two additional issues were also not pressed by the counsel.
36. For reasons discussed above I hold that the plaintiffs are the rightful and legal owners of the suit property and that the alleged power of attorney dated 28-6-1975 being Exh.26, the alleged conveyance deed, dated 13-3-1978, being Exh. 26/I, executed by defendant No,3 conveying to the defendant No,2 the suit property (Plot No,C-20, Block-L, North Nazimabad, Karachi, measuring 600 square yards) and the alleged conveyance deed, dated 5-6-1978 (photo copy whereof is Annexure 'I' to the plaint) executed by the defendant No,2 conveying to the defendant No,1 the aforesaid suit property are all ab initio void instruments against the plaintiffs and if left outstanding will cause to the plaintiffs serious injury. Therefore all and each of the aforesaid power of attorney, dated 28-6- 1975, the aforesaid conveyance deed dated 13-3-1978 and the aforesaid conveyance deed dated 5-6-1978 are adjudged as void instruments and are ordered to be delivered up and cancelled. As the said two conveyance deeds, dated 13-3-1978 and 5-6-1978 were also got registered with the District Registrar/Sub-Registrar, a copy of the decree shall be sent to the concerned Registrar/Sub- Registrar in whose office each of the said conveyance deeds had been registered for noting, on the copy of each of the said conveyance deeds contained in his books, the fact of its cancellation. In the circumstances of the case, the plaintiffs are also entitled to the possession of the suit property as prayed by them and as such the defendant No,1 and/or any one claiming through the said defendant shall hand over possession of the suit property to the plaintiff within 30 days from the date hereof. The suit is decreed against the defendants accordingly with costs.