Judgement

Appeal (No. 79 of 1931), by special leave, from a decree and order of the Judicial Commissioner, North-West Frontier Province (January 18, 1930, and June 26, 1930), upon appeals from the District Judge of Peshawar.

The appeal was in a suit instituted by the respondent in the District Court of Peshawar on May 12, 1922, against Mohammad Afzal Khan, for specific performance of a contract in writing dated May 1, 1921, by which the defendant sold to the plaintiff certain land. The appellants, to whom possession had been transferred between the date of the contract and the institution of the suit, were added as defendants.

The facts of the case and the course of the proceedings in India appear from the judgment of the Judicial Committee.

1932. May 27, 30, 31. Dunne K.C. and Pringle for the appellants.

De Gruyther K.C. and Parikh for the respondent.

The arguments were mainly upon the facts. Upon the Question of the onus of proof under s. 27 (b) of the Specific Relief Act, 1874, which their Lordships did not find it necessary to decide, reference was made to Varden Seth Sam v. Luckpathy Royjee (( 1862) 9 Moo. I. A. 303, 322.); Gobind Chunder Mookerjee v. Doorga Persaud (( 1874) 22 Suth. W. R. 248,) ; Himatlal Motilal v. Vasudev Ganesh (( 1912) I. L. R. 36 B. 446.) ; Baburam Bag v. Madhab Chandra Pollay (( 1913) I. L. R. 40 C. 565, 569. 251, 262.) ; and Official Receiver v. P. L. K. M. R. M. Chettyar Firm. (( 1930) L. R. 58 I. A. 115.)

June 24. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON, This is an appeal by special leave from a judgment and decree of the Judicial Commissioner of the North-West Frontier Province dated January 18, 1930, amending a decree dated November 11, 1925, as well as from the decree as amended and the subsequent order dated June 26, 1930, in execution granting mesne profits to the plaintiff respondent.

The suit was brought on May 12, 1922, by the plaintiff, K. S. Mian Feroze Shah, in the first instance against Mohammad Afzal Khan praying for a decree for possession of certain lands in the villages of Ahmedabad and Narai by specific performance of an alleged agreement dated May 1, 1921, by means of the execution and registration of a sale deed and for the recovery of the sum of Rs.4520 and for such other and further relief as the Court might deem equitable.

The defendant, Mohammad Afzal, pleaded in his written statement, among other pleas, that he had parted with his rights and possession in the lands in the said village of Ahmedabad to M. Aslam Khan, Musammat Khaperai and Musammat Mashala. Consequently the three last named persons were added as defendants. They are the appellants in this appeal, and they will hereinafter be referred to as the appellants.

Attar Singh, who was alleged to be a mortgagee, was added as a defendant, but it appears that the District Judge decided not to deal with the rights of the alleged mortgagee but to confine his decision to the case against the appellants. The alleged mortgagee has not been represented in this appeal and no question as to his rights has been raised before their Lordships.

The learned District Judge of Peshawar decided that the plaintiff was not entitled to specific performance of the alleged contract but that he was entitled to recover from the defendant Mohammad Afzal the sum of Rs.53,900, which he held the defendant Mohammad Afzal had borrowed from the plaintiff.

The plaintiff appealed against the District Judges judgment and decree to the Judicial Commissioner of the North-West Frontier Province, who, on November 11, 1925, allowed the appeal, set aside the decree of the District Judge and granted to the plaintiff a decree for specific performance of the agreement dated May 1, 1921, against the defendant Mohammad Afzal in respect of the lands mentioned in the Judicial Commissioners decree. He made no order as to the recovery of the sum of Rs.4520, on the ground that it had not been demanded in the appeal. No appeal has been f