MALIK, CJ.:-

One Abdul Majid was the owner of certain properties described in the plaint. On 25-6-1942, he entered into an agreement to sell these properties, to defendant 2, Lala Sampat Ram alias Champa Ram and his adopted son, Lala Ram Gopal, defendant 3. On 17-7-1942 Abdul Majid entered into another agreement with the plaintiff Babu Lal to sell the same properties to him for Rs.37,000/-. Though in the first agreement the price stipulated is Rs.36,000/-, there is really not much difference between the sale prices fixed under the two agreements as in the agreement dated 25-6-1942, the vendees agreed to incur the entire expenses of execution, completion and registration of the sale-deed, while under the document dated 17-7-1942, the entire costs of execution, completion and registration of the document and brokerage, etc., had to be paid by the vendor and by way of stamp duty alone, on the sale-deed, roughly about Rs.542/8/-had to be paid.

On 25-9-1942, Abdul Majid executed a sale-deed in favour of Sampat Ram and Ram Gopal and had it registered on the 26th of September. On 26-9-1942, the plaintiff filed the suit for specific performance on the agreement in his favour, dated 17-7-1942.

2. The suit was decreed by the trial Court. Two appeals were filed in this Court. First Appeal No.203 of 1944 was filed by Sampat Ram and Ram Gopal, while First Appeal No.393 of 1944 was filed by Abdul Majid. The appeal filed by Abdul Majid was dismissed for want of prosecution.

3. Learned counsel for the appellants, Sampat Ram and Ram Gopal, has urged that the plaintiff cannot claim specific performance of the contract as the agreement in his favour was of a later date, namely, 17-7-1942, and that the appellants had no knowledge of that agreement.

4. Learned counsel for the plaintiff-respondent has attempted to support the judgment on two grounds: firstly, that the agreement dated 25-6-1942, was executed subsequent to 17-7-1942, and the document had been purposely ante-dated to defeat the plaintiffs claim. The other ground is that even though the agreement may have been entered into on 25-6-1942, it must be deemed to have come into existence on 25-9-1942, when Sampat Ram and Ram Gopal had the right to enforce that contract.

5. As regards the first ground, there is no mention made in the plaint that the defendants were fraudulently setting up a prior agreement of 25-6-1942, that there was in fact no such agreement entered into between the parties on that date and the document had been ante-dated to defeat the plaintiffs claim. Learned counsel has relied on paragraph 3(a) which was introduced by way of amendment on 1-10-1942. But that paragraph does not raise the point. It is as follows:

"After institution of this suit, the defendant executed a fictitious and ostensible sale-deed in respect of the property in dispute, in favour of defendants 2 and 3 and defendants 2 and 3 with full knowledge of all the facts obtained in then favour the fictitious, ostensible and improper sale-deed which has no effect on the rights of the plaintiff. As a safeguard against a future dispute, they are, however, impleaded."

The defendants specifically relied on the agreement of the 25th June and yet at the time when the issues were framed, the plaintiff did not challenge the date of the agreement entered into between defendant 1 and defendants 2 and 3. The learned Civil Judge framed five issues and then two issues were subsequently added, but this matter was not put in issue at all. The law on the point is well-settled that no party is allowed to prove fraud, unless it has pleaded fraud. From the judgment of the learned Civil Judge it appears that no arguments were advanced before him that this agreement of 25-6-1942 was not executed on that day but had been later manufactured for the purpose of defeating the plaintiffs claim.

Abdul Majid and Ram Gopal, both the parties to the agreement, went into the witness-box and no question was put to them that the document of 25-