MIAN SAQIB NISAR, J.--- The suit for the Specific Performance of an agreement to sell regarding the sale of immovable property, filed by the appellant against the respondents, has been dismissed by the Trial Court vide judgment and decree dated 19.10.1996. But the alternate relief for the return of earnest money has been allowed to the plaintiff/appellant against some of defendants of the case.
2. Briefly stated the facts of the case are, that Saleem-ud-Din, father of defendants Nos. 1, 2, 2-A to 2-H and defendants Nos. 3 to 23, were the owners of the land measuring 142 kanals and 18 marlas, situated in Chak No. 127/G.B., Tehsil Jaranwala, District Faisalabad (land has been described in the plaint). The appellant on 21.9.1991, brought a suit for the specific performance against the defendants claiming that vide an agreement to sell dated 16.3.1991, defendant No. 1, for himself and as the general attorney of his father Saleem-ud-Din, (who had died by that time), and the legal heirs of the deceased i.e defendants Nos. 2, 2-A to 2-H; defendant No. 2, for himself and being the attorney of defendants Nos. 4 to 19 and defendant No. 23 on its own behalf and as the attorney of defendants Nos. 20 to 22, agreed to sell the aforesaid land measuring 152 Kanals and 18 Marlas, for a total consideration of Rs.26,00,000/- out of which, Rs.5,00,000/- was paid by the plaintiff/appellant, as the earnest money to the executants/defendants. And on the payment of the balance consideration of Rs.21,000,00/-, all the defendants were bound to finalize the sale transaction in his favour by 15.1.1992. It is further the case of the appellant that on the payment of Rs.1,000,00/- by him to the tenant of the land, he also took over the possession of the said land. Therefore, the subsequent sales of the same land by the defendants vide sale-deeds Nos. 1885/1 and 1886/1, dated 8.9.1991, in favour of defendants Nos. 21 to 28; who according to the appellant were well aware of his earlier agreement, were invalid, thus in the same suit, he challenged the above sales as well.
3. Defendants Nos. 1 to 23, filed a joint written statement in which, they denied the execution of the agreement to sell in favour of the appellant, by the alleged executants/defendants. It was further pleaded in defence that the amount of the part consideration allegedly paid by the appellant, as mentioned above, is not in connection with the present transaction, rater it was for some other deal. The defendants also tool -up the plea that defendant No. 1, was not the attorney on behalf of defendants Nos. 2, 2=A to 2-H, because Saleem-ud-Din had died before the alleged agreement and the power-of-attorney given by the deceased in favour of defendant No. 1, stood revoked by operation of law and that none of the said defendants had appointed defendant No. 1, as general attorney for the purpose of the sale of the property in-question. It is also their defence in the joint written statement that defendants Nos. 21 to 22, had never appointed any person at all as their attorney, who could enter into any agreement to sell on their behalf. This set of defendants pleaded about the validity and genuineness of the sales made by them in favour of defendants Nos. 24 to
28. Defendants Nos. 24 to 28, filed separate written statement, in which, they took-up the plea of being bona fide purchaser for valuable consideration and without notice of the disputed agreement to sell; they also claimed to have purchased the property on the basis of an agreement to sell it their favour, which was even prior in time to the one in-question. Anyhow, on account of the pleadings of the parties, learned Trial Court, was pleased to frame the following issues:-
(1) Whether the plaintiff is estopped by him act and conduct to bring the suit? OPD 1 to 23.
(2) Whether the plaintiff has no cause of action or locus standi to bring, the suit? OPD.
(3) Whether the suit is not maintainable in its present form? OPD 1-23.
(4) Whether the suit is false, frivolous and 35-A CPC? OPD
(5) Whether the defendants Nos. 24 to 28 have superior right of pre-emption against the plaintiff?
OPD 24 to 28.
(6) Whether the defendants Nos. 21 to 28 are bona fide purchaser with consideration, without notice of the disputed land? OPD 24 to 28.
(7) Whether the defendants Nos. 1 to 23 entered into an agreement to sell with the plaintiff regarding the land in dispute in the consideration of Rs.26,00,000/- and have received Rs.8,00,000/- as advance amount and have executed the agreement and receipt of 16.3.1991 in favour of the plaintiff? OPP
(8) Relief. parties were put to trial; the appellant examined PW-1 to PW-8 and also prcduced the documentary evidence as Ex.PW-2/1, Ex.PW-212, Ex.PW-411, Ex..PW-511, Ex.P-5/2, Ex.PW-6/1, Ex.PW-6/2, Ex.PW-613, Ex.PW-8/3, Ex.PW-8/5, Ex.P-1 to Ex.P-30 and Ex.DW-2/Portuguese-1. Conversely, the respondents Nos. 1 to 23, examined two witnesses DWI and DW-2. Besides, respondents Nos. 24 to 28 also examined DW-3 to DW-6 and produced documents such as Ex.DW-2, Ex.PW-8/Daman-1, Ex.D-1 to Ex.D-11.
Learned Trial Court, on the conclusion of trial, mainly decided issue No. 7, and held:-
(1) The agreement to sell was executed on 16.3.91 by defendants Nos 1, 3 and 23. The defendant No. 1, posed himself to be general attorney of his father namely Saleem-ud-Din whereas said Saleem- ud-Din had passed away on 30.10.1990
(2) That defendant No. 1 had got no authority to enter into any sort of agreement to sell on behalf of the defendants Nos. 2, 2-A to 2-H, with respect of the share of the land owned by said defendants.
(3) Similarly, defendant No. 3, was the general attorney of defendants Nos. 1 to 20, but she was never appointed by defendants Nos. 21 and 22, as their attorney, hence she was vested with no authority to sell the land of said defendants.
(4) That the suit land is still unpartitioned, no separate share can be determined, therefore, decree for the specific performance, cannot be allowed.
4. On issue No. 6, it has been adjudged, that the defendants Nos. 24 to 28, have proved to be the bona fide purchasers of the suit land, for valuable consideration, without notice of the agreement to sell in-question and that they also had an agreement of sale in their favour prior to that of the appellant. Issues Nos. 1 to 5, were decided against the defendants. But the suit for the specific performance was dismissed, however, it was decreed against defendants Nos. 1, 3 and 23, for the return of the earnest money received by the m under the said agreement. Hence this appeal by the plaintiff.
5. Learned counsel for the appellant contends that the plaintiff/appellant, through the reliable, independent and trustworthy evidence, has proved that the agreement to sell was executed by defendant No. 1, as an attorney on behalf of his father, Saleem-ud-Din, representing to be also authorized by the legal heirs of Saleem-ud-Din, defendants Nos. 2, 2-A to 2-H; likewise defendant No. 3, had the valid authority for defendants Nos.
4 to 19, but it is conceded that, defendant No. 23 was not holding any authority for defendants Nos.
21 and 22. It is therefore, argued that once the agreement to sell was proved and found by the Trial Court to have been executed by the said defendants, who were the majority share-holder of the suit land, which agreement was valid in law; the refusal of the Court to grant the decree for the specific performance is contrary to law and the result of improper exercise of the jurisdiction. It is also submitted that the defendants Nos. 24 to 28, had never proved to be the bona fide purchaser of the suit land, by the plaintiff from the tenant by making him the payment of Rs.1,000,00/-, thus this factum, of the appellants' possession was sufficient to put the said respondents to a notice that the appellant has some interest in the property, making incumbent upon them to have investigated about the interest of the appellant. Having failed to do so, the said respondents are debarred from taking the advantage of the rule of equity, otherwise available to a bona fide purchaser. It is further submitted that the said respondents were fully posted with the facts of the agreement to sell in favour of the appellant, yet they purchased the property in collusion with the other defendants of the case to deprive the appellant from his valuable rights and to cause prejudice to him.
6. We have heard learned counsel for the parties.
The Trial Court though has held about the proof of the execution of the agreement to sell by defendants Nos. 1, 3, 4 to 20 and 23, yet as mentioned above, the specific enforcement has been refused by the Court, on the ground that such agreement is unenforceable against the defendants Nos. 2. 2-A to 2-H and defendants Nos. 21 and 22; as the executants of the instrument had no authority on their behalf to enter into any agreement to sell; the property is indivisible and resultantly, in such circumstances, the discretionary relief cannot be granted to the plaintiff.
The other main reason of the Court below for refusing the relief is that defendants Nos. 24 to 28 are the bona fide purchasers and therefore, has the protection of Section 27(b) of the Specific Relief Act, moreover, they have purchased the property on the basis of an agreement to sell in their favour by the owners which was prior in time.
7. Learned counsel for the appellant, when asked has conceded that on the day, when the sale agreement dated 16.3.1991, is alleged to have been executed, Saleem-ud-Din was dead. However, by relying upon the provisions of Section 208 of the Contract Act it is argued that the authority of defendant No. 1, shall still remain intact, until the factum of the death of Saleem-ud-Din was known to the appellant. However, he has candidly conceded that there was no authority with the respondent No. 23, for the execution of the agreement on behalf of defendants Nos. 21 and 22. On issue No. 6, it is submitted that as the appellant had taken over the possession from the tenant of the property on the payment of Rs.1,00,000/- or Rs.75,000/- therefore, this fact was sufficient to put the said respondents on notice about the appellant's right on interest in the property. Resultantly, when it is not established on part of the said defendants, having made the requisite inquiry about the interest etc. Of the appellant, they' cannot set-up the plea of bring the bona fide purchasers.
8. Before proceeding to examine the pleas raised above, it may be pertinent to mention here that no cross appeal or cross-objection has been held by either set of the respondents, to challenge the decree for the return of money, passed against some of the defendants. However, Ch. Khurshid Ahmed, the learned counsel for defendants Nos. 24 to 28. Has argued that the finding of the Trial Court on issue No. 7, that the agreement to sell was executed by defendants Nos. 1, 3 to 23 and the direction in the decree for