On 7-9-1981 the appellant filed a suit against the respondents. In the plaint, it was stated that 38 Kanals land mentioned in the plaint was owned by respondent No.2 who agreed to sell the same to the appellant for a consideration of Rs.60,000, received Rs.10,000, executed agreement dated 24-11- 1980 and delivered possession thereunder. However, he proceeded to sell away the land in favour of the respondent No.1 vide registered sale-deed dated 31-8-1981. This transaction is stated to be collusive and without consideration and is only to cause loss to the appellant. With these averments, a decree for specific performance of the said agreement was sought. The respondent No.1 remained absent.
' The suit was contested by respondent No.1. He stated that the appellant is the real paternal uncle of the respondent No.2 and the suit is collusive to cause wrongful harm to the said respondent. He denied the existence of the agreement and asserted that he paid Rs.1,90,000 to the respondent No.2 who sold the property to him and delivered him possession. Later, with the leave of the Court, the written statement was amended and he took the plea of bona fide purchase. Issues were framed. Evidence of the parties, was recorded. The learned trial Court decreed the suit on 26-1- 1986. A first appeal filed by the respondent No.1 was dismissed by a learned ADJ, Vehari. However, R.S.A. No.1 of 1993 filed by the respondent No.1 was allowed by this Court on 29-3-2004 and the first appeal was remanded back for fresh decision after deciding an application filed by the respondent No.1 for permission to lead additional evidence. After the remand, the learned ADJ, Mailsi, allowed the first appeal filed by the respondent No.1 and resultantly dismissed the suit of the appellant vide judgment and decree dated 5-11-2004.
2. Learned counsel for the appellant contends that in absence of any opposition by the respondent No.2, the findings of the learned Court of appeal that execution of the agreement has not been proved constitutes an error of law. Regarding the matter of bona fide purchase, he relies on the case of Muhammad Din v. Mst. Sakina Bibi and others (2003 SCM R 956) to assert that a very heavy onus lay upon the respondent No.1 who had not even pleaded the necessary ingredients of section 27(b) of the Specific Relief Act, 1877 and could not be held to be a bona fide purchaser.
3. I have examined the impugned judgments as also copies of the pleadings placed on the file of this R.S.A., with the assistance of the learned counsel.
4. Now it will be seen that the agreement was stated to be entered into on 24-11-1980 whereas the registered sale-deed in favour of respondent No.1 was executed by the respondent No.2 on 31-8- 1981. The suit was filed on 7-9-1981. There is not even a slight allegation in the entire plaint that the respondent No.1 was aware of the agreement as pleaded in the plaint. I have already noted above that the plea was taken with the leave of the Court and an amended written statement was filed in Court on 12-1-1983. Still no attempt was made to file additional pleadings or to amend the plaint till the year 1986 when the suit was decided or even thereafter. The learned ADJ has observed and the learned counsel does not controvert that even in the course of evidence, it was not stated that the respondent No.1 was aware of the agreement. Similarly, it has been stated by the learned ADJ and not controverted by the learned counsel for the appellant that the respondent No.1 did state in the witness-box as D .W.1 that he was not aware of any agreement and was not informed of the same by any of the defendants in the case.
5. Now the said judgment being relied upon by the learned counsel is an order whereby leave to appeal was refused by the Hon'ble Supreme Court. However, in the case of Mst. Surryia Begum and others v. Mst. Suban Begum and others (1992 SCM R 652), a Bench comprising three Hon'ble Judges of the Supreme Court discussed the matter as to what are the requirements of section 27(b) of the Specific Relief Act, 1877, at length. Almost the entire case-law on the subject was referred to and it was observed as follows at page 291 of the report:-- "Since in civil suit an issue is to be decided by preponderance of evidence, the initial burden would be on the plaintiff to prove his prior contract, which if discharged, the burden of proving the subsequent bona fide transfer for value without notice would be on the party alleging it. Very little evidence and in certain circumstances a mere denial regarding want of knowledge of the earlier contract would discharge this burden and shift the onus on the plaintiff to prove that the subsequent transferee had the notice of the earlier contract. See Ramdeni Singh v. Gumani Raut (AIR 1929 Patna 300 at 301) and Mrs. Khairul Nisa's case (supra)."
' To my mind applying the said dictum to the present case, the respondent No.1 did discharge the onus whereas nothing is there in rebuttal.
6. I may not disagree with the first contention of the learned counsel. It is a matter of record that the respondent No.2 is a close relative of the appellant and did not opt to contest his suit. It is also in evidence that the said respondent No.2 both before and after the institution of the present suit, while remaining absent in the present suit had been taking proceedings on the criminal side against the respondent No.1 and it is but evident as to on whose side he was. Be that as it may, the same argument will hold good for the sale-deed in favour of respondent No.1 which was never questioned by the respondent No.2. Since I am satisfied that the respondent No.1 proved himself to be a bona fide purchaser without any rebuttal or for that matter any allegation that he was aware of the previous agreement, within the meaning of section 27(b) of the Specific Relief Act, 1877, the R.S.A. Is accordingly dismissed in limine.