This second appeal, under section 100 of Code of Civil Procedure, is directed against the judgment and decree dated 25-5-194, passed by Additional District Judge, Sheikhupura, whereby the appeal of plaintiff/respondent No.1 was accepted, the judgment and decree dated 19-6-1991, passed by Civil Judge, Ferozewala, was set aside and the suit of respondent No.1 for specific performance of agreement to sell was decreed in his favour and against the appellants.
2. The relevant facts are that the deceased Lal Din son of Jhanda was owner of land in dispute measuring 57 Kanals, 17 Marlas, detailed in para.(1) of the plaint, he executed an agreement of sale of the suit-land on 13-6-1978 through his general attorney Muhammad Siddique for a consideration of Rs.60,000, in favour of respondent No.1/plaintiff, as sum of Rs.50,000 was paid as earnest money, stipulated time for execution of sale-deed was 31-7-1978 but during this period Lal Din died and sale could not be completed. The plaintiff alleged that the defendants Nos.1 and 2/respondents Nos.2 and 3, being legal representatives of Lal Din deceased were asked to complete the sale in pursuance of the disputed agreement, which was not honoured and instead defendant No.1/respondent No.2, Mst. Bashiran Bibi, alienated the suit-land to defendant No.3, Allah Loke, in violation of the abovesaid agreement to sell in favour of the plaintiff. Hence the suit for specific performance of the abovesaid agreement. The said Allah Loke died during the pendency of the suit and his legal representatives i.e. The present appellants, were impleaded as parties to the suit. The suit was contested. It was stated that the suit had been filed in collusion with defendant No.2, Muhammad Sharif and Muhammad Siddique, the alleged General Attorney of Lal Din, whereas Allah Loke was a bona fide purchaser of the land in question with consideration and without notice. The defendant No.1, Mst. Bashiran Bibi, termed the agreement to sell as fictitious and forged and denied the execution of agreement to sell by Lal Din deceased in favour of the plaintiff and receipt of earnest money.
3. The learned trial Court from the pleadings of the partiers framed the following issues.
' ISSUES
(1) Whether the parties had entered into agreement to sell dated 13-6-1978? OPP.
(2) Whether the suit is collusive? OPD.
(3) Whether the suit is bad for non-joinders of parties? OPD.
(4) Whether the predecessor-in-interest of defendants Nos.3 to 10 was a bona fide purchaser with consideration and without notice? OPD.
(4-A) Whether the suit is not maintainable in its present form? OPD.
(4-B) Whether the agreement to sell dated 13-6-1978 is fictitious, based on fraud, illegal and ineffective upon the rights of the defendants Nos.3 to 10? OPD.
(4-C)Whether the description of the disputed property is incorrect? If so, its effect? OPD.
(4-D)Whether the suit is not maintainable against defendants Nos.3 to 10 because no relief has been sought against them? OPD (4-E) Whether the plaintiff has got no locus standi to file the present suit? OPD.
(4-F) in positive, whether the appellant is entitled to any relief? Onus on parties
5. The Appellate Court remanded the case to the trial Court with the direction that the parties should be allowed to adduce evidence on Issues Nos.4 and 4-F and fresh decision was to be given on these issues.
6. Thereafter the parties were allowed to adduce evidence on Issues Nos.4 and 4-F.
(5) Relief.
4. In the previous round of litigation, Civil Judge, Ferozewala, vide his judgment and decree, dated 1-4-1985, dismissed the suit. Issues Nos.1, 2, 3, 4-C and 4-D were decided in favour of the plaintiff and against the defendants. Issues Nos.4, 4-A and 4-E were decided in favour of the defendants and against the plaintiff. In Issue No.4-B, it was held that the agreement to sell dated 13-6-1978 was executed but the same was ineffective upon the rights of defendants No.3 to 10/ appellants because they had no knowledge of the said agreement prior to the purchase of the disputed property and they were bona fide purchasers for valuable consideration and in view of his findings on Issues Nos.4, 4-A, second part of issues Nos.4-B and 4-E, the suit of the plaintiff was dismissed, leaving the parties to bear their own costs. The appeal of the plaintiff was accepted by Additional District Judge, Ferozewala, vide his order dated 21-12-1987. The learned Additional District Judge set aside the findings of the trial Court on Issues Nos.4, 4-A, 4-B and 4-E. An additional issues No.4-F was framed, which is as follows:- (4-F) If Issued Nos.1 and 4 are decided.
7. The learned trial Court, vide its judgment and decree dated 19-6-1991, decided Issue No.4 in favour of the defendants and against the plaintiff, Issues Nos.4-A, 4-B and 4-E ,in favour of the plaintiff and against the defendants, Issue No.4-F was also decided in favour of the plaintiff and against the defendants and defendants Nos.1 and 2 (respondents Nos.2 and 3) were held responsible for the payment of Rs.70,000 to the plaintiff. The suit was, therefore, decreed only partially to the extent that the plaintiff would be entitled to get Rs.70,000 from defendants Nos.1 and 2 i.e. The legal heirs of the deceased Lal Din and the plaintiff's suit against the remaining defendants i.e. The present appellants, was dismissed, leaving the parties to bear their own costs.
8. The judgment and decree dated 19-6-1991 of Civil Judge, Ferozewala, was assailed in an appeal only by respondent No.1/plaintiff. The learned Appellate Court, as mentioned above, vide its judgment and decree dated 25-5-1994, accepted the appeal of the plaintiff with costs, set aside the judgment and decree passed by the learned trial Court and decreed the suit in favour of the plaintiff and against the defendants. The plaintiff was directed to deposit the remaining amount in Court within one month for the registration of the sale-deed. Hence, this second appeal by the legal representatives of the subsequent vendee.
9. I have heard the learned counsel for the appellants/defendants, the learned counsel representing respondent No.1/ plaintiff, the learned counsel representing respondent No.2/defendant No.1 and have also seen the record with their help. Nobody has turned up for respondent No.3/defendant No.2, Muhammad Sharif. He was proceeded ex parte, on 9-2-2000.
10. It is submitted by the learned counsel for the appellants that the appellants are bona fide purchasers for consideration without notice of the previous agreement, they are not relatives of respondent No.2, Mst. Bashiran Bibi, she is an illiterate lady, who has admitted sale by her to the appellants, her ignorance about the death of her uncle Lal Din (her predecessor-in-interest) does not materially affect the merits of the case, she was not able to give answer to, various questions in regard to sale etc., because she is an old lady, her son Muhammad Ali was present at the time of the registration of the sale-deed executed by her, there was no prayer for cancellation of sale- deed (Exh.D-2) in favour of Allah Loke, predecessor of appellants, that no evidence was produced by the plaintiff that the subsequent vendee, Allah Loke, had prior knowledge of the previous sale agreement in favour of the plaintiff, the Appellate Court misread the evidence and illegal conclusions were drawn from the evidence available on the record and in the circumstances, this Court can interfere in second appeal. Reliance, in regard to the jurisdiction of this Court, has been placed on Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 Supreme Court 617), Manzoor Ahmad and others v. Mian Muhammad Ismail and others (1986 SCM R 310) and Muhibullah Khan v. Sadiq Khan (1986 SCM R 270). The learned counsel representing respondent No.2, Mst.
Bashiran Bibi, has supported the appeal and has submitted that Mst. Bashiran Bibi, at the time of the execution of the sale-deed in favour of the appellants, was not aware of the agreement to sell executed by her deceased predecessor Lal Din in favour of the plaintiff Muhammad Bashir, she lives at a distance of 60 miles from the place of residence of Lal Din and the impugned judgment and decree is liable to be set aside and the plaintiff's suit is required to be dismissed.
11. The learned counsel representing respondent No. 1/plaintiff submits that the statement of D.W.-4, Mst. Bashiran Bibi, is the only piece of evidence, which is being relied upon by the appellants for proving that their predecessor was a vendee with consideration without notice whereas her statement in no way proves this fact and the appellants have not been able to show that they are entitled to the protection under section 27(b) of the Specific Relief Act (I of 1877), that the impugned judgment does not suffer from misreading or non-reading of evidence, correct conclusions have been drawn from the evidence available on record and, therefore, the appeal is without any merit and is liable to be dismissed, with costs. The learned counsel has also placed his reliance on Muhammad Shafi v. Muhammad Sarwar and others (1997 CLC 1231 (Lahore)).
12. It has concurrently been found by the Courts below that a valid agreement to sell the land in dispute was executed by the deceased Lal Din in favour of the plaintiff on 13-6-1978. No cross-appeal or cross-objection was filed either by the appellants or by respondent No.2, Mst. Bashiran Bibi, before the First Appeal Court.
13. It is settled law that mere denial of notice of previous transaction is not enough. The notice contemplated by section 27 of Special Relief Act must be one derived either upon bona fide and diligent inquiry on the part of subsequent transferee or from various other surrounding circumstances. In order to succeed on the issue, whether a person had purchased the property without knowledge of a previous sale or agreement to sell in favour of another, the subsequent vendee must establish, apart from payment of value that:
(a) he acted in good faith,
(b) he had no notice of the original contract/agreement, and
(c) in the above two aspects he took reasonable care.
The existence of previous agreement to sell in favour of the plaintiff is established from the evidence available on the record and it has been so held concurrently by the Courts below and in these circumstances, very heavy duty was cast on the appellants to bring their case within the exception of clause (b) of section 27 of Specific Relief Act, 1877, to discharge the onus, which is on them, to prove that their predecessor was transferee for value in good faith and without notice of the previous agreement. Reference, in regard to the proposition of law, mentioned above, can be made to Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others (PLD 1974 Baghadad-ul- Jadid 25) and Muhammad Shafi v. Muhammad Sarwar and others (supra).
14. The perusal of the evidence available on the record, especially the evidence produced by the appellants, being relied upon by them, would show that the appellants have miserably failed to prove that their predecessor Allah Loke was a bona fide purchaser for value and without notice of the original agreement to sell. The appellants have miserably failed to discharge the onus, which was placed on them. After the death of Lal Din, the land in dispute was transferred to his niece Mst.
Bashiran Bibi (respondent No.2) as his legal heir and the said Mst. Bashiran Bibi transferred the land in dispute to the appellants predecessor Allah Loke, which was a sale subsequent to the agreement to sell dated 13-6-1978 in favour of the plaintiff/respondents No.1, Muhammad Bashir.
She is, therefore, an important witness. She appeared in the witness box from the side of the appellants as D.W.-4. The appellant have relied very heavily on her statement. She stated in the examination-in-chief that she did not join the funeral of Lal Din as she had no information of his death and that she did not know about the place where the funeral or Qul were held. She further stated that she did not know that for how much money she had sold the land in dispute to Allah Loke {{URDU TEXT}} ' She went on to depose that at the time of sale made by her, she was not informed by anyone that the land in dispute had already been purchased by him and that she did not know Muhammad Siddique (the General Attorney of Lal Din deceased). She is real niece of deceased Lal Din. She is the on heir of deceased Lal Din. It is not understandable that how she did not come to know about the death of Lal Din and why she did not join his funeral or Qul. She did not categorically deny the existence of agreement to sell in favour of the plaintiff executed by Lal Din. Her ignorance, about the consideration for which she sold the land in dispute to Allah Loke, merely shows that no sale consideration was passed to Mst. Bashiran Bibi. The learned First Appellate Court, therefore, correctly concluded that the appellants had failed to prove the payment of sale consideration to Mst. Bashiran Bibi by Allah Loke and, therefore, Allah Loke was not a bona fide purchaser for value, especially when the plaintiff had categorically taken the plea that no consideration had been passed. During cross-examination, her inability to answer various questions put to her show that she knew nothing about the subsequent sale in question, about the contest of the present suit or the version of the appellants in the present suit. Similarly, she did not know the time and place of the registration of the sale-deed executed by her, the particulars of the witnesses of the sale-deed, particulars of the scribe or the place where she had received the sale consideration and merely stated that she had not received the sale consideration in the village. On the basis of this part of the cross-examination, the learned First Appellate Court correctly concluded again that no sale consideration had been passed in favour of the vendor Mst. Bashiran Bibi. In fact, the perusal of her examination-inchief and her answers in 'the cross-examination merely show that she knew nothing about the whole affair. In her cross-examination, it was admitted by her that Lal Din died in Dergahi Gill, that her father is also burned at Dergahi Gill but deniedthe suggestion that she went to attend the funeral of Lal Din, wewhere Muhammad Siddique, Attorney of Lal Din, Allah Loke, Sharif, Ashiq and the plaintiff told her about the agreement to sell in favour of plaintiff and she also denied that she told them that the matter shall be discussed after the completion of funeral rites. It is apparent that she made all these show that she aware unbelievable denials just to was not are of the prior sale agreement in favour of the plaintiffs. She, however, answered another important question evasively in the flowing manner. {{URDU TEXT}} ' She, therefore, failed to controvert the claim of the plaintiff that Allah Loke/ the subsequent vendee, was having full knowledge of the prior agreement of sale made by Lal Din in favour of the plaintiff.
14. The learned First Appellate Court has discussed the entire evidence in detail and has also pointed out the contradictions in the statements of various witnesses and the contradictions between oral evidence and documentary evidence. I have gone through the same and I do not find any misreading or non-reading in the same. The learned Appellate Court correctly concluded, after discussing the statement of D.W.-7, Rashid Ahmad, one of the appellants, that the same is not confidence-inspiring and that the said statement did not prove the transaction of sale to be in good faith, without consideration and without notice. The appellants also produced D.W.-5, Muhammad Malak and D.W.-6, Muhammad Ishaq, as independent witnesses. D.W.-5, Muhammad Malak, merely stated that in his presence, Siddique and Bashir did not talk with anyone on the day of funeral of Lal Din or on the day of his Qul, about the land in dispute. The statement of this witnesses is not helpful to appellants. It does not establish that Allah Loke was a purchaser in good faith without consideration and without notice. He is neither witness of sale nor the marginal witness of the sale-deed and he deposed that he did not know the price for which the sale was made. Similar is the position of D.W.-6, Muhammad Ishaq. The statement of D.W.-2, Muhammad Ashraf, is also of no avail. Statement of marginal witnesses of the sale-deed was also correctly discarded as he gave incorrect time of the registration of sale made by Bashiran Bibi in favour Allah Loke.
15. On the other hand, the plaintiff produced P.W.-3, Muhammad Siddique, the General Attorney of Lal Din. He produced the power of attorney as Exh.P-3. The agreement of sale dated 13-6-1978 executed by deceased Lal Din in favour of plaintiff and the payment of earnest money of Rs.50,000, stands proved. The plaintiff also produced Khawaja Ahmad Noor, Advocate, as P.W.-2. He was a Notary Public and Iqramama, Marked-A, was written and signed by him. He stated that the said agreement was accepted by both the parties in his presence. During the cross-examination, the witness remained un-shattered. The plaintiff himself appeared as P.W.-7. He supported his plaint He Further deposed that he attended the Qul of Lal Din at Mauza Dergahi Gill, where Allah Loke, Sharif, Muhammad Shafi, Ashiq, Arif and Haji Ghulam were present. Muhammad Siddique was asked for the registration of the sale and Allah Loke told him (the plaintiff) that at present, the rights exist with Mst. Bashiran Bibi and Sharif, as being the legal heirs of the deceased, and thereafter they all went to Mst. Bashiran Bibi and told her about the sale agreement but Mst. Bashiran Bibi replied that it is so soon after the death of Lal Din, she will consider and that the plaintiff should wait. He further deposed that the execution of Iqramama was known to Mst. Bashiran Bibi, Allah Loke and Siddique but Mst. Bashiran Bibi and Allah Loke, with mala fide intention, prepared a forged registered sale-deed, which. Was got registered without any consideration. He was cross- examined and nothing came out of the same. The Appellate Court has correctly observed that no specific question was put to him to disprove the fact that Allah Loke and Bashiran Bibi were present at the Qul of Lal Din. The agreement of sale, in favour of the plaintiff, which was prior in time, stood proved concurrently. Muhammad Ashiq, P.W. Corroborated the version of the plaintiff. The learned Appellate Court has considered all aspects of the case and correctly reversed the findings of the trial Court on the issues in question and correctly concluded that the appellants' predecessor, Allah Loke, was not a bona fide purchaser in good faith with consideration.
16. The learned counsel for the appellants has failed to point out any misreading or non-reading of evidence by the Appellate Court. Similarly, no illegality in the conclusions drawn by the Appellate Court, on the facts found and established, has been pointed out.
17. In view of the above mentioned, I see no merit in this appeal, which is accordingly dismissed, with costs.