' MAULVI ANWARUL HAQ, J.---On 24-5-1980 the petitioner along with one Haitam filed a suit against the deceased respondent No,2 and respondent No,2(v). Later on, the respondent No,1 was also impleaded and an amended plaint was filed. It was stated in the plaint that the deceased respondent No,2 (hereinafter to be referred to as Ali Muhammad) was allotted 100 Kanals and 5 Marlas of land under Grow More Food Scheme. While the allotment was yet to be made, Ali Muhammad agreed to sell 4 Acres and 5 Marlas of land to Haitam who was arrayed as a plaintiff No,1, 4-1/2 Acres in favour of the present petitioner and 2 Acres in favour of his brother (respondent No,2(v). The consideration was settled at Rs,2,000 per Acre. The price was paid and the possession was delivered and that the plaintiffs are continuing in possession whose father is cultivating the land on his behalf. It was then stated that the land was brought under cultivation at great expense and with some efforts. The land was to be transferred by Ali Muhammad after conferment of proprietary rights. Then, there is a reference to the restoration of land with the efforts of the said plaintiffs and execution and registration of an agreement on 27-5-1976 in their favour. It was then stated that efforts were made in the Colony Department that land be jointly transferred to the said plaintiffs as well as Ali Muhammad but they have been referred to the civil Court. With these averments, a decree for specific performance of the said agreement dated 27-5-1976 was prayed for.
' While the suit was pending, Haitam withdrew the suit leaving the present petitioner in the field. An amended plaint was accordingly filed. Ali Muhammad in his written statement did not specifically deny the execution of the said agreement. He, however, stated that the agreement is violative of section 19 of the Colonization of Government Lands (Punjab) Act, 1912. He also denied that no consideration was paid. His main plea was that at the relevant time, the allotment stood cancelled which was restored in the year 1979 and on 22-5-1980 he transferred the land in favour of respondent No,
1. The possession as stated by the petitioner was stated to be unauthorized. The respondent No,1 also took the same pleas in his written statement. Following issues were framed by the learned trial Court:--
(1) Whether the agreement in question i.e, agreement dated 27-5-1976 is illegal being in contravention of Colony Act? OPD
(2) Whether the plaintiff has no cause of action? OPD
(3) If Issue No,1 is answered in negative whether the plaintiff has paid consideration and is entitled to decree for specific performance? OPD.
(4) Whether defendant No,3 is a bona fide purchaser for consideration? If so, its effect? OPD.
(4-A) Whether the suit is liable to be dismissed under Order VII, Rule 11, C.P.C./OPD3.
(4-B) Whether the suit cannot proceed in its present form? OPD3 (4-C) Whether the agreement in dispute is in contravention of section 19 of the Colony Act 191'2? If so, its effect? OPD3 0 (4-D) Whether the agreement in dispute is void and defective in the eye of law? If so, its effect?
OPD3 (4-E) Whether the agreement in dispute is hit by MLR 115? If so, its effect? OPD3 (4-F) Whether the suit is for partial performance of agreement in dispute and as such liable to be dismissed? OPD3 (4-G) Whether the suit is not entertainable in view of preliminary Objection No,7? OPD3.
(4-H) Whether valuation of suit is incorrect for the purpose of court-fee and jurisdiction and the suit is liable to be dismissed for non-affixation of requisite court-fee? OPD3 (4-I) Whether the suit is bad for non-joinders of necessary parties? OPD3 (4-J) Whether the suit is hit by principle of res judicata ? OPD3 (4-K) Whether the plaintiff is estoped to bring this suit by his conduct? OPD3 (4-L) Whether the suit is time-barred? OPD3 (4-M) Whether the suit is mala fide? OPD3 (4-N) Whether the defendant No,3 is entitled to pay special costs? OPD3
(5) Relief.
' Evidence of the parties was recorded. Vide judgment and decree dated 1-11-1986 the learned trial Court decreed the suit (i.e, specific performance). A first appeal filed by the respondent No,1 was dismissed by a learned Additional District Judge, Sahiwal, on 9-1-1990. C . R . No .383 of 1990 was allowed by this Court on 5-5-2003 and the appeal was sent back for re-hearing and fresh decision after considering the additional evidence produced by the parties in the course of appeal. Vide judgment and decree dated 19-12-2005 the learned District Judge, Sahiwal, has allowed the appeal inasmuch as he has granted a decree for recovery of Rs,9,000 in favour of the petitioner and against the respondent No,1 (who was defendant No,3 in the suit) with 6% interest w.e.f, 23-2-1959 till the realization of the amount.
2. Muhammad Aslam petitioner has filed C.R. No,55 of 2006, while Muhammad Anwar respondent No,1 has filed Cross Objections No,1 of 2006. This judgment shall decide both the said matters.
3. Mian Mushtaq Ahmad, Advocate/ learned counsel for the petitioner- contends that it has been held as a fact that Ali Muhammad did execute the said agreement and received consideration from the petitioner. Delivery of possession also stands admitted or established. The further finding recorded is that respondent No,1 is not a bona fide purchaser. His contention is that in the earlier round, the case was remanded- only for the reason that the additional evidence produced by the parties had not been considered by the learned Additional District Judge, while dismissing the appeal on 9-1-2005. According to the learned counsel, the said evidence pertained only to the issue of estoppel (Issue No,4-K) which has been answered in favour of the petitioner. The precise contention is that after practically upholding the judgment of the learned trial Court on all the issues, the learned District Judge has proceeded to modify the decree without any lawful authority for a reason which is not warranted by any law i.e, that Ali Muhammad was not the allottee of the land when the initial oral agreement was entered into in the year 1958-59. Mr. Muhammad Iqbal Khan, Advocate/learned counsel for the contesting respondents vehemently attacks all the findings of the learned District Judge in the impugned judgment. According to him, the evidence on record has been misread as there is no evidence of receipt of consideration and of execution of the agreement by Ali Muhammad as also the delivery of possession. He also contends that the filing of the pre-emption suit by the father of the petitioner against the sale in favour of his client constituted estoppel against the petitioner. Further contends that the original agreement was not produced and as such this is a case of no evidence. Mian Mushtaq Ahmad, Advocate, rejoins to urge that the secondary evidence was led in the case with the permission of the Court in accordance with law. He refers to order dated 25-11-1985 of the learned trial Court in this behalf and supports the reasoning of the learned District Judge for answering the issue of estoppel against the respondent No,l. I have gone through the copies of the records, appended with both these cases, with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of the pleadings of the parties. Now before I proceeded to consider the cross-objections. I may note here the reason recorded by the learned District Judge for holding that the agreement is not enforceable. These are contained in para.33 of the impugned judgment.
Precisely the reason stated is that since at the time of initial agreement in the year 1958, the allotment in favour of Ali Muhammad stood cancelled, the agreement could not have been entered into.
5. It is but obvious that somehow or the other the learned District Judge has opted to remain in oblivion of section 43 of the Transfer of Property Act, 1882 and more particularly section 18 of the Specific Relief Act, 1877. This later provision of law vests the promise, of an agreement for transfer of property, with a right to compel the promisor to transfer the land where he perfects his title subsequent to the agreement. The learned Courts below in their respective judgments have referred to several judgments and needless to state that by now it is well-settled that an agreement to sell does not fall within the mischief of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 as held by the learned District Judge himself.
6. Now coming to the contentions of Mr. Muhammad Iqbal, Advocate for respondent No,1, as noted by me above, there was no specific denial by Ali Muhammad in the written statement of the said agreement. The petitioner filed an application seeking permission to produce secondary evidence in respect of the said agreement. It was stated that since an agreement was entered into by Ali Muhammad with three persons, the original agreement was in possession of Haitam who had earlier joined him as a plaintiff but later withdrew his case and colluded with the defendants. A certified copy has been obtained from the office of the Registrar. The application was replied to by the petitioner. Vide order dated 25-11-1985, permission was granted. I may note here that one of the reasons which weighed with the learned trial Court was that the execution of the document had stood admitted and not denied by Ali Muhammad. To my mind, no error within the meaning of section 115, C.P.C. Is to be found with the said order in the said circumstances of the case. Now I may refer here to the better statements recorded by the learned trial Court before framing issues.
Muhammad Aslam, petitioner stated that before the allotment of the land in favour of Ali Muhammad, agreement was made at the rate of Rs,2,000 per Acre and he had to pay the expenses as well. He paid Rs,9,000 before allotment and Rs,10,000 thereafter. On 27-5-1976 the agreement was registered containing the details of the payment and acknowledgment by Ali Muhammad. Now Ali Muhammad stated that agreement was entered into before the allotment but he had not taken any money.
7. Now notwithstanding the admitted position in the matter of execution and registration of Exh. P.1 as also the oral agreement entered into between the parties, the petitioner produced Muhammad Ali, P.W.2, who is the Scribe of the agreement Exh.P.1., he stated that he had scribed the agreement and that Ali Muhammad had signed in his presence and so is the case with promisee. The only suggestion given to him and he admitted that no amount was paid in his presence. Shabbir Hussain, P.W.3 and Shabbier Ahmad, P.W.4 are marginal witnesses. They made their statements accordingly and they made similar statements in cross-examination regarding payment. P.W.5 is Muhammad Ali son of Boota. He stated that at the time of oral agreement, Rs,9,000 were paid by the petitioner Muhammad Aslam to Ali Muhammad. Now Muhammad Aslam appeared as P.W.6.
He made a categorical statement regarding the initial oral agreement, then the written agreement and, of course, payment of consideration. Not a single question was put to him to question the said statement.
8. Now Ali Muhammad himself appeared as D.W.3. He stated without any demur that he executed the agreement in favour of three persons including the petitioner. However, he stated that he was not paid any consideration.
9. To my mind, there is no misreading of evidence on record by the learned Courts below while holding that execution of the agreement and payment of consideration by the petitioner to Ali Muhammad stood proved. The only point being highlighted by the learned counsel is that all the P.
Ws. Pertaining to the agreement stated that no money was paid in their presence. This is a correct statement, the reason being that the agreement Exh.P.1 narrates that the amount of consideration had already been received by Ali Muhammad from the promisee.
10. Now coming to the question of bona fide purchase, as stated by me earlier, the suit was filed by the petitioner on 24-5-1980. According to respondent No,1, he purchased the land in the year 1980.
The copy of the sale-deed registered on 22-51980 is Exh.D.3/2. Now there is no plea in the written statement that the respondent No,1 was not aware of the agreement. On the other hand, he appeared as D.W.4 and stated that Aslam (petitioner) had entered into an agreement in the year 1976 but at that time Ali Muhammad was not allottee. He has not stated that he was not aware of the said agreement when he purchased the land. In his cross-examination, he stated that before purchasing the land he had tried to effect compromise between the petitioner and Ali Muhammad.
He suffered a lapse of memory when confronted that on 20-11-1980 he paid of Haitam, the erstwhile a co-plaintiff, who accordingly surrendered his rights. He admitted that father of the petitioner is in possession and that he had not delivered possession to him. He has also admitted that his suit for produce had been dismissed. In further course of examination, he was made to say that he was not aware of the agreement but then he admitted that a few days before the registration of the sale-deed he came to know that there is a dispute between the petitioner and Ali Muhammad regarding this land and for two months he tried to B effect a compromise.
11. Thus, no case of bona fide purchase without notice stands made out within the meaning of section 27(b) of the Specific Relief Act, 1877.
12. This leaves the question of estoppel. Now the suit for pre-emption was filed by the father of the petitioner on 21-5-1981 (as per note on Exh.D.5). There is no question of estoppel as the present suit had already been filed by the petitioner on 24-5-1980. Now according to the said amended plaint (Exh.D.5) father of the petitioner died on 13-2-1986 during the pendency of the said suit and his LRs were impleaded and that is why the name of the petitioner came to be recorded in the said plaint.
The issue has been correctly answered by both the learned Courts below.
13. The civil revision is accordingly allowed. The impugned judgment and decree dated 19-12-2005 passed by learned District Judge, Sahiwal, is set aside and the decree passed by the learned trial