Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 11'.4.2005 passed by Lahore High Court, Lahore whereby regular second appeal arising out of a suit for specific performance of the contract was dismissed.
2. The short facts in the background giving rise to this petition are that Barkat Ali, co-allottee of Respondents Nos, 1 to 11 of the suit land, subject-matter of dispute on 25.1.1979 entered into an agreement of sale of land with the petitioner for consideration of Rs, 80,000/- and having received an amount of Rs, 40,000/- as earnest money, delivered to them the possession of land. It was settled in the agreement that Barkat Ali would obtain power of attorney from his co-sharers and balance price would be paid at the time of registration of sale-deed. However, the sale agreement could not be materialized for want of execution of power of attorney by the co-sharers of Barkat Ali in his favour and meanwhile Muhammad Shafi, respondent herein, in his capacity as general attorney of Respondents Nos, 1, 2 and 13, executed registered sale-deed in favour of Respondents Nos, 12 & 13 whereupon the petitioners on the basis of their agreement dated 25.7.1979, filed suit for specific performance of the contract. The claim of the petitioner was conceded by Respondents Nos, 1 to 7 and 10 whereas Respondents Nos, 12 & 13 contested the suit with the assertion that they were bona fide purchaser for value without notice and also denied the validity of sale agreement in question. The suit was dismissed by the learned trial Judge vide judgment dated 16.6.1984 and the appeal filed by petitioners was also dismissed by learned District Judge, Layyah, vide judgment dated 25.4.1989. The regular second appeal filed by the petitioners in the High Court was dismissed with the observation, firstly that petitioners failed to deposit expenses for publication for service of respondents, secondly, the agreement on the basis of which suit was filed, was executed by one of the respondent, namely Barkat Ali as co-shares in the property without any authority to enter into such an agreement on behalf of the other co-sharers and consequently, the agreement would not be binding on the co-sharers, who are not party to it and thirdly, the property was purchased by the Respondents Nos, 12 & 13 for valuable consideration free form all encumbrance and without notice of the agreement in question.
3. Learned counsel for the petitioners has contended that the respondents in their written statement, having acknowledged the execution of agreement, conceded their claim to the extent of their share, therefore, suit was wrongly dismissed.
This is an admitted fact that respondents, who have conceded the claim of petitioners in the written statement were not party to the agreement on the basis of which suit was filed and this is also admitted that Khushi Muhammad, respondent, holding a valid power of attorney, transferred the suit land in favour of Respondents Nos, 12 & 13 before filing of suit by the petitioners therefore, the subsequent acknowledgement of agreement of petitioners with Barkat Ali by the respondents, in their written statement would neither effect the transaction of sale in favour of Respondents Nos, 12 & 13 who where bona fide purchaser for valuable consideration nor the sale would be hit by the principle of lis pendens and apart from the provision of Section 41 of Transfer of Property Act, 1882 by virtue of which right of a bona fide purchaser subject to the conditions contained therein is protected in law, the right of transferor in the present case would be protected by the general principle of law according to which a person cannot transfer right or title in the property more than what he possesses whereas the principle contained in Section 41 of Transfer of Property Act, 1882 is an exception to the general rule which is based on equitable doctrine of estopple. In the present case, the Respondents Nos, 12 & 13, purchased the property from the real owner without any defect in their title and free from all encumbrances, therefore, notwithstanding the subsequent acknowledgement of claim of petitioners by the vendees respondents, the right, title and interest of respondents-purchaser, would be protected on all force under the law because Barkat Ali had no authority to enter into an agreement with the petitioners beyond his share in the property. The learned counsel for the petitioners has not been able to satisfy us that the judgment of tie High Court in the given facts, was suffering from any defect of misreading or non-reading of evidence or any other legal or factual infirmity calling for interference of this Court.
5. In the light of forgoing discussion, we do not find any substance in this petition, which is accordingly dismissed. Leave is refused.