SARDAR MUHAMMAD ASLAM, J. --- The civil revision by defendants vendees (subsequent purchasers) assails the judgment of the learned Appellate Court whereby suit for possession through specific performance of agreement to sell (Exh.P.1), dated 14.10.1991 was decreed on acceptance of appeal by setting aside the judgment and decree of the learned Trial Court.
2. Briefly respondents No. 1 to 14 filed a suit for specific performance of an agreement to sell dated 14.10.1991, in respect of the land detailed and described in the plaint Salamat Khan predecessor-in- interest of respondents No. 15 to 20 agreed to sell the land to the plaintiffs on his on behalf and on behalf of his sons and daughters, being their general attorney. It was contested by vendors Salamat Khan and others. During its pendency, the land was transferred to the petitioners. On acquisition of knowledge of subsequent sale the said suit was withdrawn with permission to file this suit after addition of petitioners in array of defendants. Petitioners and the vendeesrespondents No. 15 to 20 filed their separate written statements respectively denying the averments made in the plaint. The learned Trial Court on the controversy framed issues. Parties produced evidence in support of their contentions. The learned Trial Court dismissed the suit vide its judgment date 05.01.2002, recording its findings on issue No. 4, that the petitioners-defendants are bona fide purchaser for consideration. In consequence to his conclusion on issue No. 4, he found agreement to sell a forged and fabricated document under issue No. 5. In his opinion, non-appearance of its scribe and stamp vendor was fatal.
3. The respondents preferred appeal which came up for hearing before the learned Additional District Judge on 12.03.2002 and was allowed. The learned Appellate Court held the defendants bound by doctrine of lis pendens, having purchased for property during the pendency of the civil suit and protection under Section 41 of the Transfer of Property Act was, thus, not available to them.
As to agreement, the learned Appellate Court observed that it was proved to have been executed by Salamat Khan, deceased.
4. Plaintiff examined PW-1 Rana,Saeed and PW- 2 Habib-ur-Rehman's, who were marginal witnesses of the agreement. Liaqat Hayat, one of the plaintiffs appeared as his on witness. Abdul Majeed defendant appeared, as DW- 1 in support of his averments and Tariq Mahmood, DW-2, Stamp vendor was produced to prove Ex.D1, sale-deed executed in their favour. Copy of Register Haqdaran Zameen was produced as Exh.D.2 and order of withdrawal of suit from Civil Court as Exh.D.3.
5. Learned counsel for the petitioners contends that the petitioners purchased the land without notice, hence they were protected under provision of Section 41 of Transfer of Property Act read with Section 27(b) of Specific Relief Act; that Register Haqdaran Zameen contained the name of Salamat Khan and others, hence care and caution expected from person of ordinary prudence was taken and that plaintiff failed to prove execution of the agreement as vendor Salamat Khan, was an old man of 80 years of age an illiterate, with no independent advice available to him.
6. Learned counsel for the petitioner relied on the following case law:- "In Syed Nasir All Shah v. Syed Riaz Ali Shah, and another (2001 CLC 1100), protection was given to subsequent purchaser when plaintiff did not impute him knowledge of earlier sale. In Muhammad Ilyas and others v. Muhammad Sharif and others (2001 CLC 1194), it was held that burden of subsequent purchaser is very light and he can discharge the burden by denying on oath the knowledge of earlier agreement in Asghar Ali v. Waqar-uz-Zaman (2004 CLC 1531), It was held that initial burden to seek protection under Section 41 of Transfer of Property Act is on defendant. In Siraj Munir through Legal Heirs and 3 others v. R.I Sarwar Khan and 4 others (2001 CLC 1509), it was observed that statement of subsequent purchaser denying the agreement is sufficient. In Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494), It was held that an unregistered agreement to sell neither put the subsequent vendor on guard nor notice, thereof, could be taken by a third person. In Muhammad Nawaz Khan v. Muhammad Khan and others (2002 SCM R 2003), provisions of Sections 41 and 52 of Transfer of Property Act was considered and held that transfer pendente elite is hit by principle of lis pendens, unless subsequent purchaser prove that, he had no notice of sale and he paid price in good faith; In ljaz Baig and 16 others v.
Irshad Baig and 2 others (2003 CLC 1805), it was 'held that examination of entries in revenue record showing vendor as sole proprietor without any indication to go behind provide protection under Section 41 of Transfer of Property Act. In Allah Ditta v. Abdul Ghafoor (1992 M LD 1301), referring to provisions of Order 23, Rule 1 C.P.C., it was held that, withdrawal of suit with permission of Court would relegate the parties to the position, as former suit was not instituted at all. Similar view was taken in Baisnah Das Mohanta v. Nani Gopal Das and others (PLD 1963 Dacca 504) declaring that withdrawn suit be regarded as "never brought". In Irshad All v. Soof Khan and another (.1987 M LD 498), omission to examine scribe was fatal to the case was a rule of universal application. It may not be necessary in every suit to produce scribe to prove the document but where evidence of the witnesses is contradictory to each other, his examination in necessary."
7. Learned counsel for the respondents, on the other hand, vehemently controverted to pleas raised by the petitioners and argued that defendants purchased the suit land on 28.03.1992, when suit against vendor in respect of this land was pending adjudication in Civil Court which was withdrawn on 23.03.1993, with permission to file fresh on . After impleadment of petitioners and agreement to sell was proved through statements of marginal witnesses. Defendants purchased, through, some Salamat Ali, without independent advice, when he grew old father by one year.
Learned counsel for the respondents relied on the following judgments:--- "In Mst. Khair-un-Nisa and 6 others v. Malik Muhammad Ishaq and 2 others (PLD 1972 SC 25), it was held that subsequent purchase has to discharge a heavy burden to prove that he was transferee in good faith without notice of original contract for valuable consideration Section 26(b) lays down the general rule that original contract can be specifically enforced against subsequent transferee but allows an exception to that general rule, not to the transferor but to the transferee. It is the subsequent transferee in whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lies. Written statement cannot be exhibited in case without the person, who denied the contract, being examined in the Court and cannot be treated as evidence in the case."
8. After having examined the case-law cited by the learned counsel for the parties, it is manifest that a heavy burden lies on the subsequent purchaser to prove that he took reasonable care to ascertain that transferor had power to make transfer, and that he had acted in good faith. Section 52 Of the Transfer of Property Act governs the principle of lis pendens. The principle on which this doctrine rests was considered in Bellamy v. Sabine, (1857) 1 De-G and J, 566:--- "It is as I think, a doctrine common to the Courts both of law and Equity, and rests, as I apprehend, upon this foundation that it would plainly be impossible that any section or suit could be brought to a successful termination, if alienations pendent lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo subject again to be defeated by the same course of proceedings."
Reliance is also placed on Fateh Muhammad v. Mst. Maryam Bibi and another (1995 PSC 437) and Munawar Hussain etc. v. Messrs Nisar & Co. And others (1976 SCM R 385).
9. Subsequent purchaser having purchased the land in dispute during the pendency of civil suit for specific performance of an agreement to sell in favour of the plaintiff is bound by decree passed in the suit in their favour and could not invoke plea of bona fide purchase for value of land without notice. Transfer of suit land during the pendency would be hit by doctrine of lis pendens and would not be 'saved by Section 41 of the Transfer of Property Act. The petitioners cannot invoke the principle of bona fide. Purchaser for consideration, on purchase of land during the pendency of litigation to rule of equity is against them. It is unsurmountable hurdle, and, even if considered to the bona fide purchaser for consideration would not be entitled to relief, as this rule of equity is not recognizable under Section 52 of Transfer of Property Act. Reference can be had to Muhammad Yousaf and others v. Muhammad Younas and others (1995 CLC 1780).
10. Dealing with the objection specific raised by the learned counsel for the petitioners-defendants of having no notice of sale and protected under Section 41 of Trnsfer of Property Act, it is pertinent to mention that the plaintiffs only alleged in their plaint having asked the defendants to cancel the said sale-deed in favour of the petitioners-defendants. Respondents No. 4 to 10, have submitted written statement that vendor Salamat. Khan, who transferred the property was an illiterate person and has not executed agreement to sell, will be no avail as none from them entered into the witness-box to prove the assertion, so made, in the written statement. The petitioners-defendants No. 11 and 12 state that they have purchased the land without notice of sale in favour of the plaintiffs/decreeholders PW-1 Rana Saeed Ahmad deposed that on 14.10.1991, an agreement to sell was entered into between the parties. He signed the sanie as marginal witness. Salamat Ali, defendant had thumb-marked Exh.P.1. Respondents did not cross-examine this PW in regard to execution of agreement to sell. He was suggested only that if any writing was made in regard to payment of earnest amount PW-2 Habib-ur-Rehman's also stated that he is marginal witness of Exh.P.1 It was authored at the instance of Salamat Ali. It was read over to him and he thumb- marked the same. He also signed the agreement and his signatures are Exh. P.1/2. Liaqat Hayat, one of the plaintiffs, PW-3 stated that subsequent purchaser had full knowledge of agreement to sell in their favour. In the proceedings of first suit for specific performance filed by them, the present petitioners (defendants Nos. 11 and 12) accompanied Salamat All the vendor in Court on hearing and, thus, were fully aware of the existence of agreement to sell and that they secured the transfer of property, mala fidley. The suit land is situated in Chak No. 147/EB, Tehsil Arifwala, District Pakpattan Sharif. The petitioners-defendants are also residents of the same Chak. The vendors are resident of Tehsil Jaranwala, District Faisalabad and used to stay in petitioners-defendants house on their way from Faisalabad to Sahiwal. DW-1 Abdul Majeed, sole witness stated that he had no knowledge of the sale in favour of the plaintiff and that no transaction was ever entered into with the defendant before execution or registration of sale-deed in ,his favour. In cross-examination he admitted that Salamat All was married to his sister and that remaining vendors are his material nieces and nephews. It is not denied that Salamat Ali used to stay in Chak No. 147/EB, during the prosecution of first suit filed against him by the plaintiffs. Though the petitioners have denied his stay with them, yet it is clear that he was residing in the house of the petitioners. There are strong probabilities that the petitioners had the knowledge of the sale . In village life relations normally do accompany to the Courts, on date of hearing of the case. The petitioner most likely have accompanied Salamat Ali.To the Court premises and, if, not they are presumed to have acquired the knowledge of the suit against Salamat Ali in respect of the disputed land. Mere a word of one of the petitioners that they had no knowledge of the agreement to sell in favour of the plaintiff cannot defeat the plaintiff's suit. The pendency of suit in the Court, presumably puts every one on notice.
The petitioners cannot claim protection under Section 41 of the Transfer of Property Act. They were fully aware of the fact that the litigation is going on in respect of the suit had between Salamat Ali and the plaintiffs. They have purchased the land with full knowledge of agreement to sell in favour of the plaintiff. The principle of lis pendens is, therefore, clearly attracted. Sale made in favour of the petitioners during the pendency of the suit for specific performance was not sustainable in law.
Learned counsel had canvassed that first suit on withdrawal, shall be regarded has never brought, hence sale cannot be deemed to have taken place during the pendency of the suit, is without any merit. Earlier suit for specific performance, by the plaintiff Liaqat Hayat, etc. In respect of suit land against Salamat and others was instituted on 18.02.1992 and was withdrawn on acquisition of knowledge of its sale in favour,r of the petitioners on 12.09.1993. The petitioners purchased through registered sale-deed on 28.03.1993. The clearly means that sale took place during the pendency of the litigation. Withdrawal of suit was only to seek addition of petitioners/defendants in the array of defendants. They could have amended the plaint rather than withdrawing the suit, but perhaps on account of advice of the counsel, they elected to do so. The counsel may have been labouring under the impression that only fresh suit is competent. The Courts have been liberally dealing with pleadings emanating from Mufassil to provide substantial justice. Mere withdrawal would not visit with penalty to the plaintiffs, so as to be non-suited. Even on dismissal of the suit for specific performance. Transfer made before the expiry of limitation period of appeal, was not taken a bona fide. In this case, fresh suit was instituted on 23.09.1993, having withdrawn earlier .Suit on 12.09.1993.
Defendants were not protected under Section 41 of the Transfer of Property Act. Judgment of the learned Appellate Court is un-exceptionable.
11. For what has been discussed above, the petition having no force, is dismissed. The parties to bear their on costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.