' MIAN SAQIB NISAR, J.---The suit of the appellants/plaintiffs for the specific performance of a contract was dismissed by the learned Trial Court, vide judgment and decree, dated 26-4-1994, to the extent of the enforcement of the contract, but they were granted the alternate relief in the nature of the refund of the consideration amount paid to the vendor, which was conceded by the vendor; this judgment and decree when challenged by the appellants, has been upheld by the learned Court of Appeal.
2. The brief facts of the case are, that, the plaintiffs/appellants on 6-7-1989, filed a suit for the specific performance, claiming that Muhammad Ishaq, the predecessor-in-interest of respondents Nos.1 to 11, through an agreement, dated 9-7-1986, agreed to sell the suit-land measuring 80 Kanals 2 Marlas, situated in Kotli Rai Abu Bakar; Tehsil and District, Kasur, for total consideration of Rs,1,75,500, out of which Rs,1,60,500 was paid to the vendor and for the remaining thereof three months period was fixed between the contracting parties, when the transaction was to be finalized.
But the vendor subsequently sold the said land to respondents Nos. 12 to 14, through a registered sale-deed, dated 11-10-1986, and thus defaulted and violated to perform his part of the agreement.
3. The legal heirs of the vendor Muhammad Ishaq (respondent Nos.1 to 11), conceded the suit of the plaintiffs/appellants, whereas it was contested by the other defendants (respondents Nos. 12 to 14), who denied the execution of the agreement to sell and about the payment of the consideration etc. And claimed it to be a collusive suit between the plaintiffs and the other defendants; they also put forth the defence of being the bona fide purchasers of the suit property, thus, according to the pleadings of the parties, issues were framed, parties were put to trial and according to the learned Civil Judge, the appellants were able to prove the agreement to sell; however, as respondents Nos.
12 to. 14 were the bona fide purchasers without knowledge of the agreement to sell, therefore, the relief of the specific enforcement was declined, and in the alternate the decree for the refund of Rs,1,60,500 was allowed to the plaintiffs/appellants, against respondents Nos. 1 to 11, who as stated above had admitted the receipt or such money; the judgment and decree, dated 26-4-1994, when challenged by the appellants, has been upheld by the learned Court of Appeal, as well.
4. Learned counsel for the appellants contends, that the respondents Nos. 12 to 14 in their written statement have not taken up the defence in terms of section 27(b) of the Specific Relief Act, as it has not been stated that the respondents/defendants are the bona fide purchasers for valuable consideration without notice to of the earlier agreement to sell. It is also argued, that the learned Courts below have given the finding in favor of the appellants about the valid execution of the agreement; but has only declined the main relief on the ground of the defence set out by respondents Nos. 12 to 14, being the bona fide purchasers, however, this plea, which was the duty of the respondents to prove, has not been proved in accordance with law, because in the plaint the appellants in very clear and specific terms stated, that the respondents were apprised of the agreement to sell, when this was executed between the plaintiffs and the vendor, and through the statement of P.W.3, one of the plaintiffs, this has also been proved, but no rebuttal evidence was led by the respondents.
5. I have heard the learned counsel for the parties and find, that there is a concurrent finding of fact recorded by the two Courts below about the issue regarding bona fide purchase of respondents Nos. 12 to 14. The question raised, that the defence of bona fide purchaser is not in terms of section 27(b) of the Specific Relief Act, suffice it to say, that the pleadings in "Mufassal" (URDU TEXT) have to be liberally construed; in the preliminary objection No,2 of the written statement, it has been clearly mentioned, that the respondents are the bona fide purchasers, therefore, even if the specific wording of section 27(b) has not been incorporated in the contents of the written statement, the above wording is sufficient to bring the case of the respondents within the purview of the above provision.
6. As regards the submission, that the plaintiffs have proved that respondents Nos. 12 to 14 had the knowledge about the sale and they were apprised by the plaintiffs themselves and in this behalf necessary averments were made in the plaint and the depositions of P.W.3/Atta-urRehman has been referred to. I have considered the plaint and find, that there is no such averment; the statement of Atta-ur-Rehman, which on the face of it seems to be unbelievable, does not corroborate by any other evidence and is also beyond the scope of the averments of their plaint.
Besides, according to the law, it is the duty of the prospective vendor under an agreement to sell, to positively prove that the subsequent purchaser had the knowledge of his agreement, but it is amazing that after having paid the alleged amount of Rs,1,60,500 out of the total consideration of Rs,1,75,500, the appellants even did not obtain the possession of the property and after such a long time of the purchase by the respondents have brought the present suit, near about the expiry of three years time. The appellants have also led no evidence to prove, thatthere were any factums eminent which could put the respondents to a notice about the earlier alleged sale agreement of the appellants. It is not out of place to mention here, that the learned Court of Appeal has considered the evidence and the conduct of the appellants and the sellers of the property; that sellers had earlier tried to get the sale of respondents Nos. 12 to 14 annulled by various Ways and having failed to achieve their object the present suit was initiated by the appellants. The learned Court of Appeal has categorically held, that "Then third attempt is being made by the present appellants through this suit on the basis of agreement Exh.P.1. The existence of which as discussed supra appears to be dubious and also to the utter absence of knowledge of the contesting respondents."
' I do not find any illegality in the impugned judgment and decree calling for interference in the second appeal. This appeal, therefore, has no merits and is hereby dismissed With costs throughout