' PARVEZ AHMED, J.---The appellants have assailed the judgments and decrees of both the Courts below, dated 20-2-1995 of the trial Court and that of the appellate Court, dated 4-3-1996 by virtue of which the suit brought for specific performance of contract by respondents Nos.1 to 16 who were plaintiffs before the trial Court was decreed and the appeal filed by the present appellants before the appellate Court was dismissed.
2. Briefly stated the facts which gave rise to the present appeal are that the present respondents Nos.1, 12 to 16 along with one Muhammad Siddique, who was the predecessor-in-interest of respondents Nos. 3 to 11 brought a civil suit for specific performance of agreement to selllleged to have been entered into in between them and the respondent No.17, Mst. Shah Khanum on 18-2-1978 with regard to the land mentioned in para. 1 of the plaint for a consideration of Rs,1,10,000 through her attorney Muhammad Akhtar Usmani. It was alleged that the entire consideration of Rs,1,10,000 was paid to the defendant, Mst. Shah Khanum at the time of execution of agreement to sell and the defendant delivered physical possession of the suit property to the plaintiffs at the time of execution of agreement to sell and since then the plaintiffs are in possession of this property. It was further alleged that the defendants had agreed to transfer this property in their favour through a registered sale-deed after overcoming some legal obstacles. The plaintiffs had been constantly contacting the defendant No.1 and requesting her to execute the registered sale-deed but the plaintiffs were told that the legal obstacles have not been removed so far. It was alleged that about two months ago they contacted the defendant No.1 when she flatly refused to execute the registered sale-deed in their favour, hence the present suit. The suit was originally filed only against Mst: Shah Khanum as the sole defendant. The suit was accompanied with an application for temporary injunction in which on 18-2-1988 it was ordered that the present position be maintained.
The original defendant Mst. Shah Khanum was allegedly served through publication and she was proceeded ex parte. However, on 20-6-1988 the present appellant No.1 and the predecessor-in- interest of the appellants Nos. 2 to 7 applied to be added as party with the averments that by virtue of deed of exchange registered at No.53 in Book No.1 Volume No.85 in the office of sub-Registrar Sharaqpur on 26-1-1988 as well as on the basis of sale-deed registered at No.2360 in Book No.1, Volume No.451, dated 10-2-1988, the appellants have obtained all rights of land by way of exchange and then by sale as such they prayed to be added as defendants in the suit. The application was resisted by the original plaintiffs and the present respondents. However, after giving an opportunity of hearing to both the parties, the trial Court allowed the application and directed the plaintiffs to file an amended plaint after impleading them as party to the civil suit and as defendants. Consequently the amended plaint was filed. During the course of pendency of the suit Rehmat Ali died and his legal representatives were brought on record on 19-3-1994. The matter was contested by the present appellants by submission of written statements. However, the vendor Mst. Shah Khanum was proceeded ex parte. It was alleged by the present appellant No.1 and the predecessor-in-interest of the other appellants that agreement to sell, dated 18-2-1978 on the basis of which the plaintiffs had purchased is forged. It was alleged that the defendant No.1 never entered into an agreement to sell the suit property in favour of the plaintiffs nor she received any sale consideration and the possession of the plaintiffs over the suit property is in the capacity of the tenants and not under the agreement to sell. It was further alleged thatthe present suit for specific performance brought by them on 17-2-1988 based on the agreement to sell, dated 18-2- 1978 is barred by limitation. It was also alleged that the defendant No.2 had effected an exchange with defendant No.1 of some property in suit on 26-1-1988 through a registered exchange deed then the entire suit property was sold in favour of defendant No.2 through a registered sale deed. It was also stated that the defendants prior to the entries in the exchange deed and sale-deed had given a notice to general public through publication in the paper. The defendants Nos. 2 and 3 claimed bona fide exchange and then bona fide purchaser for consideration and without notice.
On the pleadings of the parties the trial Court framed the following issues:--
(1) Whether the suit is barred by time? OPD
(2) Whether the plaintiffs are estopped by their conduct to bring their suit? OPD
(3) Whether the defendant No.1, executed an agreement to sell, dated 18-2-1978, in favour of the plaintiffs and received Rs,1,10,000 as a consideration? OPP
(4) Whether the agreement to sell, dated 18-2-1978 is a bop document and plaintiffs were in fact, tenants on the suit-land? OPD Nos. 2 and 3.
(5) Whether the plaintiffs are entitled to a decree of specific performance of contract on the basis of agreement, dated 18-2-1978? OPP.
(6) Relief.
3. On 20-6-1989 the trial Court recorded the evidence of the parties comprising the statements of P.W.1 Taj Muhammad, P.W.2 Muhammad Zaman, P.W.3 Fazal Mohyuddin, P.W.4 Jumma Khan, P.W.5 Amrit Khan, P.W.6 Rehmat Khan, P.W.7 Muhammad Azam and P.W.8 Muhammad Munir, one of the plaintiffs. The plaintiffs also tendered agreement to sell as Exh.P.1., copy of the judgment of the Supreme Court, dated 6-8-1984 as Exh.P.2., copy of Rozenamcha Waqaiti, dated 29-5-1986 as Exh.P.3, copy of attested power of attorney of Mst. Shah Khanum in favour of her husband Muhammad Akhtar Usmani, dated 18-7-1974 as Exh.P., copy of Mutation No.825 as Exh.P.5 and closed their evidence. The defendants produced D.W.1 Javaid Aslam Patwari, D.W.2 Nazir Ahmad, D.W.3 Liaqat Ali, D.W.4 Samee Khan, D.W.5 Abdul Ghafoor, D.W.6 Muhammad Ashiq, defendant No.2 as witness and tendered copy of publication in the newspaper as Mark-A and copy of the judgment of the Supreme Court as Mark-B and closed their evidence. The trial Court after giving an opportunity of hearing to both the parties came to the conclusion that the suit of the original plaintiffs was liable to be decreed in their favour, as such passed the judgment anddecree in their favour on 20-2-1995. The present appellants feeling themselves aggrieved filed an appeal before the appellate Court from where it met the same fate and was dismissed on 4-3-1996. The present appellants feeling themselves aggrieved has filed the present regular second appeal.
4. Learned counsel for both the parties have been heard and the entire record with their assistance has been perused.
5. The questions over which the parties are at variance are the execution of agreement to sell Exh.P1, whether the delivery of possession in favour of the plaintiffs took place in consequence of agreement to sell or not, whether the suit of the plaintiffs is within time or barred by limitation, whether the exchange in favour of defendant No.2 by defendant No.1 was made and whether the defendant No.2 at the time of exchange had the notice of the agreement to sell in favour of the plaintiffs and whether the sale in favour of defendant No.3 is for consideration in good faith, bona fide and without notice of the earlier agreement to sell. As above issues framed by the trial Court does not depict framing of issue with regard to the question of exchange in favour of defendant No.2 by defendant No.1 and sale made in favour of defendant No.3 and the defendant No.3 being bona fide purchaser for consideration and without notice but the entire evidence upon these issues stands recorded by the trial Court and both the Courts below have considered this aspect of the case as such I do not feel proper to remand the case on this score only and proceed to dispose of the appeal on merits.
6. The case of the plaintiffs is that one Muhammad Akhtar Usmani who was the husband and the attorney of Mst. Shah Khanum had entered into an agreement to sell on 18-2-1978 in their favour which agreement was executed in between Muhammad Akhtar Usmani and one Muhammad Azam and to prove it. The plaintiffs have placed reliance upon the statements of the marginal witnesses P.W.1 Taj Muhammad and P.W.2 Muhammad Zaman and the scribe of this document Fazal Mohyuddin as P.W.3. Taj Muhammad P.W.1 stated that he was living with Col. Hamid Hasan Khan, (father of Mst. Shah Khanum) for the purpose of management of his property. The agreement to sell was entered into in between Muhammad Akhtar Usmani and Muhammad Azam and he affixed his signatures as a witness. The perusal of agreement reveals that it was entered into on behalf of Muhammad Iqbal, Muhammad Siddiqui, Muhammad Bashir, Muhammad Munir and Muhammad Mudassar all sons of Fazal Ahmad, Muhammad Mushtaq son of Qadar Dad, Muhammad Riaz son of Muhammad Azam and this witness states that he does not know Muhammad Riaz and Muhammad Qadeer. This witness also stated that P.W.2 Muhammad Zaman is not known to him. This witness further stated that he never saw any power of attorney executedby Mst. Shah Khanum in favour of Muhammad Akhtar Usmani. He admitted that the agreement was not written in his presence as he was sitting out of the room. He further made a statement that some litigation was going on with regard to the suit property which is not within his knowledge. However, he admitted that Mst. Shah Khanum and Muhammad Akhtar Usmani are alive and are available in Pakistan at Karachi. P.W.2 Muhammad Zaman made a statement that agreement was entered into in between Muhammad Akhtar Usmani and Muhammad Azam, Muhammad Siddique and he affixed his thumb-impressions over it. However, in cross-examination he admitted that no mutation was entered in his presence. He has no permanent residence in Lahore. This witness, however, made a statement that Muhammad Akhtar Usmani affixed his signatures at 2/3 places in the agreement to sell. Mst. Shah Khanum has never been seen by him.
However, he stated that some litigation was going on with regard to the suit property. Fazal Mohyuddin's statement was recorded as P.W.3 through a local commissioner wherein he admitted to have issued stamp paper. However, he neither admitted nor denied the affixation of signatures by any of the parties in his presence. He pleaded his ignorance whether the payment of sale consideration was made in his presence. He also pleaded that it was not within his memory whether some mention of any power of attorney was made in agreement to sell or not. The question whether agreement to sell was entered into in between Mst. Shah Khanum and the respondents, the onus of proof of which was on the respondents/ plaintiffs. The scribe of the document Fazal Mohyuddin whose evidence need not be reproduced has not admitted the power of attorney in favour of Muhammad Akhtar Usmani to have been seen by him. He has not admitted the payment of consideration. No register of stamp seller has been produced. Taj Muhammad is the `Munshr of Mst. Shah Khanum. P.W.2 Muhammad Zaman belongs to Azad Kashmir. Muhammad Akhtar Usmani and Mst. Shah Khanum admittedly are alive. None of them was summoned as a witness. No process was got issued through the Court. Their present address is not known to the respondents. It appears that Muhammad Azam who had got the agreement executed managed it as the other plaintiffs were in possession of the property as tenants and Taj Muhammad was in dealing with them. In view Of Mst. Shah Khanum having been proceeded ex parte and the defendants Nos. 2 and 3 having alleged its non-execution heavy onus was on the plaintiffs which has not been discharged by them, hence it is held that the execution of the agreement is not proved on record. The next question which arises is that even if the agreement was executed, whether the plaintiffs were put into possession of the property under the agreement to sell. It was also for the plaintiffs to have proved it. P.W.4 Jumma Khan stated the plaintiffs to be in possession as owners with the fact that the land is irrigated through canal water and tubwell. He is corroborated by Amrit Khan and RehmatKhan. But when the most relevant witness Muhammad Azam appeared as P.W.7 admitted that prior to the agreement the plaintiffs were in possession of the property as tenants. P.W.8 Muhammad Munir one of the plaintiffs pleaded ignorance as to their possession being as tenants. As above said it was for them to have the delivery of possession of the suit-land at the time of agreement. The land belonged -to Mst. Shah Khanum, a female, whether she was herself cultivating the land or whether it was being got cultivated from some tenants at will and who were they and when did they put the plaintiffs in possession of the property.
Otherwise the ignorance pleaded by Muhammad Munir with regard to possession as tenant goes against them. Apart from it, no notice or application to any of the Revenue Officer in this regard is made available. Therefore, they have failed to discharge the onus that they were put into possession of the property under agreement to sell Exh.P.1. Now the next question which arises for determination is whether the suit of the plaintiffs is within time. The agreement to sell which is in question was executed on 18-2-1978. The civil suit was filed on 16-2-1988. The clause No.7 did provide that there were certain legal obstacles and after the removal of those obstacles the agreement shall be executed. The matter in the Hon'ble Supreme Court with regard to the title of the parties, was disposed of on 6-8-1984, the entry in the Rozenamcha Waqiati was brought on 20- 5-1986, the mutation was attested on 29-5-1986. There is nothing on record that the plaintiffs who alleged to have made the payment of the entire consideration for the purpose of this property to Muhammad Akhtar Usmani did ever contact him or Mst. Shah Khanum after 1978 and if they did so then when specific performance was refused. There is also nothing on record that the plaintiffs ever made any effort to contact Mst. Shah Khanum. Apart from it nothing has been made available that any notice either on their own account or through some counsel was ever served upon Mst.
Shah Khanum or her attorney Muhammad Akhtar Usmani. The plaintiffs, who by recording of these words in the agreement that there were certain legal obstacles should have been very vigilant to follow the matter of legal obstacles and its removal etc., but no evidence in this regard is available.
The plaintiffs who were expected to have followed the question of legal hurdles which matter was finally disposed of by the Hon'ble Supreme Court on 6-8-1984 are admittedly come to have note of it as Muhammad Munir appearing as P.W.8 deposed that Muhammad Azam was in know of all it.
No evidence has been made available that even after the decision of the Hon'ble Supreme Court the plaintiffs ever contacted Muhammad Akhtar Usmani or Mst. Shah Khanum. Even the contents of the plaint do not reveal that as and when too Mst. Shah Khanum was contacted and in what manner and with what result, as such no date of notice of refusal is established to give benefit to the plaintiffs of the provisions of Article 113 of the Limitation Act that the period oflimitation in such cases is three years from the date when the plaintiffs had notice of refusal of specific performance.
The plaintiffs otherwise filed a suit after lapse of a period of 10 years. No evidence has been made available by the plaintiffs as to whether they ever contacted the C Revenue Authorities to ascertain the removal of legal obstacles or not. The above discussion clearly reveals that the suit of the plaintiffs was barred by limitation and was not within time. Although as above stated no issue with regard to exchange of the property of Mst. Shah Khanum in favour of defendant No.2 and then sale by him in favour of defendant No. 3 was framed, yet it is established that as both the parties had led their evidence on this aspect of the case and both the Courts below had disposed of the matter in this regard also, therefore, it is dealt with further. Exchange is defined under section 118 of the Transfer of Property Act. Section 119 deals with a clause with regard to protection or non-protection of the exchange. Both the relevant sections of the Transfer of Property Act are reproduced below:-- "(118) When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".
' A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.
(119) If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration."
' This clearly reveals that the transaction is called an exchange when two persons mutually transfer the ownership of one thing for the ownership of another and if a party who gets anything in exchange at any stage comes to know or is deprived of that thing on account of a defect in the title of the party then the other party is held liable for the loss caused thereby or for return of the property so transferred, exchange as such is one of the modes of transfer of property. The property which is subject- D matter of the agreement was covered within exchange deed. As above said exchange is a valid mode of transfer of the property and this property which was subject-matter of agreement to sell was covered bythe exchange deed and the provision of section 53-A of 'the Transfer of Property Act which reads as follows:-- "Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof".
' As above said the right of a transferee for consideration, who has no notice of the contract or of the part performance thereof is protected. The word transferee does cover the word of exchange as the person in whose favour an exchange takes place becomes the transferee of that property.
The word transferee does not confine itself to the word purchase only as defined in Black's Law Dictionary Fifth Edition the word transferee means he to whom transfer is made and the word transfer means 'an act of the parties or of the law by which the title to property is conveyed from one person to another; the sale and every other method, direct or indirect of disposing of or parting with property or with an interest therein or with the possession thereof or of fixing a lien upon property or upon an interest therein absolutely or conditionally, voluntarily or involuntarily . By or without judicial proceedings as a conveyance, sale payment, pledge, mortgage, lien, encumbrance, gift, security or otherwise. The word is one of general meaning and may include the act of giving property by will. Transfer is the all encompassing term used by Uniform Commercial Code to describe the act which passes an interest in an instrument to another. Transfer means every mode direct or indirect absolute or conditional, voluntary or involuntary of disposing of or parting with property or with an interest in property including retention of title as a security interest.
The transfer as above said implied that the properties which are exchanged are covered within the word transfer. Exchange has been defined 'in corpus juris secundum' as an exchange of property is a mutual transfer of property for property other than money. The word exchange is defined in law, terms and pharases as it is a mutual transfer of ownership neither thing being money only, it is effected like a sale rights and liabilities of the parties being the same as such the exchange is protected if established that such a transaction was without notice of any existence of any former document etc. In the present case the properties were exchanged in between Mst. Shah Khanum and Muhammad Ashiq on 26-1-1988. Muhammad Ashiq etc. Contacted the plaintiffs who intimated them that they were in possession of the property as tenants. No intimation was provided by the plaintiffs to them that they were in possession of the property under some agreement to sell. There is nothing on record that Mst. Shah Khanum or Muhammad Akhtar Usmani ever brought the fact of existence of any contract in between them and the plaintiffs to the knowledge of Muhammad Ashiq at the- time of exchange. No evidence is available that any record was available withthe Revenue Authorities giving a clear notice to Muhammad Ashiq that the property was subject- matter of some other document. After the statement of Muhammad Ashiq the onus had shifted upon the plaintiffs to prove otherwise but no such evidence has been made available on record.
There nothing in the record of the Revenue Authorities or otherwise existed or brought to the notice of the defendant No.2 forcing him to have a deeper enquiry with regard to the transaction. No evidence is otherwise available that some collusion did exist in between the defendant No.2 and Mst. Shah Khanum at the time of entry of exchange deed. What has been said above is also of relevance for the purpose of that no such evidence is available to rebut the contention that the defendant No.3 at the time of purchase of the property was having any notice of the earlier agreement to sell. The defendants prior to this transaction gave a publication in the press in this regard; even then none of the plaintiffs contacted them. There is another aspectto this question that it were the defendants Nos. 2 and 3 who of their own accord submitted an application to be impleaded as a party when they came to know of pendency of the civil suit, had the defendants any notice of the earlier agreement to sell prior to the submission of their application to be impleaded as a party or had they not been bona fide in their purchase of property and the agreement to sell would have been in their knowledge then the plaintiffs would have impleaded them as a party. Hence it is held that the exchange in favour of the defendant No.2 and then the sale in favour of defendant No.3 is protected. All the above discussion clearly reveals that both the Courts below had misread and nonread the evidence on record, as such the judgments and decrees of both the Courts below are liable to be set aside and are set aside. Resultantly the present appeal is allowed and the impugned judgments and decrees of both the Courts below are set aside and the suit of the respondents/plaintiffs brought for specific performance before the trial Court is hereby dismissed with no order as to costs.