' MAULVI ANWARUL HAQ, J - On 4-3-1989 the respondent No,l filed a suit against the appellants and the remaining respondents. In the plaint, it was stated that respondent No,3 was the owner of 203 Kanals of land, described in para l of the plaint. He agreed to sell the said land to the respondent No, 1 and respondent No,4 for a consideration of Rs, 1,00,000. He received Rs,45,000 as earnest.
Thereafter, he appointed respondent No,2 as his general attorney by means of a registered document on 6-4-1984. Respondent No,2 received another sum of Rs,30,000 in presence of the Sub-Registrar on 11-3-1986 and got the agreement registered. The balance amount of Rs,25,000 was to be paid after permission to be obtained from Deputy Commissioner and GHQ. The date of performance was fixed at 1-6-1986. According to the terms of the said agreement, the. Share of respondent No,4 was 12/203 or 12 Kanals while the share of the respondent No,l was 191/203 or 191 Kanals. The respondent No,l had been requesting respondents Nos.2 and 3 to complete the sale but they had been dilly dallying on the pretext that the NOC has not been obtained so far. Thereafter, they proceeded to transfer the land to the respondent No,4 and the appellants for a sum of Rs, 1,00,000 vide registered sale-deed dated 20-10-1987. Out of this land, according to the terms of the said agreement, 12 Kanals were sold to respondent No,4 while the share of the respondent No,l i.e, 191 Kanals was sold to the appellants. This sale-deed was stated to be void to the extent of 191'
Kanals which the respondent No,3 was bound to transfer to the respondent No,l. It was also stated that the appellants were fully aware of the said agreements as apart from the fact that respondent No,4 was a party therein, he was a real brother of respondent No,2 the attorney who executed the said sale-deed. With these averments, he sought specific performance of the said agreement. The respondents Nos.2 and 3 in their written statement alleged that it was the respondent No,l who was guilty of breach of the terms of the said agreement and did not arrange the balance amount despite the fact that he was approached on several occasions and ultimately the respondent No,4 was asked to join anyone else along with him and upon his asking, the land was sold to respondent No,4 and the appellants. The appellants in their written statement claimed to be- bona fide purchasers for value and without notice. Issues were framed. Evidence of the parties was recorded.
The learned trial Court decreed the suit vide judgment and decree dated 23-10-1995. A first appeal filed by the appellants was dismissed by a learned- A.D.J., Kasur, on 8-5-1999.
2. Mr. Jehangir A. Jhoja, Advocate/ learned counsel for the appellants contends that the agreement sought to be performed was wholly void in the absence of permission to be granted by GHQ in terms of para. 11 of the West Pakistan Border Area Regulations, 1959. Further contends that the respondent did not even assert in the witness-box that his clients were aware of the agreement and as such the specific performance could not be ordered against his clients in terms of section 27(b) of the Specific Relief Act, 1877. He has also tried to argue that the agreement had not been proved and the suit was collusive between the respondent No,l on the one hand and the remaining respondents on the other Rana Muzaffar Hussain, Advocate/learned counsel for the contesting respondent No, l contends that the absence of the said permission would not affect the validity of the agreement as the agreement itself does not contain any such condition. Further contends that, in any event, the land had, in fact, been sold to the appellants and the said bar would not be applicable as the specific performance has been ordered against the appellants who are the subsequent purchasers and whose case it is that they have purchased the land with the permission of the GHQ from the original allottee. According to him, notwithstanding the absence of assertion as to knowledge in the witness-box, the circumstances apparent on the face of the record do go to support the findings recorded by the learned Courts below in the matter of bona fide purchase.
3. I have gone through the trial Court records, with the assistance of the learned counsel for the parties. I have already reproduced above the relevant contents of the pleadings of the parties. A specific denial of the agreement is not spelt out from the written statements filed by the two sets of defendants. Be that as it may, I find that the learned trial .Court framed Issues Nos.l and 2 calling upon the respondent No,l to prove the execution of the said agreement. The said agreement was produced as Exh. P.l. Muhammad Anwar Joya is the Scribe who has stated that he has written Exh.
P.l under instructions of Muhammad Yousaf, the general attorney of the vendor. He was not even cross- examined by any of the appellants. P.W.2 is Zahoor Khan, a marginal witness, of the agreement while P.W.4 is Sohrab Khan respondent No,l. Having gone through the said evidence, I am satisfied that execution of the agreement and payment of amount thereunder had duly been proved by the respondent No,l. I may further note here that the said Muhammad Yousaf, respondent No,2 appeared as D.W.l to state without any demur that agreement was entered into.
He, however, stated that only Rs,45,000 were paid and Rs,30,000 were not paid. He was confronted by the learned counsel for the respondent No,l with Exh.P.l and he admitted its execution. He further admitted that Rs,45,000 were received by the vendor while Rs,30,000 were paid to him and only Rs,25,000 was the balance.. Now he was also cross- examined by the learned counsel for the appellants. Not a single question was put to challenge that no agreement was entered into or that the amount was not received.
4. Now coming to the said contention of the learned, counsel for .The appellants, he has placed reliance on a judgment dated 23.-1-1993 of the Honourable Supreme Court of Pakistan in Civil Appeal No,804 of 1990 titled "Muhammad Sharif v. Zafar Khan and others". I have gone through the said judgment. A suit brought for specific performance of an agreement to sell the land located in the Border Area was dismissed by the learned trial Court who instead ordered return of the amount paid under the agreement. A learned ADJ dismissed the first appeal on 28-10-1987 while this Court dismissed R.S.A. No,55 of 1988. I may reproduce para. 9 of the said judgment hereunder:- "9. In our view, since the sale agreement itself provided for the requisite permission, the suit could not have been decreed without proving that the permission was required. We are, therefore, not inclined to interfere with the judgments of the Courts below. However, we may observe that in case the appellant succeeds in obtaining permission of the general headquarters now in terms of above clause (11) of. The Third Schedule to M.L.R. 9, he will have fresh cause of action to seek the' enforcement of the sale agreement."
5. Now it has already noted by me above that there is no such term in the agreement Exh.P.l.
However, the parties in the course of evidence appeared to be ad idem that such a permission was required and the performance was postponed because the said permission had not been obtained.
6. Now vide section 11 (iii)(b) of the West Pakistan Border Area Regulations, 1959 (Punjab Amendment) Ordinance, 1981 (III of 1981), the following Condition No,ll was added in Schedule III to the West Pakistan Border Area Regulations, 1959:- "11. The allotment shall be liable to be cancelled if the land is transferred by the allottee to any person without the permission of the General Headquarters."
Now upon a plain reading of the said penal condition, the same would be applicable in the matter of the alienation by an allottee. In the present case, admittedly, the said allottee i.e, respondent No,3 has sold away the land to the appellants and respondent No,4 and it is everybody's case that it has been sold with the permission of GHQ. In terms of section 27(b) of the Specific Relief Act, 1877, specific performance can be enforced against a person claiming under a party to an agreement of a title arising subsequently to the contract. To my mind, the said condition would not be applicable at all. Apart from this, a bare reading of the said agreement Exh.P.l in juxtaposition to the registered sale-deed in favour of the appellants and respondent No,4 (Exh.P.2) would show that the permission was obtained by the said vendor to sell the property in the manner stated in the agreement. It is the case of the vendor that respondent No,4 was called upon to substitute the respondent No,l by anyone else he wants and accordingly the sale-deed was executed in favour of the said respondent No,4 and the appellants. To my mind, the said permission would fully cover the alienation in favour of the respondent No,l as well in case of enforcement of the said agreement against the appellants.
7. Now coming to the question of bona fide purchase, whereas in the plaint it was stated by the respondent No,l that the appellants were fully aware of the agreement, in his statements as P.W.4, he proceeded to state as follows:- {{URDU TEXT}} ' Now Muhammad Hussain appellant appeared as D.W.4 and did state in his examination-in-chief that he was not aware of the agreement in favour of Sohrab Khan respondent. No,l when he purchased the land.
8. Now normally in view of the above statements made by the appellants, on the one hand and respondent No, 1 on the other, the burden imposed by section 27(b) of the Specific Relief Act, 1877, stands discharged as held in the cases of Abdul Haque and others v. Shaukat Ali and 2 others (2003 SCM R 74) and Mst. Khair-un- Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25).
' However, in the circumstances reflected in the pleadings as well as evidence on record, the findings recorded by the learned Courts below that the appellants were aware of the agreement are not liable to interference by this Court in this second appeal.
9. Now as noted by me above, admittedly, respondent No,4 was a party to the agreement. He is the real brother of Muhammad Yousaf respondent No,2 who was the general attorney of Muhammad Ramzan respondent No,3 who executed the agreement Exh;P.1 in favour of his said brother and respondent No,l and also sale- deed Exh.P.2 in favour of the said respondent No,4 and the appellants. Now it is in his pleadings that the respondent No,4 was called upon to procure the vendees to substitute respondent No,l in the said agreement and accordingly the sale-deed was executed and got registered in favour of the appellants and respondent No,4. I have already noted above that the terms recorded in the said agreement Exh.P.l and the said Exh.P.2 are verbatim copies of each other. Now in the course of his cross- examination, on behalf of the appellants it was suggested to him and he admitted that the contents of the written statement filed t by him are correct. Now no explanation is coming forward on the record as to why respondent No,4 was joined in the matter of said sale (Exh.P.2) and more particularly as to what was the basis of the sharing of the land sold to the said vendees. It happens to be in exact accord with the contents of the said agreement Exh.P.l. In the said circumstances, it cannot be said that the learned Courts below have committed any error of law while disbelieving the said plea of the appellants. No other point has been urged. The RSA is dismissed but without any orders as to costs.
10. The records of the learned trial Court be remitted back immediately.