' MIAN SAQIB NISAR, J.---The suit for the specific performance filed by respondent No,1, against the appellant's predecessor Lal Din and respondent No,2, has been decreed by the learned trial Court on 19-12-1987; the appeal of the appellants has also failed on 27-9-2000.
2. Briefly stated the facts of the case are that on 17-4-1982, respondent No,1, brought a suit for the specific performance against respondent. No,2., claiming that the latter vide agreement, dated 8- 12-1981, had agreed to sell the suit-land measuring 95 Kanals, One Marla (described in the plaint) to him for a total consideration of Rs,65,000, out of which, he had received an amount of Rs,25,000 and for the completion of the sale transaction and payment of the balance amount of Rs,40,000.
10-4-1982 was fixed between the parties but respondent No,2, has failed to perform his part of the agreement, rather has further alienated the suit property to Lal Khan, the predecessor-in-interest of the appellant through a sale-deed executed on 13-4-1982 and registered on 21-4-1984. The respondent No,2 contested the matter and denied the execution of the agreement to sell, dated 8- 12-1981 or the receipt of the consideration amount, whereas, Lal Din, defendant No,2, the predecessor-in-interest of the appellants, in addition resisted the suit claiming himself to be the bona fide purchaser of the suit-land for a consideration and without noticc.
' In the light of the pleadings of the parties, the learned trial Court framed the following two issues:- -
(1) Whether the agreement to sell relied upon by the plaintiff is a product of fraud?
(2) Whether the defendant No,2 is a bona fide purchaser for value without notice?
(3) Relief.
' Parties were put to trial and as the onus of both the issues were on the shoulder of respondent No,2 and the appellants' predecessor, therefore, they first led the evidence and respondent No,1 produced the same subsequently. Be that as it may, on the basis of the material on the record, the learned Civil Judge by giving findings on both the issues, allowed the suit vide judgment and decree, dated 19-12-1987; the appellants filed an appeal, which has been accepted and the matter was remanded to the trial Court, but on revision of respondent No,1, before this Court, the same has been set aside vide judgment, dated 9-7-1998 and the matter was sent back to the learned appellate Court for decision afresh, upon which the learned appellate Court, vide judgment and decree, dated 27-9-2000 dismissed the same. Hence this second appeal.
3. Learned counsel for the appellants contends that the onus of issue No,1 was wrongly placed upon the shoulder of the appellants and respondent No,2. Confronted with the above, the learned counsel for the contesting respondent has argued that when the parties being conscious of the nature of the controversy between them have led the evidence without raising any objection at the appropriate point of time, the placement of the onus becomes irrelevant. Be that as it may, I have scanned the evidence myself and find that the agreement to sell is on an unstamped paper; it is allegedly witnessed by two marginal witnesses namely Ghulam Mustafa and Muhammad Shafi; only Ghulam Mustafa has appeared as P.W.2, but there is no explanation, as to why, Muhammad Shafi, the other marginal witness, has not been examined; the original agreement was earlier stated by the respondent/plaintiff to have been lost and they moved an application to lead the secondary evidence, which permission was not granted to them; subsequently, quitestrangely and without even taking the Court into confidence that the original has not been found, while examining Abdul Razzaq, (P.W.1) the alleged scribe of the document, the original was tendered in evidence as Exh.P-1, through his statement; he only stated that the document was scribed by him, but it's not deposed by him that he has also signed the document as being the witness to the execution; moreover, the agreement, which has been exhibited as Exh.P-1 is a torned document, in which the name of Noor Muhammad respondent/plaintiff, is not mentioned anywhere, to show that the sale was being made in his favor; the photo copy of the said agreement, which has been marked as "Mark-A" and produced by the scribe of the document cannot be taken into evidence as permission for secondary evidence was not taken from the Court; the copy of the register, of the deed writer produced as Exh.P-2, is also very doubtful, because in the agreement to sell, the document is stated to have been entered at Serial No,1949, whereas, the copy of the register of the deed writer contemplates this to be at 1940; moreover, Abdul Razzaq (P.W.1) has conceded that no amount was paid in his presence and that he does not know the parties at all; he is also not the witness to the negotiation about the sale between the parties. As far as Ghulam Mustafa (P.W.2) is concerned, Noor Muhammad, the plaintiff of the case, while appearing as P.W.3, has not stated that Ghulam Mustafa was present at the time when the transaction of the sale was being negotiated, rather has only referred about Muhammad Shafi. Muhammad Shafi, has not been produced and no explanation in this behalf has been given, which tantamount to withholding of the best evidence and the presumption in this regard, can be drawn against the plaintiff/respondent under Article 129(g) of the Qanun-e-Shahadat Order, 1984. The case of the respondent/plaintiff was that the agreement was written by Abdul Razzaq (P.W.1) in Zafarwal and the execution also took place there, but when Ghulam Hussain, appeared as D.W.1, a suggestion was given to him that the agreement was executed at Narowal; there is no explanation of this vital discrepancy and contradiction.
4. The submission of the learned counsel for the respondent that the plaintiff/respondent had duly issued a notice to Ghulam Hussain for the completion of the transaction informing him to come to the office of the Sub-Registrar, which notice was received back unserved and that when he appeared before the Sub-Registrar, on 10-4-1982, his presence was marked and the order in this behalf has been passed by the Sub-Registrar, has no significance in the matter, because if he unilaterally appeared before the Sub-Registrar and got his presence marked, would not mean that he has also been able to prove the execution of the agreement to sell, which undoubtedly has to be proved by him in accordance with law; furthermore, the respondent-plaintiff has also notbeen able to establish the particular venue and the time, where and when the transaction was negotiated between the parties and Rs,25,000 was paid by him to Ghulam Hussain; he does not mention, as earlier stated, about the presence of Ghulam Mustafa; the scribe P.W.1, stated that no money was paid in his presence. All these aspects of the matter, have not been considered by the two Courts below while deciding the matter, which tantamount to gross misreading and non- reading of the evidence on the record.
5. As regards the question about issue of the bona fide purchaser is concerned, the sale-deed in favor of the appellants' predecessor was executed admittedly on 13-4-1982 and though it was registered on 21-4-1982, but the same shall under the law have the effect from E 13-4-1982 and shall not be hit by the principle of lis pendent; moreover, the respondent/plaintiff has not led. Any evidence to show that the appellants had any notice of his alleged earlier agreement and there is not a single word in this behalf, resultantly, the plaintiff's case is hit by the law laid down in the case reported as Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25). This aspect of the matter has also been not considered by the two Courts below, resultantly, the impugned judgments and decrees cannot sustain, which are hereby set aside with the result that the suit for the specific performance brought by respondent No,1, stands dismissed with costs throughout.