' MAULVI ANWARUL HAQ, J.---On 10-12-1981 the petitioners filed a suit against the respondents. In the plaint it was stated that on 12-12-1978 Mst. Rashida the deceased wife of the petitioner No,1 and mother of the remaining petitioners entered into an agreement with respondent No,1 and one Muhammad Ismaeel the predecessor in interest of respondents Nos. 3 to 6 whereby they agreed to sell the suit-land as mentioned in para. 2 of the plaint to the said lady for a consideration of Rs,30,000. A sum of Rs,20,000 was paid as earnest money while the balance was to be paid on 15-1- 1979. The possession was delivered under the agreement. A notice was served well in time calling upon the said promises to perform their part of the contract but they refused to do so and suit for permanent injunction was filed which was dismissed as not maintainable. Thereafter a suit for specific performance was filed which was rejected under Order VII Rule 11, C.P.C. For non-payment of court-fee. Yet another suit was filed which was also rejected on the same ground. A third suit was filed after paying court-fee but that too was also rejected. A review and then a revision did not bore any fruit. It was then explained that the said Muhammad Ismaeel had already sold away his share when he entered into the said agreement And the suit is being filed only in respect of the share of respondent No,l. It was then stated that respondent No,1 has sold away the land to respondent No,2 vide the registered sale-deed, dated 20-3-1979. With these averments a decree for specific performance of the agreement, dated 12-12-1978 was prayed for. The respondent No,1 in his written statement admitted that anagreement was made but later on it was cancelled and the earnest money was paid back. Regarding possession it was stated that petitioner No,1 is a tenant.
He affirmed the sale in favor of respondent No,2. In his written statement respondent No,2 stated that sale in his favor is protected by law and specific performance cannot be ordered against him.
He expressed ignorance regarding the said agreement. According to him he had tiled a suit for ejectment against the petitioner No,1 and this suit has been tiled as a counter-blast. Following issues were framed by the learned trial Court:--
(1) Whether the plaint is liable to rejection under Order VII rule 11, C.P.C.? OPD
(2) Whether suit is not maintainable in view of preliminary objection No,2 of written statement?
OPD-2.
(3) Whether suit is barred by principle of res judicata? OPD-2.
(4) Whether sale in favor of defendant No,2, being protected by law? If so, its effect? OPD
(5) Whether plaintiffs are estopped for filing the instant suit in view of preliminary objection No,6 of written statement? OPD
(6) Whether defendants are entitled for special costs under section 35-A of C.P.C? OPD
(7) Whether earnest money Rs,20,000 taken back by the plaintiffs and impugned agreement to sell was cancelled? OPD-1.
(S) Whether plaintiffs are in possession of the suit property under agreement to sell or as a tenant?
O.P. Parties.
(9) Whether plaintiffs have no cause of action? OPD
(10) Relief.
2. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide a judgment and decree, dated 15-2-1994. I may note here that issue No,7 was decided in the negative. However, the respondent No,2 was found to be a bona fide purchaser. The first appeal filed by the petitioner was heard by the learned Addl: District Judge, Lahore who modified the said judgment by directing respondent No,1 to return Rs,20,000 which was received as earnest money to the petitioner. This was done vide judgment and decree, dated 6-6-1996.
3. Learned counsel for the petitioners contends that both the Courts below have acted with material irregularity in the exercise of their respective jurisdiction while holding the respondents No,2 to be a bona fide purchaser. According to him there is no such plea in the writtenstatement.
Learned counsel for the respondents apart from supporting the findings on the said issue No,4 contends that the findings recorded on issue No,7 by the learned Courts below are against the record. According to him it was the petitioner's own case that the original agreement was taken away by respondent No,1 from his wife.
4. I have gone through the copies of the record with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of the plaint as well as the written statement of the respondents Nos.1 and 2. There is not a word in the plaint that respondent No,2 had the knowledge of the agreement. Now it is true that it was not specifically stated that the respondent No,2 is a bona fide purchaser for consideration and without notice but it is equally true that upon a reading of the entire written statement the said phraseology as mentioned by me above does convey the intent .Of respondent No,
2. Evidence was led accordingly by him. Sharif petitioner appeared as P.W.2 and proceeded to state that he had told Allah Ditta about the said agreement. However, apart from the fact that this plea was never taken in the plaint, the statement is silent as to at what point of time he conveyed the said information. Contrarily respondent No,2 appeared as D.W.1. And it was not at all suggested to him that the petitioners had informed him about the agreement before the sale in his favor, this leaves the question of possession.
Respondent No,1 took the plea that the petitioner No,1 is a tenant. Respondent No,2 also stated that he is in possession as such and further that he had filed the ejectment proceedings. In ^^the Revenue Records produced by the parties Muhammad Sharif is recorded as tenant at will under respondent No 1. The respondent No,2 did state that he consulted the Revenue Record through Patwari.,
5. This being so .I do find that the learned Addl: District Judge has correctly held that respondent No,2 is bona fide purchaser without notice of the agreement.
6. Coming to the said contention of the learned counsel for the respondent No,2 it will be seen that respondent No,1 specifically pleaded that the earnest money was returned and the agreement was, cancelled. The plaint is absolutely silent as to the loss of the said agreement or its whereabouts. While appearing as. P.W.2 Muhammad Sharif stated without any demur that respondent No 1 had taken away the original agreement from his wife (who was the original promisee). I may further note here that the learned trial Court answered issue No,7 in favor of the petitioners only for the reason that since secondary evidence has been allowed he cannot record a finding. He has 'himself mentioned in his impugned judgment that there is no specific findings in the order, dated 11-7-1989 as to whether the agreement has been lost or that it was fraudulently taken away by respondent No,
1. There is neither any evidence of the loss of the document nor of any fraud committed by -respondent No,1 in the said matter. Muhammad Sharif simply stated that in his absence the original agreement was taken away by the respondent No,1 from his wife who admittedly was the actual party to the agreement. This being so, in the absence of any explanation to the contrary it was to be assumed that the agreement was cancelled and delivered up to respondent No,1 as pleaded by him. The learned Addl: District Judge also appears to have not examined the record properly. In his cross-examination he opted to express ignorance when asked as to whether the document was lost or was taken away from his wife by respondent No,1. He was duly confronted that his wife returned the document to her brother i,e, respondent No,1 after getting back the earnest money. The said finding recorded by the learned trial Court which is in fact no finding at all is not sustainable upon examination of these records.
7. Be that as it may, I do not find any ground being made out for interference with the impugned judgments and decrees within the meaning of section 115, C.P.C. The C.R. Accordingly, is dismissed with costs.