MAULVI.ANWARUL HAQ, J. --- On 16.02.1995 the petitioner filed a suit against the respondents. In the plaint, it was stated that the suit land measuring 28 kanals, 9 marlas was owned by respondent No. 1 who agreed to sell the same to the petitioner for a consideration of Rs. 124,500/-. He received Rs.
1,00,000/- and executed an agreement dated 21.12.1989 promising to receive the balance amount of Rs. 24,500/- till 02.12.1995 and to transfer the land to him. He, however, proceeded to transfer the land measuring 13 kanals to the respondents Nos. 2 to 4 vide registered sale-deed dated 29.01.1990 whereupon Mutations Nos. 175, 233 and 243 were attested on 29.03.1994 and 18.07.1994. This alienation was stated to be illegal. A decree for specific performance was accordingly prayed for.
The respondent No. 1 in his written statement admitted having executed the agreement and to have agreed to sell the land to the petitioner. His only objection was that he was not paid the entire amount of Rs. 1,00,000/- at the time of the agreement rather it was short by Rs. 35,000/- Respondent No. 4 conceded the suit. Respondents Nos.
2. And 3 contested the suit with the plea that the suit is collusive between the petitioner and respondent No. 1 who are {{URDU TEXT}} and that they are bona fide purchasers for value of the land vide registered sale-deed dated 29.01.1990 and Mutation No. 243 attested on 18.07.1994. Issues were framed. Evidence of the parties was recorded. The learned Trial Court dismissed the suit on 29.05.2001. A learned A.D.J., Narowal, dismissed the first appeal on 12.07.2002.
2. This civil revision came up on 23.09.2005 in the presence of learned counsel for the petitioner when it was admitted to hearing and notice was issued after noting the plea that the subsequent vendees were held to be bona fide purchasers to the extent of 13 kanals of land but the entire suit of the petitioner was dismissed by the learned Courts below. Having examined the records, I am Rot inclined to dismiss this civil revision for non-prosecution. I have heard the learned counsel for the respondents accordingly.
3. Learned counsel for respondents Nos. 2 and 3 states that the interest of his clients is restricted to the land C.L.R. lawfully purchased by them with notice of the agreement and they, of course,. Will be having no objection as to the decretal of the remaining suit.
4. I have already reproduced above the .Respective pleading of the parties. It will be seen that practically the suit was contested only by respondents Nos.
2 and 3. The respondent No. 4 had prayed for decretal of suit in his written statement after admitting all the contents of the plaint while respondent No. 1 has only complained that Rs.
35,000/- were paid short.. Notwithstanding the said pleadings on the record, the learned Trial Court framed the issue regarding the execution of the agreement by respondent No. 1. The document was proved by producing PW-1 Qasim Mahmood, the Scribe, Muhammad Tufail PW-2 and Muhammad Ismail PW-3, the marginal witnesses while Sardar Muhammad petitioner himself appeared as PW-4. Manzoor Ahmad respondent No. 2 appeared as DW-1 to state that they had purchased the land without notice of the agreement and for consideration.
5. The respondent No. 1 never appeared in the witness -box to substantiate his objection that Rs.
35,000/- were paid short. It will, thus, be seen that the execution of .The agreement and receipt of the said amount of earnest money of Rs. 1,00,000/- stood proved on record without there being any rebuttal. At the same time, the learned 'Courts below have rightly found the respondents Nos. 2 and 3 to be bona fide purchasers for value and without notice to the extent of the land purchased by them.
6. This civil revision accordingly is allowed. The suit as against respondents Nos. 2 and 3 to the extent of the land purchased by them vide sale- deed registered on 29.01.1990 (Ex.P-1) and Mutation No. 243. Attested on 18.07.1994 (Ex.P-5) total measuring 11 kanals, 10 marlas is dismissed while a decree is passed in favour of the petitioner and against 'respondents Nos. 1 and 4 for specific performance of the agreement dated 02.12.1989 in, respect of the remaining land measuring 16 kanals and 19 marlas. Since the respondent No. 1 has sold away the said 11 kanals, 10 marlas after executing the said agreement, the price shall be accordingly adjusted from the amount of Rs. 1,00,000/- paid by the petitioner to the respondent No. 1 under the said agreement. No order as to costs. .