' MAULVI ANWARUL HAQ, J.- On 7-4-2003 the respondent filed a suit against Sh. Muhammad Akbar, the father of appellant No,l. Later appellants Nos.2 and 3 were also added. Still later Sh. Muhammad Akbar died and appellant No.l was impleaded. According to the amended plaint filed on 4-12-2004 the suit-land, mentioned in para.l of the plaint was owned by the said Sh. Muhammad Akbar, who agreed to sell the land to the respondent for a consideration of Rs.5,50,000. A sum of Rs.50,000 was paid as earnest and he executed an agreement dated 23-12-2002 and promised to transfer the land to the respondent upon receiving the balance amount by 25-5-2003. The respondent had been ready and willing to perform his part of the contract. He has come to know that the said Sh.
Muhammad Akbar is trying to alienate the land. In para-1-A it was mentioned that the appellants Nos.2 and 3 have acquired the suit-land from Sh. Muhammad Akbar, vide sale Mutation No. 171 attested on 5-4-2003 although they were aware of the said agreement. With these averments, a decree for specific performance was prayed for. Sh, Muhammad Akbar in his written statement filed on 23-5-2003 denied having entered into the said agreement but informed that he. Had sold the land to the appellants Nos.2 and 3 vide the said mutation. The appellants Nos.2 and 3 pleaded that they are bona fide purchasers with consideration of Rs.6,50,000 and without notice of the said agreement.. Following issues were framed by the learned trial Court:-
(1) Whether there exists any agreement deed dated 23-12-2002 between the plaintiff and defendant No. 1? OPP.
(2) Whether in pursuance of agreement deed dated 23-12-2002 the defendant No. 1 received amearnest money of Rs.50,000? OPP.
(3) Whether Mutation No. 171 dated 9-4-2003 by the defendant No.l in favour of defendants Nos.2 and 3 is void illegal ineffective on the right of plaintiff and same is liable to be-cancelled? OPP.
(4) Whether the agreement dped dated 23-12-2002 is the result of fraud? OPD-1
(5) Whether plaintiff has no cause of action? OPD-1.
(6) Whether the form of suit is incorrect, if so its effect? OPD-1.
(7) Whether defendants Nos.2 and 3 are bona fide purchasers of suit property? OPD-2 an
(8) Whether defendants are entitled to get special costs U/S 35-A of C.P.C.? OPD.
(9) Whether plaintiff is entitled for the relief as prayed for? OPP.
(10) Relief.
' Evidence of the parties was recorded. Vide judgment and decree dated 12-5-2006 the learned trial Court found that agreement Exh.P.2 was executed by Sh. Muhammad Akbar. Consequently Issues Nos.l and 2 were found in favour of the respondent while Issues Nos.4, 5 and 6 were also found against the said Sh. Muhammad Akbar defendant No.l. However, Issues Nos. 3 and 7 were answered in favour of appellants Nos.2 and 3. The suit for specific performance was accordingly dismissed. However, the appellant No. 1 was directed to pay a sum of Rs. 1,50,000 along with the earnest money of Rs.50,000 to the respondent. The appellant No.l as well as the respondent filed first appeals. These were heard together by the learned A.D.J., Narowal. The learned A.D.J., vide judgment and decree dated 23-6-2006 affirmed the findings of the learned trial Court on Issues Nos.l and 2. However, the findings on Issues Nos.3 and 7 were reversed and a decree for specific performance was passed in favour of the respondent with a direction that he should deposit the balance amount in the trial Court within 30 days.
2. Learned counsel for the appellants contends that the evidence on record has been misread by the learned A.D.J. While passing the impugned judgment and decree. According to him, the execution of the agreement was no proved and further that the appellants Nos. 2 and 3 had no knowledge of the agreement at the time of sale, in their favour. Learned counsel for the respondent, on the other hand, supports the impugned judgment and decree passed by the learned A.D.J.
3. I have gone through the records, with the assistance of the learned counsel for the parties. So far as Issues Nos.l and 2 are concerned, I find that the agreement Exh.P.2 was proved by producing Muhammad Sajeel P.W.l who is a Stamp Vendor and has deposed that Sh. Muhammad Akbar purchased the stamp and he noted his NIC number and also obtained his thumb-impressions.
P.W.2 Ashiq Hussain is the Scribe. P.W.3 Rana Pir Muhammad, Advocate, is the Notary Public who attested the document upon the admission of the parties. Muhammad Hussain P.W.4 and Muhammad Siddique P.W.5 are the marginal witnesses. Having gone through the said evidence, I do not find any misreading thereof by the learned Courts below while concurrently holding that the execution of the agreement Exh.P.2 by Sh. Muhammad Akbar has been proved as also receipt of earnest money thereunder. The findings are accordingly affirmed.
4. [1] The appellants Nos. 2 and 3 specifically pleaded that they are bona fide purchasers for consideration and without notice. The respondent, on the other hand, pleaded that they had knowledge of the agreement when they purchased the property vide mutation Exh.P.4. The deceased Sh. Muhammad Akbar affirmed the said fact in his written statement while his soii the present appellant No.l while appearing in the witness-box as D.W.2stated through the courtesy of the cross- examiner that the amount of consideration was paid to his father by the appellants Nos.2 and 3 in his presence. I do, therefore, find that the sale was made by Sh. Muhammad Akbar in favour of the appellant Nos.2 and 3 for consideration.
5. Muhammad Hussain son of Chiragh Din, P.W.4, the marginal witness of the agreement has also stated in the cross-examination that appellants Nos.2 and 3 were aware of the agreement when they purchased the land. According to him, the appellants and the respondent are cousins {{URDU TEXT}} He was cross-examined by appellants Nos.2 and 3 and he admitted that the land is in possession of Khan Bahadar appellant. .There is litigation pending between the appellants Nos.2 and 3 on the one hand and Zulfiqar respondent on the other on criminal as well as civil side regarding other lands. He then stated that Khan Bahadar had asked the respondent that he should give six Kanals of land to him out he had refused. Then, he stated that he does hot know as to at what point of time the appellants Nos.2 and 3 purchased the land and he expressed ignorance as to whether the land was purchased before or after the agreement P.W.6 is Abdul Ghafoor. He Stated that he is the real brother of Zulfiqar respondent while appellants Nos.2 and 3 his cousins and they were aware of the agreement between the respondent and Sh. Muhammad Akbar. They had approached his brother with a demand that six Kanals land be given to them but his brother refused. He was cross-examined and given the relevant ' suggestions. Zulfiqar respondent appeared as P.W.7. He stated that after the agreement, appellants Nos.2 and 3 came to his house with a demand that six Kanals of land be given to them but he refused and as such they were aware of the Agreement. He was cross-examined. He admitted that at the time of agreement, the possession of the land was with the appellants Nos.'2 and 3. He denied the suggestion that they were not aware of the agreement.
6. Khan Bahadar appellant No.2 appeared as D.W.l. He stated, that he is in possession of the land since 15 years and when he purchased the land there was no agreement regarding the same. He was cross-examined and was made to state categorically that at the time of sale he was not aware of the agreement. What is more important the said plea introduced in the course of evidence by the respondent that the said witness along with his co-defendant had approached the respondent. After the said agreement and had demanded six Kanals of land was not even put ta him.
7. Having, thus, read the evidence on record, I do find that it was not properly read by the learned A.D.J. Whereas the learned trial Court upon a proper appreciation found the appellants Nos.2 and 3 to be bona fide purchasers without notice. I may note here that by now it is settled that unlike a case envisaged by section 41 of the Transfer of Property Act, 1882, the burden upon a subsequent purchasers in terms of section 27(b) of the Specific Relief Act, 1877, is rather light and may be discharged by a denial on oath of the knowledge of the agreement in the witness-box. In the present case, although it was pleaded that the appellants Nos.2 and 3 were aware of the agreement but no particulars were stated. In the course of evidence, the story was introduced that the appellants Nos.2 and 3 had approached the respondent after he had entered into the said agreement and demanded six Kanals of land but he had refused and that is how they were aware of the agreement. .The said appellant No.2 denied the knowledge of the agreement in the witness- box and the said story, which clearly appears to be an after thought, was not even put to him. The findings of the learned A.D.J. On Issues Nos.3 and 7 are accordingly reversed and findings recorded by the learned trial Court are restored.
8. This leaves the question of the decree that was passed by the learned trial Court. He has directed the appellant No.l to return Rs.50,000 and also to reimburse a sum of Rs. 1,50,000 to the respondent Zulfiqar Ali. Since the learned ADJ proceeded to grant the main relief, the said aspect was not considered by him. Before me as well, nothing much has been said by the learned counsel for the appellants. However, I find that there being nothing wrong with the reasoning of the learned trial Court in granting the said relief to the respondent; there is a clerical error in the same. The amount of Rs. 1,50,000 has been worked out on the assumption that whereas Sh. Muhammad Akbar sold the land to the appellants Nos.2 and 3 for Rs.6,50,000, the consideration settled in the agreement was Rs.5,00,000. It is not so. As noted by me above, in the agreement Exh.P.2 as well as according to the . Plaint itself, the consideration was Rs.5,50,000. Thus, the difference comes to Rs.
1,00,000 and not Rs. 1,50,000.
9. This R.S.A. Accordingly is allowed. The impugned. Judgment and decree dated 23-6-2006 passed by the learned A.D.J., Narowal, is set aside while the decree passed by the learned trial Court on 12- 5-2006 is restored with the modification that the appellant No.l shall how be liable to pay a total sum of Rs. 1,50,000 and not Rs.2,00,000 as concluded by the learned trial Court. The decree sheet to be prepared accordingly by the office. No orders as to costs.
10. The records of the learned Courts below be remitted back immediately.