' ALI NAWAZ ChOWHAN, J.---This Regular Second Appeal impugns concurrent findings of the Courts below.
2. Relevant excerpts from the judgment of Mr. Ghulam Hussain Awan, Additional District Judge, Gujranwala, are reproduced below:-- "The brief facts of the case are that land measuring 15 kanals, 1 marla was situated in the area of village Babbar Tehsil Noshera Virkan District Gujranwala owned by Mst. Sui Begum who entered into an agreement of sale with Muhammad Siddique appellant for consideration of Rs.50,00,000. Out of which Rs.10;000 was paid to her as earnest money and remaining Rs.40,000 were agreed to be paid till 15-1-1990 at the time of execution of registered sale-deed. An agreement in writing was also executed in this behalf. The plaintiff Muhammad Siddique pleaded that Mst. Sui Begum defendant avoided to execute the sale-deed till 15-1-1990 and, therefore, he want to the Sub-Registrar Noshera Virkan on the said date for making his presence in order to show his willingness for execution of sale-deed. He also pleaded that he personated her to execute the sale-deed even after 15-1-1990 but she alienated the suit property to respondent/defendant No.2 on 6-2-1990 through Mutation No.1560. It was pleaded that the defendant/respondent No.2 had the knowledge of the agreement to sell. He alleged that the subsequent sale in favour of respondent No:2 is illegal, void, without jurisdiction and has no effect on his rights and the same be set aside. He prayed for a decree of specific performance of the agreement in question.
The suit was contested by Sui Begum as well as Talib Hussain, the subsequent vendee. They filed their written statement. Mst. Sui Begum admitted the execution of agreement to sell between her and the plaintiff but she pleaded that the plaintiff was not A ready to pay the balanced amount and to get executed the registered sale-deed. The subsequent vendee pleaded that he has purchased the suit property for value and in a bona fide purchaser without notice.
' Out of the pleadings of the parties, the following issues were framed by the trial Court:-- Issues:--
(1) Whether the plaintiff is estopped from filing the suit? OPD
(2) Whether the defendant No.2 is bona fided purchaser for value, if so, its effect? OPD.
(3) Whether the plaintiff was ieady to perform his contracted liability? OPP
(4) Relief.
' At the trial, the plaintiff examined Ali Hassan P.W.1, Bashir Ahmad, P.W.2, Muhammad Sadiq P.W.3 and himself appeared as P.W.4. He also tendered in evidence the agreement in question Exh. P.1, copy of application to Sub-Registrar Exh.P.2, the copy of mutation Exh.P.3, the copy of register girdawari Kharif 89 to Rabi 1990 before and copies of registered haqdaran zamin for the year, 1986/87 Exh.P.5 and copy of registered girdawri Rabi 90 to Rabi 91 Exh.P.6. He also examined Muhammad Rashid patwari in rebuttal as P.W.S. On the other hand, the defendant/appellant Mst.
Sui Begum examined Guizar D.W.1, Abdul Qayyum D.W.2, Talib Hussain subsequent vendee examined Muhammad Ramzan D.W.3 and Shahbaz special attorney appeared as D.W.4. At the conclusion of the trial, the trial Court held that the defendant No.2/respondent No.2 is a bona fide purchaser for value without notice. But it was held that the plaintiff was ready to perform his part of the contract. Thus issue No.1 was decided against the defendant, issue No.2 was decided in favour of defendant No.2 and issue No.3 was decided in favour of plaintiff. In the result, the suit specific performance was dismissed and Mst. Sui Begum defendant was burdened with Rs.20,000 as damages along with Rs.10,000 as earnest money and the plaintiff was given right to recover the same. The plaintiff as well as Mst. Sui Begum defendant No.1 have challenged the said decree by way of instant appeals.
' The learned counsel for Muhammad Siddique appellant has argued that the plaintiff was ready to perform his obligation under the contract but Mst. Sui Begum dishonestly alienated the suit property to respondent No.2 for more value. He further argued that the agreement was within the knowledge of respondent No.2 but in spite of his knowledge, he purchased the suit-land. He further argued that the plaintiff was in possession at the time of subsequent sale and, therefore, the plaintiff's suit should have been decreed. He relied upon 1987 MLD 2870. He also objected that the defendant No.2 himself has not come in the witness box as to deny the contention of the plaintiff.
According to him, the trial Court should have decided issue No.2 against the said defendant. He relied upon 1972 SC 25. On the other hand, the counsel for Mst. Sui Begum argued that the plaintiff was not ready to perform his part of contract and that no notice was given to her about the execution of sale-deed. He contended that the trial Court has not appreciated the evidence in deciding issue No.3 in favour of plaintiff. The learned counsel for respondent No.2 argued that respondent No.2 is a bona fide purchaser for value without notice. He also argued that the agreement between Mst. Sui Begum and the plaintiff is not legal agreement because the same was not signed by the plaintiff himself and thus offer and acceptance is not completed.
' I have heard the learned counsel for the parties and have one through, the record.
' The agreement of sale between Muhammad Siddique plaintiff and Mst. Sui Begum defendant/appellant has been admitted, so there is no dispute about the execution of said agreement. As far as the objection on behalf of respondent No.2 regarding the non-signing of said contract by the plaintiff is concerned, the said agreement has been signed on behalf of the plaintiff by his son Muhammad Sadiq and this has been stated by Muhammad Sadiq, who appeared as P.W.3 and also by the plaintiff who appeared as P.W.4. Therefore it cannot be stated that the said agreement is not a legal agreement.
' As far as the willingness of plaintiff regarding the payment of balanced amount and the execution of sale-deed is concerned P.W.3 Muhammad Saaiq is the son of the plaintiff who has also signed the agreement Exh.P.1. The said witness has stated that on the date fixed, they went to Tehsil Office at Noshera Virkan along with the balance amount but no one turned on behalf of the defendant No.
1. The plaintiff also stated that he was ready to pay the balance amount even from the date of agreement. He also stated that he asked the defendant No.1 to receive the amount and to get the sale-deed executed. Exh.P.2 is the copy of application which was written on behalf of the defendant to Tehsil Noshera Virkan which indicates that the plaintiff was present on 15-1-1990 in the Tehsil Office for execution of sale-deed. D. W.1 and D.W.2 have stated that the plaintiff was not willing to pay the balance amount on the date fixed. According to them, the earnest money has been confiscated according to agreement, but in cross-examination, D.W.2 has admitted that the son of the plaintiff was present in the office of Sub-Registrar and he also submitted an application. It has also been admitted by D.W.3 that Mst. Sui Begum did not go to the Tehsil Office on the date fixed.
The trial Court has discussed the evidence of plaintiff and defendant No.1 regarding issue No.3 and has rightly reached to the conclusion that the plaintiff was ready to perform his obligation. I see no infirmity in the findings of trial Court on issue No.3, therefore, the said findings are confirmed It has also come in the evidence that at the time of subsequent sale, the plaintiff was cultivating the suit property as a tenant. Exh.P.4 and Exh.P.6 are also relevant in this regard. It has not come in the evidence of the plaintiff that he was holding the land in dispute under the contract .
' The Trial Court has rightly observed that Mst. Sui Begum defendant No.1 had not performed her part of contract and thus according to agreement she is bound to pay the damages along with the earnest money. In my view the trial Court has rightly burdened her with damages of Rs.20,000 in order to compensate the plaintiff."
3. The question is when such were the findings of the Courts below why a decree for specific performance of a contract was not passed?
4. The matter squarely falls under the provisions of section 27(b) of the Specific Relief Act, 1877, which reads as follows:-- "Any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract."
' The case it appears is akin to third illustration of clause (b) which reads as follows:-- "A contract to sell land to B for Rs.5,000. B takes possession of the land. Afterwards A sells it to C, for Rs.6000. C makes no inquiry of B relating to his interest in the land. B's possession is sufficient to affect C with notice of his interest and he may enforce specific performance of the contract against C."
5. Learned counsel for the appellant has stated that the possession of the property remains with the plaintiff. This was in reference to the examination-in-chief of the plaintiff. It was said that there is nothing in the cross-examination to dispel this factual position.
6. The next question to be seen is whether the respondents were transferees for value having paid the money in good faith and without notice of the original contract. It is argued that as the plaintiff was in possession of the property, the respondents purchasers ought to have inquired into the status of the plaintiff and this would have been a reasonable inquiry. Before entering into a contract for sale and having not done so, he cannot claim that he had no notice of the previous agreement. In this connection, reference was made to Malik Muhammad Ishaque and another v.
Mirza Almas Ali Beg and others (PLD 1969 Lahore 762), Mukhtar Ahmad v. Bashir Ahmad and 3 others (PLD 1994 SC 674), Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) and Ramdeni Singh and another v. Gumani Raut and another (AIR 1929 Patna 300). In the latter case, the observations were as follows:-- "Where the plaintiff claiming under prior contract was admittedly in possession it was the bounden duty of the subsequent transferees to inquire from the plaintiff as regards the nature of his possession before they can be held to be bona fide purchasers for value."
Therefore, we find that the respondents having not inquired about the factum of possession, are not covered under the exception stated in section 27(b) of Specific Relief Act saying they had no notice of the original contract for value.
7. Consequently, this regular second appeal is accepted; the findings of the trial Court as well as the learned first appellate Court are set aside and the suit is decreed in favour of the plaintiff. No order as to costs.