' MUHAMMAD KHALID MEHMOOD KHAN, J.---The appellant's predecessor in interest Shukar Din purchased land measuring 104 kanals, 16 marlas in the village Tapiala (Bolar) Tehsil and District Narowal, detailed in para No,1 of the plaint, vide agreements to sell dated 17-7-1982 and 2-10-1982 through the general attorney of respondents Nos.1 to 4 against consideration of Rs, 1,70,000 and under agreement dated 17-7-1982 paid Rs,70,000 and obtained possession of land and subsequently vide agreement dated 2-10-1982 paid Rs,100,000. The first agreement to sell dated 17- 7-1982 is between the predecessor in interest of appellant Shukar Din and general attorney of respondents Nos. 1 to 4 and the second agreement to sell is between Shukar Din deceased and respondents Nos.1 to 4 directly. As per terms of the agreement to sell, it was settled between the parties that sale-deed will be executed after completion of consolidation proceedings in the Shukar Din deceased instituted a suit for perpetual injunction against respondents Nos.1 to 4 through their general attorney Muhammad Aslam. General attorney who is defendant No, 5 in the suit, made a statement on 20-4-1983 in the court and admitted the execution of agreement and receipt of consideration and further promised to execute registered sale-deed after completion of consolidation proceedings.
2. Respondents Nos.1 to 4 in violation of agreement to sell and a decree, transferred 90 kanals, 5 marlas land out of the sold land in favour of respondents Nos.6 to 11 against consideration of Rs,200,000 through Mutation No,397 attested on 31-1-1991. The appellants filed a suit for specific performance of agreement, referred to above, and prayed for cancellation of Mutation No,397 dated 31-1-1991 with perpetual injunction to the effect that respondents be restrained permanently to interfere in their peaceful physical possession.
3. The original sellers failed to appear and as such they were proceeded against ex parte. However, subsequent purchasers respondents Nos.6 to 11 contested the suit and raised number of legal as well as factual objections and the learned trial Court framed the following issues:-- ' Issues:
(1) Whether the defendants Nos. 1 to 4 made an agreement through defendant No, 5 as their attorney for consideration of Rs,1,70,000 vide agreement, dated 17-7-1982? OPP
(2) Whether the whole amount has been paid to the defendants Nos. 1 to 4 on 17-7-1982? OPP
(3) If the above issues are proved in affirmative, whether the Mutation No,397 dated 31-1-1991 in favour of defendant Nos. 6 to 11 for Rs,2,00,000 is illegal, against facts, void, ineffective upon the rights of the plaintiffs and liable to be set aside? OPP
(4) Whether the plaintiffs have cancelled the impugned agreement due to their act and conduct?
OPD 6 to 11
(5) Whether the plaintiffs have no cause of action and locus standi? OPD 6 to 11
(6) Whether the suit is premature? OPD 6 to 11
(7) Whether the suit has been valued improperly for the purpose of court-fee and jurisdiction? OPD 6 to 11.
(8) Whether the defendants Nos. 6 to 11 are bona fide purchaser without notice? OPD 6 to 11
(9) Whether the defendants Nos.6 to 11 are entitled to recover Rs,2,15,000 in case the suit is decreed? OPD 6 to 11.
(10) Whether the suit has been filed without any justification and the defendants Nos.6 to 11 are entitled to special costs under section 35-A of C.P.C.? OPD 6 to 11
(11) Relief.
4. Both the parties adduced their respective evidence both verbal as well as documentary and the learned trial court vide judgment and decree dated 14-3-1996 decreed the suit to the extent of specific performance of agreement and respondents Nos.6 to 11 were found entitled to recover Rs,2,15,200 from respondents Nos.1 to 4. Respondents Nos.1 to 4 assailed the said judgment and decree through an appeal which was allowed by the learned appellate court vide judgment dated 27-2-2001 by reversing the findings on Issue No,8 and Issue No,2. Hence, the present appeal.
5. Learned counsel for the appellants submits that impugned judgment and decree suffer from patent illegality. Further submits that learned appellate Court while accepting that the agreement to sell were rightly executed between the parties and consideration was passed on, was not justified to dismiss the suit. Further submits that learned appellate Court has erred in law while holding that respondents Nos.6 to 11 were bona fide purchasers for value without notice. Further submits that learned appellate Court has failed to appreciate that respondents Nos.6 to 11 themselves have pleaded that they are entitled to recover the amount paid to respondents Nos.1 to 4 along with expenses incurred and the learned trial Court has rightly passed a decree against respondents Nos.1 to 4 for return of consideration paid by respondents Nos.6 to 11. He adds that learned appellate Court has failed to appreciate that the possession of the suit-land is with the appellants from the date of execution of first agreement.
6. Learned counsel for respondents submits that the suit filed by the appellant was not maintainable as according to their own admission, a decree has already been passed in their favour with reference to the agreement to sell dated 17-7-1982 and 2-10-1982 and as such the said agreements are incapable to perform. His other argument is that under amendment in section 102 of C.P.C. No second appeal is provided where the jurisdictional value is less than Rs,2,50,000.
7. Heard and record perused.
8. The dispute between the parties in fact arose when respondents No,1 to 4.Sold the property to respondents Nos.6 to 11 through Mutation No,397 attested on 31-1-1991. Respondents Nos.1 to 4 have already received the entire consideration in terms of agreement to sell dated 17-7-1982 and 2-10- 1982 from the predecessor in interest of the appellants. The original owners/sellers, respondents Nos.1 to 4 and their attorney respondent No,5 failed to appear and as such they were proceeded against ex parte. Respondents Nos.6 to 11 raised number of preliminary objections and the learned trial court framed almost 10 issues but issue No,8 is the relevant issue along with Issue No,9.
9. On the objection of respondents Nos.6 to 11 Issue No,6 was also framed to the effect that the suit is premature. The learned trial Court answered Issue No,6 in favour of appellants and against the respondents. The argument of learned counsel for the respondents Nos.6 to 11 was that sale-deed will be executed after completion of consolidation and admittedly on the day of institution of suit consolidation proceedings were not completed. Hence, the suit is premature. The learned appeal court agreed with the arguments of respondents Nos.6 to 11. The learned appellate court while upsetting the findings of learned trial Court on this issue has fallen in error. It is an admitted fact on record that respondents Nos.1 to 4 have transferred a major portion of land, subject-matter of two agreements to sell in favour of respondents Nos.6 to 11 through a Mutation No,397 dated 31-1-1991 meaning thereby respondents Nos.1 to 4 violated the terms of two agreements to sell and as such the cause of action arose in favour of the appellants on violation of the terms of agreements.
Learned appellate court while deciding that the suit is premature, has failed to appreciate this aspect of the case and has wrongly upset the findings of learned trial Court on this issue.
10. The learned appellate court has held that respondents Nos.6 to 11 are bona fide purchasers for value without notice and as such the suit for specific performance was not maintainable. The reasons of learned appellate court are that two agreements to sell are not registered and as such respondents Nos.6 to 11 were unable to inquire about prior charge of appellants against the land, subject-matter of the suit.
11. Respondent No,8 appeared as D.W.3 and deposed in his examination-in-chief that at the time of purchase of land, they were not aware whether Muhammad Hussain has agreed to sell the property with some other. He also deposed that the consolidation proceedings are still in progress in the village and dispute is going on but in the cross-examination he admits that Shukar Din and he both are the residents of same village. The land, subject-matter of suit, was in possession of Shukar Din. They have not inquired from Sub-Registrar office or any other Court regarding the sale of suit-land when they purchased the land, Shukar Din was dead and the land was in possession of Anwar. They have not given any notice to Anwar etc., (plaintiffs) before purchase of land. They have not obtained any permission from consolidation officer for attestation of mutation. One of the owners Muhammad Hussain appeared as D.W.4 and admits in cross-examination that it is correct Aslam, their General Attorney, has sold land to Shukar Din against consideration of Rs,1,70,000.
Further admits that Aslam has given 50% amount to Manzoor Hussain and 50% per cent to him. In examination in chief he deposed that they have sold the land to respondents Nos. 6 to 11 against consideration of Rs,200,000.
12. Respondents Nos.6 to 11 are claiming the refuge of section 27-B of Specific Relief Act for more clarity. Section 27-B is reproduced as under:-- "27(h) 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:"
13. It is one of the tenets of jurisprudence that he who seeks to take advantage of an exception has to prove affirmatively that his case falls within the scope of that exception. The onus is upon the subsequent F purchaser to prove that he is a transferee in good faith and without notice of the earlier contract so as to bring himself within the exception provided by section 27(b) of the Specific Relief Act. However, the subsequent vendee in certain circumstances can discharge this onus by mere denial regarding want of knowledge. In the present case, D.W.3 Nemat Ali himself admits that before purchasing the land they have not inquired from the office of Sub-Registrar, Consolidation Officer or any court. His admission is sufficient to prove that they have not acted as ordinary prudent man while purchasing property from respondents Nos.1 to 4. He admits that Shukar Din was in possession of the property when they purchased the land from respondents Nos.1 to 4.
Respondents Nos.6 to 11 being the purchasers of land against consideration were duty bound to ask the sellers why they are not in possession of land which they are selling and what is the status of Shukar Din qua the land. He further admits that he and Shukar Din are living in the same village. It is not understandable why the purchasers-respondents Nos.6 to 11, have not bothered to inquire about the status of Shukar Din at the time of purchase of land from respondents Nos.1 to 4. One of the sellers Muhammad Hussain appeared as D.W.4 and admitted in his cross-examination that their attorney Muhammad , Aslam sold land to the appellant's predecessor-in-interest against consideration of Rs,1,70,000. He has not given any explanation why they have sold the land again.
He has not deposed that they have cancelled the agreement to sell in favour of Shukar Din or Shukar Din has failed to perform his part of agreement and as such in these states of affairs it is proved beyond any shadow of doubt on record that respondents No,6 to 11 were failed to act as ordinary prudent man while filing written statement the respondents Nos.6 to 11 have specifically pleaded that in case it is proved that land was sold by respondents Nos.1 to 4 to Shukar Din, a decree for recovery of Rs,2,15,000, the principal amount and the expenses incurred to be ordered to be passed in their favour and against respondents Nos.1 to 4. This ground of the respondents shows that sale in favour of Shukar Din was in their knowledge. The purchasers, respondents Nos.6 to 11 are so innocent that they are paying a huge amount of Rs,2,00,000 to respondents Nos.1 to 4 only for a paper entry of ownership i.e, Mutation No,397 dated 31-1-1991 they in spite of payment of huge amount are not taking possession of land purchased. There is no explanation of this act of respondents Nos.6 to 11 on record. Natural inference in these circumstances is that respondents Nos. 6 to 11 were in knowledge of sale in favour of predecessor of appellants. As far as objection of learned counsel for respondents that the suit is not maintainable as according to appellant's own admission they have obtained a decree against respondents Nos.1 to 4 and as such in the presence of said decree the suit for specific performance is not maintainable, is concerned, it is an admitted fact between the parties that earlier suit was a suit for perpetual 'injunction whereby respondents Nos.1 to 4 were directed not to interfere into possession of appellants and respondents Nos.1 to 4 in that suit conceded that they have sold property to Shukar Din and sale-deed will be executed after completion of consolidation proceedings, so the said decree is not a hurdle in institution of a suit for specific performance especially when respondents Nos.1 to 4 themselves violated their own statement and admission before the court in the earlier suit when they sold the major portion of land to respondents Nos.6 to 11 against consideration of Rs,2,00,000. In these circumstances there was no option available to appellants except to file the present suit.
14. Second objection of learned counsel for the respondents that no second appeal is maintainable under section 102 of .C.P.C., is concerned, the amendment in section 102, C.P.C. Was inserted by Act of XIV of .1994. The suit was filed on 8-3-1992. It is an established principle of law that right of appeal is governed by law prevailing at the time of institution of suit or proceedings and not by the law that prevailed on the date of decision or on the date of filing of appeal. Hence, the objection raised by learned counsel for respondents is devoid of any merits.
15. In view of the above, the appeal succeeds and is allowed. The impugned judgment and decree is set aside and the judgment and decree passed by the learned trial Court is restored. There is no order as to costs.