Hatiz TASSADUQ HUSSAIN. vs LAL KHATOON and others

ORDER

' MIAN SAQIB NISAR, J.---The present appeal has its genesis in a suit for the specific performance filed by the appellant/plaintiff originally against Muhammad Din seeking enforcement of an agreement to sell dated 17-2-1986, whereby the later statedly agreed to sell the suit property to him. During the pendency of the suit the 'plaintiff got impleaded respondents Nos.2 to 9 as the defendants, being the subsequent vendees of the suit land vide mutation dated 24-8-1987. The defendants, so arrayed in their written statement, set out the defence under section 27(b) of Specific Relief Act 1877, being the bona fide purchasers of the land; however the original defendant as had denied the execution of the agreement to sell and parties were also discordant about the description of the property; therefore, inter alia three important issues i.e. (i) about the execution of the agreement. (iv.) qua the description of the property and (vi) and about the bona fide purchase of the said defendants, were framed. The learned trial Court after recording of the evidence, by returning its finding in favour of the plaintiff on Issue No.(i) and deciding the other two issues against the defendants, passed the decree for specific performance dated 12-10-2000.

' The said judgment and decree was challenged by the subsequent vendees, in appeal which was accepted by reversing the findings only to their extent being the bona fide purchasers, while the findings of the trial Court on other two issues were affirmed, with the result that the suit was dismissed through the judgment and decree dated 12-10-2000. The appellant challenged this verdict in a civil revision before the Lahore High Court, but without any success. It has been held:-- "the learned appellate court has rightly held that after the testimony of the respondents witnesses asserting that they were unaware of the existence of the aforesaid agreement, the onus shifted on to the petitioner/plaintiff to prove through affirmative evidence that the respondents/defendants had knowledge of the said agreement and, as such, they were not bona tide purchaser. There can be no cavil with this well-established legal principle

(4) I have myself gone through the evidence of the witnesses produced by the petitioner/plaintiff and find that there is no evidence to establish that the respondent/defendants had notice of the agreement Exh.P.1. In the circumstances, the impugned appellate decree is. Not open to exception.

Leave in this case was granted on 1-1-2009 to consider if the view set out by the appellate and revisional Courts is in consonance with the law laid down by this Court regarding the above proposition.

3. Learned counsel for the appellant has relied upon the following judgments: Rasool Bakhsh Naich v. Syed Rasool Bakhsh Shahi (2010 SCMR 988), M. Din v. Mst. Sabira Bibi (2003 SCMR 956), Mst.

Surraya Begum and others v. Mst. Suban Begum (1992 SCMR 652), M. Ahraf v. Ali Zaman (1992 SCMR 1942), Mst. Khair-ul-Nisa v. Malik M. Ishfaque (PLD 1972 SC 25), Haji Abdul Rehman and others v. Noa Ahmed and others (PLD 1974 Baghdad-ul-Jadid 25), M. Shahi v. M. Sarwar (1997 CLC 1231), Bakhtawar v. Shah. Muhammad (1984 CLC 22), M. Yousaf Ishaque v. Abdul Majid Khan and others (1984 CLC 243) and Malik M. Ishaque and others v. Mirza Alam Ali Bage and others (PLD 1969 Lah 762) to argue that the subsequent vendee asserting to be a bona fide purchaser having no knowledge/notice of the prior agreement to sell, is required to lead affirmative evidence to that effect; such essential evidence according to learned counsel however is conspicuously missing in this case, therefore the view of the two. Courts holding that the respondents are protected by the said equitable rule is against the settled law.

4. Heard. The principles regarding the burden (onus) of proof, particularly in the civil litigation are elucidated by the provisions of Articles 117 to 120 of the Qanun-e-Shahadat Order, 1984, which for the facility of reference are reproduced as below:- "117. Burden of proof.-- (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact; it is said that the burden of proof lies on that person.

118. On whom burden of proof lies.--The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

119. Burden of proof as to particular fact.--The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person..

120. Burden of proving fact. To be proved to make evidence admissible.--The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who Wishes to give such evidence.

From the analysis and collective reading of the above provisions; it is manifest and un- ambiguously clear that in a dispute between the parties in a civil litigation, the resolution whereof is dependant upon the existence of certain facts which are not self evident; - and a party to the lis wants the Court to believe about the existence of those and seek -verdict in his favour, the onus to prove shall be on the shoulder of such litigant who asserts the existence of the fact-In the cases pertaining and relating to the protection under section 27(b) of the Specific Relief Act, 1877, undoubtedly, .It is the subsequent vendee who asserts and avows in the defence that his case falls within the purview and parameter of the noted section i.e. He is a transferee for .Value; the I money (consideration) has been paid n good faith;, and that he had no notice of the original (earlier) contract between the plaintiff and the I vendor. In other words that he is a bona fide purchaser without notice. Obviously the existence of the facts aforementioned and the ascertainment thereof is an issue between the parties which requires resolution from the Court. It is therefore in such like cases by applying the rules regarding burdenof proof as emerging from the noted Articles, especially 117 and 118, the initial onus to prove the same is on the shoulder of the subsequent vendee. It may be pertinent to point out that in civil disputes the onus to prove a fact however does not remain constant or stagnant, thus once the initial onus on a proposition of fact has been discharged by the side upon whom it was originally placed, it would' shift over to the. Other party for the rebuttal thereof or for the proof otherwise.

5. Be that as it may, the subsequent vendee thus has to discharge the initial onus as follows:--

(1) that lie acquired the property for due consideration and thus is a transferee for value, meaning thereby that his purchase is for the price paid to the vendor and not otherwise.

(2) there was. No dishonesty of purpose or tainted intention to enter into the transaction which shall settle that he acted in good faith or with bona fide;

(3) he had no knowledge or the notice of the original sale agreement between the plaintiff and the vendor at the time of his transaction with the later.

' From the above it is depicted that the section merely enacts the English equitable rule which allows later legal title to prevail over an equitable interest in case of bona fide purchaser for value without notice (emphases supplied). And this principle has to be kept in view by the Courts while analyzing and appreciating the evidence on the record for the discharge of the requisite burden.

6. In the afore-noted context, it, is thus required that a subsequent vendee should adduce in evidence his sale instrument or the mutation of his transaction, if not otherwise on the record having been brought by the plaintiff himself, or any other proof in this connection such as the receipt of payment made to the vendor or the bank record etc. Or should lead credible, oral evidence in this behalf; these are some conceivable modes of proving the transfer for value and shall be a sufficient discharge of onus in this respect in ordinary cases. If however, a specific attack has been made in the plaint or the replication by the plaintiff that the subsequent transaction is without consideration,or the value given is colourable, understated, underpaid and illusionary, it becomes the bounden duty of the subsequent transferee to establish through positive evidence that adequate price was paid, because this factum shall also have a close nexus to the good faith and the bona fides of the said transferee as well; when it is so done, the onus shall switch over to the plaintiff to prove otherwise.

7. The second ingredient "good faith" is the term which reflects the state of mind and according to section 3(20) of the General Clauses Act, 1897 "a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not". While interpreting this, it was held in Nannu Mal v. Rani Chander (AIR 1931 All 277 (FB)) that good faith as defined above is equivalent to honesty of dealing and does not entail upon the purchaser the necessity of searching the registry, even assuming that there were facts indicative of negligence in investigating title, that by itself was not predicative of a lack of bona tides. Therefore, the 'second condition shall stand settled if the subsequent vendee has acted as a man of ordinary prudence in making inquiries expected from a purchaser who wants to acquire a good title for the price/value he is paying. This may include the checking of the Revenue Record or obtain the copies thereof to verify about the title of the vendor or any third party in right, interest or charge over the property or any endorsement in such record about any pending litigation or an injunctive order etc; this may be a good and adequate exercise of investigative process, in case of rural/agriculture property. And for the same purpose, regarding urban property, the Excise and Taxation record may be examined coupled with the verification and obtaining the original documents of title from the vendor, if those are available. However, the subsequent vendee is not obliged to run from the pillar to post in conducting rowing and fishing inquiries, to ascertain if a third party has any interest etc. In the property which otherwise is visibly lacking. But if there exist some overt, prominent and conspicuous indicators about the third party interest, which are so patently noticeable and manifest that those could not and should not be missed and ignored by a purchaser, such as the possession not with the vendor but some one else, who if approached or its nature investigated would lead to discover such interest, the purchaser is obliged to probe about it, otherwise he may not be able to take resort of the noted equitable rule.

If therefore a subsequent vendee has taken due care in the above manner and there are no indicators to put him to a notice of third party interest, he shall be said to have acted in good faith, thus satisfying the second condition of the rule.

8. The last and the utmost important ingredient of section 27(b) is the lack of knowledge or the notice of the subsequent vendee about the original contract between the plaintiff of the case and the vendor. This undoubtedly is the negative fact which cannot be conclusively proved in positive terms, as it is inconceivable that such fact could be established by affirmative means. To illustrate the point; if the marriage between the parties is an admitted fact but due to the subsequent assertion of the husband that it has been terminated on account of divorce pronounced by him; the wife who refutes it and in order to safeguard her marital status and the rights flowing therefrom is constrained to institute a suit for jactitation, in which the man sets out (obviously) the defence of divorce; the factual proposition with reference to the noted facts which would emerge for the resolution and determination of the Court would be whether the plaintiffs is still the wife of the defendant ? And/or whether the defendant has divorced the plaintiff? Viewing it from any angle the fact that the marriage on account of divorce by the husband stands dissolved is a negative fact for the wife to prove. Another example may further elucidate the point, in an ejectment petition, the landlord seeks the eviction of his tenant on the ground of default in the, payment of rent, which fact is denied by the tenant, now it shall not be possible for the landlord to prove in the positive term that the rent has not been paid, which again is a negative proof of fact, thus the landlord shall be said to have discharged the initial burden of proof by making statement on oath about the lack of payment of rent, which shall be subject to cross examination by the other side, thereafter, the onus shall be on the tenant to prove in positive terms that the rent has been paid.

The above example shall also be true with reference to the first illustration, because if a wife makes a statement on oath about the subsistence of marriage between the parties and deny the divorce, she shall be considered in law to have discharged the initial onus, which shall switch over to the husband for the proof otherwise, by positive evidence.. Because such a negative fact the law of evidence universally recognizes is not capable of proof positively.

9. Considering the above rule in context with the proposition in hand in Lekh Singh v. Dwarka Nath and others(AIR 1929 Lahore 249) it has been held:-- "The onus of proving that the subsequent purchaser had no :notice of a prior claim lies on such purchaser; and the onus of such a negative issue is ordinarily discharged by a denial and by a negative evidence."

' In Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) this Court ordained:-- "Under section 27(b) of the Specific Relief Act negative is to be proved by the subsequent transferee. If he appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden and the onus will, then shift to the plaintiff to prove that the subsequent transferee had the notice of the original contract".

' In Mst. Surraya Begum and others v. Mst. Suban Begum and others (1992 SCMR 652) while dilating on the proposition this Court laid down the law:- "Since in civil suits an issue is to be decided by preponderance. Of evidence, the initial burden would be on the plaintiff.To prove his prior contract, which if discharged, the burden of proving the subsequent bona tide transfer for value without notice would be on the party alleging it. Very little evidence and in certain circumstances a mere denial regarding want of knowledge of the earlier contract would discharge this burden and shift the onus on the plaintiff to prove that the subsequent transferee had the notice of the earlier contract."

In the light of the noted authoritative pronouncements, it can be safely concluded that though the initial onus is on the subsequent vendee, however, it is light one, and once it is discharged by abiding by the criteria set out hereinabove, it shall be the burden and duty of the plaintiff to prove positively that the subsequent vendee had the notice of his sale agreement; besides, the subsequent transaction is without the passing of the due consideration; it is a colourable or a fraudulent transaction entered into with dishonesty of purpose by the vendor and the subsequent vendee in order to cause prejudice his rights under the sale agreement. This in our view to an extent should settle the law regarding I the rule providing protection to bona fide purchaser for value without notice and the standards of proof thereof.

10. Now, it is expedient to evaluate if the subsequent vendees in the present case have discharged their initial burden of the issue on the criteria as has been set out above, suffice it to say that the mutation of subsequent sale has been produced by them in evidence; Ghulam Hussain, one of the vendees, appeared and deposed about the quantum and payment of the price, but he was not cross-examined; the appellant while appearing as P.W.8 in his cross-examination has also admitted that the suit property. Was purchased by the said respondents for a price of Rs.3,50,000 which was prior to the institution of the suit; moreover, a suggestion was given to Ghulam Hussain in the cross-examination that the subsequent vendees were informed by the relatives of the plaintiff about the agreement to sell, which he denied, but in rebuttal no such evidence was led to prove the passing of such an information. D.W.1, one of the vendees, appeared and testified about the lack of knowledge of the prior agreement, no cross-examination was again conducted on his, this deposition; the said witness stated that the copies of the Revenue Record were procured by subsequent transferee, there is no cross-examination to refute the above; it is specifically mentioned by the witnesses that the plaintiff or any other third person was not in possession of the suit land and the subsequent vendees pursuant to their sale got the possession of the property from the vendor, this too was not subject to cross-examination. This all brings the case within the realm of the principle that if a material fact has been deposed in the examination-in-chief and it. Is not subjected to the cross-examination, it shall be deemed to have been admitted. The elements of overt indicators are also conspicuously missing in the case; there is no incorporation of the appellant's agreement in the Revenue Record. Besides, the most vital and striking aspect of the case is, that the plaintiff in rebuttal to the relevant issue after the evidence was led by the respondents who had discharged their initial onus has led no evidence (emphasis supplied) at all to prove that the respondents lacked in the payment, their transfer is mala tide and is meant to effect their (plaintiffs) equitable interest under the agreement. And above all that they (subsequent vendees) had the notice of their sale agreement. This omission is a very fatal lapse on their part. Thus, the views set out by the appellate Court and the High Court that the rights of the respondents are protected under section 27(b) of the Act (ibid) are unexceptionable. This appeal, therefore, has, no merits and is hereby dismissed.