' SARMAD JALAL OSMANY, J.---This petition impugns the judgment of the learned High Court of Sindh in S.A. No,12 of 2011 filed by the petitioner, which was dismissed.
2. Briefly stated the facts of the matter are that the petitioner (Mst. Rubina Badar) had filed a civil suit against the respondent No,1 (Messrs Long Life Builders) for declaration, injunction and specific performance with respect to immoveable property viz a bungalow whereas respondent No,2 (Abdul Moid Khan) had laid a similar claim to that bungalow against respondent No,1 in another suit. Both suits were consolidated and the learned Civil Court after hearing the parties etc. Had decreed the suit of respondent No,2 whereas that of the petitioner was dismissed. Against such judgment and decree petitioner filed a First Appeal before the learned District Judge, East at Karachi which was contested by respondent No,2. Ultimately the said appeal was allowed and the matter was remanded back to the learned Civil Court for a fresh hearing. Against such judgment of the First Appellate Court the respondent No,2 filed Civil Revision No,28 of 2007 before the High Court of Sindh which directed that evidence should be recorded by the learned Appellate Court only on issue No,5 viz whether upon the dissolution of the partnership firm Messrs Long Life Builders lease deed deceased Abdul Moid Khan (respondent No,2) is lawful. This issue was decided in the positive by the learned first Appellate Court and the same was upheld by the learned High Court of Sindh in Appeal and hence this Petition.
3. Ch. Muhammad Jalib, learned Advocate Supreme Court for the petitioner has submitted that the title of the petitioner has been perfected which is evident vide sale agreement dated 19-3-1997 with the respondent No,1, duly acknowledged receipt of the sale consideration, public notice in the newspaper dated 25-4-1997, physical possession of the bungalow in question, payment of property tax, utility bills etc. As opposed to this the respondent No,2's title as evidenced by lease deed dated 8-8-1991 executed by the alleged attorney of respondent No,1 Chaudhry Zulfiqar All was not in accordance with the law as the firm itself had been earlier dissolved on 19-4-1989 vide registered deed of dissolution on the record according to which after such event Chaudhry Faiz Ahmed became the sole proprietor and in fact he had executed the sale agreement in favour of the petitioner. In this connection learned Advocate Supreme Court has referred to section 45 of the Partnership Act according to which notwithstanding the dissolution of a firm, the partners continue to be liable as such to third parties for any act done by any of them which would have been an act of the firm if done before the dissolution, until public notice is given of the dissolution. Hence per learned Advocate Supreme Court as the Firm was dissolved prior to the registration of the lease deed in favour of respondent No,2, the latter is a nullity in the eyes of the law. Learned Advocate Supreme Court has also referred to section 32(3) of the Partnership Act which provides for the rights and obligations of a retiring partners inasmuch as notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as such to third parties for any act done by any of them which would have been an act of the firm if done before the retirement, until public notice is given for such retirement. In support of his contention learned Advocate Supreme Court has relied upon the cases reported as (i) Muhammad Ishaque (Represented by his Legal Heirs) v. Messrs Eros Theatre and others (PLD 1977 SC 109), (i) Mst. Hamida " Belum v. Mst. Murad Begun and Others (PLD 1975 SC 624) and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCM R 1245).
4. Learned Advocate Supreme Court's next submission is that per section 41 of the Transfer of Property Act., the petitioner is a transferee in good faith without notice of the original contract between the respondents Nos.1 and 2, for valuable consideration for which he has relied upon Ghulam Shabbir v. Mst. Nur Begum and others (PLD 1977 SC 75).\ Consequently transfer of the property in favour of the petitioner is superior to the earlier one in favour of respondent No,2. In this context he has also relied upon section 27(b) of the Specific Relied Act and quoted the judgment reported as Mst. Khair-ul'-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) in support thereof.
5. On the other hand, Mr. Imran Ahmed, learned Advocate Supreme Court appearing for the respondent No,2 has submitted that the true import of section 45 of the Partnership Act-is that the partners continue- to remain liable to third parties even after dissolution of the firm for acts done thereafter unless public notice is given of this event. Hence since no public notice was ever given of such dissolution, the partners of respondent No,1 continue, to remain liable for acts done after dissolution of the firm in 1989 at least till 1991 when the registered lease deed was executed between the respondents Nos.l and 2. For this submission he has relied on Muhammad Jameel and Co. v. A.M. Wazir Ali (Proprietors of Sindh Oil Mills) (PLD 1959 (W.P.) Karachi 472) and Elaz All Siddique and another v. Rana Irshad Ahmed and others (1998 CLC 1684).
6. We have heard both the learned Advocate Supreme Courts and our conclusion is as follows.
7. It would be seen that the bone of contention between the parties is the same bungalow. The petitioner claims it through an agreement to sell between herself and the sole proprietor of respondent No,1 Chaudhry Zulfiqar Ali dated 19-9-1997 coupled with receipt of the same date in the amount of Rs,11,50,000 towards part payment of the total sale consideration of Rs,12,50,000. To the contrary respondent No, 2 also lays claim to the said bungalow on the basis of an earlier registered lease deed between' himself and the respondent No,1 dated 8-8-1991 as well as periodic payments for which receipts have been produced. The case of the petitioner is that the partnership itself was dissolved on 19-4-1989 vide a registered deed of dissolution leaving behind one of the partners viz Chaudhry Zulfiqar Ali as sole proprietor hence the registered sale lease deed is of no avail in terms of section 45 of the Partnership Act as canvasse. Ch. Muhammad Javed, learned Advocate Supreme Court. We are afraid that we cannot agree with the contention of learned Advocate Supreme Court for the very simple reason that the true import of section 45 of the Partnership Act is the continuing liability of the partners for acts done by the partners after the dissolution of the firm unless public notice is given thereof. This is in order to protect third parties who deal with the partners of the firm after the dissolution without such notice and in good faith. It is an admitted position before us that no such public notice was given of the dissolution of the firm and hence the registered lease deed in favour of respondent No,2 executed on 8-8-1991 by one of the partners viz Chaudhry Zulfiqar All cannot be disregarded for the purpose of binding the partnership. We may also observe that the judgments cited by Mr. Jalib do not at all support his contentions while those cited by Mr. Imran Ahmed are more to the point regarding section 45 of the Partnership Act.
8. With regard to Mr. Jalib's contention that the petitioner was a purchaser for value in good faith and without notice of the earlier lease deed between respondent No,1 and respondent No,2. It would be seen that in order to avail of this equitable doctrine as contained in section 41 of the Transfer of Property Act (Proviso) which protects a subsequent transferee, it must be established by him that he had acted in good faith and taken reasonable care before entering into the transaction and that he had given valuable consideration for such transfer. This equitable doctrine is a deduction from the law of estoppel which must be pleaded clearly with specific facts to be relied upon in this regard. Naturally the onus to prove that a person is entitled to the benefit of section 41 of Transfer of Property Act is always upon the person who pleads such protection. In this regard reference can be made to the case reported as Allah Bakhsh and others v. Province of Punjab and others (2002 SCM R 2003). In the case at hand the petitioner never pleaded that she was a bona fide purchaser without notice of the earlier transaction vis-a-vis the property in question between respondents Nos. 1 and 2 neither has she lead any evidence to this effect before the learned Civil Court. In fact had she, bothered to check with the concerned Registrar, the earlier lease deed between the petitioner and the respondent No,2 would have easily been discovered but this was not done.
Naturally no issue was framed by the learned Civil Court since the petitioner as plaintiff never raised the same and in fact neither did so in the written statement to the suit filed by respondent No,2 against her in this connection. Consequently at this stage we cannot accept Mr. Ch. Muhammad Jalib's argument that indeed the petitioner could invoke, the proviso under section 41 of the Transfer of Property Act. As regards invocation of section 27(b) of the Specific Relief Act by Mr. Jalib to support his argument vis-a-vis the petitioner being a purchaser in good faith without notice, suffice it to say that as observed earlier, here too, the petitioner has failed to establish the same and hence cannot seek protection thereto.
9. For all the foregoing reasons we find no merit in this petition which is dismissed as such. Leave declined.