Tassaduq Hussain Jillani, J.--Facts giving rise to these appeals are that respondent/defendant Soofi Muhammad Ashraf (respondent) was the original 'owner of the suit property. The case of the respondent/plaintiffs (Syed Rasool Bakhsh, Respondent No, 1 and Allah Bakhsh Respondent No, 2) was that the said Soofi Muhammad Ashraf agreed to sell the suit land vide agreement to sell Ex.P1 dated 19.5.1964 for a consideration of Rs, 80,000/-, out of which Rs,6000/- were paid at the time of execution of the agreement and the balance amount was to be paid at the time of the sale-deed.
Possession according to them was also delivered to them at the time of execution of agreement.
The case of the appellant/contesting defendants (defendant in the suit filed by the respondent/plaintiffs but plaintiffs in the separate suits filed by them) was that out of the suit land, land measuring 64 kanals 9 marlas was sold by said Soofi Muhammad Ashraf to Ghulam Rasool s/o Khuda Bakhsh (one of the appellants) in terms of Mutation No, 1079 dated 11.7.1964 and the remaining 67 kanals was sold by the said vendor to Rasool Bakhsh s/o Nabi Bakhsh (appellant) in terms of Mutation No, 1102 dated 28.6.1965. On 31.7.1964 Ghulam Rasool Shah s/o Syed Muhammad Jaafar Shah and Allah Bakhsh Shah s/o Muhammad Roshan Shah, respondent/plaintiffs filed a suit for specific performance against Soofi Muhammad Ashraf and appellants for enforcement of agreement dated 19.5.1964. Appellants Ghulam Rasool Shah (s/o Khuda Bakhsh (vendee in Mutation No, 1079 dated 11.7.1964) and Rasool Bakhsh s/o Nabi Bakhsh (vendee in Mutation No, 1102 dated 28.6.1965) also filed two separate suits for specific performance and averred therein that the respondent/defendant Soofi Muhammad Ashraf had entered into oral agreement to sell the suit land to them; that the entire sale consideration had been paid; that pursuant to the said agreement, two mutations referred to above (Mutation No, 1079 dated 11.7.1964 and Mutation No, 1102 dated 28.6.1965) were entered but the said defendant when asked to give effect to the agreement to sell, refused to have the sale-deed registered. It was further alleged that in order to defeat their claim, at the behest of Soofi Muhammad Ashraf, defendant, the other defendants (plaintiffs in the other suit) namely Syed Rasool Bakhsh and Syed Allah Bakhsh Shah started asserting their claim over the suit land on the basis of the so called agreement to sell which was fraudulent and fake.
2. All the three suits were consolidated, issues were framed, evidence was led and the learned Trial Court in terms of its judgment dated 12.7.1976, dismissed all the suits. The said judgment and decree was challenged in appeal which was allowed by the learned Additional District Judge, Rahimyar Khan on 19.10.1976. The cases were remanded after framing additional issues i,e, Issues Nos, 4-A & 4-C. The consolidated issues framed were as follows:-- "1. Whether the Defendant No, 1 agreed to sell the suit land to Rasul Bakhsh Shah predecessor-in- interest of the Plaintiffs No, 1 to 6 and Plaintiff No, 6.
2. Whether Defendant No, 1 received Rs, 6000.00 from Rasul Bakhsh Shah as part payment of this sale?
3. Whether the suit land has not been correctly described in the plaint?
4. Whether the agreement of sale is fictitious and collusive? If so, what is its effect?
4-AWhether Muhammad Ashraf sold 65 kanals and 9 murlas of land given in Mutation No, 1079 to Ghulam Rasool for Rs, 16,500/-. If so, whether he. received this amount from him?
4-BWhether Muhammad Ashraf sold the land detailed in Mutation No, 1102 to Rasul Bakhsh for Rs, 20,000/-? If so, whether he received this amount and delivered the possession of the land to him?
4-CIf issues 4-A and 4-B are found in the affirmative whether suits for the specific performance of oral agreements of sale evidenced by Mutation 1079 and 1102 are not maintainable.
5. Relief."
3. After remand, parties were allowed to adduce additional evidence, respondent/plaintiffs examined 8 witnesses and placed on record agreement to sell Ex.P1 and a copy of `Khasra Girdawri' whereas the appellant/defendants examined 14 witnesses and placed on record 17 documents.
The learned trial Court vide judgment dated 28.2.1983 in terms of its finding on Issue Nos, 1, 2 & 3 partly. decreed 'the suit of respondent/plaintiffs minus the land subject matter of Mutation No, 1079 as the said sale was protected whereas in the other mutation the sale was after one year of the suit filed by the respondents (Mutation No, 1102, Ghulam Rasool appellant/defendant was the vendee). The said judgment and decree was challenged by the respondents in appeal which was allowed on 4.4.1985 by the District Judge Rahimyar Khan i,e, the suits filed by the respondents were decreed and those of the appellants were dismissed. The said judgment and decree stands affirmed by the learned High Court vide the impugned judgment dated 18.11.2004.
4. Learned counsel for the appellants Mr. Gulzarin Kiani in support of these appeals submitted that in affirming the judgment and decree of the learned First Court of Appeal, the learned High Court has not applied its independent mind; that the agreement to sell in favour of Syed Rasool Bakhsh Shah and Allah Bakhsh Shah by Soofi Muhammad Ashraf was a fake and spurious document and the respondent/plaintiffs failed to prove its execution; that although the agreement to sell was specifically denied and it was alleged that it was a fake document but the learned trial Court did not frame any issue on that and the learned High Court did not advert to this aspect although this ground was taken in the memo of appeal as also during arguments. He further contended that in the suit filed by the respondents it was not specifically denied that appellant/defendants were bona fide purchasers and they had no prior knowledge of agreement to sell dated 19.5.1964; that the latter document was collusive, sham and nominal transaction and doctrine of lis pendens does not apply to collusive transactions. Referring to Section 41 of the Transfer of Property Act, learned counsel contended that the cases in hand are not covered by the said provision but by Section 27(b) of the Specific Relief Act. Elaborating this submission learned counsel added that it was for the respondent/plaintiffs first to prove the execution of agreement to sell dated 19.5.1964 and only then the onus would have shifted on the appellant/defendants; that the appellants being transferees/vendees for value and haying paid the consideration in good faith and without notice of any earlier lien aver suit property, were protected by Section 27 (b) of the Specific Relief Act.
5. In support of the submissions made learned counsel relied on Ramakrishna Vs. Chidambara (AIR 1928 Madras 407), Abdul Haq Vs. Yehia Khan (AIR 1924 Patna 81), Surraya Begum Vs. Suban Begum (1992 SCMR 652 headnote B), Rasheeda Bibi Vs. Mukhtar Ahmed (2008 SCMR 1384 headnote H).
6. Learned counsel for the respondents, Mr. Jaafar Hashmi, on the other hand, defended the impugned judgment by submitting that there are concurrent findings of fact; that the agreement to sell (dated 19.5.1964) in favour of respondent/plaintiffs stood proved and the only documents relied upon by the appellant/defendants were impugned mutations and a mutation by itself does not create any title. He further contended that appellants were basing their claim on an oral alleged agreement as against the written agreement executed in favour of the respondent/plaintiffs; that the relief under the Specific Relief Act being a discretionary relief cannot be granted to the appellants. Responding to the argument of learned counsel for the appellants with reference to Section 41 of the Transfer of Property Act, learned counsel contended that three Courts below have concurrently held that physical possession is with the respondents which is sufficient to demonstrate that when the impugned Mutations (No, 1079 dated 11.7.1964 and Mutation No, 1102 dated 28.6.1965) were entered in favour of the appellants; they had notice of respondent/plaintiffs lien over the suit land; that Section 41 of the Transfer of Property Act was fully applicable as notwithstanding the respondents' physical possession, the appellants did not take care to verify respondent/plaintiffs' claim and purchased the suit property. He concluded his submissions by relying on a judgment of this Court reported at A Razzak Adamjee Vs. Datari Construction Co. (Pvt.) Ltd. (2005 SCMR 142 at 174).
7. We have given anxious consideration to the submissions made by learned counsel for the parties, have gone through the impugned judgment as also the evidence on record.
8. The learned First Court of Appeal though made certain observations against the conduct of Soofi Muhammad Ashraf, defendant, who was the original owner and executed agreement to sell dated 19.5.1964 in favour of the respondent/plaintiffs, nevertheless extended credence to his testimony and the other evidence led to prove the said agreement. The Court found as follows:-- "In my opinion Sufi Muhammad Ashraf Shah was a man of weak disposition. He had voluntarily executed Exh.P.1 and was also a willing party to both mutations regardless of consequences. The scribe of PW.1 appeared as PW.3. He stated that the Defendant No, 1 executed Exh.P.1. The witness however, admitted same litigation having, taken place in between him and defendants. Jind Wada an attesting witness of Exh.P.1, appeared as PW.4, he was also suggested enmity with the defendants but no tangible rift could be proved between witness and the defendants. Similarly Muhammad Ismail appeared as PW.5. He is another attesting witness. Some enmity like a case under Section 307 P.P.C. was proved between him and relatives of the defendants. Wahid Bux as PW.6, Allah Bux as PW.7 and Atta Muhammad as PW.8 deposed that the possession was delivered in their presence by ploughing (sick) the field. Their yoko of oxen were barrowed. The defendants were present. The plaintiffs have further placed on record copy of Khasragirdawri from 1964 onward.. Although some enmity is proved between Ghulam Ali Shah the scribe and the defendants but there is overwhelming of Muhammad Ashraf Shah as PW.2 and PW.15 in Court that the execution of Exh.P.1 is fully proved. Issue is decided in favour of the plaintiffs.'
9. The afore-referred finding of the learned First Court of Appeal is in accord with the weight of the evidence led because Soofi Muhammad Ashraf, the original owner who executed the agreement to sell dated 19.5.1964, twice appeared in Court; first as PW-2 and for the second time as DW-15. While appearing as PW-2, he candidly affirmed that he had entered into agreement to sell Ex.P1 with respondent/plaintiffs and had received the consideration; he was subjected to lengthy cross- examination but the same could not create any dent in his credibility. He appeared for the second time as DW-15 and even then he stuck to his original position and affirmed the execution of Ex.P1.
This witness however, while recording his statement under Order X, CPC denied the execution of the document. But latter explained that the said statement was given under threat. His depositions as PW-2 and DW-15 read alongwith statements of Ghulam Ali Shah (PW-3, scribe of Ex.P1), Jeewan Shah (PW-4, who attested Ex.P1), Muhammad Ismail (PW-5, he was witness of transaction reflected in agreement to sell Ex.P1), Waheed Bakhsh (PW-6), Allah Bakhsh (PW-7) and Atta Muhammad (PW-8) as also, the factum of delivery of possession to the respondents/plaintiffs persuade us to hold that the latter discharged their initial onus to prove execution of agreement Ex.P1. The contentions of learned counsel for the appellants with regard to the non-framing of issue qua the genuineness of Ex.P1 and his plea with reference to Section 27(b) of the Specific Relief Act are not tenable for more-than one reasons:- first, no ground was urged with 'reference to non-framing of the said issue by the appellants either in appeals filed before the learned District judge (Civil Appeal Nos, 92 to 94/13 of 1985) or in the body of Regular Second Appeal (RSA Nos, 50 to 52/1985) filed before the learned High Court; second, in the two written statements filed by them, the agreement dated 11.5.1964 was neither specifically assailed nor it was alleged that it was a fake document; third, the Issues No, 1 & 2 in pith and substance were substantially relatable to the same issue i,e, whether the respondent/defendants had agreed to sell the suit land to the appellant/plaintiffs in lieu of sale consideration.
10. Much stress was laid by appellants' learned counsel on the question of onus to prove prior agreement in terms of Section 27(b) of the Specific Relief Act. According to him, mere denial of knowledge/notice of earlier agreement qua the same property by the subsequent vendee is sufficient and the onus thereafter shifts on the plaintiffs to prove the existence of a prior agreement. A reference of the said provision would be in order, it reads as under:-- "27. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) .....................
(b)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.
(c)..................
(d)..................
(e)..................
11. A close reading of the afore-referred provision and the precedent case law would indicate that the subsequent vendee has not only to deny notice of any previous transaction to claim relief in equity but has to prove it by affirmative evidence as well. To plead exception in terms of clause 'b' of Section 27 of the Specific Relief Act, he has to show first that he has a bona fide purchaser, second, for value and third, without notice of previous agreement. In Varden Seth Sam Vs. Luck, athy Royiee Lallah (9 MIA 307), the judicial committee laid down the following rule:-- "Though both the third and the last defendants pleaded, in effect, that they were bona fide purchasers for value, without notice, yet they did not prove that defense, though the plaintiff charged notice and collusion with Defendant No, 1."
"The question to be considered is, whether defendants 3 and 6 respectively possessed the land free from that lien, whatever its nature. As one who owns property subject to a charge can, in general, convey no title higher or more free than his own, it lies always on a succeeding owner to make out a case to defeat such prior charge. Let it be conceded that a purchaser for value, bona fide, and without notice of this charge, whether legal , or equitable, would have had in these Courts an equity superior to that of the plaintiff still such innocent purchase must be, not merely asserted, but proved in the cause, and this case furnished no such proof."
12. This principle was reiterated in Bhup Narain Singh Vs. Gokul Chand Mahton and others (AIR 1934 PC 68) and relying on the earlier decision, it held as follows:-- "In their Lordship's opinion, the section lays down a general rule that the original contract may be specifically enforced against a subsequent transferee, but allows an exception to that general rule, not to the transferor, but to the transferee, and, in their Lordships opinion it is clearly for the transferee to establish the circumstances which will allow him to retain the benefit of transfer which prima facie, he had no right to get. Further the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and Whether he had notice of the original contract lie, and the provisions of Sections 103 and 106, Evidence Act, 1872, have a bearing on the question. The plaintiff does not necessarily have knowledge of either matter."
13.In Surraya Begum Vs. Suban Begum (1992 SCMR 652), this Court gave a similar construction to the spirit of Section 27(b) of Specific Relief Act and held as follows: "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 fide transfer for value without notice would be on the party alleging it."
14.In Muhammad Ashraf Vs. Ali Zaman (1992 SCMR 1442) and Muhammad Bashir Vs. Iftikhar Ali (PLD 2004 SC 465) this principle was reiterated.
15.In the instant case, the respondent/plaintiff not only led oral and documentary evidence to prove the execution of prior agreement Ex.P1 but also circumstantial evidence (delivery of possession) indicating notice of the said lien over the suit land to the appellants (as discussed in Para 9 above). Besides proving execution of Ex.P1, evidence was led to prove delivery of possession.
Muhammad Ismael (PW-5) and Wahid Bakhsh (PW-6) deposed about the delivery of possession "pursuant to the agreement and Allah Bakhsh (PW-7) and Atta Muhammad (PW-8) corroborated their statements. Copies of lhasra girdawries' were tendered in evidence as Ex.P2 to show that the respondent/plaintiffs were in the possession of the suit land. As against this the appellant/defendants appeared as DW-13 (Ghulam Rasool) and DW-14 (Rasool Bakhsh) merely deposed about their oral agreement with defendant Soofi Muhammad Ashraf but did not plead lack of knowledge or notice of prior agreement. No evidence was produced in affirmative either to prove that they had no notice of prior agreement or that the agreement was fake. There is nothing in evidence even to show that the appellant/defendants had made any inquiry regarding prior agreement or lien over the suit property. In the face of the oral and documentary evidence, it stood proved that respondent/plaintiffs were in possession and the factum of possession was a sufficient notice to the appellant/defendants that there was a prior lien and charge over the suit land. There is a plethora of precedent case law in support of the proposition that possession is tantamount to notice of title of the property in possession. In Shah Muhammad Vs. Inayat Ullah (PLD 1953 Lahore 87) this proposition has been elaborately dealt with. With reference to case law, the Court observed: "The person who purchases the property shall be deemed to have notice of all his rights. The principle is well settled in England, vide, Taylor V. Stibberi (4), Allen V. Anthony (5), Meux V. Maltby (6), Daniels V. Davison (7), Hunt V. Luck (8), and has been adopted in numerous cases in India, vide Balchand Mahton V. Bulaki Singh (9), Puthan Purvail V. Kandiyal (10), Baburam Bag and another V.
Madhab Chandra Pallay and others (11), Magu Brahma V. Bholi Das (12), Faki Ibrahim V. Faki Ghulam Mahidin (13), Baba Sah and another v. hajee Muhammad Akbar Sahib and others (1), Ibrahim v.
Yusaf and others (2), Arura v. Gehna and another (3), Kondiba V. nana Shidrao and others (4), Umesh Chandra Haldar V. Umesh Chandra Bag and others (5), Pindee and others V.H. Upa and another (6) and Fakira and another V. Jaswantraj Daulatram Marwadi (7). The leading English authority on this point is Daniel V. Davison where the Lord Chancellor said, "where there is a tenant in possession under the estate, must be bound to inquire, on what terms that person is in possession that this tenant being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity, repelling the claim of a subsequent purchaser, who made no inquiry as to the nature of his possession. In Baburam Bag V.
Madhab Chandra Pollay, when counsel urged that there was no finding that the purchaser had knowledge of the previous agreement; Jenkins C.J. during the course of the argument said, `Notice will be implied of all his rights. The plaintiff ought to have enquired of the man in possession." In Magu Brahma V. Bholi das, Mookerjee, J. observed: When a person purchases a property where as visible state of things exists which could not legally exist unless the property were subject to some burden, he is taken to have notice of the extent and nature of that burden. And thus if a person other than the vendor is in possession, it is sufficient to put a purchaser on enquiry as to the nature and extent of his interest, and the purchaser is bound by all the equities which the person in such occupation may have in the land." In AIR 1921 Lah. 146, the learned Judges said: "A subsequent purchaser, who wishes to establish his title on account of want of notice, is legally bound to enquire into the title of a tenant in possession." In AIR 1938 Lah. 39, the learned Judge said: "That matter has been disposed of in a judgment of the Patna High Court, reported in Balchand Mahton V. Bulaki Singh in which it has been held that if a person who is in possession of the property already be virtue of another title, subsequently secures another title to that property by means of a document, which requires registration, but which has not been registered, the factum of possession prior to the subsequent acquisition of title puts a subsequent purchaser of the same property by means of a registered document on enquiry as to the title of the person already in possession and has the effect of postponing him to the title subsequently acquired by the person in possession". In ILR 27 Bom. 412, the learned Judges quoted with approval a passage from Hunt V. Luck If a purchaser or a mortgage has notice that the vendor or mortgagor is not in possession of the property he must make inquiries of the person in possession - of the tenant who is in possession - and find out from him what his rights are, and if he does not choose to do that, then whatever title he acquires as purchaser or mortgagee will be subject to the title or right of the tenant in possession. That, I believe, is a true statement of the law." I am in entire agreement with the principles enunciated and hold that the Defendants Nos, 2 to 9 had notice of the contract."
16.The precedent case law relied upon by appellants' learned counsel is of no avail as the same is distinguishable both on facts and the law laid. For instance in Abdul Haq Vs. Yehia Khan (AIR 1924 Patna 81), the case related to the enforcement of contract with the third party for the sale of the minor's property. The Court found that to direct the contract to be carried into effect as against the minor is to sanction a plain breach of trust on the part of the defecto guardian and the operation of Section 27(b) of the Specific Relief Act is confined to cases where the contracts are in the first instance enforceable as against parties to the contract.
17.In Ramakrishna Vs. Chidambara (AIR 1928 Madras 407) a contract entered into by a guardian was sought to be specifically enforced against the minor under the 'Hindu Law' and the Court found that since the very contract was void, the same could not be enforced against the minor.
18.In Abdul Haque Vs. Shaukat Ali (2003 SCMR 74), this Court allowed the appeal of, a subsequent vendee as against the plaintiff claiming prior agreement because there was specific denial in the written statement of having any prior knowledge of agreement to sell and the plaintiff led no evidence to discharge the onus to prove knowledge of the prior agreement. In these circumstances, the Court found that the protection of clause 'b' of Section 27 of the Specific Relief Act was available to the transferee. In the instant case, however, the respondent/plaintiffs led sufficient evidence both oral, documentary and circumstantial to show existence of prior agreement and notice of the same to the subsequent transferee i,e, the appellant/defendants which included the factum of possession as discussed in the preceding paragraphs.
19.For what has been discussed above, we do not find any merit in these appeals, which are accordingly dismissed.