' AMIN-UD-DIN KHAN, J. --- Through this single judgment I intend to decide the above captioned appeal and Writ Petition No, 18455 of 2005, as common question of law and facts is involved in both these cases.
2. The brief facts are that on 07.12.1991 the plaintiff-respondent No, 6 filed a suit for specific performance against defendants No, 1 to 5/respondents No, 1 to 5 on the basis of an agreement to sell dated 18.03.1990, wherein the date for performance of agreement was 12.03.1991. Subsequently through novation of the contract the date was extended upto 10.11.1991. It is pleaded that the defendants/respondents No, 1 to 5 have sold the land to the appellant/defendant No, 6, therefore, the suit has been filed for specific performance by the plaintiff-respondent No,
6. The written statement was filed by the defendants/respondents No, 1 to 5 and also by the appellant/defendant No,
6. The suit was hotly contested. Learned Trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the completion of trial, vide judgment & decree dated 24.02.1994 passed by learned Civil Judge 1st Class, Ferozewala, suit was decreed subject to payment of Rs, 1,30,470/- by the plaintiff till 01.03.1994, failing which the suit shall stand dismissed. The amount was not deposited till 01.03.1994 but an application was moved before the Trial Court on 09.03.1994 for correction of amount as Rs, 1,39,470/- instead of Rs, 1,30,470/- and the date for payment of said amount as 01.04.1994 instead of 01.03.1994. The Trial Court corrected the amount but vide order dated 17.04.1994 dismissed the application to the extent of correction of date for deposit of amount holding that the date conveyed to the plaintiff-decree-holder was 01.03.1994 and it has correctly been mentioned in the judgment. The said order was assailed through revision petition, which was accepted vide order dated 16.06.2005. The matter of correction of date for deposit of remaining amount is subject-matter of Writ Petition No, 184455 of 2005 which has been filed by defendant No, 6 (present appellant), the transferee of suit property from the original owner through registered sale-deed. The instant Regular Second Appeal has also been filed by defendant No, 6, the transferee of suit property through registered sale-deed in his favour.
3. Learned counsel for the appellant argues that there was an agreement to sell with regard to the suit property by the original owners of suit property i,e, defendants No, 1 to 5-respondents ND. 1 to 5 in favour of Muhammad Khalid and Muhammad Shamsher sons of Muhammad Rasheed dated 31.01.1990, which has been produced as Ex.D-1, in which the date for performance was fixed as 13.03.1990 and by novation of that agreement through Ex.D-2, the date for performance was extended upto 31.03.1990 but vide endorsement on the backside of Ex.D-1 the agreement was cancelled 'on 14.04.1990 with the consent of parties and the owners not only returned the earnest money but also paid Rs, 40,000/- more than the alleged purchasers i,e, Muhammad Khalid and Muhammad Shamsher and another agreement Ex.D-3 was also written to confirm that endorsement which was on the backside of Ex.D-1 and that the agreements Ex.D-1 and Ex.D-2 have been cancelled with the mutual consent of the parties to the agreement. Learned counsel for the appellant argues that defendants/respondents No, 1 to 5 entered into an agreement to sell with regard to the suit property through registered agreement to sell .(Ex.D-4) registered on 08.04.1990 with the appellant and the date of performance mentioned in the agreement was 20.04.1990 and through registered sale-deed dated 18.04.1990 (Ex.D-5) in favour of appellant/defendant No, 6 the suit property was transferred; 'that the plaintiff/respondent No, 6 claimed an agreement to sell in his favour with regard to the suit property dated 18.03.1990 which has been produced as Ex.P-1 and the novation of this contract through agreement (Ex.P-2) which is dated 12.03.1991; that the agreement in question in favour of plaintiff/respondent No, 6 is forged and fictitious; that the alleged novation of contract is without authority as at the time of alleged novation which is of dated 12.03.1991 and has been produced as Ex.P-2, defendants No, 1 to 5 were not owner of suit property as they transferred the suit property through registered sale-deed dated 18.04.1990 (Ex.D- 5) long before said novation, for this score the suit of plaintiff/respondent No, 6 was not competent and both the courts below failed to exercise the jurisdiction vested in them by law and decision is contrary to law. Learned counsel for the appellant further argues that as respondents/defendants No, 1 to 5 were collusive with the plaintiff, therefore, they only filed written statement and no evidence was produced by them; that the plaintiff has not produced evidence to the effect that when he came to know about the sale in favour of appellant/defendant No, 6 and further there is no evidence on behalf of plaintiff that the appellant/defendant No, 6 was in the knowledge of agreement to sell in their favour with regard to the suit property, whereas PW-3 has admitted that before novation of contract it was in the knowledge of plaintiff that the present appellant has purchased the suit property through registered sale-deed.
4. On the other hand, learned counsel representing the plaintiff/decree-holder argues that there are concurrent findings of two Courts below that three witnesses have been produced to prove the execution of agreement (Ex.P-1) and novation of contract (Ex.P-2); that the appellant is not a bona fide purchaser; that when it is the case of appellant that the agreement in question is anti-dated and simultaneously pleading that the appellant is bona fide purchaser, therefore, the same are contradictory circumstances pleaded by the appellant. Learned counsel argues that no inquiry has been proved with regard to bona fide purchase by the appellant.
5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
6. The suit for specific performance was filed on the basis of original agreement dated 18.03.1990 (Ex.P-1) and the novation of contract dated 12.03.1991 (Ex.P-2). Under the law the plaintiff was to prove the novated contract in accordance with Section 62 of the Contract Act, 1872, then he can press for the performance of said contract i,e, Ex.P-2. Against this novated contract there is a registered sale-deed (Ex.D-5) in favour of appellant registered on 18.04.1990, in this way, sale-deed was prior in time to the contract which is being pressed before the Court for grant of a decree for specific performance. In this eventuality, it is clear that at the time of novation of contract, defendants No, I to 5 were not owner of suit property, therefore, they could Plot enter into agreement with the plaintiff and as per statement of PW-3 (Muhammad Abdullah) who is the witness of plaintiff/respondent No, 6 that the sale of suit property in favour of defendant No, 6 i,e, the appellant was in the knowledge of plaintiff at the time of novation of Contract, in this view, It clearly shows that the agreement pressed for grant of decree for specific performance i,e, Ex.P-2 was executed between the parties when the alleged seller was not the owner of suit property.
Further I have noticed that the original agreement as well as its novation i,e, Ex.P-1 and Ex.P-2 are by one of the defendants i,e, defendant No, 1 on his behalf and on behalf of other owners i,e, defendants No, 2 to 5 as their attorney but no power-of attorney has been placed on the file, whereas the agreement (Ex.D-4) in favour of appellant is by all the owners in person.
7. When it was the case of appellant/defendant No, 6 that the agreement (Ex.P-1) is anti-dated, for proving the date of execution of agreement it was the duty of plaintiff-respondent No, 6 to produce Petition Writer alongwith his Register wherein the Petition Writers keep the abstract of document with the signatures of parties as well .As their witnesses and further to produce Stamp Vendor with his Register to prove the issuance of stamp paper of document on specific date. This best evidence was available with the plaintiff to prove the date of execution of agreement (Ex.P-1) between the parties but the best evidence has been withheld. Under Article 129(e) of Qanun-e-Shahadat Order, 1984, if a person withholds the best evidence, the presumption is that the same evidence was against that person.
8. In this view of the matter, in accordance with Section 25 of the Specific Relief Act, 1877 it is an agreement by a person without title and in accordance with Section 21(H) of the Act ibid, such contract is not specifically enforceable. Even otherwise, in accordance with Section 22 of the Specific Relief Act, 1877 grant of a decree for specific performance is a discretionary relief and the Court can exercise the discretion in favour of a person who fully proves his entitlement for grant of a decree. In this eventuality, the view taken by both the Courts below is not in accordance with law.
When the position is that agreement pressed in civil suit is later in time than the sale-deed in favour of appellant, in these circumstances, the appellant cannot be burdened to prove the bona fide purchase of suit property when the possession was also delivered to him under the sale. In this context, light can be taken from the celebrated judgment of august Supreme Court reported as "PLD 2011 Supreme Court 296 (Hafiz Tassaduq Husain v. Lal Khatoon and others)". I have also humbly gone through this judgment, in Para 9 whereof the august Supreme Court has considered its own judgments and the judgments of other Courts, that Para 9 is hereby reproduced for taking the benefit of law declared by the apex Court:- "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 lshaque 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 SCM R 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 fide 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 the rule providing protection to bona fide purchaser for value without notice and the standard of proof thereof."
' In this way, when the appellant appeared as DW-1 and made statement on oath that he was having no knowledge about any agreement to sell in favour of plaintiff, then the onus shifted upon the plaintiff to prove the knowledge of appellant about his original contract at the time of his agreement or sale-deed in his favour, in this context no such evidence has been produced. The appellant is in possession of suit property under the sale in his favour and filing of suit after about 10 months of sale when the sale in favour of appellant was in the knowledge of plaintiff at the time of novation of contract. Therefore, the findings recorded by both the courts below on issues No, 1, 6 and 9 are absolutely against the legal position, which are hereby reversed.
9. So far as the writ petition is concerned, the, application for correction of remaining amount was moved on 09.03.1994, whereas the time already fixed by the Trial Court for payment of remaining amount was expired on 01.011994 and the Trial Court passed the order on 17.04.1994 in favour of applicant/plaintiff and corrected the amount. In the original judgment & decree amount was mentioned as Rs, 1,30,470/- whereas actually the amount i,e, Rs, 1,39,470/- was to be paid. Even the plaintiff/respondent No, 6 has not shown that he deposited the amount mentioned in the original judgment & decree and the learned Trial Court has decided the application by holding that the date for payment was correctly mentioned in the judgment & decree and as such there is no defect in that date, which was conveyed to the decree-holder/plaintiff. When the application has been moved for correction of date and the Trial Court came to the conclusion that date of payment was correctly mentioned in the judgment & decree and dismissed the application to that extent, the Revisional Court was not having jurisdiction to extend the time and presume that the application has been moved for extension of time. In this view of the matter, the view taken by the Revisional Court is without jurisdiction and also not sustainable under the law. In this view of the matter, the writ petition filed by the appellant succeeds.
10. In the light of what has been discussed above, Regular Second Appeal and Writ Petition filed by the appellant are accepted. The impugned judgments & decrees dated 16.06.2005 and 24.02.1994 passed by learned Addl: District Judge & Civil Judge 1st Class, Ferozewala, respectively, are set aside. The result would be the suit filed by the plaintiff/respondent No, 6 shall stand dismissed with costs throughout. RSA accepted.