' MUHAMMAD KHALID MEHMOOD KHAN, J.--- One Waryam, the predecessor-in-interest of appellant, filed a suit for specific performance of an agreement to sell dated 15.01.1984 against respondents Nos.1 and 2 and cancellation of sale deed dated 21.2.1985 in favour of respondents Nos.3 to 9, asserting that the respondent No.1 himself and on behalf of his wife (respondent No.2) on 15.10.1984 agreed to sell land measuring 10-acre detailed in the agreement against consideration of Rs.40,000/- per Acre. Out of agreed consideration, the respondent No.1 received Rs.30,000/- as earnest money, the agreement to sell after execution was attested by the Notary Public at Karachi, the respondent No.1 also executed a special power of attorney in favour of appellants. It was specifically asserted that respondent No.1 was the general attorney of his wife (the respondent No.2) vide registered document registered on 13.2.1980 with the sub-Registrar Quetta. The appellant paid Rs.30,000/- on 3.12.1984 vide Draft No.052744/124 drawn on Habib Bank Limited, Grain Market Branch, Okara, Rs.2,12,000/- vide Draft No.052875/10 dated 22.1.1985 drawn on Habib Bank Limited, Grain Market Branch, Okara and paid Rs.7000/- in cash, hence the appellant paid Rs.2,79,000/- being the part of agreed consideration. On appellant's inquiry from Patwari Halqa, it transpired that respondent No.1 is the owner of only 48-kanal. The respondent No.2 is the owner of 5-kanal of land, however the respondent No.2 is having occupancy rights in land measuring 32-kanal 15-marla being 5/32nd share of 152-kanal.
2. The above said facts show that respondents Nos.1 and 2 were only competent to transfer 53- kanal of land in all; hence they were entitled to receive a sum of Rs.265,000/- Q Rs.40,000/- per Acre and as such the appellants are entitled to a refund of Rs.14,000/- an amount paid in excess to the agreed price. It is asserted that in case the legal heirs of respondent No.2 are ready to sell their occupancy rights subject to permission by the Collector, the appellants are ready to pay Rs.104,750/- the price of 23-kanal 5-marla to respondent No.2. The appellant has specifically made known to respondents Nos.3 to 9 about the bargain between the appellant and the respondents No.1 in spite of the notice of appellant's agreement to sell dated 15.01.1984, the respondents Nos.3 to 9 with the collusion of respondent No.1 got the sale deed executed in their favour against alleged consideration of Rs.300,000/- to the extent of 6-Acres of land. The plaintiff was and is always ready and willing to perform his part of agreement.
3. The respondents contested the suit and raised the objection that the land subject matter of sale belonged to the Provincial Government and as such the whole agreement to sell is void ab-initio.
The respondent No.2 was not party to the agreement to sell; the suit is bad for misjoinder of necessary party; the respondent No.1 was never been the owner of 10-acre of land; further the appellant failed to perform his part of contract.
4. The respondents Nos.3 to 9 filed separate written statement and claimed that they were not aware of the existence of any agreement to sell dated 15.1.1984, the respondents Nos.3 to 9 are the bona fide purchaser for value without notice; the sale deed has already been executed in their favour and they have taken over the possession of the land after the registration of sale deed.
5. Learned trial court out of the divergent pleadings of the parties framed the issues. Both the parties adduced their respective evidence both verbal as well as documentary. Learned trial court vide judgment and decree dated 07.12.1992 partly decreed the suit. The appellant filed appeal thereagainst which too was dismissed on 22.12.2005. Hence this second appeal.
6. The appeal was accepted on 08.02.2012 and the case was remanded to the learned first appellate court for deciding the same afresh. The respondents filed Civil Appeal No.218/12; the Hon'ble Supreme Court of Pakistan with the consent of both the parties set aside the judgment dated 08.02.2012 and remanded the case to this Court for deciding the appeal afresh.
7. Learned counsel for appellant contends that the respondent No.1 has accepted the execution of agreement to sell dated 15.1.1984 but both the courts below have failed to appreciate this categorical admission of respondent No.1, time was not the essence of the contract; it is not proved on record that it is the appellant who failed to perform his part of agreement. Learned trial court has failed to examine the question of law and fact involved in this case. Learned counsel submits that DW-2 has specifically admitted that the appellant's agreement to sell was in their knowledge.
PW-6 who identified respondent No.1 at the time of execution of sale deed in favour of respondents Nos.3 to 9 admits that agreement to sell in favour of appellant was in his knowledge. Learned counsel contends that the burden to prove that appellant has not sold the suit land to anyone including the appellant was on respondents Nos.3 to 9, the respondents Nos.3 to 9 have failed to discharge their burden of proof; judgments and decrees of both the courts below suffer from erroneous interpretation of law. Learned counsel thus submits that the plaintiff's suit merits decreed. Learned counsel has relied on Hafiz Tassaduq Hussain v. Lal Khatoon and others (PLD 2011 SC 296), Gurmukh Singh Vir Singh and others v. Sohan Singh Beta Singh and another (AIR 1963 Punjab 470), Muhammad Bashir and others v. Iftikhar Ali and others (PLD 2004 SC 465), Ghulam Rasool through L.Rs. And others v. Muhammad Hussain and others (PLD 2011 SC 119), Mrs. Mussarat Shaukat All v. Mrs. Safia Khatoon and others (1994 SCM R 2189), Muhammad Shafi v. Muhammad Sarwar and others (1997 CLC 1231), Allah Ditta v. Muhammad Sabir (2000 C.L.R. 511) Rashid Ahmad and 7 others v. Muhammad Bashir and 2 others (2005 YLR 2914) and Mst. Malkani v. Mst.Bakhat Begum and 13 others (2004 SCM R 1591).
8. Learned counsel for respondents Nos.3 to 9 submits that there are concurrent findings of facts of both the courts below, the appellant has failed to point out any legal infirmity in the judgment of two courts below, the judgments of both the courts below are neither contrary to law nor having any jurisdictional defect; learned counsel for appellant has failed to point out any irregularity for bringing the appeal into parameter of Section 100 of Code of Civil Procedure, 1908. Learned counsel for respondents has relied on Rana Ghulam Rasul Khan v. Wasim Gul, Proprietor Messrs Moon Enterprises and others (2008 SCM R 310). The suit property was transferred before the institution of suit through a registered sale deed in favour of respondents Nos.3 to 9 and as such they are entitled for the protection of exception of Section 27-B of the Specific Relief Act, 1877. He relied on Mst.Jhandi v. Syed Baqir All Rizvi and another (1987 CLC 459). Learned counsel submits that DW-2 one of the owner deposed that the earlier agreement was not in the knowledge of respondents Nos.3 to 9. Learned counsel finally relied on Muhammad Bashir and others v. Chiragh Din through Legal Heirs and others (2003 SCM R 774), Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494), Muhammad Ashraf v. All Zaman and others (1992 SCM R 1442), Muhammad Yar v.
Mehmood and 2 others (2003 M LD 878) and Asghar All v. Waqar uz Zaman and others (2004 CLC 1531).
9. Heard, record perused.
10. The agreement to sell Ex.P-2 is an admitted document between the appellant and respondent No.1; the respondent No.2/defendant Noor Begum (the wife of respondent No.1) has denied the execution of Ex.P-2. The respondents Nos.3 to 9 are the subsequent purchasers of the suit land and were in cultivating possession of suit land as tenant prior to execution of sale deed in their favour.
The respondent No. 1/defendant No.1 while submitting his written statement admitted the receipt of Rs.30,000/- as earnest money and remaining amount as Rs.249,000/-, out of the agreed sale price in terms of Ex.P-2. In reply to the appellant's assertion that the respondent No.1 represented to the appellant that he is the owner of land measuring 10-acre, the respondent No.1 in his written statement stated that it was only the appellant, who got entered words 10-acre in the agreement to sell and he never agreed to sell 10 acres of land to appellant as he was not the owner of 10-acres of land. The respondent No.1 appeared as DW-1, he admitted the execution of agreement to sell, receipt of earnest money and the remaining consideration of Rs.279,000/- and deposed that on the appellant's failure to pay the balance consideration, he extended the period of execution, of sale deed up to 30th of January on the request of appellant but subject to enhanced price of Rs.50,000/- per acre instead of Rs.40,000/- per acre and it was made clear to appellant that if the appellant failed to pay the price of land at the rate of Rs.50,000/- per acre up to 30th of January, the already paid amount will be deemed to be confiscated. The respondent No.1 has not deposed a single word that he never agreed for the sale of 10-acres of land and it is the appellant who inserted the word 10-acres in the agreement to sell..
11. In the above said admitted facts, the question is when respondent No.1 was not the owner of land measuring 10-acre, why he agreed to sell the land measuring 10-acre and why he allegedly agreed to extend the date of execution of sale deed subject to enhanced sale consideration from Rs.40,000/- to Rs.50,000/- per acre and while renegotiating the terms of sale, why he has not clarified that he is not the owner of 10-acre of land and it is the appellant who illegally inserted the words 10-acres in the agreement.
12. The respondent No.1 in cross examination admits that he was the general attorney of his wife Noor Begum when he executed Ex.P-2, admittedly the respondent No. 1 's wife was the owner of land measuring 5-kanal and was holding occupancy rights of 23-kanal 15-marla. If we calculate the land of respondent No.1, his wife, including the land under her occupancy tenancy, it comes to 10- acre. The denial of respondent No.1 that he never agreed to sell the land of 10-acre thus is factually incorrect and false as per the admitted documents. This objection of respondent No.1 that land belongs to Provincial Government has, only been raised to avoid the performance of agreement to sell. The entire land was not the ownership of Provincial Government. DW-1 in his examination in chief has not deposed that he was not the owner of land measuring 10-acres or the appellant inserted the word of 10-acre of land in the agreement to sell himself. From the above facts it appears that the respondent No.1 was the owner of land measuring 48-kanal, his wife, the respondent No.2 was owner of land measuring 5-kanal and was the occupancy tenant of 23-kanal.
It is an admitted fact that respondent No.1 received Rs.279,000/- from appellant before the execution of sale deed in favour of respondents Nos.3 to 9 and if the version of respondent No.1 is admitted that he was the owner of land measuring 48-kanal and he only agreed to sell his holding only, in that case he is only entitled t the price of his holding only which comes to Rs.240,000/- and admittedly before execution of sale deed in favour of respondent No.3 he received Rs.279,000/- which is for in excess of his entitlement, hence the respondent No.1 had received the entire price of his holding. The respondent No.1 admits that he never approached any forum for cancellation of Ex.P-2 and Ex.P-3 a special power of attorney executed in favour of the appellant. In cross examination, he admits that it is correct Ex.P-2 (an agreement to sell) was for 10-acres of land and the rate per acre was fixed Rs.40,000/-. He admits that he was the general attorney of Noor Begum his wife when he executed an agreement to sell Ex.P-2 in favour of appellant, the power of attorney was registered in 1980 at Quetta, his wife in her life time has not withdrawn or revoked the power of attorney. He admits that Mirza Yaqoob was present at the time of the execution of Ex.P-2. Mirza Yaqoob is his brother-in-law, Mirza Yaqoob is the permanent resident of Chak No.27/4L, the respondent No.1 deposed that he came two days before .15.1.1985 in village, but he did not recollect whether he obtained any Fard from Patwari or not? Dw-2 Dulla son of Bahadar deposed that he knows respondent No.1, quarter past five years ago he was sitting before the house of one Ayub in Bazar, Mirza Rasheed was asking Waryam that agreed date fifteen has come to an end, bring money and get the sale deed registered; Mirza Rasheed informed that if he intends to get the time extended, the price will be Rs.50,000/- per acre. The appellant accepted the respondent No.1 offer and date of execution of sale deed was fixed as 30th January, 1985. At that time, numbers of peoples gathered in the Bazar. Mehra son of Raju, Sultan son of Sagda were also present there.
Ahmad son of Khan was also with the respondent No.l. He deposed that he appeared on 22.1.1985 before COC on behalf of Noor Begum for obtaining the proprietary rights, and the case was adjourned to 28.1.1985. It is correct that after 28.1.1985 the respondent went to Karachi. From the above said admission of respondent No.1, it is a proven fact on record that respondent No.1 had received the entire agreed consideration of his holding and holding of his wife and admittedly at the time of execution of sale deed in favour of respondents Nos.3 to 9 he had received the price of his land and the land of his wife as her attorney, the PW-6 and DW-2 admit that Ex.P-2 was in their knowledge as well as in the knowledge of other residents of the village. For the admission of these two witnesses out of which PW-6 Muhammad Anwar is the identifier of the respondent No.1 at the time of execution of sale deed, it is proved on record that execution of Ex.P-2 was in the knowledge of the residents of the village and the respondents Nos.3 to 9 are the resident of village as well as the tenants, hence the respondents Nos.3 to 9 being the subsequent purchasers are bound to prove that they are the bona fide purchaser for value without notice of the suit property.
13. The principles to discharge the onus to prove of certain facts is governed by an Articles 117 to 120 of the Qanun-e-Shahadat Order, 1984.
14. From the reading of Articles 117 to 120 of Qanun-e-Shahadat Order, 1984 it is clear that in a dispute between the parties in civil litigation, where the facts are not clear and self-evident and the asserting party to the lis wants the Court to believe the existence of asserted facts, the onus to prove of these facts will be on whom who asserted the existence of these fact. The intention of Section 27(b) of the Specific Relief Act, 1877 is that party who asserts has to prove that he/she is a bona fide purchaser for value, he/she has paid the price in good faith; and that he/she had no notice of the earlier bargain between vendor and any other person or persons. The initial onus "to prove the fact bona fide purchase for value without notice" is on the shoulder of the subsequent purchaser. It is an established principle of civil litigation that court decides the civil litigation on probabilities and not on the proof of fact beyond any shadow of doubt, the onus to prove the disputed fact is not constant, it remain changed on coming the relevant facts on record, once the initial onus of the asserted fact is discharged by the asserting party, then it became the obligation of the other party who is denying the said fact to discharge the burden of proof. Hence in the cases where the subsequent purchaser asserts that he/she is the bona fide purchaser, he/she has to establish on record first that disputed transaction is legal and is against legitimate consideration with legitimate object, It is not meant to cause loss to other person or persons, the claimant has to establish that defect was not in his/her knowledge nor he/she was aware about the interest of any other person or person in the suit property. If these facts are proved the onus of purchase stand discharged.
15. The facts of the case in hand are that the Vendor/owner admits the execution of sale agreement in favour of appellant and receipt of consideration, Ex.P-2 the agreement to sell shows that the respondent No.1 agreed to sell 10-acres of land to appellant, but in evidence the respondent No.1 tried to twist the facts and deposed that he was not the owner of 10-acres when he agreed to sell the land to appellant, and was the owner of 6-acres only, he in cross examination categorically admits that he at the time of entering in to agreement to sell with the appellant was the general attorney of his wife Noor Bano who was the owner of 5-Kanal of land and was also having the occupancy tenancy rights in land measuring 23-kanal. It is also admitted fact on record that bother of Noor Bano Mirza Yaqoob PW-2 applied for the grant of proprietary rights of the land under her possession as occupancy tenant, if we calculate the entire land including the land under occupancy tenancy of husband and wife it becomes 10-Acres, the PW-2 admits that he filed application for the grant of proprietary rights, the DW-1 admits that he extended the date of execution of sale deed up to 30 January but subject to enhancement of sale price from Rs.40,000/- to Rs.50,000/- per acre. The statement PW-2 who is also the brother-in-law of vendor/defendant No.1 establishes the fact that the respondent No.1 agreed to sell 10 acre of land to appellant owned by himself and his wife for whom he was acting as her general attorney, the respondent No.1 was expecting that he will manage to get the proprietary right of the land in possession of his wife as occupancy tenant hence he applied for the grant of proprietary right of the said land the matter of transfer was delayed and case was adjourned after 30th January. The respondent No.1 admits that.
He left the village before 30th January, it is the case of the respondent that he extended the date of execution of the sale deed up to 30th January subject to revised rate of Rs.50,000/- per acre instead of Rs.40,000/- per acre but admittedly he left the village before 30th January, hence respondent No.1 admission that he left the village before 30th January is sufficient to prove that breach of contract is on the part of respondent No.1 and not the appellant. The respondent No.1 remain unsuccessful for obtaining the grant of proprietary rights in favour of his wife, the respondent No.1 admits that till the death of his wife, his wife has not withdrawn or revoked the General power of attorney in his favour, from the said admission its proved that respondent No.1 agreed to sell 10-Acres of land assuming that he will be able to obtain proprietary rights of land in favour of his wife. It is also an admitted fact that he had received Rs.279,000/- before 30th January, the received amount is more than the price of 6-Acres and 5-Kanal of land, hence if the statement of respondent No.1 is accepted that he agreed to sell only 6-Acres of land than why he has not executed the sale deed in favour of the appellant and left the village before 30th January, the defence of respondent No.1 that he agreed to sell 6-Acres of land thus is a proven false fact.
16. The question is whether the sale agreement Ex.P-2 was in the knowledge of respondents Nos.3 to 9 or not? It is an admitted fact that respondents Nos.3 to 9 are the tenants of respondents. Nos.1 and 2. PW-2 the brother in law of the vendor had participated in the sale transaction between the respondent No.1 and appellant, it is also an admitted fact that the- PW-5 is residing in the village, the PW-5 when appeared in witness box he admits that when the respondent No.1 was executing sale deed in favour of respondents Nos.3 to 9, he heard about the sale agreement between the respondent No.1 and appellant. DW-2 deposed that he has heard in the Bazar that respondent No.1 is asking the appellant that he is ready to extend the time for execution of the sale deed but that extension up to 30th January will be subject to enhanced price of Rs.50,000/- per acre, this statement of DW-2 is sufficient to prove that sale transaction between the appellant and respondent No.1 was the talk of town. None of the respondents has deposed a single word that inspected the revenue record and asked anyone in the village about the title of respondents Nos.1 and 2, so much so the respondents Nos.3 to 9 have not pleaded that respondent No.1 assured them that the suit property is free from any encumbrance nor anyone of the respondent witnesses deposed that respondent inquired from the witnesses about the title of the respondent No.1 and it is proved on record that at the time of execution of sale deed, PW-6 the identifier of respondent No.1 was in the knowledge of Ex.P-2.
17. Now it has to be seen that respondents Nos.3 to 9 acted in good faith before execution of sale deed in their' favour and they took any precaution or even enquired from the executant or any one from the resident of village about the earlier agreement to sell or any bargain.
18. The Hon'ble Supreme Court of Pakistan defined the word "good faith" in the following terms in a Judgment reported as Hafiz Tassaduq Hussain v. Lal Khatoon and others (PLD 2011 SC 296); "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 fides. 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 someone 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.
19. The evidence available on record that respondents Nos.3 to 9 have not even bothered to ask from the respondent No.1 about the earlier bargain as none of the DWs has stated that respondents Nos.3 to 9 enquired about the earlier agreement to sell in favour of appellant after coming to know the existence of the agreement to sell in favour of appellant at the time of execution of the sale deed nor they made inquiries from the revenue authorities. The impugned judgment and decree thus is set aside and the appellants' suit is decreed to the extent of 53-kanal of land of respondents Nos.l and 2 and sale in favour of respondents Nos.3 to 6 is set aside as prayed for.