Amin-ud-Din Khan, J.: Through this civil revision the petitioner , who is plaintif f of a suit for specific perfo rmance, has challenged the judgment & decree dated 07.03.2009 passed by the learned Additional District Judge, Gujar Khan whereby the appeal filed by the petitioner was dismissed and the judgment & decree dated 26.03.2008 passed by the learned Civil Judge, Gujar Khan whereby the suit filed by the petitioner/plaintif f was dismissed.
2. On the basis of an agreement to sell dated 16.12.1998 (Exh.P-1) the plaintif f/petitioner filed a suit for specific performance on 28.01.1999 against Said Muhammad the original owner . An injunctive order was granted on the same date of filing of the suit. In the suit initially the defendant/original owner filed consenting written statement but subsequently he got his statement recorded in the court on 28.06.1999, admitted Iqrar Nama as Mark 'A' and stated that he has no objection if the suit is decreed. The case was adjourned for 01.07.1999 for orders. The suit was decreed on 01.07.1999. Muhammad Fyyaz subsequent purchaser filed an appeal, which was accepted vide judgment dated 14.03.2006 and matter was remanded to the learned trial court on the ground that application of Muhammad Fayyaz under Order I Rule 10 of the CPC for impleading him as defendant was pending and without deciding the application suit was decreed. After remand Muhammad Fayyaz was impleaded as defendant No.2.
He filed his written statement and contested the suit. Learned trial court framed the issues on 11.09.2006.
Subsequently issues No.8(a) and 8(b) were also framed, which are as follows:- 8(a) Whether the defendant is a bona-fide purchaser for value without notice, if so, its ef fect? OPD 8(b) Whether agreement to sell is a forged document? OPD Thereafter defendants No.3 to 5 were also impleaded as defendants, who are real brothers of Muhammad Fayyaz defendant No.2. Learned trial court while holding that the defendants are bona fide purchasers, therefore, dismissed the suit vide judgment & decree dated 26.03.2008. An appeal was preferred before the learned first appellate court, which also met with the same fate vide judgment & decree dated 07.03.2009.
Hence, this civil revision.
3. The facts are that agreement to sell Exh.P-1 (Mark 'A') is dated 16.12.1998 and the suit was filed on 28.01.1999 when the stay order was granted in favour of the plaintif f/petitioner and the original owner was restrained from alienating the suit property . On the next day i.e. 29.01.1999 through mutation No.1010 defendants No.4 and 5 claiming to purchase 7-kanals 5-marlas out of the suit property and through mutation No.1009 attested on 29.01.1999 defendants No.2 and 3 claim to purchase part of the suit property .
4. Learned counsel for the petitioner/plain tiff while relying upon "Mst. TABASSUM SHAHEEN versus Mst. UZMA RAHA T and others" (2012 SCMR 983) and "BAGH ALI versus Mst. AYESHA and others" (2013 SCMR 551) argues that defendants/respondents cannot be said to be bona-fide purchasers. Further argues that defendants No.3 to 5 neither produced a single witness nor they appeared as their own witnesses.
5. It came on the surface of record that respondent No.1/defendant No.1 passed away . His legal heirs could not be traced out, therefore, he was served through publication in the newspaper on 15.11.2018 for the date of hearing fixed as 30.11.2018. Record further revea ls that his name was deleted from the array of respondents as he was not contesting the matter after getting his statement recorded in the trial court and he passed away unmarried issueless as noted in the order dated 26.01.2017.
6. The record shows that only Exh.D-15 and Exh.D-16, power of attorney , were produced on behalf of defendants No.3 to 5 during the statement of their counsel on 17.03.2008 and the counsel made statement that he does not want to cross-examine the witnesses of plaintif f and nor he wants to produce any evidence. He wants to rely upon the evidence of the defendants already recorded. When no evidence was produced by defendants No.3 to 5, how the court can declare them bona-fide purchasers.
7. Admittedly agreement to sell by Said Muhammad defendant No.1 in favour of the plaintif f was admitted by the original owner and subsequent purchasers were having right to prove their purchase in good faith, that too, without knowledge of the agreement. The defendants No.3 to 5 opted not to produce any evidence except power of attorney Exh.D-15 and Exh.D-16, which do not serve any purpose in the matter in issue. The statement that they do not want to cross-examine the witnesses of the plaintif f will signify that they admit the statement of plaintif f and his witnesses. Further the sale in their favour is through oral mutation attested on 29.01.1999 and they also claim the sale in their favour on 29.01.1999, which is admittedly after issuance of injunctive order by the learned trial court in the suit subject matter of this revision petition. In these circumstances, when the original owner has admitted the claim of plaintif f/petitioner while getting his statement recorded that he has received consideration amount and he has no objection if the suit is decreed to the extent of agreement and responsibility of plaintiff/petitioner to produce two marginal witnesses resolved. If before filing of the suit property would have been purchased by the subsequent purchasers, in that case according to my view, the plaintiff was required to prove agreement to sell by producing standard evidence i.e. two marginal witnesses, stamp vendor and scribe, even if the original owner would have accepted the claim of plaintiff but in case when the suit was filed prior to purchase of suit property by the subsequent vendees and that too when injunctive order was in field, plaintiff is not required to prove agreement to sell by producing standard evidence noted supra when the original owner has admitted the agreement to sell in favour of the plaintiff/petitioner. The evidence of defendant No.2 Muhammad Fayyaz is not with regard to the fact that suit was collusive one, subsequent vendee pleading that he was having no knowledge of pendency of the suit, purchasing the part of property or the property during the pendency of suit does not absolve the subsequent purchaser from his liability to prove his defence for non-suiting the plaintiff of suit. In these circumstances, both the courts below fell in error while dismissing the suit and the appeal and declaring the subsequent purchasers as bona-fide purchasers when there is absolutely no evidence on behalf of defendants No.3 to 5 on this issue except producing Exh.D-15 and Exh.D-16 power of attorney, which are not relevant.
8. The only exception under section 53 of the Transfer of Property Act, 1882 was that they were to say that the suit was collusive one but when no evidence was produced by defendants No.3 to 5, how the court was competent to declare them bona-fide purchasers. In this view of the matter , while relying upon the dictum laid down by the august Supreme Court of Pakistan through the judgment referred supra by the learned counsel for the petitioner/plaintif f, I am clear in my mind that the judgments & decrees passed by both the courts below while dismissing the suit and the appeal are absolutely against the law and without jurisdiction, same are set-aside. The result would be that the suit of the plaintif f/petitioner is decreed as the total consideration amount was admitted by the original owner/defendant No.1 and now he has passed away . In the above circumstances, this revision petition is allowed.