AMIN-UD-DIN KHAN, J.----Through this civil revision the petitioners, who are subsequent purchasers, have challenged the consolidated judgment and decrees dated 11.01.1996 passed by the learned Additional District Judge, Jhang whereby the appeal filed by the petitioners was dismissed, whereas the appeal filed by the plaintiff/respondent No.1 (Khan Muhammad) against the order of deposit of remaining consideration amount of Rs.1000/- within 15 days passed by the learned trial court was accepted.
2. The brief facts are that the plaintiff/respondent No.1 filed a suit for specific performance on 23.07.1990 on the basis of an agreement to sell registered on 16.07.1974. The suit was decreed by the learned trial court vide judgment and decree dated 21.12.1993 subject to deposit of Rs.1000/- within 15 days. The subsequent purchasers (present petitioners) filed an appeal before the learned first appellate court against the judgment and decree dated 21.12.1993. The decree holder also preferred an appeal to challenge the condition of deposit of Rs.1000/- within 15 days. As per learned counsel for the revision petitioners the amount was deposited on 06.01.1994, whereas the appeal was filed on 08.01.1994 after deposit of the amount. Learned first appellate court was pleased to dismiss the appeal filed by the present petitioners and the appeal filed by the decree holder/respondent No.1 was accepted. Hence, this civil revision.
3. The instant civil revision was dismissed by this Court vide judgment dated 19.03.2004. The petitioners filed CPLA No.1816-L of 2004, whereby the leave was granted on 30.06.2009 and it was converted into appeal bearing Civil Appeal No.502-L of 2009 and the same was accepted vide judgment dated 05.04.2018 whereby the judgment and decree passed by this Court dated 19.03.2004 was set-aside and it was observed that Civil Revision No.1285 of 1996 shall be deemed to be pending and decided afresh after hearing the parties.
4. The respondents were summoned lastly through the substituted service i.e. publication in the newspaper but no one appeared on behalf of the respondents. Therefore, they were proceeded against ex-parte vide order dated 10.01.2019. The case was fixed for today for final hearing.
5. I have heard the learned counsel for the petitioners at full length and also gone through the record minutely as well as the case law cited by the learned counsel and the findings recorded by the courts below. Learned counsel has relied upon the case law reported as "Muhammad Aslam v.
Mst. Razia Begum and 3 others" (1999 YLR 620), "Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others" (2006 SCM R 1144), "Mst. Surraya Bibi v. Imtiaz Ahmad and 3 others" (2018 CLC 1640), "Muhammad Sharif and others v. Mst. Nazir Begum and others" (1976 SCM R 190) (1983 SCM R 728), "Abdul Majeed v. Kishwar Nasim and others" (2017 YLR Note 33) and "Muhammad Rafique and others v. Sharaf Din and others" (2006 SCM R 340).
6. In Para 3 of the judgment of august Supreme Court of Pakistan three points have been identified, which were not earlier considered by this Court while deciding the civil revision as it was argued before the august Supreme Court by the learned counsel for the appellants that this Court has assumed the agreement to sell as an admitted document, point of limitation was not attended to and further that the provisions of section 27(b) of the Specific Relief Act, 1877 were not considered.
Therefore, mainly I dilate upon the above mentioned three points.
7. So far as the agreement to sell on the basis of which the suit was filed by the plaintiff/respondent No.1 is concerned, in the written statement filed by the present petitioners their case was that agreement was ante dated which has been prepared with the connivance of stamp vendor, petition writer as well as the witnesses and defendant No.1 the. original owner. In the same Para, possession of the plaintiff over the suit property was denied. The defendant No.1 in his written statement admitted the possession of the plaintiff over the suit property being tenant and the said defendant denied from the execution of any agreement to sell. In the statement when the plaintiff appeared as his own witness as P.W-1 admitted that he is in possession of the suit property under Ex.P-1 the agreement to sell. This portion of the statement of the plaintiff was not challenged in the cross-examination. Needless to observe that a portion of statement of a witness remains unchallenged in the cross-examination is deemed to be admitted. In this A context, reliance can be placed upon the judgments of this Court reported as "Munir Alam and 2 others v. Mehboob Alam"
(2015 YLR 500) and "Muhammad Ashiq Khan v. Muhammad Sharif and 5 others" (2014 YLR 767).
Furthermore, P.W-2 is the marginal witness of agreement to sell (Ex.P-1) and power of attorney (Ex.P-2) in favour of the brother of the plaintiff by the vendor/defendant No.1, both these documents are registered documents and presumptions are attached to a document registered under the Registration Act, though the presumptions are rebuttable when any of the parties challenges the same but in this case except filing the written statement by the vendor/defendant No.1 he disappeared from the court. Even the petitioners, who are subsequent purchasers, have also denied the registered document stating that it was subsequently prepared with the connivance of the stamp vendor, petition writer, the witnesses and defendant No.1 the vendor. They have not challenged the record of the sub-registrar or pleaded anything negative against the office of the sub-registrar or registration of the said document. With regard to the possession of the plaintiff over the suit property, when one of the defendants namely Muhammad Nawaz appeared as D.W-2 admitted that at the time of sale in their favour the plaintiff was in possession. In the cross- examination clarified that the plaintiff promised that he will give the possession to them. This statement is against the pleadings of the petitioners/defendants the subsequent purchasers.
Therefore, oral statement against the pleadings cannot be accepted. The admitted position is that the plaintiff / respondent No.1 was in possession of the suit property at the time of purchase by the petitioners/defendants through mutation No.2583 dated 08.05.1990. When the stance of the petitioners is contrary one, therefore, the case pleaded by the plaintiff/respondent No.1 confirmed through evidence that under the agreement the possession was delivered to him when that portion was not cross-examined by the other side, therefore, I have no option except to accept the version of the plaintiff when through the evidence it is proved on record that he is in possession and his stance that in the agreement to sell he was put in possession.
The point that agreement to sell was a registered document is concerned, the case pleaded by the defendants denying the registration of the document Ex.P-1 and Ex.P-2 which are of the same date and Ex.P-2 also contains the reference of Ex.P-1, therefore, against these registered documents no evidence was produced by the defendants subsequent vendees to prove the case pleaded by them that it was prepared ante dated, therefore, on the basis of presumptions attached to a document and the registration being noticed to all is presumed that it was in the knowledge of the subsequent vendees coupled with the fact that possession was of the plaintiff.
8. Now I come to the point of limitation. The registered agreement to sell is dated 16.07.1974. At the time of agreement proprietary rights were not conferred upon the vendor/defendant No. 1. It is mentioned that after conferment of proprietary rights the same will be transferred in favour of the plaintiff/respondent No. 1. Therefore, the general power of attorney by the vendor in favour of Noor Muhammad the brother of the plaintiff/vendee was also got registered giving the powers of transfer. The plaintiff's case is that he was in touch with the vendor asking him sometimes for transfer of proprietary rights in his favour but the plaintiff was informed that the' proprietary rights have not yet been conferred upon and thereafter the vendor transferred the suit property in favour of the petitioners/defendants Nos.2 to 4. Therefore, he was forced to file a suit for specific performance immediately, which was filed. In these circumstances, I am clear in my mind that when a party is dishonest in his defence, that party must suffer. The admitted position is that there is a registered agreement to sell in which no specific date for performance is mentioned, which is contingent contract with a condition that after conferment of proprietary rights the same will be transferred in the name of the plaintiff/vendee.
9. The case pleaded by the subsequent purchasers with regard to the possession and subsequently through the oral evidence contrary stance was taken and with regard to the agreement Ex.P-1 the case pleaded by them could not be proved by them that a registered document can be made ante dated. Therefore, no question of bona fide purchase in their favour arises as they failed to prove that they are entitled for benefit of Section 27(b) of the Specific Relief Act, 1877. The case law referred to by the learned counsel for the petitioners is not applicable to the facts of this case, therefore, not helpful for the petitioners. In the circumstances of the case noted supra, I have no hesitation to dismiss the F instant civil revision. Therefore, same stands dismissed.