AMIN-UD-DIN KHAN, J.----Despite service, none has shown appearance on behalf of respondents Nos, 2 and 3 and as such,they are proceeded against ex-parte.
2. Through this single judgment, I intend to decide the instant appeal as well as the connected appeal i,e, R.S.A. No 203 of 2012. Through the instant appeal, appellants have challenged the judgment and ;decree dated 24.09.2012 passed by a learned Additional District Judge, Gujranwala whereby appeal filed by the plaintiff-respondent No 1 was accepted and the prayer for specific performance was also allowed while modifying the judgment and decree dated 16.04.2010 passed by the learned trial Court whereby Issue No, 1 was decided in favour of plaintiff-respondent No, 1 and the judgment debtor was directed to return double of the amount received as earnest money i,e, Rs, 8,00,000/-. The appellants filed cross-objections against the findings on Issue No 1 which too were dismissed by the learned first appellate Court. Against the said dismissal, the appellants have filed cross-objections which have been registered in shape of R.S.A. No 203 of 2012:
3. Brief facts of the case are that respondents Nos, 2 and 3 were owners of the suit land measuring 28-kanals 3-marlas. On the basis of agreement to sell dated 16.03.1999, respondent No, 1 filed a suit for specific performance on 13.06.2001. The appellants were also impleaded in the suit as defendants Nos, 3 to 7 and transfer of the suit land through registered sale deed No, 2627 dated 04.10.2000 was also assailed. The original owners (defendants Nos,1 and 2) filed written statement on 26.02.2002. In their written statement, they admitted the agreement to sell dated 16.03.1999, its writing, their signatures thereupon and the terms of the agreement. It was pleaded that till 07.05.2001, plaintiff-respondent No, I was to pay the remaining consideration amount of Rs,50,000/- which was not paid, therefore, agreement to sell was cancelled. Written statement filed by the appellants-defendants Nos, 3 to 7. It was further pleaded that no agreement to sell ever existed between plaintiff and defendants Nos, 1 and 2 and an ante-dated forged agreement had been prepared and defendants Nos, 1 and 2 (original owners) purchased the suit property with the assurance that there was no agreement with regard to the suit property with any party. It was pleaded in Preliminary Objection No, 2 that defendants Nos, 1 and 2, with the connivance of plaintiff and stamp vendor, got the stamp paper issued in previous dates and prepared the fraudulent agreement to sell. It was further pleaded that neither there was any agreement to sell dated 16.03.1999 nor any alleged payment of Rs,4,00,000/- was ever made by the plaintiff-respondent No, 1 to defendants Nos, 1 and 2.
Defendants Nos, 1 and 2 after framing of issues disappeared, therefore, evidence was produced by the plaintiff as well as subsequent purchasers i,e, respondents Nos, 3 to 7. Learned trial Court decided Issue No, 1 in favour of the plaintiff declaring that the fault lies with defendants Nos, 1 and 2, therefore, they were directed to return double of the earnest money i,e, Rs, 8,00,000/-. When relief for specific performance was not granted, plaintiff-respondent No, 1 preferred an appeal before the learned District Judge and the subsequent vendees filed cross-objections. The appeal filed by the plaintiff-respondent No,.1 was allowed whereas cross-objections filed by the subsequent vendees were dismissed. Hence these two Regular Second Appeals, one (R.S.A. No,175 of 2012) against the judgment and decree passed by both the learned Courts below and the second one (R.S.A. No, 203 of 2012) against the dismissal of cross-objections by the learned first appellate Court.
4. Learned counsel for the appellants argues that the agreement to sell dated 16.03.1999 could not be proved by the plaintiff-respondent No,1 and appellants are the bona fide purchasers for value.
States that the petition writer who allegedly wrote the agreement was not a license holder.
Contends that the admission by original owners (defendants Nos, I and 2) is not binding upon the appellants and the written statement filed by them has no value. Further states that plaintiff was required to prove the case for specific performance pleaded by him. Argues that even if, for the sake of arguments, it is believed that appellants could not prove themselves bona fide purchasers, even then there was no evidence to pass a decree for specific performance in favour of the plaintiff-respondent No, 1.
5. On the other hand, learned counsel for the respondent No,1 (plaintiff) argues that when the original owners did not deny the agreement to sell, their admission made in the written statement was rightly used in favour of plaintiff-respondent No,
1. States that as per record, one marginal witness, Haji Muhammad Arif, appeared at least six times in the Court for getting his statement recorded but it could not be done. Submits that third alleged witness ' of the agreement to sell namely Iftikhar Hussain was actually relative of the vendors and he identified the purchaser of the stamp paper who was one of the vendors. Further submits that the sale deed on the basis of which appellants are claiming their rights was manipulated as Khasra No, 327 was changed into 827 which was admitted by the appellants when appeared in the witness box. Argues that though Issue No, 3 was framed that defendants Nos, 3 to 7 are bona fide purchasers without notice but states that actually it was not a case pleaded by them that they were the purchasers as the main ground for defence in the suit for specific performance filed by respondent No, 1 was that the stamp paper was purchased with the connivance of the stamp vendor, the original owners and respondent No,1 (plaintiff) in back dates and as a result thereof, a forged agreement to sell was prepared. States that it was their responsibility to discharge the onus of their pleadings but they did not adduce the evidence in accordance with their pleadings and the evidence led against the pleadings cannot be read in their favour. Submits that there was no question of bona fide purchase by the appellants. Further submits that with regard to payment made by the appellants, there is contradiction in the statement of DW-1 who is one of the plaintiffs. Argues that PW-3 is the scribe and stamp vendor also who got his statement recorded that he sold the stamp paper and wrote the terms thereupon whereas PW-1, Moharrar, who produced the register of record of stamps from the office of Deputy Commissioner, was not cross-examined though his cross-examination was once reserved. Further adds that appellants could not shake the evidence produced by the plaintiff-respondent No, 1, therefore, the findings recorded by learned first appellate Court are in accordance with law whereas the alternate relief granted by the learned trial Court was against the law which was modified by the learned first appellate Court. Prays for dismissal of both the appeals.
6. I have heard the arguments advanced by learned counsel for the parties at length and gone through the entire record as well as the case-law cited by learned counsel for the parties.
7. Agreement to sell is dated 16.03.1999. The date fixed for its performance was 07.05.2001. Suit for specific performance was filed on 16.03.2001 whereas the original owners transferred the property to the appellants through a registered sale deed dated 04.10.2000 produced as Ex.P-8 and Ex.D-1.
The original owners filed written statement and defended the sale on the ground that when plaintiff failed to pay the remaining consideration amount of Rs, 50,000/-, they transferred the suit property in favour of subsequent vendees (appellants).
It is astonishing to note that when the date for performance was fixed as 07.05.2001, how they were entitled to sell the property before A that date. Therefore, the fault lies with the vendor.
8. So far as the question that appellants were bona fide purchasers is concerned, learned counsel for the respondent No, 1 has argued that basically case of the appellants was not about bona fide purchase rather they pleaded that actually there was no agreement to sell between respondent No 1 (plaintiff) and original owners (respondents Nos,2 and 3).
When PW- 1 produced the register of entries, he was not cross-examined. The objection that PW-3 (stamp vendor as well as petition writer was not having any license for petition writing is not fatal to the case of plaintiff-respondent No, 1 because it is not a condition/precedent. Sale of stamp paper as well as its writing on the date mentioned in the B stamp paper (Ex.P-1) could not be shaken by the appellants who are subsequent purchasers. Their rights come in the field if they are able to show that they are bona fide purchasers for value without notice. As discussed supra, their pleadings were not upto the standard to show the bonafide purchase of the suit property.
9. Even otherwise, when one of the appellants, Muhammad Mushtaq, subsequent purchaser, appeared as DW-1, he admitted that before purchase, the appellants had not met the Patwari which clearly shows that they had not cared to confirm the status of the land which was being purchased by them. When the appellants failed even to plead specifically with regard to bonafide purchase and discharge the onus, they cannot take the benefit. Reliance can be placed upon "Hafiz Tassaduq Hussain v. Lal Khatoon and others" (PLD 2011 Supreme Court 296). For ready reference, I quote paragraphs Nos, 5, 6 and 7 of the said judgment:- "5. Be that as it may, the subsequent vendee thus has to discharge the initial onus as follows:--
(1) That he acquired the property for due consideration and thus is a transferee for value, meaning thereby that his purchase is for the price paid to the vendor and not otherwise.
(2) There was no dishonesty of purpose or tainted intention to enter into the transaction which shall settle that he acted in good faith or with bona fide;
(3) He had no knowledge or the notice of the original sale agreement between the plaintiff and the vendor at the time of his transaction with the later.
From the above it is depicted that the section merely enacts the English equitable rule which allows later legal title to prevail over an equitable interest in case of bona fide purchaser for value without notice (emphasis supplied). And this principle has to be kept in view by the Courts while analyzing and appreciating the evidence on the record for the discharge of the requisite burden.
6. In the afore-noted context, it is thus required that a subsequent vendee should adduce in evidence his sale instrument or the mutation of his transaction, if not otherwise on the record having been brought by the plaintiff himself or any other proof in this connection such as the receipt of payment made to the vendor or the bank record etc. or should lead credible oral evidence in this behalf, these are some conceivable modes of proving the transfer for value and shall be a sufficient discharge of onus in this respect in ordinary cases. If however, a specific attack has been made in the plaint or the replication by the plaintiff that the subsequent transaction is without consideration, or the value given is colourable, understated, underpaid and illusionary, it becomes the bounden, duty of the subsequent transferee to establish through positive evidence that adequate price was paid, because this factum shall also have a close nexus to the good faith and the bona fides of the said transferee as well; when it is so done, the onus shall switch over to the plaintiff to prove otherwise.
7. The second ingredient "good faith" is the term which reflects the state of mind and according to section 3(26, 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 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/agricultural 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 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 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. If therefore a subsequent vendee has taken due care in the above manner and there are no indicators to put him to a notice of third party interest, he shall be said to have acted in good faith, thus satisfying the second condition of the rule."
10. When subsequent vendees have even not met the Patwari to inquire about the status of the suit property, they cannot plead that they were having no knowledge of agreement to sell and they purchased the same in "good faith". They have pleaded that the agreement to sell was prepared in back dates which fact could not be proved by the appellants. Furthermore, the case not pleaded cannot be proved through evidence. Reliance is placed upon "Muhammad Rafiq and others v.
Muhammad Ali and others" (2004 SCMR 704), "Mushtaq Ahmed v. Zafar lqbal and others" (2012 YLR 2599) and "Naseer Ahmad and others v. Yousaf Murtaza Mirza and others" (2016 CLC 160). It is equally important that a new case cannot be set up through evidence. Reliance is placed upon "Fateh Muhammad through L.Rs, and others v. Fida Hussain. Shah through L.Rs," (2007 CLC 1885).
11. When the scribe has also certified the full detail of the contract between the parties and payment of consideration amount before him, plaintiff can be benefited with this part of statement got recorded by the scribe being witness to the document. One of the marginal witnesses of Ex.P-1 who was alive was produced whereas the other witness passed away during pendency of the suit though he appeared many times but his statement could not be recorded. The third witness, Iftikhar Hussain, is cousin of the original vendor who disappeared after appearance and submission of the written statement.
12. The benefit of Article 81 of the Qanun-e-Shahadat Order, 1984 can be given to the plaintiff- respondent No, 1 in the light of "Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others" (PLD 2010 Supreme Court 604) and "Abbas Ali v. Liaqat Ali and another" (2013 SCMR 1600) as admission of written statement could not be denied by any party.
13. Even otherwise, there are concurrent findings recorded by both the learned Courts below. For calling in question the judgments handed down by learned two Courts below through an appeal filed under section 100 of the C.P.C., appellants were required to prove the decision being contrary to law or usage having the force of law or through the decision, both the learned Courts below failed to determine some material issue of law or usage having the force of law or a substantial defect or error in the procedure provided by the C.P.C. or by any other law for the time being in force. Appellants have miserably failed to prove the above-noted ingredients to make dent upon the judgments and decrees passed by both the learned Courts below and as such both the appeals having no force stand dismissed.