AMIN-UD-DIN KHAN, J.--- Leave was granted in this matter vide order dated 22.2.2010, which is reproduced:- "This petition for leave to appeal has arisen out of a specific performance of an agreement dated 31.01.1972 allegedly executed by Jamal Din the original allottee of the suit land for a consideration of Rs:35,000/-. The petitioner /plaintif f had paid Rs.8,000/- at the time of the execution of the agreement and obtained possession of the suit land. Jamal Din the original allottee after obtaining the proprietary rights from the provincial government executed a sale deed in favour of Muhammad Iqbal respondent/defendant No. 2 on 03.02.1975. The suit was contested mainly by Muhammad Iqbal the subsequent vendee. In view of the divergent pleadings of the parties, the learned trial Court framed issues, recor ded the evidence of the parties and decreed the suit in favour of the petitioner/plaintif f.
2. Muhammad Iqbal respondent preferred an appeal which was also dismissed on 17.05.1980 by the learned Additional District, Judge at Sargodha. Both the Courts found that Jamal Din had executed the agreement to sell in question and had also delivered the possession to the petitioner/plaintif f. Both the Courts, the learned trial Court and the first appellate Court had also found issue No. 6 against the respondent/defendant and held that Muhammad Iqbal had full knowledge of the agreement in question as such he was not a bona fide purchaser .
However , the learned High Court reverse d the finding of the learned trial Court on issue No. 6 holding that the agreement in question was not in the knowledge of the respondent/ defendant.
3. Learned counsel for the petitioner/plaintif f, inter alia argued that the petitioner has been in possession of the disputed land under the agreement and that there is evidence to the effect that Jamal Din the original allottee, had earlier instituted a Civil suit as well as a suit for share of his produce in the Court of Collector Grade-I in which the brothers of the respondent No. 5 had appeared as witnesses - and that the said suits were dismissed. In this view of the matter , the possession of the petitioner/plaintif f on the suit land was sufficient notice of the agreement in favour of the petitioner/plaintif f to all interested persons.
4. We are of the view that the points raised by the learned counsel for the petitioner require serious consideration, therefore, leave to appeal is granted. Meanwhile, the possession of the petitioner/plaintif f shall not be disturbed."
2. We have heard the learned counsel for the parties at length and gone through the record with their able assistance.
3. A suit for specific performance was filed on 31.03.1975 on the basis of an agreement to sell dated 31.1.1972 by the appellant against the original owner as well as subsequent purchaser . The suit was contested by the subsequent purchaser . After complete trial the learned trial court was pleased to decree the suit vide judgment and decree dated 12.06.1979. Appeal filed by the subsequent purchaser was dismis sed vide judgment and decree dated 17.05.1980. The subsequent purchaser opted to file Regular Second Appeal in the Lahore High Court, which was allowed vide impugned judgment and decree dated 9.10.2000. Hence, the instant appeal after leave of the Court.
4. The only question determinable before this Court is that whether the subsequent purchaser was having no knowledge of impugned agreement to sell in favour of the appellant when admittedly the appellant was in possession of the suit property at the time of purchase of the suit property by the subsequent purchaser Muhammad Iqbal and whether it was not a sufficient notice to Muhammad Iqbal subsequent purchaser , of the agreement in favour of appellant by the original owner and the learned High Court was justified in setting aside the concurrent findings of fact recorded, by the two courts below while exercising jurisdiction under section 100 of the C.P.C.
5. The impugned agreement was produced as Exh.P .1 which. is dated 31.01.1972 which confirms the handing over of the possession of the land as well as Ihhata to Ahmad Din at the time of receipt of earnest money and writing of agreement. The suit property was allotted to Jamal Din the vendor under "Abadkari Scheme" and in accordance with the terms of the agreement the vend or was in dire need of money whereas he deposited some installments and some installments were yet to be paid by the allottee in favour of the Provincial Government and it was agreed that after transfer of proprietary rights in his favour he will transfer the suit property in favour of the vendee/plaintif f.
It is on the record that when a sale deed was executed in favour of the allottee just after that the allottee transferred the suit property in favour of the subsequent purchaser Muhammad Iqbal. It is not denied by the subsequent purchaser that plaintif f-appellant was in possession of the suit property from the date of agreement to sell even the original owner Jamal Din filed a suit for recovery for his share of produce for Khare ef 1972 to Rabi 1973 before the Assistant Collector Grade-I, Khushab (Tehsildar) and his statement recorded in the said case was produced in the instant case wherein he has admitted the agreement and its terms and also admitted that he has filed a suit for declaration challenging the agreement before the Civil Judge, Joharabad. The statement of Rahim Bakhsh was also produced, who appeared as PW-1 in the suit titled "Jamal Din v. Ahmed Din" for declaration which was pending at that time before the Civil. Judge, Joharabad. Said Rahid Bakhsh is brother-in-law of the subsequent purchaser Muhammad Iqbal. In the written statement there is an evasive denial on the part of Muhammad Iqbal with regard to possession delivered to appellant under the agreement to sell. Needless to observe that evasive denial is construed as admission on the part of the defendant. Reference can be made to "Ghulam Rasool through LRs and others v. Muhammad Hussain and others" (PLD 2011 Supreme court 119). The subsequent purchaser was required to probe into the matter with regard to possession of the appellant over the suit land and non-production of any evidence and independent witness will not absolve the subs equent purchaser from the onus to discharge that he was having no knowledge of prior agreement to sell in favour of the appellant when appellant was in possession of the suit land. This aspect escaped from the view of the learn ed High Court. Reliance can be placed upon "Muhammad Din v. Mst. Sakina Bibi and others" (2003 SCMR 956) and "Muhammad Hayat and others v. Sarwar Khan and others" (PLD 2006 Supreme Court 775) is also relevant on the point of inquiry by the subsequent purchaser . Further reliance can be made upon the judgments reported as "Muhammad Anwar v.
Muhammad Aslam and others" (2012 SCMR 345) and "Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others" (PLD 1974 Baghdad ul Jadeed 25).
6. In the Second Appeal no reappraisal of evidence is required when on the basis of evidence a view was taken by the learned two fora below which is in accordance with the evidence available on the file. Learned counsel for the appellant has placed reliance upon the judgments reported as "Muhammad Amir v. Khan Bahadur and another"
(PLD 1996 Supreme Court 267), "Nazeer Ahmed v. Maqsood Ahmed" (2008 SCMR 190),"Keramat Ali and another v. Muhammad Yunus Ha/i and others" (PLD 1963 Supreme Court 191), "Abdul Majid and others v.
Khalil Ahmed" (PLD 1955 Federal Court 38), "Amjad Sharif Qazi and others v Salim Ullah Faridi and others"
(PLD 2006 Supreme Court 777) and "Syed Rafiul Qadre Naqui v. Syeda Safia Sultana and others" (2009 SCMR 254). We agree with the learned counsel for the appellant on the point that reappraisal in the instant case was not required.
7. So far as the statement' of subsequent purchaser that he had strained relations with his brother-in--law who admittedly appeared in the previous litigation in a suit filed by the original owner against the appellant was clear knowledge of agreement to sell in favour of the appellant. That portion of statement of the subsequent purchaser/ respondent is beyond the pleadings, therefore, it was to be ignored but the learned High Court has mainly based his statement while recording findings in his favour . Reliance is placed upon "Sardar Muhammad Naseem Khan v. ReturningOf ficer and other" ( 2015 SCMR 1698 ).
8. In these circumstances, the respondent/ subsequent purchaser badly failed to prove that he was having no knowledge of the agreement and he purchased the suit property in good faith. This clearly establishes that Muhammad Iqbal subsequent purchaser was not a bona fide purchaser . There is further an important factor which was ignored by the learned High Court that Muhammad Iqbal opted not to produc e the sale deed in his favour on the basis of which he is claiming the suit property transferred in his favour .
9. These are the reasons of our short order whereby the appeal was allowed which is reproduced:- "For the reasons to be recorded later this civil appeal is allowed."