CH. MUHAMMAD MASOOD JAHANGIR, J.---In this case, the decree awarded to the appellant in his suit for specific, performance of contract by the learned Trial Court was reversed in appeal made by subsequent vendee/ respondent No.1 and the former being dejected preferred this second appeal.
2. In terseness, the facts of the case in hand are that suit area vested to Iqbal Bibi/respondent No.2, who initially agreed to sell it to the appellant and after receipt of token amount, the agreement dated 07.01.2008 (Exh.P1) was executed, whereas the remaining consideration was to be paid till 01.03.2008 followed by attestation of sale deed/mutation to pass on title to the vendee/appellant, but much prior to it, the lady vendor transferred the suit land to respondent No. 1 vide oral sale Mutation No.457 of 23.01.2008 (Exh.P2). This demeanor impelled the appellant to institute suit for specific performance of agreement to sell (Exh.P1), besides seeking cancellation of mutation (Exh.P2). In response, though the vendor defended the suit merely controverting the fixation of sale price, yet in all fairness admitted the settlement of transaction as well as construction of Exh.P1. She in her written statement further demonstrated that respondent No.1 had persuaded her for sale of area in his favour against some additional amount while guaranteeing that he would convince the appellant to withdraw/ relinquish his sale. Whereas the subsequent vendee/respondent No.1 while claiming him to be bona fide purcha ser and showing his complete ignorance qua earlier contract of sale (Exh.P1) also contested the suit.
3. The learned Trial Court facing with divergent pleadings of the contestants, captured disputed area of fact and law while settling the issues as follows:-
1. Whether the plaintiff and defendants Nos.3 to 5 entered into an agreement to sell dated 07.01.2008 with the defendant No.) regarding suit land and paid Rs.3,10,000/- as earnest money and defendant No.1 promised to execute the sale deed in their favour till 01.03.2008 after receiving the remaining amount? OPP
2. If issue No.1 is proved in affirmative, whether the plaintiff and defendants Nos. 3 to 5 are entitled to the decree as prayed for ?OPP
3. Whether Mutation No.457 dated 23.01. 2008 in favour of defendant No.2 regarding suit land by defendant No.1 is illegal, against facts and law, collusive, based on fraud, hence void and inoperative upon the rights of the plaintiff and defendants Nos.3 to 5?OPP
4. Whether the plaintiff and defendants Nos. 3 to 5 have no locus standi and cause of action against the defendant No.2? OPD-2
5. Whether defendant No.2 is bona fide purchaser with consideration without notice of suit land vide mutation No.457 dated 23.01.2008?OPD-2
6. Whether the plaintiff and defendants Nos.3 to 5 have not come to the court with clean hands ?OPD-2
7. Whether the plaintiff and defendants Nos.3 to 5 have filed this suit to harass the defendant No.2 and suit is false and baseless, hence, liable to be dismissed with special costs under section 35-A of C.P .C.? OPD-2
8. Relief.
The onus probandi of crucial issues Nos.1 and 2 was on the appellant/ plaintif f, who to discharge it examined Stamp Vendor (PW1), Deed Writer (PW2), one of the marginal witnesses (PW4) and himself appeared as PW3. It is significant that other attesting signatory of Exh.P1 was Khadim Hussain son of vendor , who being attorney of the latter appeared as DW1 and candidly admitted the construction of Exh.P1, transaction reflected therein, besides that Exh.P1 was signed by him being its marginal witness. On his end, respondent No.1/subsequent vendee examined DWs-3 and 4, the attesting witnesses of his mutation and himself appeared as DW2. The two Courts below appreciated the available evidence/ material with different approach, resulting into divergent decisions as disclosed in para-1 ante, hence this appeal.
4. Messrs Mahmood Ahmed Bhatti and M. Zaeem Bhatti, Advocates, on behalf of appellant/plaintif f inaugurally submitted that despite the fact that case of his client was covered by the presumpt ion ordained by Article 81 of the Qanun-e-Shahadat Order , 1984, but even then the execution of Exh.P1 and the original transaction detailed therein were duly proved. Further contended that transaction of the plaintif f settled earlier was an admitted fact and the moment it conceded on behalf of the vendor , the subsequent sale made in favour of respondent No.1 became inessential. They also added that disclosure on the part of the vendor through her pleadings and statement that the subsequent vendee was very much aware of the prior sale was enough to infer that second transaction was collusive and result of conspiracy . Messrs Bhatti, then argued that even earlier sale and execution of Exh.P1 was not disputed by the subsequent vendee/ respondent No.1, as such findings of issues Nos.1 and 2 were perfectly returned in affirmative by learned Civil Court, but learned Appellate Court on some extraneous and supervenient reasons reversed the same, which being tainted with misreading and non-reading of evidence are liable to be set aside. The learned counsel for the appellant also emphasized with great vehemence that his client through trustworthy evidence proved on record that respondent No.1 was well aware of the first transaction, but the latter failed to discharge the onus so shifted to prove his bona fide purchase. The narrative of the arguments of learned counsel for the appellant was acceptance of appeal, setting aside of the judgment of the learned District Judge and restoration of decree awarded by the learned Trial Court.
On their turn, Messrs Ch. Muhammad Ashraf Goraya and Ch. Zulqarnain Baryar , Advocates for subsequent vendee/ respondent No.1 contended with great vehemence that sale struck through Exh.P1 was not in the knowledge of his client, who after due diligence purchased suit land at the market price and not only possession changed hands, but its ownership also transferred via sanction of mutation (Exh.P2), that case of respondent No.1 was fully proved as per requirement ordained by section 27-B of the Specific Relief Act, 1877. It was added as well that execution of sale agreement (Exh.P1) was controversial/ disputed, as such its contents were to be proved as per yardstick set through Article 79 of the Order ibid, but having failed to examine second marginal witness of Exh.P1, it cannot be taken as evidence, what to assume that a decree can be equipped to its beneficiary . The learned counsel for respondent No.1 while inviting attention toward statement of plaintif f (PW3) submitted that when plaintif f admitted that at the time of his deal, only he, the vendor and her son were available, the learned Appellate Court was correct to infer that respondent No.1 was not aware of earlier transaction. It was further argued by Mr. Goraya and Baryar that earlier sale was not followed by change of possession, hence there was no chance to apprehend that subsequent vendee was in its direct knowledge, that cogent, inspiring and trustworthy affirmative evidence was brought on record to prove the bona fide purchase, therefore, impugned findings on issues Nos.3 and 5 were perfectly recorded, that under section 27-B of the Act ibid negative was to be proved by the subsequent vendee and once he stated on oath that he was not aware of any earlier deal/ transaction, that would be sufficient to discharge the onus rested on his shoulders and in such even t the same shifted to the plaintif f to prove positively that subsequent vende e had its knowledge. In the fag end of their submissions, learned counsel for respondent No.1 contended that the vires of mutation No.457 (Exh.P2) were specifically challenged while asserting it to be result of fraud, collusiv eness etc and in such situation, the impleadment of Revenue Official/ Officer was essential, but they were not arrayed, therefore, a decree for cancellation of Exh.P2 could not be passed. Their ultimate request was for upholding of impugned judgment via dismissal of this appeal.
Ch. Muhammad Aslam Arain and Mahar Sohail Zafar Sipra, Advocates for the descendants of vendor/respondent No.2 adopted the arguments of learned counsel for respondent No. 1 .
5. Heard, record consulted.
6. It is well established by now that resolution of civil nature dispute is dependent upon existence of various facts, which are not self-evident and a party to the suit expecting decision in its favour from the Court, has to discharge the onus probandi rested upon it by leading affirmative primary evidence. The relevant provisions in this regard are Articles 117 to 120 of the Order ibid. The case of the appellant hinges upon agreement to sell (Exh.P1), which is a document of financial liability and future obligation. The parameters for construction of such document are referred in Article 17 of the Order ibid, whereas in order to prove such like document, the beneficiary as per Article 79 has to call at least two attesting witnesses and if not, the document has to be excluded from consideration. However , Article 81 is an exception to the general rule contained in Article 79. The bare reading of Article 81 manifests that examination of attesting witnesses will not be necessary for the purpose of proving the execution of the document required by law to be attested, if the executant admits its execution. In the case in hand, as observed earlier , the vendor , Iqbal Bibi, respondent No.2 explicitly admitted the execution of Exh.P1, thus no other proof of its execution was required. See Dhanna Lal v. Shambhu (AIR 1917 Nagpur 123), wherein it was concluded that when execution admitted and due attestation not denied the question of attestation did not arise or that, if arise, the maxim "Omnia praesumuntur rite esse acta" comes in unless there is evidence that the attestation was not according to law. In the given situation, though there was no need to examine the signatories of Exh.P1, even then Scribe (PW1), Stamp Vendor (PW2) and Abdul Majeed (PW4), one of the marginal witnesses were put before the learned Trial Court, besides the appellant / plaintif f (PW3) also stated on oath in lines with contents of plaint as well as agreement td sell. It was again matter of record that other attesting witness Khadim Hussain was the son of the vendor/ respondent No. 2, who while appearing as DW 1, neither denied the execution of Exh.P1 nor disputed affixation of his signatures in said capacity , as such despite admission of its execution, though there was no requirement, but even then each and every signatory thereof appeared in trial proceedings to prove the construction of basic document and the transaction referred therein. The appellant, thus, successfully discharged onus of issues Nos. 1 and 2.
7. Adverting to the next phase, that despite having proved the prior transaction, a decree for specific performance could be granted against respondent No.1 and the initial onus of issue No.5 so struck to this effect was upon the subsequent vendee/respondent No.l. Before appreciating evidence of the parties, the Court felt it appropriate to consider the pleadings, so as to understand their basic stances. At the cost of repetition (just to recollect memory), the Exh.P1 between appellant and respondent No.2 executed on 07.01.2008, whereas cutof f date for its materialization was 01.03.2008, but prior to it, on 23.01.2008 (within two weeks of the execution of Exh.P1), the property in dispute was mutated to respondent No.1 vide mutation No.457, forcing the appellant to institute suit on 06.02.2008, much earlier to date for accomplishment of sale as per terms and conditions of Exh.P1. The appellant/ plaintif f in paragraph-4 of the plaint specifically pleaded that:- {{URDU TEXT}} In response, the vendor/respondent No.2/ defendant No.1 replied the said fact, while pleading as under:- {{URDU TEXT}} Whereas, the subsequent vendee/respondent No.1 / defendant No.2 answered paraghraph No.4 of the plaint while averring as follows:- {{URDU TEXT}} A minute scrutiny of the written statement of subsequent vendee/ respondent No.1 exposed that he did not assert that possession of the suit area was already with him or it delivered to him at the time of sanction of mutation.
Anyhow , having consulted the above quoted pleadings of the respective parties, wherein appellant/ plaintif f was claiming that his prior sale via agreement to sell (Exh.P1) was in the knowledge of subsequent vendee/respondent No.1, whereas the latter was pleading his complete ignorance, the stance of vendor/respondent No.2 was significant, who asserted that respondent No.1 being fully aware of earlier sale (Exh.P1) had purchased the suit land at his own risk. The onus, indeed, shifted to respondent No.1 pleading bona fide purchase to have proved the three features given below:- 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 latter .
In the light of history of the case in hand discussed so far, the ingredient No.3 (supra) was of worth to be proved by the subsequent vendee/respondent No.1 , especially when he in his written defence neither asserted that the vendor/ respondent No.2 played fraud with him, or that she misrepresented or even in connivance with plaintif f/ appellant had managed antedated agreement to frustrate his sale. Whereas. it was forcefully pleaded by the plaintif f/ appellant that mutation inter se vendor and subsequent vendee was a colluded/ dishonest engineering and that it was inoperative upon his rights.
In the given situation, Khadim Hussain, son of the vendor Iqbal Bibi, who on one hand signed Exh.P1 being its marginal witness and on the other side put his signatures on the mutation (Exh.P2) being identifier/ attesting witness became the most important, person/witness to elucidate the true facts especially when his role in such capacity was even not disputed by any of the contestants. He being attorney of his mother/vendor appeared in the witness-box as DWI. Though in his statement-in-chief he suppressed the facts (narrated in the written statement) that earlier sale with plaintif f/ appellant was open to the respondent No.1, however during test of cross- examination, he was forced to concede that:- {{URDU TEXT It was significant that the respondent No.1 cross-examined the DW1 after such exercise had already been conducted on behalf of the plaintif f. DW1 stood credible to the effect that earlier sale was communicated to the subsequent vendee. Moreover , the latter (DW2) whose statement was recorded after some days of the statement of DW1 again did not utter that a fabricated or antedated agreement to sell mana ged to frustrate his sale, rather during cross-examination by deposing that:- {{URDU TEXT}} he impliedly acknowledged the authentic-city of prior sale struck through Exh.P1. There is no cavil that no person can convey a better title than what he has, except where the statute provides exception to the rule like section 27(b). Once it is established that the vendor settled the agreement to sell, he thereafter could not convey the same to anybody else, as after the first sale, he was no more a free owner . Any subsequent alienation would remain subject to the rights created under the prior agreement of sale. See Veeramalai Vanniar (died) and others v.
Thadikara V anniar and others (AIR 1968 Madras 383).
8. As far as, the other feature that respondent No.1 acquired the property for due consideration is concerned, the same was shattered by his own witness, Khalid Kamboh (DW3) while deposing in his cross-examination to the following ef fect:- {{URDU TEXT}} The attorney of the vendor (DW1) during his cross-examination conducted by learned counsel for respondent No.1 stated that-- {{URDU TEXT}} Moreover , it was explicitly admitted by the witnesses of respondent No.1 that mutation was not attested in the public gathering, rather the proceedings carried out in the office of the Tehsildar and consideration was paid before the latter then and there. The attestation of mutation in the office was not only violative to the provisions of law, rather its contents also do not support that alleged sale amount was paid before the attesting officer. To prove said fact, Tehsildar was the best person, who was withheld, forcing the Court to infer adverse presumption under Article 129 illustration (g) of the Order ibid that had he been examined, he might have not supported that consideration was paid in his presence. So, the subsequ ent vendee failed as well to establish that his purported purchase was for the price paid to the vendor and not otherwise. The emphasis of learned couns el for respondent No.1 that the moment vendor admitted receipt of the sale consideration, there was no need to prove said fact, suffice it to say, that if the case is to be decided on her admission, then her admission that respondent No.1 was well aware of prior sale, would be enough to non-suit him being the subsequent vendee.
9. The respondent No.1 with regard to fact that he made an honest probe qua free status of land from any encumbrance neither specifically pleaded nor an iota of evidence examined.
10. As regards the last objection of learned counsel for respondent No.1, while relying upon judgment of the honourable apex Court reported as Sakhi Jan and others v. Shah Nawaz and another (2020 SCMR 832) that plaintif f despite challenging the vires of mutation (Exh.P2) did not implead the revenue official/of ficer in the group of defendants thus suit was liable to be dismissed on said alone score, suffice it to say that each case is to be decided on its peculiar facts, whereas as per Order I, rule 9 a lis cannot be dismissed for nonjoinder or mis joinder of parties. Moreover , in the cited case, serious allegations on the part of revenue official/of ficer were taken therein to the effect that they played an active role in entering/ sanction of fraudulent mutation, whereas situation in the case in hand is altogether different. Here, no specific allegation with regard to working of said incumbents is raised, rather merely asserted that the vendor and respondent No.1 colluded to frustrate the prior sale. In such panorama, there was no legal defect in not impleading the revenue official/ officer, thus objection is not sustainable.
11. Having proved that earlier transaction settled by respondent No.2 with the appellant/plaintif f was in the complete knowledge of the respondent No.1, who also failed to prove passing of consideration to the vendor/respondent No. 2 and in absence that any due inquiry was made, the findings on issues Nos.1 to 3 and 5 of the learned Appellate Court below being tainted with misreading and non-reading of evidence are reversed, thus this appeal succeeds, impugned judgment and decree rendered by the learned Appellate Court is set aside and that of the learned Trial Court whereby suit of the appellant/ plaintif f decreed is restored. No order as to costs.