IJAZ UL AHSAN, J.---This appeal arises out of a judgment of the Lahore High Court, Multan Bench, Multan dated 08.09.2015 rendered in Regular Second Appeal No.12 of 2009, filed by Respondent No. 1. Through the impugned judgment, the RSA was partially allowed and the suit of Respondent No.1 was partially decreed to the extent of 80 kanals, subject to the condition that he shall deposit the remaining amount i.e. Rs .3,75,000/- in the Trial Court till 08.10.2015 failing which the suit shall stand dismissed.
2. Briefly stated the facts of this appeal are that on 01.07.1999 Respondent No.1 filed a suit for specific performance on the basis of an agreement to sell dated 03.07.1996. In the suit, Respondent No.1 also challenged the transfer of part of the suit land measuring 20 kanals through mutation No.1191, attested on 30.10.1998 in favour of the proforma Respondents. Separate written statements were filed on behalf of the Appellant and the proforma Respondents as legal heirs of Muhammad Ameer , etc. The Appellant denied execution of the agreement to sell in favour of Respondent No.1 and stated that the same was bogus and the result of fraud. With regard to possession given to Respondent No.1, it was stated that in the year 2003, the Appellant had gone for performance of Hajj and in his absence, Respondent No.1 had forcibly taken possession and the Appellant reserved the right to initiate legal proceedings for return of the possession. In the written statement filed by the proforma Respondents, it was stated that their predecessor-in-interest was a bona fide purchaser for value, without notice of any earlier transaction of any nature and they claimed that possession of 20 kanals of the land in dispute was with them. The Appellant was proceeded against ex-parte on 07.12.1999. He moved an application on 18.02.2002 for setting aside of the ex-parte order which was allowed. Consequently , he filed his written statement and joined the proceedings.
The Trial Court dismissed the suit, vide judgment and decree dated 21.09.2007. The first appeal preferred against such dismissal was dismissed by the Appellate Court, vide judgment and decree dated 04.12.2008. Respondent No.1 challenged such dismissal by way of a Regular Second Appeal which was allowed through the impugned judgment in terms noted above. Hence, this appeal.
3. The learned counsel for the Appellant submits that the impugned judgment is the result of misreading and non- reading of the material available on record. He maintains that Respondent No.1 had failed to perform his part of the contract and was therefore not entitled to equitable relief granted by the High Court. He further submits that Respondent No.1 had not produced sufficient and credible evidence to prove his case and the High. Court had erred in law and fact in allowing his appeal.
4. The learned counsel for Respondent No.1 on the other hand has defended the impugned judgment of the High Court.
5. We have heard the learned counsel for the parties and gone through the record with their assistance. We note that in support of his case and to prove the agreement to sell, Respondent No.1 appeared as PW. 1 and reiterated all facts that had been narrated in the plaint. He was subjected to lengthy cross-examination which did not shake his testimony . Muhammad Arif, marginal witness was produced as PW.2, the Stamp Vendor and the Petition Writer as PW.3 while Muhammad Iqbal son of Muhammad Arif was produced as PW.4. All witnesses produced by Respondent No.1 stood firm on their testimony and duly supported the case of the Respondent.
6. On the other hand, the Appellant opted to appear as the sole witness. He never produced any corroborative evidence to show that possession had forcibly been taken from him nor could he establish that the agreement to sell which constituted the basis of the suit for specific performance was forged. In view of the evidence produced, the agreement to sell (Exh.P/1) stood proved. It also stood established that a sum of Rs.6,25,000/- had been paid by Respondent No.1 as part payment of the sale consideration and a sum of Rs.3,75,000/- remained C outstanding which was directed by the High Court to be deposited with the Trial Court. The learned counsel for Respondent No.1 has confirmed that the said amount has since been deposited as per directions of the High Court.
7. As far as the plea of the Appellant that possession had forcibly been taken from him while he had proceeded for Hajj is concerned, the same remained unproven in view of the fact that he admitt ed in his cross-examination that on his return and upon finding out that his property had forcibly been occupied, he did not initiate any proceedings for retrieval of possession of the same before any forum. He also admitted that he was a matriculate and had worked as a Patwari in the Revenue Department from 1980 to 2002. It is there fore not believable that despite having been forcibly dispossessed he did not initiate proceedings before any forum and no explanation has been offered as to why he silently accepted forcible possession of his property . His lack of action on this account lends support to the stance of Respondent No.1 that possession was voluntarily handed over to him as part performance of the agreement and on receipts of a substantial portion of the sale consideration of the property .
8. After carefully considering the entire evidence as well as the record in its totality , we find that the agreement to sell between the Appellant and Responde nt No.1 stood fully proved and that possession was also handed over to the Respondent on receipt of a major part of the sale consideration and in part performance of the agreement to sell. Consequently , the High' Court had valid reasons and lawful justification to upset the findings of the lower fora and decree the suit in favour of Respon dent No.1 on account of the fact that he had proved his case through credible and trustworthy , documentary as well as oral evidence.
9. As far as the transfer of part of the property in favour of the predecessor of the proforma Respondents through Mutation No.1191 attested on 30.10.1998 after the execution of agreement to sell, in favour of Respondent No.1 is concerned, it is noticed that the agreement to sell was dated 03.07.1996, the suit for specific performance was filed. on 01.07.1999 and the mutation in favour of the predecessor of the proforma Respondents was undertaken on 03.10.1998. In view of the fact that Respondent No.1 failed to show that the agreement to sell in his favour was in the knowledge of the predecessor of the proforma Respondents, the High Court rightly granted the benefit of section 41 of the Transfer of Property Act, 1882 to him being bona fide purchaser without notice. Further , admittedly possession of part of the suit property measuring 20 kanals had also been-handed over even before the suit was filed in 1999. Therefore, the suit of Resp ondent No.1 to such extent was dismissed and such dismissal had not been challenged by him. The High Court partially allowed the appeal of Respondent No.1 by decreeing his suit to the extent of 80 kanals on the condition that the remaining sale consideration shall be deposited before the Trial Court which has already been done.
10. The learned counsel for the Appellant has not been able to show any misreading or non-reading of evidence on the part of the High Court which has elaborately discussed all factual and legal aspects of the matter and recorded cogent, convincing and compelling reasons for its conclusions. He has also not been able to convince us that there is any factual, legal or jurisdictional, error or defect in the impugned judgment of the High Court that may persuade us to take a dif ferent view from the one taken by the High Court.
11. For the reasons recorded above, we do not find any merit in this appeal. It is accordingly dismissed.