1. ' NASIM HASAN SHAH, J.-This appeal, by the leave of this Court, is directed against the judgment of the Lahore High Court dated 15-10-1979 dismissing the second appeal (R. S. A. No, 238 of 1979) preferred by the appellant herein in limine.
2. ' The facts which form the background are that Mst. Momina Khatoon now dead and represented by her son Muhammad Raza, Respondent No, 2, was the transferee of one-half share of an evacuee House No, P. 119, Ward No, 8, Street No, 4, Karkhana Bazar, Faisalabad for which she held a P. T.
0. Dated 4-4-1960 issued by the Settlement Department. She entered into an agreement on 30-4- 1968 to sell a part of the house transferred in her favour to respondent No. 1 (Mst. Sughra Bano) for a sum of Rs, 28,000. A sum of Rs, 10,000 was also received by her from Respondent No. 1.
3. ' The lower portion of the house, at the time of the execution of the agreement to sell, was in possession of Mst. Momina Khatoon, while its upper portion was in possession of her tenant Muhammad Sharif, the appellant herein. According to the terms of the agreement to sell, the possession of the entire house was to be delivered to respondent (Mst. Sughra Bano) which implied that whereas the vacant possession of the lower portion would be delivered to her, she would be delivered only the constructive and symbolic possession of upper portion of the house as it was occupied by her tenant Muhammad Sharif. In the agreement to sell it was also provided that Mst.
4. Momina Khatoon shall be bound to get the sale-deed registered in favour of Mst. Sughra Bano, respondent No. 1 within ten months after obtaining P. T. D. And the balance of the sale price amounting to Rs, 18,000 would be paid by respondent No. 1, Mst. Sughra Bano. Accordingly, Mst.
5. Sughra Bano served two notices upon Mst. Momina Khatoon informing her of her readiness and willingness to perform her part of agreement to sell and demanding due performance of the said agreement to sell dated 30-4-1968. However, instead of taking steps to complete the agreement to sell in favour of the respondent, Mst. Momina Khatoon obtained the income-tax clearance certificate for selling the house in dispute in favour of Muhammad Sharif appellant herein, ostensibly for a consideration of Rs, 26,000 and ultimately proceeded to sell it in his favour vide registered sale-deed dated 9-5-1969.
6. ' Aggrieved by this violation of the terms of the sale agreement by Mst. Momina Khatoon, Mst.
7. Sughra Bano, respondent No. 1 herein instituted a suit against her and Muhammad Sharif appellant for possession of the house in dispute through specific performance of the sale agreement dated 30-4-1968. The pleadings of the parties gave rise to six issues of which reference to the following two are relevant at this stage :-
(a) Is the plaintiff entitled to the specific performance of the agreement dated 30-4-1968? If so, on what terms ?
(b) Whether Defendant No, 2 is a bona fide purchaser for consideration without notice of the title of the plaintiff?
8. ' The learned trial Court vide its judgment dated 2-11-1972 decided the first mentioned above issue in favour of Mst. Sughra Bano respondent and the second mentioned above issue against Muhammad Sharif appellant and decreed the suit against the appellant and Mst. Momina Khatoon, the predecessor-in-interest of Muhammad Raza, respondent No,
2. The appeal of Muhammad Sharif, appellant against the trial Court's judgment and decree was dismissed by the learned Additional District Judge, Faisalabad vide judgment dated 28-2-1979 and so also his second appeal was dismissed by a learned Judge of the Lahore High Court, in limine, vide judgment dated 15-10-1979.
9. The first ground pressed before us in support of this appeal by Mr. Ahmad Saeed Kirmani, learned counsel for the appellant, is that the mu of Mst. Sughra Bano was not maintainable and that it was illegally decreed because she had failed to sue for cancellation of the registered sale-deed executed in favour of the appellant dated 9-5-1969 while asking for specific performance of her earlier sale agreement dated 30-4-1968. In support of this contention he relied upon judgment of the Sind and Baluchistan High Court reported in Syed Mithal Shah v. Khawaja Rafiullah and another
(1) wherein it was held that a decree for specific performance of contract and injunction cannot be granted as long as a registered sale-deed is still in the field whereby some right in the property has been transferred in favour of another and it is necessary that the sale-deed in his favour is cancelled before granting a decree for specific performance.
10. ' We have perused the above-cited judgment but we observe that the weight of the rule laid down therein has been shaken by the observations made by this Court in two judgments which have since been delivered viz. Mst. Hamid Begum v. Mst. Murad Begum and others (2) and Mst. Izzat v Allah Ditta (3). Hence, we cannot accept Mr. Kirmani's first submission.
11. Mr. Kirmani then submitted that the appellant was a transferee for value without notice of the title of respondent No. 1 and, therefore, was entitled to the benefit of section 41 of the Transfer of Property Act. This issue has been dealt with at length by the Courts below and it has been held that the circumstances clearly showed that the appellant had the knowledge of the agreement dated 33-4-1968 entered into by Mst. Khatoon with the respondent No. 1 herein before the sale-deed dated 9-5-1969 was executed and registered in his favour. As we agree with this assessment of the Courts below with regard to the factual position the appellant cannot successfully claim to be a transferee without notice.
12. ' The result is that no ground exists for interference with the judgments delivered by the Courts below. The appeal must, therefore, fail and is, accordingly, dismissed hereby. The parties, however, will be left to bear their own costs.