' This second appeal under section 100, C. P. C. Is directed against the judgment and decree dated 9th November, 1970, passed in First Appeal No, 124 of 1964, by the District Judge, Hyderabad, reversing the judgment and decree dated 22nd April 1969, passed in Suit No, 101 of 1962, by Mr. Shamsul Arfin A. Kureshi, Civil Judge, 1st Class, Hyderabad in the following circumstances.
2. The appellant/plaintiff filed a suit against the defendants/respondents for specific performance of the contract, dated 13th December, 1961, for sale of agricultural land bearing Survey Nos. 113, 114, 115/1 to 2 116/3 and 4, 61/3 ; Deh Sohrab Goth Taluka Hale, and for injunction, which was subsequently amended so as to include the alternate relief of refund of Rs, 5,000 received by respondent No, 1/defendant No, 1 from the appellant plus Rs, 5,000 towards compensation for withholding the execution of the sale-deed. According to the allegations made in the plaint the land was on lease with the appellant which he had taken from one Mr. Q. A. Khan, C. S. P., which were subsequently allotted to respondent No, 1 due to his (appellants) efforts under I. R. IV Scheme and then on his P. Q. R. Under Permanent Scheme. It was further the case of the appellant that persuant to the agreement of sale the appellant was put into possession of the suit land as purchaser/owner on 13th December, 1961 and since then upto the date of filing of the suit he was in possession of the same and that he had improved the land and converted the same into a garden and that respondent No, 1 had avoided to execute the sale-deed and he had not obtained the necessary permission and certificate from the Rehabilitation Department. It was further alleged that few days before the filing of the suit the appellant learnt that respondent No, 1 was entering into an agreement of sale of the land with other respondents and he was going to execute sale- deed in their favour. He also alleged that he was always ready and prepared to perform his part of the contract and pay the balance amount of sale consideration to respondent No, 1 but he had refused to perform his part of the contract.
3. The respondent No, 1 filed a detailed written statement wherein he did not specifically denied the execution of the agreement but pleaded that the appellant was exercising undue influence on him on account of his superior position in the Company where both were allegedly employed. He has also pleaded that the appellant had induced him to sign some written stamped paper, the contents whereof were not translated to him, by practising fraud and on misrepresentation and by exercising undue influence over him. He also denied that respondents Nos. 2 to 5 had knowledge of the sale agreement in favour of the appellant or that any notices were served on them before the execution of the said deed.
4. Respondents Nos. 2 to 5 adopted the written statement of respondent No, 1 by using the words "that the written statements of the rest of the defendants is the same as above", and signed the same even without any verification.
5. On the pleadings of parties the following 12 issues were framed by the First Court.
"(1) Whether the suit is barred under the provisions of Civil Procedure Code ?
(2) Whether the suit is not maintainable ?
(3) Whether this Court has no jurisdiction ?
(4) Whether the suit is improperly valued and insufficiency stamped ?
(5) Whether the agreement of sale, dated 13th December, 1961 was executed by the defendant No, 1 under misrepresentation, fraud, Undue influence practised by the plaintiff.
(6) Whether the defendant No, 1 received Rs, 5,000 from the plaintiff as lease money and not as earnest money towards sale consideration ?
(7) Whether the defendant has committed any breach of agreement of sale, dated 13th December, 1961 ?
(8) Whether the plaintiff is entitled to have the specific performance of the contract of sale in respect of suit land in his favour ?
(9) Whether the defendants Nos. 2 to 7 are bona fide purchasers of the suit land without notice ?
(10) Who is in possession of the suit land ?
(11) Whether the plaintiff is entitled to any relief ?
(12) What should the decree be 7'
6. The learned Civil Judge decided issues Nos. 1 to 9 and 11 in favour of the appellant. He, however, with regard to issue No, 10 observed that the same was not happily worded and that possession of the suit land at the time of trial of the suit by either party was not so much relevant for the disposal of the suit and the factum of possession relating to the period when the alleged sale-deed dated 12th July, 1962, was executed by respondent No, 1 in favour of respondents Nos. 2 to 5 was material.
On the question of possession the learned Civil Judge found that the respondents had not been able to substantiate their claim as to possession after April 1962, till they executed the sale-deed allegedly on 12th July, 1962, and that the possession of the appellant through his lessee Allah Wasayo was prima facie proved.
7. Before the learned Civil Judge the appellant examined himself (Exh. 52) Muhammad Abdul Rashid (Exh. 53), Muhammad Unis (Exh. 74), Mumtaz Ali (Exh. 77), Allah Warayo (Exh. 86), Muhammad Bux (Exh. 87) and Moinuddin Ahmed Chishti (Exh. 94).
8. On behalf of respondents Nos. 2 to 7 Muhammad Shah (Exh. 106), Pir Nadir Shah (Exh. 108), Allah Dino (Exh. 109), respondent Umer (Exh. 115) and Inayatullah Sub-Registrar, Hala (Exh. 165) were examined. Respondent No, 1 did not examine himself nor he led any evidence.
9. Aggrieved by the judgment and decree, dated 24th April, 1969, passed by the Civil Judge, respondents Nos. 2 to 7 filed an appeal under section 96, C. P. C. Which was heard by Mr. Hamzo Khan Kureshi, District Judge, Hyderabad, who by the judgment dated 9th November, 1970 set aside the judgment and decree by reversing the findings of the learned Civil Judge without stating the points requiring determination as required by the provisions of rule 41 of Order 31, C. P. C., the decision thereon and the reasons for the decision. He only generally dealt with the issues.
10. Being aggrieved by the judgment and decree of the learned District Judge, Hyderabad, the appellant has filed the present appeal.
11. I have heard Mr. Ibadat Yar Khan, Advocate for the appellant and Mr. Raja Qureshi, Advocate for the respondents Nos. 2 to 7. None appeared on behalf of respondent No, 1.
12. The learned counsel for the appellant has questioned the findings of the learned District Judge, on all the points decided by him. He submitted that the findings of the learned District Judge, are based on :-
(a) no evidence ;
(b) non-consideration of the material evidence on the record, or are ;
(c) in disregard of the provisions of Order 8, rules 3 to 5, C. P. C. ; and
(d) in disregard of the provisions of the Evidence Act as to burden of proof.
13. On the other hand, Mr. Raja Qureshi learned counsel for respondents Nos. 2 to 7 submitted that the findings of the learned District Judge that there was no agreement of sale between the appellant and respondent No, 1, that the agreement, dated 13th December, 1961, was obtained by the appellant by fraud, misrepresentation and undue influence, and therefore, the same was void, and that respondents Nos. 2 to 7 were bona fide purchasers for value without notice and they continued to be in possession since 1958, are based on evidence and are according to law.
14. In order to appreciate the respective contention it is necessary to state the points that required consideration. These are :
(1) Whether the respondent No, 1 had executed the agreement, dated 13th December, 1961 ?
(2) Whether the agreement was obtained by the appellant from respondent No, 1 by practising fraud or on misrepresentation or by exercising undue influence ?
(3) Whether the respondents Nos. 2 to 7 were the bona fide purchasers for value, without notice ?
(4) Whether the amount of Rs, 5,000 paid by the appellant to Abdul Majeed, respondent No, 1 as part of sale consideration or towards the lease of the land ?
15. So far as the first point is concerned, respondent No, 1 has not specifically denied in the written statement the execution of the agreement and he has rather admitted the execution of the agreement. Respondent No, 1 after generally denying the contents of paragraph 5 of the written statement, has stated as follows :- "5. As submitted above, the plaintiff was exercising undue influence on this defendant on account of his superior position and on account of the fact that the entire correspondence and papers pertaining to the grant of lands to this defendant from the Settlement Authorities were in the possession and custody of the plaintiff and also because this defendant was under the impression that on the basis of the general Power-of-Attorney the plaintiff could harm his interest and deprive him of his lands.
' In fact during course of time the plaintiff dealt with the property of this defendant in such a manner that the latter was deprived of the entire land except the suit lands by the misrepresentation of the plaintiff. Some of the defendants land comprising of 30 acres situated near Mirpurkhas were also got transferred by the plaintiff in the name of his wife without any consideration whatsoever. The plaintiff earned a lot of money out of the lands of the defendant but gaye him no accounts in spite of the defendant's requests therefor. In respect of the suit lands the plaintiff impressed upon the answering defendant that he should dispose of the same as it would difficult for him to manage it and that he would get him good price for that. Ultimately in November, 1961, the plaintiff wrote to this defendant to see that the land cannot be disposed of for more than Rs, 500 per acre. Thereafter the plaintiff came to Karachi in December, 1961 and asked this defendant to gave him a fresh power-of-attorney in the form of an authority to sell the land as he said that ' by doing so the defendant would be able to get higher price for his land. He further represented that without such authority he was unable to negotiate with the prospective purchaser. As this defendant as subsequently found out the plaintiff practiced fraud and misrepresentation and exercised undue influence on this defendant and induced him on that basis to sign a written stamp paper, the contents of which were not translated to the defendant. It is, therefore, denied that this defendant entered into the agreement of sale in respect of the suit lands and received consideration of Rs, 15,000" (underlining" is mine for emphasis).
16. From the above it is clear that the execution of the agreement was not being denied what was being alleged was that the appellant had executed the document as power-of-attorney and not as an agreement and the same was obtained by fraud and misrepresentation or by exercising undue influence on him.
17. Even, otherwise, so far as the execution of document is concerned it is proved by the evidence of Abdul Rasheed (Exh. 73) who stated that he was working as Oath Commissioner in Karachi and he signed the sale greement (Exh. 55) and the receipt acknowledging receipt of Rs, 5,000 (Exh. 56) as a witness. He further stated that the contents of documents were read over and explained to respondent No, 1, and that the documents and papers were produced before the Magistrate in whose presence the earnest money of Rs, 5,000 was paid to respondent No, 1 when he and the other witness to the agreement M. A. Ishaqi were also present and that the amount of Rs, 5,000 was of earnest money and not lease money and the Magistrate before whom the money was paid was dead.
' In the cross-examination he stated that he signed the agreement as a witness in the office of the Magistrate and in his presence the documents were not read over to Abdul Majeed before going to the Magistrate and that he was witness of payment of Rs, 5,000 to Abdul Majeed and not anything else and that he was witness for the signature of respondent No, 1 and others on the documents.
18. Muhammad Unis (Exh. 64) who is brother of the Magistrate before whom the agreement of sale was executed was also examined. He in his deposition, stated that he was well-versed with the signature of Muhammad Usif, his elder brother, who was posted as Additional City Magistrate at Karachi and who died in 1964. He identified the signature of his brother on [Here in italics] ' the sale agreement and receipt and stated that the endorsement thereon was in the handwriting of his brother.
' In cross-examination he stated that he knew the appellant since before the independence as he used to live in the same village in India and that his brother also knew him since those days.
19. The sale is also indirectly proved by the evidence of Moinuddin Ahmed Chishti (Exh. 94). The Assistant Rehabilitation Mukhtiarkar and A. S. C., Nawabshah who stated that in July, 1962, he was holding same post at Hyderabad and Abdul Majeed had failed an application before him on 16th July, (962 of which he issued notice to the parties and when they came he recorded the statement of respondent (Exh. 97). He produced the application and the statement as Exhs. '6-97. In his deposition before Moinuddin Ahmed Chishti (Exh. 94), respondent No, 1 has stated as follows ; "I had entered into an agreement with Mr. Ishagi for sale of survey Nos. 113, 114, 1151112, 116,6013 4, 61- 3, total area 29 Acres-23 ghuntas Den Sohrab pur Tappa Zarpir Taluka Hala and had received Rs, 5,000 in advance. Total price of the said agricultural land had been settled at Rs, 15,000. Rupees Ten Thousand, being the balance are still outstanding. Possession of the above-mentioned land has been with Mr. Ishaqi continuously."
(Underlining is mine for emphasis). ' do not want to keep Mr. Ishaqi as my special Attorney because he had promised to pay the entire price of Survey Nos. 113, etc. Measuring 29 acres-23 Ghuntas in Deh Sohrabpur, Taluka Hala within four months and has not made the payment as yet. Now I am being offered higher price for the said agricultural land and so I do not want to sell this land to Mr. Ishaqi and it is why I have cancelled this special power-of-attorney also."
20. The respondent No, 1 has not appeared in the witness-box to rebut the above evidence and the evidence of the appellant (Exh. 52) who proved the agreement and also deposed that he had paid Rs, 5,000 as earnest money, the note was written in Karachi and Abdul Rashid and Muhammad Akil were witnesses of the documents: The documents were also signed by the Magistrate and Muhammad Baig, Abdul Rauf had identified respondent No,
1. He further deposed that the documents were read over and explained to him and he had given the amount in the presence of the witnesses and the Magistrate. In cross-examination he had denied the case put forward by respondent No, 1 in the written statement.
21. So far as the allegations of fraud, misrepresentation and undue influence are concerned the burden to prove the allegations was squarely on respondent No, 1 but he did not step into the witness-box to prove these allegations nor did he examine any witness in support of the allegations. Al mere plea in the statement without proof is of no avail to a party unless it is specifically or by necessary implication admitted. In the present case' the statement was not verified on Oath and therefore, it could not be treated as evidence and it could not have been accepted. If any authority is needed reference may be made to a decision of the Supreme Court in list. Khalr-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (1), (Here in italics)
(1) PLD 1972 SC 25 ' wherein the rule was stated by Waheeduddin Ahmed, J, in the following words : "The statements made in the written statement are not on oath. They are only verified and therefore, they cannot be treated as evidence in the case."
' It may be stated that in this ease the second purchaser had died during the pendency of the suit before his evidence was recorded. He, therefore, could appear in person to deny the allegations. In support of the rule the reference was 'made to J. B. Bros. & Co. v. C. R. Seriven and others (1) and Muhammad Siddlque v. Bhupendra Narayan Roy Chaudhry (2). In the first named case it was held as follows : "A verification is required with a view to discourage, if not to prevent, the institution of false suits ; the Legislature never contemplated that verified statements should be treated as evidence on behalf of a plaintiff against a defendant. The inference may legitimately be drawn from the language used in section 191 read with section 193, I. P. C., that a verified statement would not be "evidence" but for the special provision of section 191 which has been enacted for a special purpose."
' In the second named case it was ruled as follows : "that written statement cannot be exhibit if defendant dies without being examined."
22. The learned Civil Judge has dealt with both the points as follows : "With regard to the execution of the sale agreement there is evidence of the plaintiff, Mohomed Abdul Majid Oath Commissioner and Muhammad Unis. Furthermore, plaintiff has also produced the statement of defendant No,
1. Exhs. 96 and 97 recorded by Moinuddin Chishti, Assistant Rehabilitation Mukhtiarkar, Hyderabad. Exhs. 96 and 97 are very important documents which throw much light on the points under consideration and is a complete answer to the defendants objections. Exh. 97 is the certified copy of the said statement of defendant No, 1 and Exh. 96 is an application which defendant No, 1 had moved before the Assistant Rehabilitation Mukhtiarkar against the plaintiff and, therefore, a notice Exh. 95 was issued to the plaintiff. During these proceedings, the statement of the defendant No, 1 was recorded and in this statement he admitted to have sold out the land in suit for a consideration of Rs, 15,000 and received Rs, 500 as earnest money from the plaintiff. He further stated that he did not want to complete the sale in favour of the plaintiff as he was offered some higher rate for the suit land. This statement was made by him on 25th July, 1962 and has further been proved through the evidence of Assistant Rehabilitation Mukhtiarkar Exh.
94. In this statement, defendant also admitted that the plaintiff has since been in possession of the suit land. In view of the defendant No, l's own admission before the Assistant Rehabilitation Mukhtiarkar, it is not open to the remaining defendant to allege certain facts on behalf of the defendant No, 1 who
(1) AIR 1917 Cal. 269 (2) PLD 1962 Dacca 643 ' himself had no courage to appear in the witness-box and assert the allegations set out by him in the written statement. I am, therefore, convinced that the allegations of fraud, misrepresentation and undue influence have not at all been substantiated and it is proved on record that defendant No, 1 executed the agreement of sale, dated 13th December, 1961 in respect of the suit land with the plaintiff and received Rs, 5,000 as earnest money."
23. So far as the judgment of the Appellate Court is concerned the learned District Judge has not at all considered the effect of the statement of respondent No, 1 (Exh. 97) before Moinuddin Ahmed Chishti, Assistant Rehabilitation Mukhtiarkar. He has further stated that the attesting witnesses to the document namely, M. A. Shafi and M. A. Rashid have not been examined. This statement does not appear to be correct for M. A. Rashid (Exh. 73) was examined and I have already referred to his evidence herein-before. Perhaps the error has occurred while noting his name as in the title of the deposition his name appears to be wrongly written as Abdul Majid otherwise, he was one of the marginal witnesses.
24. So far as M. A. Shafi is concerned, agreement (Exh. 55) does not show that any person by the name of M. A. Shafi had witnessed the agreement. Perhaps, M. A. Shafi has been read for M. A.
Ishaque who was none else, but admittedly the brother of the appellant. Since an independent witness namely, M. A. Rasheed was already examined in my opinion, it was not necessary to examine M. A. Ishaqui.
25. For the aforesaid reasons, I hold that the execution of the agree-I meat was proved and the burden of proof of the allegations that it was B executed by practicing fraud, misrepresentation for under undue influence, was not discharged by respondent No, 1 or otherwise.
26. I may now, deal with the fourth point first, namely, whether the amount of Rs, 5,000 was paid as lease money or earnest money. In this regard it would suffice to say that Abdul Majeed has not stepped into the witness-box while the document (Exh. 96) and receipt (Exh. 56) have been proved not only by the evidence of the appellant but also by the evidence of M. A. Rashid (Exh. 73), which proves that the amount of Rs, 5,000 was paid as earnest money.
27. I should not consider the remaining third point namely, whether respondents Nos. 2 to 7 were bona fide purchasers for value, without notice. So far as this point is concerned the burden of proof of the issue was squarely on respondents Nos. 2 to 7.
28. While considering the third point, the question that requires consideration is whether the contract between the appellant and respondent No, 1, could be enforced against respondents Nos.
2 to 7.
' In my opinion such contract could be enforced under section 27 (b) of the Specific Relief Act against respondents Nos. 2 to 7 as they admittedly acquired the title to the land subsequent to the contract. There is however, one exception it is that such a contract cannot be enforced if respondents Nos. 2 to 7 were the transferees for value to be paid in money in good faith and without notice of the original contract. I may here quote the provisions of section 27 (b) of the Specific Relief Act which read as follows "27 (b).-Any other person claiming under him by a title arising subsequent to the contract, except a transferee for value who has ' paid his money in good faith and without notice of the original contract."
29. Therefore, the further question that arises for consideration is whether respondents Nos. 2 to 7 are the transferees for value and who have paid the money in good faith and without notice of the original contract. The burden of proving that they were such transferees was surely on them and this proposition is well established. However, if any, authority is needed reference may be made to the Supreme Court decision in the case of Mst. Khair-ul-Nisa to which reference was made by Mr. Ibadat Yar Khan, the learned counsel for the appellant as well as by Mr. Raja Qureshi learned counsel for the respondents. It was observed therein at page 29 of the report as follows :- "It will be noticed that under this provisions of law, a contract can be specifically performed against any other, person claiming title to the property arising subsequently to the original contract but an exception has been made in the case of transferee for value who has paid him money in good faith and without notice of the original contract. It is, therefore, for the transferee to prove that he was a transferee in good faith and without notice of the original contract for valuable consideration. This provision of law has been the subject of interpretation in two decisions of the Privy Council, namely Bhup Narain Singh v. Gokul Chand Mahlon and others (AIR 1934 P. C. 68), and Shankarlal Narayandas Mundade v. The New Mofussil Co. Ltd, and others (AIR 1946 P C 97). The question whether a subsequent transferee can resist the suit on ground of good faith and without notice was also considered in the case of Varden Seth Ram v. Luckpathy Royjee Lallah (9 Moor's I. A.
307). On this subject,. The Privy Council observed in the case of Bhup Narain Singh as under :- "In their Lordships' opinion, the section lays down a general rule that the original contract may be specifically enforced against a subsequent transferee, but allows an exception to that general rule, not to the transferor, but to the transferee, and in 'their Lordships' opinion, it is clearly for the transferee to establish the circumstances which, will allow him to retain the benefit of transfer which prima facie he had no right to get. Further, the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lie, and the provisions of sections 103 and 106, Evidence Act, 1872, have a bearing on the question."
' In the case of Shankarlal Narayandas Mundade v. The New MOW Co. Ltd., the Privy Council observed as under - "Their Lordships have found it unnecessary to examine the evidence which was called on behalf of the plaintiff to show that these defendants in fact had notice of the earlier contract, since a decision of this Board is clear authority for the proposition that the burden of proving good faith and lack of notice lay upon the defendants."
It is thus quite clear that in a suit for specific performance of contra the onus lies heavily on the person whose title arises subsequent to the contract to sell and he must prove that he is a transferee for value and has paid the money in good faith and without notice of the original contract."
30. I am, therefore, required to examine whether the burden of proof was discharged by respondents Nos. 2 to 7 or not. It is, therefore, necessary that I must first state here certain facts. It is claimed by the appellant that on 9th July, 1962, on coming to know that respondent No, 1 was negotiating for sale of land with respondent No, 2, he sent, phonogram to respondent No, 1 through the Sub-Registrar, Hala and also requested the Sub-Registrar to stay the registration of the sale- deed. He produced duplicate of the phonograph (Exh. 53). According to the appellant he has also sent a telegram to respondent No, 2 informing him of his deal with respondent No, 1 but he refused to' accept the same and he produced in support of his claim a certificate (Exh. 54) which was taken on record without any objection from any quarter which states as follows.
(Exh. No, 54)
"PAKISTAN POSTS AND TELEGRAPHS DEPARTMENT ' I beg to inform you that your telegram No, 246 handed in on the 11-(torn62 addressed to Bachal Kamal, Kamla Goth Deh Sohrabpur Hala cannot be served owing to refused by addressee.
' OFFICE STAMP 26th July, 1962.
(Sd.) Illegible for Officer-in-Charge Telegraph Office."
31. Thereafter, the appellants filed a suit on 19th July, 1962, and also applied for injunction restraining the respondent No, 1 from executing any sale-deed in favour of respondents Nos. 2 to 7 or any other persons and the learned Civil Judge issued notice for 26th July, 1962 of the injunction application and at the same time granted ad interim injunction which was discharged on 26th August, 1962.
Against this order the appellant filed Miscellaneous Appeal, being Appeal No, 40 of 1962, which was partly allowed by the order, dated 1st January, 1963 and the order of the lower Court was modified to the extent that respondent No, 1 was restrained from executing any document, or taking any action in the matter. The remaining respondents were also restrained from taking any further action in the matter so far as the transfer of the land was concerned. However, it appears that on 22nd July, 1962, just?' 2 days after the passing of the order of discharge of injunction by the Civil Judge, the sale deed was got registered which purported to have been executed on 12th July, 1962.
32. It is submitted by Mr. Khan that the respondents failed to prove that they had purchased the land bona fide for value and without notice inasmuch as respondents Nos. 2 to 6 did not step into the witness-box to prove that they had no notice and only respondent No, 7 had stepped into the witness-box where he stated that in 1962, they entered into the transaction with Abdul Majid respondent No, 1 for the purchase of the land for Rs, 44,362/50 and they paid the aforesaid consideration to respondent No, 1 and they had also obtained permission for the purchase of the land from the Deputy Commissioner and after obtaining the permission the sale-deed was executed in favour of respondents Nos. 2, 3, 6 and 7 and at the time of purchase they did not know that respondent No, 1 had agreed to sell the land to the appellant and they did not receive any notice from the appellant.
' In cross-examination he stated that the sale-deed was executed perhaps in July, 1962 and there was no agreement of sale before the execution of the sale-deed and that he had asked respondent No, 1 to produce papers relating to title but he had shown them Khatauni. He denied the suggestion that all the papers relating to the title of the land were with the appellant, although in the written statement respondent No, 1 has admitted that all the papers relating to the title to land were with the appellant and this respondent has also adopted the written statement of respondent No,
1. He denied the suggestion that they went to Mumtaz and requested him to ask the appellant to sell the land to them. He also denied the suggestion that they had approached the appellant for purchase of the land. He also denied that on 9th July, 1962, appellant had sent telegram to respondent No, 2 informing him to purchase the suit land. He denied the suggestion that he did not pay any amount of consideration to respondent No, 2 and that the amount mentioned in the sale-deed was exaggerated. He has also denied that the appellant had filed suit in which he had obtained injunction restraining them from purchasing the land. It may be mentioned that Mumtaz Ali (Exh. 67) has deposed that he knew appellant and respondents and that about 3 years from the date of deposition respondent Umer had a talk for sale of the land with him and he Mumtaz Ali told him that the land which the appellant had purchased might be sold to him (Umer) and he talked with the appellant but he was not prepared to sell the land. Mumtaz had further deposed that the appellant had given the land to Allah Obey.
33. Now, admittedly all the respondents except Umer have not stepped into the witness-box to prove that they were purchasers for the value and without notice. In view of the claim made by the appellant that he had sent a telegram to respondent Bachal it had become all the more necessary for Bachal respondent No, 2 that he should have appeared in Court to state that he had not refused telegram and that he had no knowledge of the contents of the telegram or of the transaction between the appellant and respondent No,
1. The respondent Umer has appeared but on the basis of his deposition it cannot be said that the other respondents had no knowledge. Mr. Raja laid much emphasis on the word "WE" used by witness Umer to say that other respondents also had no knowledge but if witness Umer has used the word "WE" on the basis of any communication made by other respondents that would be "hearsay". Therefore, all the respondents except respondent No, 5 have altogether failed to discharge the burden. They must be having- knowledge of the transaction between the appellant and the respondents as notice of injunction application and ad interim injunction was issued to them on 19th July, 1962, while the sale-deed was registered on 22nd August, 1962. It was submitted by Mr. Raja that the sale-deed is dated 12th July, 1962 and, therefore, it must have been executed on that date. If the same deed was executed on 12th July, 1962 there is no explanation why it was not presented for registration between 12th July, 1962 and 19th July, 1962. It was submitted by Mr. Raja that permission from the Deputy Commissioner was to be obtained but the permission for registration was granted post facto on 29th November, 1962 vide Exh. 120 on an application made by respondent No, 1 on 22nd August, 1962. In any case, it was submitted by Mr. Raja so far as Umer is concerned he had discharged the burden of proof that the transfer was for consideration and he had no prior notice as he had stopped into the witness-box and deposed so and that was sufficient to shift the burden on the appellant who has failed to discharge the same. The execution of the sale-deed was witnessed by two witnesses one of them appear to have signed the sale-deed on 12th July, 1962, while the other Gul Muhammad appears to have signed- the sale-deed on 17th July, 1962. Both the witnesses appear to have signed the sale-deed at Hala. Even Umer has not stated date on which the sale-deed was executed. He has stated that the sale-deed was executed "perhaps in July, 1962". Since the sale-deed was signed by two witnesses on different date i. e. 12th July, 1962 and 17th July, 1962 and the sale-deed bears only one signature of the respondent No, 1, therefore, one of the witnesses could not have been witnessed the execution of the sale-deed. These witnesses have not been examined. Therefore, the execution of the sale-deed on 12th July, 1962, or 17th July, 1962 is doubtful. In the light of the above circumstances it may be reasonable to infer that a back date has been put on the sale-deed to avoid the consequences of ad interim injunction which was issued on 19th July, 1962. Further, it is really unusual that the whole amount of consideration was paid even before permission to transfer the land to respondents Nos. 2 to 7 was applied or obtained. Normally before execution of the sale-deed, the parties enter into an agreement to sell and pay part of the consideration and pay balance amount of consideration before the Sub-Registrar. In this case admittedly no amount of consideration was paid before the Sub-Registrar. No receipt of payment has been produced. Nor is it stated how much amount was paid by each transferee. Even Umer has not stated as to how much amount he paid for this share. Further, the documents of title to the land were with the appellant as admitted in the written statement of respondent No, 1 which was adopted by other respondents and, therefore, they must have been put to enquiry and they must have come to know of the transaction between the appellant and respondent No,
1. Appellants and Mumtaz Ali's evidence also support this conclusion. In any case, if other respondents had notice for the above-stated reasons and they must have told Umer about the earlier transaction between the appellants and respondent No, 1, moreso when Umer was related to them and then he must be having knowledge of the filing of the suit and injunction application and admittedly the sale-deed was registered during the pendency of the suit. On this point the learned Civil Judge stated as follows : "Apart from this, it was pointed out that there are other circumstances which obviously go to show that the defendants 2 to 7 have had sufficient knowledge of the agreement of sale in favour of the plaintiff. In this regard, my attention was drawn to para. 6 of the written statement wherein it was contended "The defendant was offered Rs, 15,000 per acre by Bachal, Sons, Achar and Umer. On this the defendant came to contact the plaintiff had told him to hand over the papers pertaining to his lands including documents he had obtained from defendant at Karachi. The plaintiff refused to do so saying that the defendants had no right in land. On this the defendant gave a petition to the D. L.
C.'s office that the plaintiff had refused to hand over the papers and had also not given the lease money. The enquiry was conducted by an Assistant Rehabilitation Mukhtiarkar at Hyderabad to whom this defendant gave all the facts submitted above......"
' These facts go to show that plaintiff openly denied the title of defendant No, 1, It is admitted position that plaintiff was dealing' With defendants 2 to 7 in respect of the suit land previously on behalf of the defendant No,
1. It was argued that these circumstances were quite sufficient to put the transferee-defendants on their guard and to make proper investigations and enquiry before making any deal with the defendant No, 1 who was not even properly known to them. It was canvassed before me that it would not be conceivable that any prudent person would enter into a transaction of purchase with a person who does not possess the title deeds and who is also not properly known to him. It was also stressed before me that the alleged sale-deed was executed by the defendants in haphazard and abnormal circumstances. Admittedly, there was no agreement of sale prior to the execution of the sale-deed. The defendant No, 1 had not obtained the required certificate from the Deputy Commissioner upto 21st July, 1962 but yet the sale-deed was executed on 12th July, 1962 and the entire consideration was alleged to have been paid. This only creates doubt and suspicion as to the bcna fides of the defendants and would further show that the behaviour and attitude of the defendants-transferees is absolutely abnormal and unusual and the only reason for it was that they were quite aware of the first agreement and were also aware of the fact that the plaintiff was taking legal proceedings in the Court of law to prevent them from purchasing the suit land. It was also submitted that even otherwise the transaction in favour of the defendants has been completed during the pendency of the suit and therefore, it does not affect the rights of the plaintiff and as such no title could be passed in favour of the defendants more particularly when a notice of pendency of the present suit under section 52 of the Transfer of Property Act as amended by the Transfer of Property and Registration Sind Amendment Act XIV of 1939 was registered by the Sub-Registrar, Hala on 21st July, 1962 vide Exh. 72.
These are cogent reasons. Respondents 2 to 7 above, therefor failed to prove that they were bona fide purchasers for value and without notice.
34. So far as the lower Appellate Court is concerned it was clearly in error when it observed that the burden was also on the appellant to prove that other respondents had notice that the land was sold to him. I may here quote the conclusion arrived at by the learned Judge.
"The burden was also on him to prove that defendant Abdul Majid had executed the agreement in his favour on 13th December, 1961. It was also for him to prove that the other defendants had notice that the land was sold to him."
35. I may here note that it was argued by Mr. Ibadat Yar Khan that mere plea of want of notice in the written statement by the respondent or plea of want of notice by wi' less Umer and denial of knowledge of the transaction by Umer witness in the witness-box is not sufficient. Indeed Mr. Lbadat Yar Khan relied on Bhup Narain Singh v. Gokul Chand Mahton and others (1). He particularly referred to the following passage in the judgment which was quoted from an earlier judgment of the Privy Council in Varden Seth Sam v. Luckpathy Royjee Lallah (2), which reads as follows : "In delivering the judgment of this Board, Lord Kingsdown stated :. "Though both the third and the last defendants pleaded, in effect, that
(1) AIR 1934 P C 68 (2) (1881)9 M L A 303 ' they were bona fide purchasers for value without notice, yet they did not prove that defence, though the plaintiff charged notice and collusion with- defendant 1."
' And, later : "The question to be considered is, whether defendants 3 and 6 respectively possessed the land free from that lien, whatever its nature. As one who owns property subject to a charge can, in general, convey to title higher or more free than his own, it lies always on a succeeding owner to make out a case to defeat such prior charge. Let it be conceded that a purchaser for value, bona fide, and without notice of this charge whether legal or equitable, would have had in these Courts an equity superior to that of the plaintiff, still such innocent purchase must be, not merely asserted, but prove in the cause, and this case furnishes no such proof."
36. On the other hand, it is submitted by Mr. Raja Kureshi that our Supreme Court in Khair-ul-Nisa's case has not gone to the extent to which Privy Council had gone and it has been held that mere denial of knowledge by the defendant in the witness-box is sufficient to discharge the burden of proof and in such a case the burden shifts to the plaintiffs. Although I am not required to go into this point for I have already held that witness Umer also had or must be deemed to have knowledge, yet I would say that the Supreme Court in the cited case has not differed from the observations of the Privy Council, on the contrary the Court seems to have followed the cases and have referred to them with approval.
37. For the reasons given above, I set aside the judgment and decree of the first Appellate Court and restore the decree of the Trial Court However, on the facts and in the circumstances of the case, I leave the parties to bear their own costs of this appeal.