' SAAD SAOOD JAN, J.--This regular first appeal from the judgment and decree dated 16-9-1979 of the Senior Civil Judge, Sheikhu pura whereby the suit of the appellant for possession of agricultural land by specific performance of an agreement to sell was dismissed with costs.
2. Respondent No,1 was owner of the land in dispute, measuring 284 Kanals and 15 Marlas, situate in Chak No,35/R.B, Daulatpura, of Tehsil Sheikhupura. By an agreement dated 8-5-1972 he agreed to sell this land to the appellant and respondent No,2 for a,'suin of Rs,96,200, At the time of entering into the agreement he received Rs,15,000 by way of earnest money. The sale was to be completed by 15-11-1972. Despite this agreement, by a registered safe-deed, dated 16-3-1973, he sold the said land to respondents Nos.4 to 7.
3. In the plaint the case of the appellant was that under the agreement dated 8-5-1972 the land was to be sold to him and respondent No,2 in equal shares. Respondent No,2 was short of funds.
Therefore, the entire amount of the earnest money, that is, Rs,15,000 was paid by him. Subsequently, on 15-5-1972 he alone paid another sum of Rs,10,000 to respondent No,1, A few days before the date appointed for the completion of the sale respondent No,2 expressed his inability either to purchase the land or to pay his part of the consideration. Consequently, all the three parties, that is, respondents Nos.1 and 2 and the appellant, orally agreed that the land would be transferred by respondent No,1 to the appellant alone. In terms of the said oral agreement he (that is, the appellant) paid further sums to respondent No,1 on account of the sale price of the land.
4. It was also alleged by the appellant that respondents Nos.4 to 7 were fully aware of the agreement he had with respondent No,1 in regard to the land in dispute and also of the various payments he had made thereunder, yet by a sale-deed dated 16-3-1973 they purchased the land in dispute from respondent No,1.
5. Respondents Nos.1, 2 and 3 did not appear before the trial Court. Consequently, the proceedings were held ex parte in so far as they were concerned. It may be mentioned that respondent No,3 is the son of respondent No,1 and he was impleaded as a party to the suit by the appellant as some of the payments had been allegedly made through him.
6. The claim of the appellant for specific performance of the agreement was resisted by respondents Nos.4 to 7. They alleged that they had no knowledge of any agreement to sell in respect of the land in dispute between the appellant and respondent No,1, On the other hand they had notice of an agreement of the said nature between respondent No,2 and respondent No,1 but before purchasing the land from respondent No,1, respondent No,2 had informed them that he had given up rights under the agreement. To make the position more secure they had made respondent No,2 to attest the sale-deed.
7. On the pleadings of the parties the trial Court framed the following issues:-
(1) Whether defendant No,1 entered into an agreement on 8-5-1972 to sell the suit land to the plaintiff and defendant No,2 for Rs, 96,200?
(2) Whether plaintiff has paid Rs,65,500 out of sale consideration?
(3) Whether plaintiff remained ready and willing to perform his part of the contract?
(4) Whether defendants Nos.4 to 7 are bona fide transferees for value and without notice of the agreement?'
(5) Whether plaintiff alone is not entitled to the specific performance of the agreement?
(6) Relief.
' The learned trial Court found that the appellant had failed to prove that there was any agreement between him and respondent No,1 for the sale of the land or that he had already paid Rs,65,500 out of the sale consideration to the. latter. It also decided issue No,3 against the appellant and further held that respondents Nos.4 to 7 were bona fide transferees for value and without notice of the agreement set up by the appellant. It also took the view that the appellant alone was not entitled to specific performance of the agreement. Accordingly, it dismissed the suit with costs. The appellant has now come in appeal to this Court.
8. Before we proceed to consider the merits of this appeal we may take notice of two applications made by the appellant. One is for leading additional evidence and the other is for the amendment of his plaint. In the application for amendment two changes have been sought in the plaint. The first change is intended to enable the appellant to plead in paragraph 3 of the plaint another payment of Rs,16,000 made through a bank draft, and make a consequential substitution of the figure Rs,65,500 with the figure Rs,81,500 in paragraph 4 of the plaint. By the second change an alternate relief for the refund of the money, paid to respondent No,1 in case the relief of specific performance is not granted, has been sought. It is to be noticed that neither of the two changes has the effect of transforming the nature of the suit. In fact evidence with regard to the payment made through a bank draft has already been brought on the record. The amendments will thus not prejudice the case of any party nor will they take any of them by surprise. They will also not necessitate further recording of evidence. We would accordingly allow the amendments and direct that the same be incorporated in the plaint.
9. The amended plaint has already been filed.
10. As regards the prayer for additional evidence we are unable to accede to it. It is to be noticed that the issues were framed as far back as 6-3-1974 and the appellant was given as many as 13 opportunities to lead his evidence over a span of three yeaRs, The appellant did not file any list of witnesses as required by rule 1 of Order XVI of the Code of Civil Procedure. Apparently, he did not take the opportunities A given to him very seriously, for, sometimes he would produce one witness and at others none at all. Except for one or two occasions, he did not even get any summons issued through the Court. Ultimately on 21-3-1977 the learned trial Judge was left with no other choice but to close his evidence. On that day one of his witnesses, namely, Shah Muhammad was present but he had not been included in the list of witnesses. The learned trial Court was, therefore, justified in declining to record his testimony.
11. One of the grievances of the appellant was that on the day his evidence was closed he was present in person yet the Court is not record his statement. This grievance seems to be baseless.
There is nothing on the record to show that when the Court was about to close his evidence he had come forward to get his own statement recorded. Even in the memorandum of appeal submitted in this Court he has not taken up the position that even though he was willing to get his statement recorded the Court had declined to take it down. As he had been grossly negligent in availing opportunities for leading evidence B before the trial Court, the application for leading additional evidence is rejected.
12. As regards issue No,1 we are unable to support the findings of the learned trial Court that the appellant had failed to establish the agreement which he had entered into with respondent No,1 on 8-5-1972. The agreement was witnessed by a deed which is Exh.P-3 on the record. It was scribed by $yed Karar Hussain (PW-2), a petition writer of Sheikhupura. He stated that he had written this document on the dictation of the parties and Sarfraz Mehmood had appended his signatures in his presence. It is true that he was not personally acquainted with Sarfraz Mehmood, respondent No,1 but then we have the statement of Abdullah Khan (PW.3) to fix the identity of the executant. In pursuance of the agreement the appellant had paid a sum of Rs,13,000 to respondent No,1 on 5-1- 197.4. To witness this payment receipt (Exh.P-4) wasi, executed. Abdullah Khan (PW-3) was an attesting witness to this receipt. He was personally acquainted with respondent No,l, In this receipt there is a clear reference to the agreement (Exh. P-3). This receipt too was scribed by Syed Karar Hussain (P.W.2). Reading the statement of this witness together with the statement of Abdullah Khan (PW-3) it is quite clear that the executant of the agreement Exh.P-3 was the same Sarfraz Mahmood who had executed the receipt Exh.P-4. It need hardly be added that respondent No,1 has not cared to defend the suit or deny the execution of the agreement Exh.P-3. We would therefore hold that respondent No,1 did execute the deed Exh.P-3 and, according to the terms of the said deed he did enter into an agreement with the appellant together with respondent No,2 to sell the land in dispute to them for a sum of Rs,96,200.
13. However we are in agreement with the learned trial Court that respondents Nos.4 to 7 were bona fide transferees for value and without notice of the agreement of 8-5-1972.There is no evidence whatsoever to indicate that these respondents had any knowledge or they could by reasonable diligence obtain information about the said agreement. No doubt they did admit that they were aware of respondent No,1's agreement with respondent No,2 but then they alleged that respondent No,2 had told them that he had surrendered his rights thereunder. The fact that respondent No,2 is an attesting witness to the sale-deed executed in their favour by respondent No,1 supports their contention. It is to be noticed that when respondent No,4 appeared in the witness-box he was not even questioned about the agreement of 8-5-1972. Considering that respondent No,2 had willingly become an attesting witness to the sale-deed, there is a very strong possibility that he had not informed the vendees thereunder about the agreement with the appellant. We would, therefore, hold that respondents Nos. 4 to 7 purchased the land in dispute while ignorant of the fact that there was already an agreement to sell executed by respondent not in favour of the appellant. It is not the case of the appellant that the sale-deed executed by respondent No,1 in favour of respondents Nos.4 to 7 was without consideration.
14. As regards the payments made by the appellant to respondent No,1 we have the following evidence on the record:-
(i) At the time of the execution of the agreement to sell a sum of Rs,15,000 was paid by the appellant to respondent No,l, This payment is mentioned in the agreement to sell itself and is supported by the evidence of Syed Karar Hussain (P.W.2).
(ii) An amount of Rs,13,000 was paid on 5-1-1973 to respondent No,l, This payment stands established by receipt Exh.P-4 which was scribed by Syed Karar Hussain P.W. 2 and attested by Abdullah Khan P.W.3.
(iii) An amount of Rs,20,000 was paid on 2-12-1972 to respondent No,1, This payment was witnessed by receipt Exh.P-5 which was scribed again by Syed Karar Hussain P.W.2. We have already mentioned that the identity of Sarfraz Mehmood, respondent No,1 stands established when we read the statements of Syed Karar Hussain P.W.2 and Abdullah Khan P.W.3 together.
(iv) A payment of Rs,16,000 was made through a bank draft issued by the Muslim Commercial Bank, Panwan Branch. In respect of this payment we have the statement of the ManLger of the said Branch and the Accountant of the said Bank of tire Nile Bumbad Branch.
We see no justification to disbelieve any of these payments as the evidence in support of them has not been in any way rebutted. Thus, we hold that the appellant has been able to establish that he paid Rs,64,000 to respondent No,l, It in hardly be added that respondent No,1 has not cared to appear in the Court to deny having received these amounts.
15. It is to be noticed that the appellant had already paid a major portion of the consideration to respondent No,1, that is, Rs,64,000 out of Rs,92,600, Thus only Rs,28,600 remained to be paid. He brought the present suit on 7-6-1973 within three months of the sale in favour of respondents Nos. 4 to 7. It is, therefore, reasonable to presume that he was ready and willing to perform his part of the agreement for the completion of the sale.
16. In view of the fact that respondents Nos. 4 to 7 were bona fide purchasers without notice they are covered by the exception contained in section 27(b) of the Specific Relief Act and as such the agreement of sale set up by the appellant cannot be enforced against them but, then, we see no reason why respondent No,1 should not be made to return the money which he had received from the appellant on different dates under the agreement. We have already found that the payments of a total sum of Rs,64,000 stand established on the record.
17. It is contended on behalf of respondents Nos.4 to 7 that under the agreement dated 8-5-1972 respondent No,1 had promised to sell the land to the appellant and respondent No,2 jointly, Consequently, the appellant alone was not competent to seek specific performance of the agreement; nor, if the same was refused, to obtain the refund of the various amounts paid by him to respondent No,1 as the suit was not properly constituted. In support of this contention reliance is placed upon the case of Jaffar Khan v. Muhammad Achar PLD 1961 Kar.
335. In reply it was stated on behalf of the appellant that the objection raised by the said respondents was frivolous inasmuch as by subsequent oral agreement to which reference has already been made in the plaint all the three parties to the deed of 8-5-1972 had agreed that the land in dispute would be transferred to the appellant alone; further, as respondent No,2 had colluded with respondents Nos.4 to 7 it was not necessary for the appellant to join him as a plaintiff in the suit. Consequently, the objection with regard to the proper constitution of the suit was without foundation.
18. It is true that the appellant had pleaded in his plaint the oral agreement whereby all the parties to the deed of 8-5-1972 had allegedly agreed that the land would be transferred to him alone but there is no evidence in support of this oral agreement. Even the appellant himself did not appear in the witness-box to depose about this subsequent agreement. However, we do not think that the suit o the appellant can be thrown out merely because respondent No,2 has not joined him I in seeking specific performance of the agreement of 8-5-1972 in view of the fact that respondent No,2 has been impleaded as a party to the suit. If respondent No,2 was not interested in seeking specific performance of the agreement there was no reason at all why the appellant who made all the payments under the agreement should be denied the same right. It was sufficient for the appellant to have impleaded respondent No,2 as a party to the suit. In support of the view which we take we would refer to a decision of the Punjab Chief Court reported as Muhammad Ali v. Muhammad Shah 12 I C 850. In this case a lease was executed jointly in favour of a large number of persons. When the lessors declined to abide by the agreement of the lease some of the lessees filed a suit for specific performance and they impleaded their co-lessees who were no longer interested in the lease as defendants. An objection was raised that the suit of specific performance could only be brought by all the lessees. This objection was overruled by a Division Bench, and it was held that the agreement could be specifically enforced at the instance of those lessees who were interested in its performance. A similar view was expressed by a Full Bench of the Calcutta High Court in Pyari Mohun Bose v. Kedarnath Roy I L R 26 Cal.
409. The case reported as Jaffar Khan v. Muhammad Achar is not relevant as here the co- promises were not impleaded as parties to the suit. In view of the above legal position we repel the objection with regard to the proper constitution of the suit.
19. For the reasons stated above although we dismiss the claim for specific performance of the agreement but we pass a decree in the sum of Rs,64,000 with proportionate costs in favour of the appellant and against respondent No,l, As the conduct of respondent No,1 was thoroughly dishonest and he was solely responsible for this prolonged litigation between the parties we direct that he should bear the costs of all the parties throughout.