' House No, C/1069 situate in Kohat City was in the possession of Muhammad Hasham respondent No, 1 herein. It was evacuee property and put to auction and the highest bid being that of respondent No, 1 a P. T.
0. Was issued in his favour on 5-10-1961 for a transfer price of Rs, 12,673. The respondent No, 1, after the receipt of the P. T.
0. Executed a mortgage deed and an agreement to sell in favour of the petitioners herein on 6- 10.1961 and both the said deeds were registered on 12-10-1961. According to the mortgage-deed the suit house was mortgaged for Rs, 15,000 and the entire amount had been received by respondent No, 1 and the agreement to sell narrates that he had to execute the sale-deed in favour of the petitioners herein without receiving any more price except the said mortgage amount. The respondent No, 1 then put the petitioners in possession of the suit house. The permanent transfer deed of the suit house was issued in favour of the respondent No, 1 on 24-2-1976 and instead of executing a sale-deed in favour of the petitioners, he executed a sale-deed on 18-3-1976 in favour of Muhammad Ramzan, respondent No, 2 herein. According to this sale-deed, the equity of redemption of the suit house was Rs, 65,000 besides the mortgage amount and this deed was registered on 20-3-1976. After the execution of the sale-deed in his favour, the respondent No, 2 filed a suit on 8-4-1976 against the petitioners herein for redemption of the suit house whereupon the latter came to know of the second sale and instituted the present suit on 14-4-1976 in the Court of Senior Civil Judge, Kohat for specific performance of the agreement to sell. The suit was contested by the respondents herein and the trial was held on the following issues :-
(1) Whether the plaintiffs have got a cause of action ?
(2) Whether the plaintiffs are estopped from suing ?
(3) Whether the suit is properly valued for the purposes of court-fee and jurisdiction ?
(4) Whether the suit is within time ?
(5) Whether the agreement in dispute is inadmissible in evidence, fictitious, fraudulent ?
(6) Whether the rights of defendant No, 2 are protected under section 41, T. P. Act ?
(7) Whether the defendant No, 2 has purchased the suit house for Rs, 65,000 in good faith by a registered sale-deed, if so, its effect ?
(8) Whether suit house was mortgaged to the plaintiffs by defendant No, 1 and it was not agreed to be sold to the plaintiffs ?
(9) Whether the plaintiffs are entitled to a decree for specific performance of the agreement deed dated 12-10-1961 regarding the suit house ?
(10) Whether the sale-deed in favour of defendant No, 2 by defendant No, 1 is void and ineffective on the rights of the plaintiffs ?
(11) Relief ?
' After recording the evidence, as produced by the parties, the learned Senior Civil Judge dismissed the suit of the petitioners herein vide judgment dated 25-10-1979. The appeal of the petitioners filed in the Court of learned Additional District 'ridge, Kohat was also dismissed on 27-5-1980. Hence the present revision petition.
2. Learned counsel for the petitioners challenged both the impugned judgments on the grounds ; firstly, that the petitioners herein were entitled to the transfer of the suit house in their favour on the basis of the agreement to sell which had to be specifically enforced as being pertaining to immovable property ; secondly, both the learned lower Courts had wrongly assumed that the agreement to sell was without consideration ; and thirdly, the respondent No, 2 was not a bond fide purchaser.
3. In so far as the first ground is concerned, originally the contention of respondent No, 1 was that he had executed no agreement to sell in favour of the petitioners herein although he admitted the factum of mortgage. But in his evidence he admitted his signatures on both the documents, namely, the mortgage deed and the agreement to sell and pleaded that they were without consideration. However, in the sale-deed in favour of respondent No, 2 he had admitted the factum of mortgage in favour of the petitioners. He did not produce any evidence to show that he had not executed any agreement to sell in favour of the petitioners or that the said agreement was executed under duress or misrepresentation. It is a registered document and its contents and execution have been proved according to law. The mere denial of A execution and then admission of signatures thereon by the respondent No, 1 clearly proves the execution of this document. It shall thus be seen that the agreement to sell in question was actually executed by the respondent No, 1 in favour of the petitioners and it was also got registered. The existence of these documents cannot, therefore, be denied. This agreement pertaining to the sale of immovable property had to be specifically enforced.
2. So far as the second ground is concerned, it may be mentioned that the transfer price of the suit house was Rs, 12,673 and it was mortgaged with the petitioners for Rs, 15,000. It appears that the intention of the parties was that this mortgage amount shall be the sale price of the suit house and that is why no other amount as sale price was mentioned in the agreement to sell. The mere fact that the vendor agreed not to receive any additional amount as sale price besides the mortgage amount would not make the agreement to sell a fictitious document or the transaction as without consideration. _Even otherwise this was not the plea of the respondent No, 1 in his pleadings. By holding that the agreement to sell was without consideration, both the learned lower Courts have travelled beyond the pleadings of the parties and have taken into consideration matters extraneous to the pleadings. During the days when the suit house was intended to be sold to the petitioners, Rs, 15,000 could be reasonable price thereof and the respondent No, 1 willingly and voluntarily agreed to transfer the suit house in favour of the petitioners On that very price, which he had received in toto as mortgage charge. There was nothing wrong or illegal in that agreement.
Inadequacy of price of immovable property can hardly be a ground for refusing specific performance. In this connection, reference may with benefi be made to the case of Ali Muhammad Khan v. Riazuddin Khera (1). 11 respondent No, 1 having put the petitioners in possession of the suit hou and having agreed to sell the same to them subsequently cannot be allowed to resale from the said undertaking and in this respect reference may be mad to the case of Muhammad All Khan and another v. Malik Muhammad lbrahim and another (2).
' S. The third ground of attack by the learned counsel for the petitioners on the impugned judgments also appears to be valid. The mortgage deed and the agreement to sell executed in favour of the petitioners were both registered documents. The petitioners were put in possession of the suit house and they were living therein. When the suit house was purchased by respondent No, 2, it was in the occupation of the petitioners. It was, therefore, imperative for the respondent No, 2 to have made inquiries and satisfied himself about the nature of the occupation of the petitioners and should have made detailed inquiries in this respect. He should not have relied upon the oral assurance of respondent No, 1 to the effect that the suit house was only mortgaged with the petitioners. Had he taken the trouble of contacting the petitioners themselves to find out the nature of their possession, he would have definitely been informed by them that they are not only the mortgagees, but also vendees thereof and hold a valid agreement to get the suit house sold in their favour. The mere fact that the respondent No, 2 paid the D price of the suit house cannot be a ground to hold that he is a bona fide purchaser and his rights are projected under section 41-A of the Transfer of Property Act. As a prudent man he should have satisfied himself in all respects before entering into any sale-deed regarding the suit house. In the circumstances, he cannot be.
Held to be bona fide purchaser and in this respect reference may be made to the cases of Shukry and 3 others v. Chaudhry Muhammad Shafi Zaffar and 2 others (3) and Said Habib v. Haji Muti-ur- Rehman and 5 others (4).
6. The net result of the above discussion is that both the learned lower Courts have acted with material irregularity in the disposal of the _ suit and the appeal, and both the impugned judgments are not sustainable. I would, therefore, accept this revision petition with costs throughout. M. z. M. .
(1) PLD 1981 Kar. 170 (2) 1983 SCMR 824
(3) PLD 1975 Lah. 619 (4) 1980 CLC 1450