' Noor Muhammad petitioner, purchased 40 Kanals 10 Marlas of land situated in Mauza Mehrabwala, Tehsil Ahmadpur East, District Bahawalpur, in open auction from the Provincial Government on 29-6-1960. The proprietary deed was issued in his name on 26-4-1962 and a mutation was also sanctioned in his favour and this fact was reflected in Jamabandis for years 1964-65 till 1972-73. However, on 21-11-1961, 29 Kanals 8 Marlas out of the said land were allotted and confirmed by Rehabilitation and Settlement Department in the name of Muhammad Abdul hassan, respondent. Learned Custodian of Evacuee Property, West Pakistan, Lahore, vide order 13-9-1962, declared the land allotted to Muhammad Abdul Hassan, respondent, as evacuee property and consequently, Deputy Commissioner/Collector, Bahawalpur, on 26-2-1974 cancelled the proprietary deed dated 26-4-1962 issued in favour of the petitioner. Being aggrieved, the petitioner filed appeal before Additional Commissioner, Bahawalpur, who accepted the same on 18-5-1974 bust a learned Member, Board of Revenue, by his order dated 10-2-1977 passed in revision filed by the respondent reversed the order of Additional Commissioner. The petitioner then instituted present civil suit for obtaining a declaration to the effect that he was owner in possession of the suit land and that the order of learned Custodian, Evacuee Property, West Pakistan, dated 13-9- 1962 declaring the said property as evacuee and order of Member, Board of Revenue, Punjab, dated 10-2-1977 restoring the order cancelling conveyance deed in favour of the petitioner be declared illegal, void and inoperative against his rights. He also prayed for perpetual injunction restraining the respondent from interfering with his possession or cutting the trees from suit land.
This suit was resisted by the respondent on the grounds, inter alia, that the disputed property being evacuee has been confirmed in his name by the Rehabilitation and Settlement Department and Civil Court had no jurisdiction to try the suit; that the matter had finally been disposed of learned Custodian of Evacuee Property, West Pakistan, and also by learned Member, Board of Revenue, and those decisions operate as res judicata between the parties; that the suit was barred by time and that the petitioner had no locus standi to file the suit. On the basis of pleadings following issues were framed:-
(1) Whether the suit land was not evacuee property? If so, to what effect? O.P.P.
(2) Whether this Court has no jurisdiction to try this suit, O.P.D.
(3) Whether the suit is barred by limitation? O.P.D.
(4) Whether the suit is hit by res judicata? O.P.D.
(5) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction?
O.P.D.
(6) Whether the plaintiff is an owner in possession of the suit land? O.P.P.
(7) Relief.
2. On consideration of the evidence adduced by the parties, learned trial Court decreed the suit.
However, on appeal filed by the respondent, learned District Judge, Bahawalpur, by his judgment dated 1-4-1984 while reversing the findings of learned trial Court dismissed petitioner's suit observing that since the matter involved adjudication as to the title of disputed property, therefore, Civil Court has jurisdiction to try the suit but he held the suit as barred by limitation and res judicata.
3. Learned counsel appearing on behalf of the petitioner submits that the suit property was not evacuee since learned Custodian of Evacuee Property's order dated 13-9-1962 does not give description of the property it related to therefor, it cannot operate as res judicata between the parties qua the suit property.
4. I have gone through the order of learned Custodian which shows that the property in dispute originally was the Jagir of Nawab of Bahawalpur which was put to auction on 17-6-1945. It was purchased jointly by Haji Muhammad Mubarak and Ganga Ram in the share of 1/16th and 15/16th, respectively. On 24-6-1945, Ganga Ram executed agreement to sell 9/16th share in favour of Haji Muhammad Mubarak on the condition that the latter would pay Rs.2,584-3-9 within 8 years by instalments or in lump sum. Haji Muhammad Mubarak did not pay anything to Ganga Ram so long as he remained in Pakistan. In fact he did not pay a single pie to Ganga Ram till he left for India. The prescribed period of 8 years expired in the year 1955. In these circumstances, learned Custodian declared the property to be evacuee. In the written statement filed by the respondent, under its heading "On Facts" in paragraph 2, it is stated that the suit land belonged to late Nawab Sir Sadiq Muhammad 'Khan Abbasi, Amir of Bahawalpur, who sold it to Gangoo Ram son of Jhangi Ram who migrated to India and thereafter the land was declared as evacuee property and was rightly confirmed against the claim filed by the respondent. The description given by the respondent in the written statement tallies with that given in the Custodian's order, therefore, it is not correct to allege that learned Custodian's order does not specify the land. Learned District Judge's finding on the point is, therefore, correct.
5. It is next contended that the suit has been held to be barred by time erroneously by learned appellate Court inasmuch as Board of Revenue had decided the revision petition regarding the suit land on 10-2-1977 and the suit was filed on 4-7-1972. Learned counsel has missed the point because the land in the name of respondent was confirmed on 21-11-1961 and thereafter the petitioner has been litigating the matter before different forums till he filed the suit on 4-7-1972. The limitation has to start from the date of confirmation of land to the respondent. If the benefit of Article 120 of Limitation Act even granted to the petitioner as observed by learned appellate Courts, the suit shall still fall beyond period of 6 years and was thus clearly barred by time. This finding of learned District Judge is again unassailable. I want to add here that the declaration of the suit property as evacuee by learned Custodian is final decision as to the character of the property and the Civil Court in my view cannot go behind that declaration. Therefore, after this declaration the Rehabilitation and Settlement Department was competent to treat the suit property as evacuee and dispose it of in accordance with law. The confirmation of suit land has been upheld by the highest forum in that hierarchy and cannot be challenged in Civil Court.
6. No other point has been raised. The impugned judgment is not shown to be without jurisdiction. It does not suffer from any illegality or material irregularity, therefore, does not call for interference by this Court. Consequently, this petition is dismissed in limine.
M.B.A. .
1985 PLC 7 [Lahore] Before Khizar Hayat, J Sh. NAZIR AHMAD--Petitioner versus Haji GHULAM HUSSAIN and others--Respondents Civil Revision No.246-D of 1983, decided on 28th April, 1984.
(a) Specific Relief Act (I of 1877)-- ---S.27-- Specific relief--Agreement to sell, held, did not confer any title on prospective purchaser to sell or agree to sell such property until sale in his favour was complete. [p. 9] A Ram Asra v. Allah Jawaya AIR 1931 Lah. 595 and Ghulam Muhammad v. Custodian of Evacuee Property PLD 1966 (W.P.) Lah. 953 rel.
(b) Specific Relief Act (I of 1877)- ---S.27--Contract -to sell property--Specific performance--Expression puchasers for value in good faith without notice--Burden of proof--Person claiming title to property arising subsequently to original contract for sale of property--Negative was to be proved by subsequent transferee under S.27 (b), Specific Relief Act, 1877--Such subsequent transferee, if stating on oath that he had no knowledge of the earlier contract he would be deemed to have discharged his burden and in that event burden would shift to other party to prove that subsequent transferee knew about earlier contract.--[Burden of proof]. [p. 9] B Ch. Naseer Ahmad for Appellant.
Sh. Inayat Ali and Ch. Bairam Khan for Respondents. Date of hearing: 28th April, 1984.
' The dispute relates to Shop No.960-III-B situate in Jadid Bazaar, Rahimyar Khan, which was initially owned by the petitioner and respondents Nos.1 to 4 jointly in the following shares:--
(i) Petitioner owned 1/3rd;
(ii) Respondents Nos. 1 and 2 owned 1/3rd; and
(iii) Respondents Nos. 3 and 4 owned 1/3rd.
' The petitioner filed a suit for specific performance of contract alleging that respondents Nos. 3 and 4 transferred their share to respondent No.1 by means of agreements dated 9-2-1974 and 5-3- 1974 and so did respondent No.2, whereafter respondent No.1 having become owner of 2/3rd share in the property agreed to sell it to him for Rs.30,000 vide agreement Exh.P.1 dated 6-5-1975 and also received Rs.5,000 as earnest money under receipt Exh.P.2. It was further agreed that balance of Rs.25,000 shall be paid by the petitioner at the time of registration of the sale-deed but instead of completing the sale, respondent Nos.1 to 4 subsequently sold their entire share (2/3rd) in the property to respondents Nos.5 to 7 through a registered sale-deed dated 21-6-1975 for Rs.30,000.
The petitioner, therefore, prayed for an injunction to the effect that respondent No.1 be directed to complete the sale in his favour by receiving Rs.25,000 the balance price. In the alternative, he prayed that if the agreement Exh. P.1 is found to be unenforceable then 1/6th share exclusively owned by respondent No.1 be ordered to be transferred to the petitioner in lieu of Rs.5,000 already received by him through receipt Exh.P.2. The suit was contested by respondents Nos.2 to 7, while respondent No.1 was proceeded ex parte, Respondent No.1 was, however, summoned by learned trial Court for obtaining his thumb-impression for getting it compared with thumb-impressions on agreement Exh.P.1 and receipt Exh.P.2. When asked about the execution of these documents, he admitted their execution but explained that he had ignored the agreement because the petitioner by not paying the remaining amount failed to perform his part of the contract. Respondents Nos.5 to 7 pleaded that while purchasing the suit shop they were unaware of previous agreement executed by respondent No.1 in favour of the petitioner. On the pleading of the parties following issues were framed:--
(1) Whether defendant No.1 agreed to sell 2/3rd share of the shop to the plaintiff and received Rs.5,000 in advance? O.P.P.
(2) Whether defendant No.1 failed to perform his part of the contract? O.P.P.
(3) Whether defendant No.1 validly became owner of 2/3rd share in the shop? O.P.P.
(4) What is the effect of this agreement on the subsequent sale of the share in favour of defendants Nos.3 to 4? O.P.P.
(5) Whether defendants Nos.3 to 4 are unnecessary parties? O.P.D.
(6) Whether defendants Nos.5 to 7 are bona fide purchasers for value without notice and the agreement is not binding on them? O.P.D. 5 to 7.
(6-A) Whether the plaintiff is entitled to the decree of specific perfor mance of agreement? If so, on what terms and to what extent? O.P.D.
(7) Relief.
2. Learned trial Court, on consideration of the evidence on record, held, that agreement Exh.P.1 and receipt Exh.P.2 were executed by respondent No.1 in favour of the petitioner but it did not find the petitioner entitled to the decree of specific performance of agreement against the respondents except that he shall get back Rs.5,000 from respondent No.1 which he had paid to him vide receipt Exh.P.2. It was also held that respondents Nos.5 to 7 were bona fide purchasers of the suit shop for valuable consideration without notice and agreement Exh.P.1 was not binding on them with the result that the suit was dismissed. The decision remained unchanged on appeal decided by District Judge on 13-6-1983. Feeling dissatisfied the petitioner filed the instant civil revision. I have heard learned counsel for the parties and also perused the record.
3. Learned counsel appearing on behalf of the petitioner submitted that the learned Courts below have wrongly held respondents Nos. 5 to 7 as "bona fide purchasers for value without notice" because they did not make necessary enquiries before purchasing the suit shop from the petitioner who at that time was in its possession, thus they having failed to exercise reasonable care expected of an ordinary prudent man did not act in good faith. He further submitted that simple assertion of respondents Nos. 5 to 7 that they did not know about the earlier agreement is not sufficient to discharge their onus. Reliance in this connection has been placed on Abdul Rahman v. Noor Ahmad PLD 1974 B J 25 and Abdul Karim v. Jan Muhammad PLD 1976 Kar.
640. Lastly, he urged that since the two Courts below have held the agreement Exh. P.1 and receipt Exh.P.2 as genuine, therefore, to the extent of these documents at least relief of specific performance of the contract should have been granted to the petitioner.
4. On the other hand, learned counsel appearing for the respondents supported the impugned judgments and submitted that despite the fact that respondent No.1 executed agreement to sell Exh. P.1 and received Rs. 5,000 as earnest money from the petitioner, the agreement cannot be enforced being void ab initio for the reason that respondent No.1 had no authority whatsoever to enter into an agreement to sell 2/3rd share of the shop to the petitioner for his own share therein was only 1/6th. He further argued that even if it is admitted that the recitals of paragraph 1 of the agreement Exh. P.1 have shown other share-holders i.e. respondent Nos. 3 and 4 to have agreed to sell their shares to respondent No.1 yet it did not confer any title upon him nor could he on its basis legally further sell or agree to sell the property to the petitioner. There is, however, no proof that respondent No.2 ever transferred his share (1/6th) to respondent No.1 replying the objection that respondents Nos. 5 to 7 did not act in good faith while purchasing the suit shop, learned counsel for the respondent urged firstly; that, concurrent finding by the two Courts below on this point cannot be upset in the exercise of revisional jurisdiction by this Court and secondly; respondents Nos. 5 to 7 (represented by Muhammad Rafi D.W) successfully discharged their onus by stating on oath that they had no knowledge of the previous transaction made in favour of the petitioner. In this, respect, reference has been made to Mst. Khair-un Nisa v. Malik Muhammad Eshaq PLD 1972 SC 25.
5. It is well-settled that an agreement to sell does not confer any title on the prospective purchaser, therefore, he cannot sell or agree to sell such property unless and until the sale in his favour is complete. On this point I draw support from the cases of Ram Asra v. Allah Jawaya AIR 1931 Lah.
595 and Ghulam Muhammad v. Custodian of Evacuee Property PLD 1966 (W.P) Lah.
953. Petitioner's possession over the suit shop is explainable as he was occupying it in his own right being owner of its 1/3rd share.
6. The only evidence produced to prove that the respondents/purchasers knew about the earlier agreement is that when petitioner and respondent No.1 were settling the bargain, Sh. Muhammad Rafi D.W. (Special Attorney of respondents Nos. 5 to 7) happened to pass by them. I am afraid if it could be termed as evidence. It hardly needs any comment that it is worthless. It is noteworthy that Sh. Muhammad Rafi D.W. when appeared in Court was not suggested that when the petitioner and respondent No. 1 were striking the bargain he passed near them and overheard all about it.
Supreme Court of Pakistan in the case of Mst. Khair-ul-Nisa (Supra) has clearly laid down that if subsequent transferee states on oath that he had no knowledge of the earlier contract he would be deemed to have discharged his burden and in that event the burden would shift to the other party, that subsequent transferee knew about the earlier contract. The relevant observation is reproduced below with advantage: "It seems to me that under section 27(b) of the Specific Relief Act negative is to be proved by the subsequent transferee. If he appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden and the onus will then shift to the plaintiff to prove that the subsequent transferee had the notice of the original contracted."
7. Sh. Muhammad Rafi, Special Attorney of respondents Nos. 5 and 6 and guardian ad litem of respondent No.7 having appeared as D.W. 5 stated on oath that when he approached the plaintiff-petitioner to get a rent deed executed by him in favour of the respondents, the petitioner did not tell him about any agreement executed by respondent No.1 in his favour. In the circumstances, I hold that respondents Nos. 5 to 7 had discharged their onus successfully that they had no notice of earlier contract whereas the petitioner to whom the onus had shifted to prove affirmatively that the respondents knew about the earlier agreement, failed to produce any evidence muchless convincing one on the point. To my mind, therefore concurrent finding of the Courts below that respondents Nos. 5 to 7 are "purchasers for value in good faith without notice" is unexceptionable.
9. For the foregoing reasons the impugned judgments and decrees cannot be interfered with. Consequently this petition being without any substance merits dismissal.
There shall, however, be no order as to costs.
M.B.A. .