This regular second appeal arises out of a suit for specific performance of agreement to sell filed by the appellant against the respondents which was decreed by the trial Court on 29-6-1074 but was dismissed by an Additional District Judge at Sheikhupura, on 13-4-1978.
2. In the suit which was filed on 20-4-1972, it was alleged by Atta Muhammad plaintiff/appellant that by an agreement dated 17-10-1971 respondent No.1 A.I Sher had agreed to sell land measuring 26 kanals 16 marlas situated in Tehsil Ferozewala District Sheikhupura at a rate of Rs.2,100 per acre to him and had received a sum of Rs.2,500 as advance. According to the plaintiff/appellant, the land was owned by A.I Sher respondent No.1 and his sister Fatima Bibi respondent No.3 and respondent No.1 had undertaken to have the sale-deed executed by her as well. On 16-3-1962, respondents Nos.1 and 3 transferred the land in dispute to respondent No.2 and a mutation was attested in his favour. Consequently, respondent No.2 was also impleaded as a defendant in the suit which was resisted by all the respondents. A.I Sher respondent denied having executed any agreement to sell in favour of the appellant/plaintiff. Mst. Fatima Bibi respondent No.3 asserted that she had never authorised respondent No.1 to enter into any agreement for sale on her behalf, while Ramzan respondent No.2 pleaded that he was a bona fide purchaser for value without notice of the alleged agreement to sell in favour of the appellant.
3. After framing the necessary issues and recording evidence of the parties, the trial Court decreed the suit in favour of the appellant on 29-6-1974. It was held that A.I Sher respondent had executed the agreement (Ex.P-1) in favour of the appellant but had no authority to do so with respect to the share of Mst. Fatima Bibi respondent No.3. The suit was, therefore, decreed to the extent of share of A.I Sher respondent No.1 which came to 22 kanals 7 marlas. The plea of Ramzan, respondent No.2 that he was a bona fide purchaser for value was repelled on the finding that he had no notice of the agreement to sell in favour of the appellant.
4. Aggrieved by this decision of the trial Court, Muhammad Ramzan respondent No.3 filed an appeal which was accepted by the Additional District Judge, Sheikhupura on 13-4-1978 who reversed the findings of the trial Court on issue No.1 and held that agreement Ex.P-1 was never executed by respondent No.1 in favour of the appellant. The Additional District Judge, also came to the conclusion that Ramzan, the subsequent purchaser, had no notice of the agreement to sell in favour of the appellant and as such it could not be specifically enforced against him. The plaintiff/appellant has assailed this decision of the Additional District Judge in this regular second appeal under section 100 C.P.C.
5. The learned counsel for the appellant has contended that there was no justification for the Additional District Judge to have reversed the findings of the trial Court and held that agreement to sell (Ex.P/1) was not executed by the respondent. It was also contended that respondent No 21 was not a bona fide purchaser and had notice of this agreement. The learned counsel for the respondents, on the other hand, has contended that the trial Court acted erroneously and contrary to the record while decreeing the suit in favour of the appellant and the Additional District Judge was justified in reversing its judgment.
6. The two questions which fall for determination in this appeal are, firstly, whether the respondent No.1. A.I Sher had agreed to sell the snit land to the appellant and executed the agreement (Ex.P-1) and secondly, whether the subsequent transferee Ramzan (respondent No.3) is a bona fide purchaser for value without notice of the agreement to sell in favour of the appellant.Both these questions are primarily questions of fact and arc concluded by the findings recorded by the Adds.
District Judge m this respect after due appraisal of evidence. However, as judgments of two Courts are at variance, I have perused the evidence with the assistance of the learned counsel for the parties and have found that the Additional District Judge was amply justified in reversing the findings of the trial Court on both the issues.
7. As regards the first question, the appellant placed his reliance on the agreement dated 17-10-1971 (Ex.P-1) the execution of which was denied by A.I Sher respondent. Admittedly he is totally illiterate and appellant was cultivating the land in dispute as tenant under him. In these circumstances the onus lay heavily on the appellant to prove the execution of the agreement by producing strong and cogent evidence. The trial Court had relied upon the statement of Manzoor A.I P.W.1, the scribe of the agreement but unfortunately the deposition of the witness in the cross-examination that he did not personally know the executant of the document, was ignored. The learned trial Court while deciding issues Nos, 1 to 3 in favour of the appellant did not advert to many material aspects of the case and its judgment was not sustainable. The learned lower appellate Court while reversing the finding of the trial Court noticed that according to the agreement Ex.Pl a sum of Rs.18,000 had earlier been paid to the respondent under an agreement dated 19th June, 1970. However, no such agreement was produced in evidence by the appellant nor an explanation furnished in this behalf.
The statement of Muzaffar A.I P.W, was duly considered and discarded for valid reasons especially as according to the witness himself, he had not entered the receipt dated 19-6-1970 in the register maintained for this purpose. According to the receipt (Ex.P-7) the amount was being paid as lease money and not on account of any agreement to sell.
8. Another important factor which was taken into account by the Addl. District Judge, was, that in the receipt (Ex.P-6) relied upon by the appellant which was dated 21-1-1970, it was recited that an amount of Rs.3,010 had been paid to the appellant under the agreement dated 19-6-1970. The learned Addl.: District Judge rightly remarked that it was not understandable as to how the B receipt executed on 21-1-1970 could mention the factum of the agreement dated 19-6-1970 which came into being about five months after the execution of the receipt. The learned counsel for the appellant has tried to explain that in fact the receipt was executed on 21-1-1971 and the date was wrongly mentioned in the receipt as 21-1-1970. However, no evidence was led by the appellant to prove this assertion and it cannot, therefore, be accepted. The learned Addl. District Judge duly considered the statements of tire witnesses produced by the appellant and after noticing the contradictions appearing therein refused to rely upon this evidence for valid reasons. No misreading of evidence or non-consideration of any material on the part of the Addl. District Judge has been pointed out and there is no justification for interference with the findings recorded by him
9. As regards the finding of the Addl. District Judge on the other question, it is to be observed that Ramzan respondent while appearing as his own witness had categorically denied on oath having notice of any agreement to sell in favour of the appellant. As held by the Supreme Court in Mst.
Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 the onus shifted on the appellant to prove affirmatively that Ramzan respondent was aware of the agreement between the appellant and respondent No.1. No evidence, however, was led by him to prove this fact except his own statement which, in the circumstances of the case, was insufficient to prove the fact that the respondent had any notice of the agreement in his favour. The learned counsel for the appellant, however, contended that as admittedly the appellant was in possession of the land at the time of sale in favour of Ramzan, the possession itself was sufficient notice to him of the agreement between the appellant and respondent No.1. This plea, however, cannot be accepted for tile reason that it is not denied by the learned counsel that the appellant was a tenant/lessee of the land. In these circumstances his possession was not sufficient to put any person on inquiry regarding the right which he allegedly had in the land.
10. Another reason for which the appellant cannot succeed in the present appeal is that the agreement to sell relied upon by him is with respect to 26 kanal and 7 marlas of land. According to his own case this land was jointly owned by A.I Sher and Mst. Fatima Bibi respondent and the agreement Ex.P-1 was executed b5 A.I Sher alone and not by Mst. Fatima Bibi. According to the finding of the trial Court which was not challenged by the appellant at any stage, A.I Sher had no authority from Mst. Fatima Bibi to enter into any agreement with respect to her share. The trial Court, however, proceeded to decree the suit only in respect of the share of A.I Sher and proportionately reduced the sale price. This course of action is clearly against law, for, it is well settled that there can be no splitting of an agreement to sell which has to be performed either as a whole or not at all in view of sections 15, 16 and 17 of the Specific Relief Act, 1877. Reference in this connection may be made to Wali and others v. Manak A.I and others PLD 1965 SC 651. It is no doubt correct that it is open to a plaintiff in a suit for specific I performance to give up the claim with respect to the land not owned by the promisor but in such an event he must do so by making a positive statement in the Court and also offer to pay the entire amount of consideration. In the present case, however, the petitioner did not indicate his willingness to have a lesser area transferred to him on the payment of the entire price mentioned in the agreement.
For all these reasons, this regular second appeal has no force. It is accordingly dismissed with no order as to costs.
A.A./A-689/L Appeal dismissed