1. Plaintiff is the appellant against the judgment, dated 12-5-1982 and decree, dated 19-5-1982 in a suit for specific performance of contract for sale and for permanent injunction against the respondents. The plaintiff prayed for specific performance of contract m respect of agricultural land bearing survey No.607 (9-15 acres) and 608 (9-24 acres) situated in Deh Mir Muhammad, Taluka Khairpur Nathan Shah which was in possession of the appellant, was the property of the respondents 1 to 7. It is the case of the appellant, as set out in the plaint, that the said respondents who were the owners had appointed one S.M. Sohail (since deceased) as their general attorney to deal with the said land on behalf of the respondents 1 to 7. The said S.M. Sohail was also authorised to sell the said land on behalf of the owners. It is the further case of the appellant that on 10-12-1977 deceased S.M. Sohail sold the suit land to the appellant through an agreement of sale for total sale consideration of Rs.42,750 (at the rate of Rs.2,250 per acre). A sum of Rs.2,000 was paid by the appellant as earnest money to the deceased S.M. Sohail and the balance of consideration was payable in four equal instalments, each on 30-4-1978, :i0-4-1979. 30-4-1980 and 30-4-1981 respectively.
2. It is alleged in the plaint that in pursuance of the said terms of the agreement between the parties, possession of the suit land was formally handed over to the appellant though in fact the physical possession was already with the appellant who was then the tenant over the land in suit. The case of the appellant was that the first instalment was paid by him to late S.M. Sohail in presence of witnesses who had given a receipt to that effect.
3. It was the case of the appellant that the respondents 9 to 14 who had earlier the knowledge of sale agreement in favour of the appellant, managed to get the land sold in their favour by the respondent No.8 on the basis of the power of attorney. The appellant, on coming to know about the transaction in favour of the respondents 9 to 14, contacted them and requested them to desist from claiming any right over the land in suit by virtue of the sale-deed and on refusal to do so, the appellant filed suit for specific performance.
4. The respondents 1 to 7 filed written statement through respondent No.8 and respondents 9 to 14 filed a separate written statement. The respondents 9 to 14 contended in their written statement that they purchased the land in suit for valuable consideration and they had no knowledge of any previous transactions between the appellant and the respondents 1 to 7. They also pleaded that the appellant was in possession in the capacity of tenant and not as a purchaser.
5. On the pleadings of the parties, the trial Court framed the following 7 issues:-- "(1) Whether the suit is maintainable at law?
6. (2)Whether the proper court-fee has been paid?
7. (3)Whether the plaintiff is entitled for specific performance?
8. (4)Whether there is any agreement to sell the suit land in favour of plaintiff?
9. (5)Whether the deceased S.M. Sohail, attorney of defendants Nos.1 to 7 did not receive 1st instalment from the plaintiff on 30-4-78 in respect of the suit land?
10. (6)Whether the registered sale-deed in favour of the defendants Nos.9 to 14 regarding the suit land, dated 23-12-78 is liable to be cancelled?
(7) What should the decree be?"
11. The appellant examined himself and one witness Isso and closed his side. The respondents 1 to 8 did not lead any evidence. The respondents 9 to 14 examined D.W. Ghulam Hussain, Mubarak, Jan Muhammad and Palio and closed their side.
12. The trial Court found that there was agreement of sale but it has come to an end due to the failure of the appellant to perform obligation and as such there existed no valid agreement in favour of the appellant. The trial Court found that the appellant has not asserted that respondents 9 to 14 have any notice of agreement of sale in favour of the appellant. The trial Court found that respondents 9 to 14 are bona fide purchasers for value without notice, as such the sale-decd cannot be treated as null and void. The trial Court dismissed the suit vide judgment, dated 12-5-82.
13. The appellant is aggrieved against the judgment, dated 12-5-1982 of the Senior Civil Judge, Mehar.
14. Mr. S. Madadally Shah assails the judgment and decree of the Court below and submits that the trial Court erred in holding that the respondents 9 to 14 are subsequent purchasers without notice of previous contract. The trial Court in its judgment has observed as follows--- "So far as this issue is concerned, there is nothing in plaint that the defendants have notice of prior agreement and they are subsequent purchasers with notice. The defendants have put themselves in box and denied the notice of prior agreement. This denial is support to discharge the burden. The burden then shifts to plaintiff to prove this fact. He can prove this fact only when he alleges. But as I have discussed above, there is no such allegation in plaint and as such there is no question of proving the same. There is nothing on record to suggest that the sale-deed in favour of defendants is liable to be cancelled."
15. The provision of law is well-settled that in a suit for specific performance where a subsequent transferor/purchaser wants to retain the benefits of the B transfer/ purchase in his favour, the onus rests on him to establish the circumstances mentioned in section 27(b) of the Specific Relief Act. In the decision reported in AIR 1934 P C 68 while dealing with this question, the position of law was explained as follows:--- "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."
16. PLD 1972 SC 25), the Hon'ble Supreme Court held as follows:-- "It will be noticed that under this provision 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."
17. It was further held:-- "It is thus quite clear that in a suit for specific performance of contract 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."
18. The appellant averred in paragraph 10 of the plaint that the respondent 9 to 14 were in knowledge, about the sale agreement between appellant and deceased S.M. Sohail regarding the suit land. It is further averred that respondent No.14 is co-villager of the appellant and respondents 9 to 13 are residing near to the village of the appellant; their lands are also situated near the lands of the appellant. The respondents 9 to 14 denied contents of paras. 7 to 13 as false, misleading, ambiguous and not maintainable in law.
19. The appellant (Exh.43) has stated in examination-in-chief that "I am hari of the suit land i.e. The above survey numbers". He has stated that S.M. Sohail verbally told him that "he relinquish the possession in his favour and that he will receive the remaining instalments". He admitted in his cross-examination that respondents 9 to 14 reside one mile away from the suit land. They have not got lands adjoining the suit land. To a question he replied that the respondents 9 to 14 were in knowledge of the possession of land handed over to him.
20. D.W. No.1 Ghulam Hussain (Exh.51) has stated that "I do not know if there was any sale agreement in respect of suit land in favour of plaintiff'. He denied the suggestion in cross-examination that S.M.
21. Sohail during his lifetime sold the suit land to appellant. To a question in cross-examination, he replied "it is incorrect to suggest that I and other defendants were in knowledge about the sale of land in dispute by S.M. Sohail to plaintiff'. He also denied the suggestion that if S.M. Sohail received the earnest money and the first instalment from the plaintiff.
22. D. W. Mubarak admitted' that the appellant paid first instalment to S.M. Sohail.
23. Under Section 27(b) of the Specific Relief Act, four things are required to be established; (1) that the transfer is for value; (2) that the money has been paid; (3) that the purchase was done in good faith, and (4) that the purchase including payment of money was without the notice of the original contract. The C first two elements are positive and the last two elements are negative, in character.
24. The onus of proving that the subsequent purchaser had no notice of a prior claim is ordinarily discharged by denial. As observed in Khairunnisa v. Muhammad Ishaque (PLD 1972 SC 25): "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 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 contract."
25. It has been held in Kanshi Ram v. Ishwardas (AIR 1923 Lah. 108) as under:-- "Where the consideration is paid in full and the vendor are ignorant of the original contract, good faith must be presumed in the absence of any evidence to the contrary."