NAIMUDDIN, J.---This civil appeal, by leave, is from the judgment of the High Court of Sindh dated 19-1-1984, passed in II Appeal No. 2 of 1972, whereby the High Court declared that Sanwal Khan, who was respondent No.1 in the appeal was entitled to specific performance of the contract in respect of the properties mentioned in the schedule to the plaint, and thus confirmed the judgment and decree dated 25-11-1971 passed in Suit No.76 of 1967 by the Civil Judge First Class, Nawabshah in terms of the prayer made in the suit. The prayer in the suit was for a direction to Muhammad Ali and others to execute sale-deed of the disputed land in favour of Sanwal Khan and to get the same registered, alternatively to direct the Nazir of the High Court to do so on deposit of the balance price by Sanwal Khan, and for permanent injunction restraining the appellants from selling the disputed land or any part thereof to any person.
2. Briefly stated, the facts are that the dispute in this case relates to agricultural land measuring about 72 acres in Deh Khandkar, Taluka Kandiaro, District Nawabshah. Muhammad Ali, respondent No.2, who is the owner of the land entered into an agreement to sell this land to Sanwal Khan, respondent No.1, on 25th October, 1966. Muhammad Ali, respondent No.2, entered into another agreement to sell the same land to the appellants on 2-5-1967, and received advance payment of Rs.30,000. It is said that as the appellants were unable to procure the entire balance of consideration, another document was signed by Muhammad Ali in their favour on 21st July, 1967. In which again he undertook to sell the land to the appellants on the payment of the balance of consideration amount outstanding As no sale-deed was executed in favour of Sanwal Khan (first purchaser) by Muhammad Ali (seller), the former filed a suit for specific performance of contract for sale on 18th May, 1967. The appellants were not impleaded as parties in this suit by the first purchaser but were later on joined as defendants at their own request. Muhammad Ali (seller) admitted the first agreement in favour of the first purchaser in his written statement, but contended that as the said first purchaser had committed breach of the terms of agreement m not paying the balance of earnest money, within the stipulated time the contract stood cancelled and, therefore, he was free to dispose of the land to any third party. The appellants also contested the suit and their plea, inter alia, was that they had entered into agreement to purchase the land with the seller without notice of the previous agreement with the first purchaser in good faith and for valuable consideration. The trial Court, upon the evidence adduced before it by the parties, held that the appellants had knowledge of the prior transaction between the seller and the first purchaser and that the contract in favour of the first purchaser was enfocreable. Accordingly the trial Court decreed the suit on 25-11-1971. The appellants then challenged the decree in first appeal but their 'appeal was dismissed by the High Court of Sindh, Karachi by its judgment dated 19-1- 1984.
3. By the order dated 26-6-1985 leave was granted to consider the contention that the findings of the two Courts below that Amir Bakhsh and others had knowledge of previous transaction in favour of the first purchaser as having no basis and wholly unsustainable on the evidence on record. In this regard reference was made to the appellant's witness Sanwal Khan, on whose alleged admission the Courts below had based their Findings. It was contended that this witness has nowhere admitted that the appellants were aware of the previous transaction in favour of the first purchaser. It was also contended that the two Courts below have misread the evidence of this witness, who referred to such knowledge at the time of the execution of subsequent document in favour of the appellants on 21-7-1967, which was after the institution of the suit for specific performance. And also the contention that the agreement on which the appellants rely was the one executed by the seller on 2-5-1967, on which date they had no knowledge of the previous transaction and that the High Court has erred in holding that this agreement was superseded by way of novation by the subsequent agreement dated 21-7-1967.
4. We have heard the learned counsel for the parties who have taken us through the relevant pleadings, documents and evidence. We find that there is no misreading of evidence and thus the finding of facts of the two Courts below being concurrent call for no interference.
5. It appears that on behalf of the appellants Sojhiro Khan s/o Abdul Hakim, Exh. No.103-A, and Ghulam Nabi s/o Amir Bux, Exh.No.106 were examined, besides' two other witnesses. The admission is contained in the deposition of Sojhiro Khan, Exh. No.103-A in the following words:-- "I know the plaintiff (Sanwal Khan). Before the present suit we did not know whether there is any sale agreement in favour of the plaintiff executed by the Defendant No.1 (Muhammad Ali). He told us that the agreement of sale had stood cancelled on account of non-payment of the agreed amount at the due date.
This is a clear admission that the appellants new of the previous agreement. Ghulam Nabi, Exh.106, also did not say in his examination-in-chief that he had no knowledge of the agreement between Sanwal Khan and Muhammad Ali. Indeed, in cross-examination he stated as follows:-- "The Exh.105 was read over and explained to Muhammad Ali by Mir Muhammad in Urdu.
Muhammad Ali had signed Ex.105 before the scribe Mir, Muhammad. There were other persons at the time of the execution of agreement but I do not know them. The previous agreement Ex.104 was executed by Muhammad Ali in my favour. At the time of ,., execution of Ex.105 we knew that civil suit in respect thereof is pending. --- Defendant No.1 had promised that he would make the suit land cleared and then sell it to the defendants Nos.2 to 9."
5. In view of the above evidence it cannot be said that the appellants had no knowledge of the agreement between Sanwal Khan and Muhammad Ali as they knew that a suit in respect of the same land, between Sanwal Khan and their seller was pending and Muhammad Ali had promised that he would make the title to the suit land clear and then sell it to Defendants Nos.2 to 9 (Appellants).
6. Mr. Muzaffar Ali Khan, learned counsel for the appellants laid much emphasis orb the point that these admissions pertain to second agreement, Ex.105, and not to the first agreement, Ex.104. But he clearly admitted that if the second agreement is not in continuation of the first agreement, but is a new agreement, then his clients are out of the Court. On this point the High Court in the impugned judgment, on comparison of the two agreements has found as follows:-- "This agreement Ex.105 was therefore, in supersession of the earlier agreement Ex.104 because the amount paid under this agreement was adjusted in the second agreement and Amir Bux who was not a party in the first agreement was introduced as a new party having a major share. Therefore, in fact it was this agreement Ex.105 which was operative for the purpose of claiming right in the disputed property. This agreement was executed on 21-7-1967 after the suit had been instituted and the facts on record show that before the execution ofthis agreement, the appellants had notice of the previous sale "
We have also compared the contents of the two agreements and we are also of the same view as formed by the High Court.
7. We, therefore, find no merits in this appeal and accordingly dismiss it, leaving the parties to bear own costs.