1. ' The facts giving rise to the present revision are that the applicant had filed a suit for specific performance, declaration and injunction being Suit No,7 of 1977. The case of the applicant is that the present respondent No,1, through her attorney, entered into an agreement for sale of agricultural land bearing survey number 6 and one acre from survey number 7/2 situate in deh Belo Mirpur Mathelo (hereinafter referred to as the suit land) for a sum of Rs,15,000. Agreement to sell was executed on 22-4-1974, in which consideration was paid and the possession was also handed over to the applicant. It is the case of the applicant that the registered sale-deed could not be executed as the applicant was convicted in a criminal case about 7/8 months prior to filing of the suit. It is further alleged that the respondent No,1 then in collusion with respondents Nos.2 to 5 executed sale-deed in favour of respondent No,5 who in turn sold the suit land to respondents Nos.2 to 4. In these circumstances the present applicant filed the aid suit.
2. ' Respondent No,1 filed a written statement admitting the contents of plaint. Respondent. No,1 also conceded in the written statement that in case the suit is decreed, she will have no objection to execute the sale-deed in favour of the present applicant. She further stated that the registered sale-deed could not be executed as the applicant was convicted in a criminal case. The handing over of the possession to the present applicant was also admitted. The defendant No,5 was served by publication and suit was directed to proceed ex parte against him as he did not appear to contest the suit. Respondents Nos.2 to 4, however, contested the suit and denied the claim of the present applicant. The trial Court framed the following issues:-
(1) Whether the defendant No,1 Mst. Lateefan through her attorney sold suit land to plaintiff and delivered possession?
(2) Whether attorney of the defendant No,1 fraudulently sold suit land to the contesting defendants?
(3) Whether defendant No,1 is legally bound to perform the remainder part of the contract?
(4) Whether defendants No,2 to 5 are bona fide purchasers without previous' notice of the alleged contract? If so with what effect?
(5) Whether attorney of defendant No,1 ceased to be attorney of defendant No, 1 ? If so, with what effect?
(6) Whether plaintiff was legally debarred to purchase the suit land without consent of contesting defendants being tenants?
(7) Whether the suit is not in proper form?
(8) Whether the suit is not maintainable under the law?
(9) To what relief plaintiff is entitled?
(10) What should the decree be?
3. ' Thereafter the suit was fixed for evidence of applicant but since he could not produce his evidence his side was closed on 30-4-1979 and the learned trial Court proceeding under Order 17, Rule 3, C.P.C. Dismissed the suit. The present applicant then preferred an appeal being Civil Appeal No,16/1979 which was also dismissed by the First Additional District Judge, Sukkur. Being aggrieved by the judgments of the two Courts below the present applicant has preferred this revision application.
4. ' I have heard Mr. A.M. Mobeen Khan and Mr. Lachhmandas, the learned counsel for applicant and respondents Nos.2 to 4. Respondent No,5 is absent though served through publication. Mr. Mobeen Khan, the learned counsel for the applicant .Has submitted that the findings given by the two Courts below are not in accordance with the provisions of law. He has pointed out that the learned trial Court has dealt with issues Nos.1 to 3 jointly and also issues Nos.4 to 8 jointly. He has further pointed out that issues Nos.1 to 3 are answered against the applicant merely for the reason that he had not produced any evidence while issues Nos.4 to 8 have not been pressed by the counsel for the respondents Nos.2 to 4.
5. ' Mr. Lachhmandas, the learned counsel for respondents Nos.2 to 4 has submitted that the suit was adjourned to 30th April, 1979 on the application of plaintiff and, therefore, in case of non-production of evidence by applicant, trial Court had rightly proceeded with the suit under the provisions of Order 17, Rule 3, C.P.C. And announced the judgment. He has placed reliance on a number of decisions of superior Courts in support of his above contention. There is no cavil with regard to above said legal position. However, the law provides that if the Court proceeds under Order 17, Rule 3, C.P.C. Then the decision is to be given on merits and not just like dismissing a suit in default under Order 17, Rule 3, C.P.C. Or Order 9, Rule 8, C.P.C. The finding of the learned lower Court on issues Nos.1 A to 3 simply shows that because the plaintiff had not stepped into the witness box or produced his witnesses, therefore these issues are answered as not proved. It may be pertinent to note that issue No,1 in fact involves two issues. The first part of issue is whether the respondent No,1 had sold the suit land to applicant while the second part deals with the delivery of possession. A bare reading of written statement filed by respondent No,1 shows that the possession of the suit land was handed over to the applicant. Also respondents Nos.2 to 4 in their written statement have conceded that in the year 1974 the possession was taken over by the present applicant. They have further stated in their written statement that they were the haris of the land. This fact itself goes to show that the possession was with the present applicant and the only inference that can be drawn is that it was in consequence of the abovesaid agreement. From the original agreement of sale executed by respondent No,1 which has been produced by the applicant alongwith his plaint and admitted by the respondent No,1 in her written statement issue No,1 would stand proved in favour of the present applicant. In such circumstances the rights of applicant stand protected under the provisions of Section 53-A of the Transfer of Property Act which reads as under:-- "53-A. Part performance: Where any person contracts to transfer for consideration and immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, ' and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, ' then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract."
6. The applicant would be entitled to enforce the relief of specific' performance not only against the original vendor but also any other person claiming under him by a title arising subsequent to the original contract as provided under section 27 (b) of the Specific Relief Act. The provisions of Section 27 (a) (b) of Specific Relief Act, read as under:- "27. Relief against parties and persons claiming under them by subsequent title.--Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against;
(e) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract."
7. ' Mr. Lachhmandas, the learned counsel for respondents Nos.2 to 4 has submitted that his clients are bona fide purchasers without notice of earlier transaction and, therefore, they cannot be affected by the provisions of Section 27 (b) of the Specific Relief Act. A plain reading of the written statement of respondents Nos.2 to 4 shows that they admit that the present applicant had taken over the possession of the suit land in the year 1974 and also that they claimed to be hari$ of the land and in spite of the applicant's possession since 1974 they had entered into the sale-deed with respondent No,5 on 13-5-1977. No prudent person in such circumstances would have entered into transaction to purchase the land which is in possession of a third person since from a period of three years without enquiring as to in what capacity he was holding this land.
8. ' Repelling the above contention of the Advocate for respondents Nos.2 to 4 Mr. A.M. Mobeen Khan, the learned counsel for applicant has pointed out that issue No,4 is to the effect "Whether defendants Nos.2 to 5 are bona fide purchasers without previous notice of the alleged contract? If so, with what effect"? He has further pointed out that the judgment of the trial Court shows that this issue has not been pressed by the learned counsel for respondents 2 to 4 and, therefore, he would be estopped from raising this plea at this stage.
9. As pointed out earlier the trial Court will proceed under Order 17, Rule 3, C.P.C. As to give finding on merits and not merely on account of the fact that c plaintiff has not entered into witness box. In the case of Wadera Dalel Khan and 7 others v. Province of West Pakistan (PLD 1970 Quetta 79) a Division Bench had observed that: "The Court could dismiss the suit on merits only if some evidence of the plaintiffs had been recorded and in his view that evidence was not sufficient enough to substantiate their claim. But stringent action under Order XVII, Rule 3, C.P.C., without there being any documentary or oral evidence on record, was not available to the Court under the law. Distinction has been drawn between the two rules by a Full Bench of Bombay High Court reported as Basalingappa Kushappa Kumbhar and others v. Shudranappa Irappa Shivanagi and another (AIR 1943 Born. 321) and our above view is in accord with the decision of the Full Bench.
10. ' As we find that the order passed by the trial Court is not on merits, mere mentioning by the Court that the suit is dismissed under Order XVII, Rule 3, C.P.0 would not bring the order under that rule. It was so held in Raja Singh v. Manna Singh and others (AIR 1940 All. 217)."
11. ' In the same case it is further held: "It is desirable that litigants should get decision on merit in their case."
12. In view of the above discussion, the judgments given by the two Courts below do not appear to be on merits of the case as disclosed from the admissions of the parties in their pleadings and the documents produced on record. The judgments and decrees passed by the two Courts below are, therefore, set aside and this revision application is accepted. The case is remanded to the trial Court to proceed with the same from the stage as it was when the impugned judgment was passed. Parties will appear before the trial Court on 15-12-1990. Since this is very old matter the plaintiff is directed to complete his evidence within two months from 15-12-1990. The trial Court will proceed with the suit and give judgment in accordance with the evidence and law. However, there will be no order as to costs.