NASIR ASLAM ZAHID, J.---This appeal arises out of judgment dated 11-4-1984 of a learned Single Judge of the Peshawar High Court allowing the Revision Application filed by Mst. Yaqoot Begum and others (the first vendees) and setting aside the judgment of the trial Court and the Appellate Court passed in favour of Muhammad Ramzan (the second vendee).
2. The dispute relates to a house in Kohat City which was in possession of respondent Muhammad Hasham (the original owner). The house, being evacuee property, was put to auction and was purchased by Muhammad Hasham, in whose favour a P.T.O. Was issued on 5-10-1961. After receipt of the P.T.O., Muhammad Hasham executed a mortgage decd and also an agreement to sell in favour of first venders on 6-10-1961. Both these documents were registered on. 12-10-1961. The entire consideration was paid to Muhammad Hasham by the first vendees who were also put in possession of the house. It was undertaken by Hasham by a covenant in the agreement that as the house could not be sold then there being a restriction by the Government, he would execute the sale-deed as soon as such restriction was removed. The Permanent Transfer Deed of the Property was issued in favour of Muhammad Hasham on 24-2-1976 but, instead of executing a sale-decd in favour of the first vendees as had been agreed, he executed a sale-deed on 18-3-1976 in favour of the appellant Muhammad Ramzan (the second vendee). When the first vendees came to know of the second sale they instituted a Suit in the Civil Court, Kohat for specific performance of the agreement to sell and impleaded Muhammad Hasham and the present appellant as defendants who contested the suit. The suit was dismissed on 25-10-1979. The first vendees filed an appeal but the same was also dismissed by the Additional District Judge, Kohat. In these circumstances, the first vendees filed a Revision challenging the judgments of the Courts below. The High Court found that the registered agreement to sell in favour of the first vendees was for consideration overruling the findings of the two Courts below on this point that such agreement was without consideration.
The High Court further held that the second vendee was not a bona fide purchaser and that the first vendees were entitled to the specific performance of the agreement. As observed, the Revision was allowed and the judgments of the two Courts below were set aside. Leave was grantee against the judgment of the High Court to consider as to which one of the sets of documents could be legally enforced on the facts and circumstances of the case.
3. Mr. Z. Mahfooz Khan, Advocate-on-Record on behalf of the appellant (the second vender) submitted that the sale-deed in favour of the appellant registered in 1976 after the issuance of Permanent Transfer Deed in favour of Hasham, the transferee from the Settlement Department, takes preference over the agreement of sale and the mortgage decd executed and registered in 1961 in favour of the first vendees. It was submitted that Muhammad Hasham had not acquired the right to transfer the property prior to the issuance of the Permanent Transfer Deed in his favour and as such the sale agreement in favour of the first vendees was of no consequence. We find no substance in the contention, Admittedly the agreement of sale and mortgage deed executed by Hasham in favour of the first vendees were earlier in time and could be enforced by the first vendees against Hasham. The entire sale consideration had been paid by the first vendees to Hasham who had also delivered possession of the property to the vendee. Such agreement could not be repudiated by Hasham and was binding on him. Hasham was legally bound to perfect the title of the first vendees in the property by execution of the sale-deed after issuance of the Permanent Transfer Deed in his favour, as had also been agreed by him.
Reference may be made to the decision of the Court in the case of Muhammad Iqbal v. Mirza Muhammad Hussain (PLD 1986 SC 70) which related to application of Section 19 of the Colonization of the Government Lands Act, 1912. In that case, an allottee of Government land, who had not yet acquired proprietary rights, entered into an oral agreement with the vendee that he would transfer the land to the vender after proprietary rights were conferred on him. The specific performance was postponed to a date when the allottee had acquired proprietary rights. It was held that such oral agreement of sale in favour of the vendees was not hit by the provisions of Section 19 of the Colonization of Government Lands Act, 1912. This judgment and Nawab Bibi v. Rafiq Bano PLD 1971 SC 481 support the case of the first vendees that they were entitled to specific performance of the agreement against Hasham.
4. It was argued on behalf of the appellant that the agreement of sale in favour of first vendees was without consideration and as such it could not take preference over the sale-deed executed in favour of the appellant in 1976. This submission is without any substance. A bare reading of the agreement of sale executed and registered in favour of first vendees in 1961 shows that the agreement was for consideration.
5. It may additionally be observed that the appellant must be aware of the transactions entered in 1971 in favour of the first vendees. Both these documents were registered and the possession was also with the first vendees and the sale-deed of 1976 also mentions the mortgage deed executed in 1961 in favour of the first vendees. The High Court has rightly found that the appellant was not a bona fide purchaser.
6. In these circumstances, we are of the view that the High Court rightly allowed the Revision as the first set of documents executed and registered in favour of the first vendees in 1961 take preference over the sale-deed executed by Hasham in favour of the appellant in 1976. It may be added that in the evidence recorded before the trial Court Hasham had admitted the execution of the agreement and mortgage deed in favour of the first venders in 1961.
7. As a result, this appeal is dismissed with no order as to costs.