1. ' These two Civil revisions are inter-linked. Facts are common and the points involved for decision similar. Therefore, it shall be convenient to deal with them in a single judgment.
2. ' 100 Kanals of land situated in the revenue estate of Pindigheb in District Attock belonged to Ahmad son of Hayat. He agreed for its sale to Zahid Iqbal and gave power of attorney to Ahmad son of Muhammad Khan for completing the sale on his behalf. Power of attorney Ext.D2 executed by Ahmad was registered on 20-12-1983. On 16-3-1986, the attorney executed an agreement to sell above piece of land to Zahid Iqbal for a sum of Rs,2,500. Receipt of sale price was acknowledged in the sale agreement, and possession shown to be transferred under it to the prospective vendee.
3. Agreement to sell is marked Ext.D-1.
4. ' On 4-2-1987, petitioner alleging to have orally purchased the land covered by agreement to sell Ext.D1 instituted a civil suit for a declaration of ownership rights on the basis of oral sale in his favour. Original owner, namely, Ahmad was the sole defendant in the suit. On the first date of hearing fixed in the suit on 24-3-1987, the defendant appeared and conceded the claim of the plaintiff. But before the suit could be decreed on his admission, Zahid Iqbal intervened and on his application filed on 7-2-1987 was made a party-defendant to the suit. On 14-2-1987, Zahid Iqbal instituted a suit for specific performance of agreement to sell existing in his favour for completing the sale by Ahmad and impleaded petitioner as a co-defendant who claimed an oral sale of the land in his favour. Since both the suits involved common questions of fact and law for determination, these were consolidated for a joint trial and following issues framed hem:-
(1) Whether the defendant Ahmad Khan entered into agreement to sell with Zahid Iqbal and executed agreement dated 16-3-1986 and subsequent oral sale in favour of Hussan Din is without authority ?
(2) Whether the suit filed by Thekedar Hussan Din is collusive?
(3) Whether form of the suit of Hussan Din is incorrect and the suit is not competent in its present form?
(4) Whether Hussan Din is bona fide purchaser for value without notice?
(5) Whether the plaintiff Zahid Iqbal is entitled to decree for specific performance of contract?
(6) Relief.
5. ' Upon consideration of evidence given by the parties, the trial Court decreed the suit in favour of petitioner and dismissed that of Zahid Iqbal by a single judgment passed on 16-3-1989. Zahid Iqbal appealed from the decrees passed in the consolidated trial of suits. Lower Appellate Court reversed the decision of the trial Court on 16-1-1981 and decreed the suit for specific performance in favour of Zahid Iqbal and dismissed the suit brought by the petitioner. Correctness of this order and decree passed in appeal is contended in two civil revisions filed by the petitioner in this Court.
6. ' It was argued that onus to establish that the subsequent purchaser had notice of the previous agreement to sell was on the plaintiff in the suit for specific performance and that having not been established by him, specific performance f agreement to sell could not be had. Section 27 (b) of Specific Relief Act, 1877 was pressed in aid. In my opinion, it was plainly an incorrect proposition of law. It well settled that it is for the subsequent purchaser to prove that he was not posted with actual or constructive notice of any previous agreement to sell existing in respect of the land purchased by him for consideration. In his suit for declaration of title based on oral sale, petitioner made no averment on this point. However, a statement to that effect was made in the written statement submitted in the suit for specific performance filed by Zahid Iqbal. Consequently, a separate issue was settled on this point. Form of the issue indicated clearly that onus of proof was allocated to the petitioner. Petitioner himself did not appear in the witness-box to make the statement. He preferred to contest the litigation through his Mukhtar who gave evidence on his behalf. He was equally dumb-founded on absence of any notice or knowledge of the previous agreement to sell in favour of Zahid Iqbal. Therefore, the contention advanced was without any substance in it. Faced with this position of record and law, Mr. Ansari frankly abandoned the plea and did not say anything further on this point. Even otherwise, possession on the land was held' by Zahid Iqbal and it would have put any prudent person dealing with the land on enquiry as to the nature and title of the person holding the possession. No enquiry, whatsoever, was shown to have been made by the petitioner into the title of Zahid Iqbal holding the land. Therefore, subject to proof of the terms of agreement to sell contained in document Ext.D1, oral sale even if proved shall be of no material avail to the petitioner. There is neither Doubt nor any serious dispute about execution of Ext.D-2. It is a registered Document. Its execution by Ahmad Khan son of Hayat Mohammad was admitted. Its subsequent cancellation by a deed registered on 12-5-1988 re-inforced its genuineness. It was recited in Ext.D2 that Ahmad Khan bargained with Zahid Iqbal for sale of land in dispute and since the lands in the village were under consolidation and transfer of rights could not take place, he appointed Ahmad Khan as his attorney to complete the sale on his behalf. On the basis of power conferred on him by Ext.D2, the Mukhtar of the original owner entered into an agreement to sell the land to Zahid Iqbal vide Ext.D-1. It stated that agreement to sell the land was already concluded with Zahid Iqbal in 1983 and acknowledged the receipt of sale price of Rs,2,500.
7. It also contained a recital about transfer of possession of the land since 1983. Its execution was adequately proved by its scribe Haji Ghulam Ahmad DW-1 who wrote it out at the instance of Ahmad Khan, Mukhtar of the original owner, Ahmad Khan son of Mohammad Khan the person who held the special power of attorney and Zahid lqbal as D.Ws 1 to 3. All the three deposed on its execution. Although the original owner of the land (Ahmad Khan son of Hayat Mohammad) in his statement as DW-4 denied the agreement to sell in favour of Zahid lqbal and receipt of Rs,2,500 by him as the sale price, but from an overall view of the evidence, it is clear that he had agreed for the sale of his land in favour of Zahid Iqbal for the stated consideration receipt of which was acknowledged in the agreement to sell executed by his special attorney and the subsequent denial was an afterthought merely to benefit the petitioner. Possession of the land held by Zahid Iqbal also favoured the genuineness of agreement to sell in his favour. Petitioner conceded in the amended plaint of the suit for declaration that the defendant had unauthorisedly taken possession of the land in dispute. In the original plaint, there was no reference to the possession of the land either his own or that of the defendant Zahid Iqbal. Strangely, the original owner despite the alleged oral sale of the land in dispute in favour of the petitioner still asserted his own possession on the land. Obviously, in the light of the existing records and more particularly the stance taken by the petitioner himself, it looked to be an incorrect statement. Sale of the land in dispute, as the petitioner put in his plaint, took place on 23-9-1986 against a sum of Rs,10,000 as its sale price. It was an oral transaction and was not supported by anything in writing. No receipt for payment of the sale price existed either. As observed elsewhere, petitioner himself did not appear in the witness-box to make statement in support of oral sale in his favour and payment of sale price by him to the original owner of the land. He felt content to appear in Court through his Mukhtar-e- Aam. It is true that the original owner supported the petitioner but seen in the circumstances it was a friendly play between them to knock the respondent Zahid Iqbal out of the field. The manner of the original owner readily conceding the suit in favour of the petitioner on the first date of hearing fixed in it, in view of his previous conduct relating to appointment of special attorney and giving him power to complete the sale of the land on his behalf, was indicative of a clear collusion between him and the petitioner. Alleged oral sale of the land in dispute in favour of the petitioner is not free from doubt either. In this view, learned Judge below rightly reversed the decision of the trial Court and decreed the suit for specific performance in favour of respondent No,1. There is neither any error of jurisdiction committed nor any mistake discovered in reading of the record by the learned Judge below. The decision being correct is not open to any interference in revisional jurisdiction.
8. ' Having regard to the above, revision petitions are dismissed in limine.