' SALAHUDDIN MIRZA, J.--The suit of the appellant for specific performance of the contract of sale, for cancellation of documents and for permanent injunction was dismissed by the learned Single Judge vide judgment dated 26-1-1988. The facts as given in the plaint are as follows: The appellant/plaintiff had entered into an agreement of sale with Respondents/Defendants Nos.1 to 4 on 28-5-1971 in respect of 30 Acres and 4 Ghuntas of land at the rate of Rs,14,400 per Acre. The Respondent/Defendant No,5 Allah Warayo was to act as intermediary and was to act through his son and attorney Respondent/Defendant No,6 Mohammad Mubeen. As per para 4 of the agreement of sale it was agreed between the parties that soon after the signing of the agreement, but not later than three months, the vendees would get the boundaries of the said land demarcated by fixation of the stones for the purpose of identification of the said land and would supply a copy of the site plan of the said land to the appellant/plaintiff. These preliminaries were thus to be completed at the latest by 28-8-1971. The appellant/plaintiff paid, in various instalments, a sum of Rs,1,64,000 to the vendecs by 31-8-1971 but no steps were taken by the Vendees towards the completion of the transaction and the appellant/plaintiff also kept quiet fun nearly four years.
In February 1975 the appellant/plaintiff found that a sign board in the name of M/s. Rays Amrohavi Foundation (Respondent/Defendant No,8) had been erected on the land in question whereupon the appellant contacted Respondents/Defendants Nos.1 to 6 but got no reply whereupon the appellant filed Civil Suit No,365/75 in the Court of Senior Civil Judge, Karachi. This Suit purported to have been filed under section 54 of Specific Relief Act seeking perpetual injunction against Respondents Nos.1 to 6 and respondent No,8 (in this H.C.A.) restraining them from selling or alienating the suit land. This suit was, however, dismissed under Order 7, Rule 11, C.P.C. Vide order dated 21-11-1975 when it was discovered that the injunction sought for had become infructuous because Respondents Nos.1 to 6 had already sold the suit land to Respondent No,7 M/s. Ever Gold Enterprise on 17-9-1974. Thereafter the appellant/plaintiff filed Suit No,13 of 1977 on 15th January, 1977, or shortly thereafter. Originally, the suit was filed against Respondents Nos.1 to 7. All these seven respondents filed separate written statements. Respondents Nos.1 to 4 in their common written statement, apart from many other pleas as regards the non-maintainability of the suit and non-joinder of proper and necessary parties and non-payment of proper court-fee, had also raised the plea of limitation. On facts respondents Nos.1 to 4 admitted the execution of the agreement of sale dated 28-5-1971 and added that stipulation provided under para. 4 of the agreement had been complied with by them. They, however, alleged that the appellant/plaintiff had committed breach of Agreement and had failed to make payments to the extent of 33% of the total sale price. They further claimed that they had served the appellant/plaintiff with notice dated 5-4-1972, sent by registered post, calling upon the plaintiff to execute the sale-deed and pay the balance of consideration within two weeks of the service of the notice and when the plaintiff did not comply with the said notice, a notice of cancellation of the agreement of sale was served upon the plaintiff through publication in daily `fang' of Karachi in its issue of 7-5-1972 by which the plaintiffs were informed that due to breach of the terms of the agreement of sale, the same had been cancelled and the money so far paid by the plaintiff by way of part payment stood forfeited and that Respondents Nos.1 to 4 were free to sell and dispose of the land in question to any other party. Thereafter Respondents Nos.1 to 4 entered into an agreement of sale with Respondent No,7 on 25-6-1974 and after publishing further public notices in the daily 'Morning News', Karachi and daily `Aghaz' of Karachi finalised the sale-deed on 17-9-1974 and handed over physical possession of the land to Respondent No,7 whereafter even Respondent No,7 further sold the land to M/s. Rais Amrohavi Foundation. It was after this that the plaintiff impleaded M/s. Rais Amrohavi Foundation as Defendant No,8 in the suit (now Respondent No,8 in this appeal). Respondents/Defendants Nos.5 and 6 have supported the case of the appellant/plaintiff in to. Respondent No,7 in her written statement, apart from raising the preliminary objections as regards the non-maintainability, limitation, non-joinder of necessary and proper parties and non-payment of court-fee, stated that she purchased the suit land only after the appellant/plaintiff refused to act upon the agreement of sale dated 28-5-1971 and did not raise any objection to her purchasing the suit land even after the public notice published in the newspapers. She further stated' that she had further sold the entire land to M/s. Rais Amrohavi Foundation. Respondent/Defendant No,8 also took up the plea of limitation and on facts it stated that it was a transferee for value with notice and, therefore, its right in the suit land could not be challenged by the appellant/plaintiff. Respondent No,8 further stated that it had already divided the suit land into various plots and had allotted them to its 347 members and had delivered possession of the respective plots to them. On the basis of these pleadings the learned Single Judge framed the following issues:- "(1) Whether the amended plaint is in conformity with the order dated 16-12-1978? If not to what effect?
(2) Whether the suit is properly valued and proper court-fees is paid thereon?
(3) Is the suit barred by limitation?
(4) Whether the agreement dated 28-5-1971 between the plaintiff and defendants Nos.1 to 4 was terminated under notices dated 8-4-1972 and 7-5-1972 respectively on account of the failure of the plaintiff to perform its part of the contract?
' Whether the defendant No,8 purchased the suit land, in good faith and without notice of the agreement dated 28-5-1971, from the defendant No,7 on 2-11-1974, entered upon the same, constructed a site office and fixed hoardings around the boundaries thereof, within the knowledge of the plaintiff, as alleged?
(6) Whether the defendant No,8 has allotted the suit land with possession to 347 of its member, according to the layout plan approved by the Cantonment Board, Malir, Karachi? If so, to what effect?
(7) Whether the sale of the suit land by the defendant No,7 to the defendant No,8 is collusive and are they one and the same person as alleged by the plaintiff?
(8) Is the suit not maintainable as framed?
(9) Whether the plaintiff is entitled to the specific performance of its agreement dated 28-5-1971?
(10) Decree and costs?"
2. The issue as regards the limitation was decided against the appellant/plaintiff and it was also held that Respondents Nos.7 and 8 were subsequent bona fide purchasers for value and without notice and on both these accounts the suit was not maintainable and it was accordingly dismissed vide impugned judgment. Hence this appeal. We have heard the learned counsel of the parties and with their help have gone through the record of the case.
3. Learned counsel of the appellant/plaintiff contended that the suit was not barred by time under Article 113 of Limitation Act as held by learned Single Judge. According to learned Single Judge notice published in daily `Jang' of 7th May 1972 (Exh.8/4) amounted to refusal of Respondents Nos.1 to 4 to perform their part of the contract and its publication by itself was sufficient service of this notice upon the plaintiff because `Jang' had the largest circulation of all Urdu dailies and the plaintiffs were Urdu-speaking and literate persons and the judicial mind would not be prepared to believe that the plaintiffs would have remained unaware of this notice published in such a newspaper. On the basis of this premises, learned Single Judge concluded that, since the published notice amounted to notice of refusal of Respondents Nos.1 to 4 to perform their part of the contract the period of limitation provided under Article 113 of Limitation Act for filing suit for specific performance should be deemed to have commenced to run from the date of publication of notice in the daily `Jang' (7-5-1972) and since this period is three years, the last date for filing the suit was 7-5-1975 and since the suit was filed on 17-1-1977, it, was barred by time. We are unable to subscribe to this view. P.W.1 Waheeduddin of appellant firm categorically stated that Respondents Nos.1 to 4 did not give any notice to the plaintiffs at any time. His refusal shifts the burden upon Respondents Nos.1 to 4 to prove service of such notice but they have failed to prove this.
Respondents Nos.1 to 4 also tried to prove service of a similar notice dated 8-4-1972 Exh.8/2 on the plaintiffs by Registered A.D. Post when their witness D.W.1 Muhammad Yousuf Qadri (Ex.8) stated that "I produce notice alongwith acknowledgement receipt as Exh.8/2 and Exh.8/3 respectively."
However, a close look at A.D. Receipt Exh.8/3 shows that this is false and misleading statement.
Exh.8/3 has nothing to do with the appellant/plaintiff and, as a matter of fact, Respondents Nos.1 to 4 neither produced postal receipt nor A.D. Receipt to prove that notice Exh.8/2 was either sent or served upon the appellant/plaintiff. Notice Exh.8/2 is thus an unapproved document. As such, it was futile on the part of learned counsel of Respondent No,8 to rely on AIR 1918 Privy Council 102 Harihar Bakverji v. Ram Shashi Roy because when there is no, evidence that notice Exh.8/2 was sent by post, there is no question of drawing any presumption that it reached the addressee.. Any reference to section 3 of Transfer of Property Act wherein the term "a person is said to have notice" is explained is irrelevant.
4. We may point out that on top of page 10 of the impugned judgment the following sentence occurs: "Exh.8/3 is registered acknowledgement due addressed to Muhammad Mobin on one side and the plaintiffs on the other." I lowever, this is not borne out from the record of the case. As everyone knows, on one side of the acknowledgement due receipt the name and address of the sender is written and on the other side the name and address of the addressee is given and, at the bottom, space is provided for the signatures of addressee and date of delivery. There is no earthly possibility of Exh.8/3 having the address of Muhammad Mobin on one side and plaintiffs on the other. Notice dated 8-4-1972 Exh.8/2 was sent by Mr. S.M. Chishti Advocate of 302 Lawyers Chambers, Opposite Light House Cinema, M.A. Jinnah Road, Karachi-1. Thus the name of Mr. S.H.
Chishti alongwith his address appears (in rubber-stamp) on one side of Exh.8/3 against the printed guidelines "sender's name and address" and on the other side name of Muhammad Mobin alongwith his address is given. Name of the plaintiff (M/s. Pak United Housing Enterprise) does not appear on any side of Exh.8/3. Of course, on the side on which "sender's name and address" are given, the Court Clerk has affixed a large rubber-stamp on which the suit number and names of the parties and the date on which Exh.8/3 was produced, as well as the name of the party which produced it, are given but this is quite another thing from saying that Exh.8/3 was also addressed to the plaintiff. Exh.8/3 was not addressed to the plaintiffs at all but was only addressed to Muhammad Mobin.
5. Now, when Respondents Nos.1 to 4 did not serve any direct notice on the plaintiffs, which they should have done in the first instance, service through publication in daily `Jang' cannot be held to be good service upon the plaintiffs of the refusal of Respondents Nos.1 to 4 to perform their part of the contract and, therefore, period of limitation provided under Article 113 of Limitation Act for filing suit for specific performance cannot be reckoned from the date of publication (7-5-1972), as has been done by learned Single Judge, and, therefore, the suit was not time-barrd. We would, therefore, set aside the finding of learned Single Judge on issue No,3 and hold that the suit was within time.
6. It was next contended by learned counsel for the plaintiff/appellant that Respondents Nos.7 and 8 were not bona fide purchasers for value without notice and, therefore, subsequent sales by Respondents Nos.1 to 4 in favour of Respondent No,7 and by Respondent No,7 in favour of Respondent No,8 cannot be sustained under section 27(b) of the Specific Relief Act which is reproduced below for ready reference:- "27. Except as otherwise provided by this Chapter, specific performance to a contract may be enforced against.
(a) ...........
(h) 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. No doubt, the burden heavily lies on Respondents Nos.7 and 8 to prove that they are transferees in good faith without notice of original contract of 28-5-1971, and for valuable consideration but as held in Khairul Nisa v. Muhammad Ishaque PLD 1972 SC 25 if the subsequent vendee appears in Court and states on oath that he had no knowledge of the previous agreement of sale this would be quite sufficient to discharge his burden and the onus shall then shift to the previous vendee to prove that the subsequent transferee had the notice of the previous contract. Now, D.W.3 Shahid Ahmad Khan, a Director of Respondent No,8/Defendant No,8 denied any knowledge of the previous Agreement between Respondents Nos.1 to 4 and the appellant. Ehx.7/11 is the Agreement of Sale between Respondents Nos. 1 to 4 and Respondent No,7 and P.W.3 Shahid Ahmad Khan stated in cross-examination that he had not read this document before entering into the Agreement of Sale with Respondent No,7. This question was perhaps asked because Exh.7/11 contains a reference to the Agreement of Sale between the appellants and Respondents Nos.1 to 4. It was argued by learned counsel of the appellants that it was not possible to believe that D.W.3 Shahid Ahmad Khan would not have seen and read Exh.7/11 because it was the sheet-anchor of the title of respondent No,7 and Mr. Shahid Ahmad Khan must, therefore, have read it and come to know of the previous agreement between the appellants and Respondents Nos.1 to 4 and, consequently, he could not be held to be a subsequent transferee without notice. This argument was rather misplaced since Agreement Exh.7/11 was not the sheet-anchor of the title of Respondent No,7. Sheet anchor of her title was extract from Property Register (Deh Form VII) showing the mutation of suit land in favour of Respondent No,7. It was produced by D.W.2 Shakeela Khanum Respondent No,7 as Exh.12 and it"was apparently on its basis that the Final Agreement of Sale Exh.14 was executed between Respondents Nos.7 and 8.
8. On the basis of the evidence before us we are of the view that Respondent No,8 had no notice of Agreement of Sale between Respondents Nos.1 to 4 and the appellants. The appellants could not produce either direct or indirect evidence to hold the contrary and the transaction between Respondents Nos.7 and 8 is saved under section 27(b) of Specific Relief Act. We also decline to accept the contention of learned counsel of the appellants that Respondents Nos.7 and 8 are actually one and the same entity. D.W.2 Shakeela Khanum was Headmistress of a school controlled by Rais Amrohvi prior to nationalisation of schools in 1972. This does not make M/s. Ever Gold Enterprise (Respondent No,7) as Respondent No,8 Foundation. Moreover, payment of consideration was proved by receipts Exh.16 and Exh.17 and by admission of Respondent No,7 in its written statement and by admission of D.W.2 Shakeela Khanum in her deposition.
9. We have also gone through 1984 SCM R 1139 Muhammad Sharif v. Mst. Sughra Bano which was relied upon by learned counsel for the appellants in which it is held that when circumstances clearly show that subsequent transferee had knowledge of earlier Agreement of Sale and when there is concurrent findings of two Courts on the point, such findings should not be disturbed. These are quite different facts and this judgment has no relevancy in the present case.
10. We are also of the view that the appellants/plaintiffs have shown themselves to be lukewarm towards specific performance of the Agreement of Sale dated 28-5-1971. In accordance with the terms of the Agreement, most of the formalities for the final execution of the sale-deed were to be completed by Respondents Nos.1 to 4 within three months at the most. The appellants, however, never bothered to ask Respondents Nos.1 to 4 whether they had completed all the necessary formalities and did not serve Respondents Nos.1 to 4 with even one notice from 28-8-1971 to 14-2- 1975 when they instituted suit No,365/75 in the Court of Senior Civil Judge, Karachi and even then they did not ask for Specific Performance of Agreement but merely prayed for a mandatory injunction to restrain Respondents Nos.1 to 6 from selling and Respondent No,8 from purchasing the suit land. No doubt this does not amount to abandonment of the relief of specific performance of the Agreement as held in PLD 1972 SC 39 Seth Essa Bhoy v. Saboor Ahmad and a subsequent suit for specific performance is still maintainable but it nevertheless shows the lukewarm attitude of the appellants towards finalisation the sale-deed. As such, under the circumstances of the case, we would have refrained from granting to the appellants the discretionary relief of specific performance of the Agreement even if the appellants had proved which they have not that Respondent No,8 had notice of the Agreement of Sale between the appellants and Respondents Nos.1 to 4 at the time of entering into Agreement of Sale with Respondent No,7.
11. We would, therefore, uphold the findings of learned Single Judge on Issue Ne.5 which stands decided in the affirmative.
12. Since Respondents Nos.1 to 4 did not put the appellants on notice before entering into subsequent Agreement of Sale with Respondent No,7, and since time is not essence of contract in contracts of sale of immovable property (unless stipulated otherwise), they have no right to forfeit the advance payment received by them.
13. For the above-noted reasons the appeal fails and is dismissed. In view of the circumstances of the case, Respondents Nos.1 to 4 shall bear the costs of the appellants and of Respondents Nos.7 and 8 throughout. Respondents Nos.5 and 6 are left to bear their own costs.