' ABDUL QADEER CHAUDHRY, J.-- This appeal by leave of the Court is directed against the judgment dated 30-1-1990 of the Peshawar High Court.
2. The facts of the case are that the appellant brought a suit for possession in respect of the disputed land on the basis of agreement to sell dated 29-10-1978 with consequential relief that the mutation attested in favour of respondents 2 to 8 who are the heirs of the second vendee be cancelled. The case set up by the appellant was that the owner .Agreed to sell certain land and an agreement to sell was also executed. But the vendors in violation of terms of the agreement subsequently sold the land in favour of the defendants 2 to 8. The suit was contested by the vendors and subsequent vendees. According to the vendor, he agreed to sell a part of the land for a consideration of Rs,1,76,000. The appellant only paid Rs,12,000 on the date of execution of the agreement. Subsequently, two more payments of Rs,6,000 and Rs,9,000 were made on two different dates but rest of the consideration was not paid by the appellant. The case of the second purchaser was that he had purchased the land for a consideration and he had no notice of prior purchase. The trial Court decreed the suit of the appellant against the defendants on payment of Rs,1,49,000. It was directed that the deposit be made within a period of 40 days otherwise his suit shall stand dismissed. This decree was challenged by the defendants-respondents before the Peshawar High Court. A learned Judge in Chamber accepted the appeal and set aside the judgment and decree of the trial Court on the ground that the trial Court has failed to apply the provisions of section 27(b) of the Specific Relief Act.
3. We have heard the learned counsel for the parties. Learned counsel for the appellant submitted that the learned High Court has not correctly interpreted section 27(b) of the Specific Relief Act. The appellant entered into an agreement with the owner of the land for the purchase of the aforesaid land. He had made certain payments and also obtained possession of a part of the suit land. Time was not of the essence of the contract. The second vendee had the notice of prior purchase. He entered into an agreement with the vendor in order to frustrate the agreement of sale. The learned Judge has adverted to the facts of the case. It was observed that the Mutation No,4605 made in favour of the second vendee was not challenged by the plaintiff. Similarly, certain other Khasra numbers in sale Mutation No,EXPX/2 were excluded by the plaintiff in the suit. The agreement of sale relates to 64 Kanals of land for a consideration of Rs,1,74,000 but the description of the land was not given. It was also observed that the exact location of the land was also not described. In view of such infirmities in the case of the plaintiff, the relief as claimed by the plaintiff could not be granted. The appellant has also claimed the possession of the suit land though half-heartedly it is attempted to argue that the appellant is in possession of a part of the suit land but the appellant in his suit himself prayed for the possession of the land. There was only an agreement of sale and the sale was not completed through a registered document so as to show that there was notice to the public about the sale of the land. The appellant had not made the full payment of consideration amount in spite of demand by the owner. The appellant failed to discharge his obligation. He did not make the entire payment.
4. The first vendee may enforce his contract against the subsequent, transferee but the subsequent transferee may dislodge the claim of the first vendee by establishing that there was no collusion between the vendor and the second vendee and that he has purchased the property for a fair consideration and made the payment to the owner. The further obligation upon the second transferee is that he had to prove that he had no notice of first transfer. Section 27(b) of the Specific Relief Act provides as hereunder:-- "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:- --
(a) ....................................................................
(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; (c)
(d)
(e) ...................................................
5. Under section 27(b) of the Specific Relief Act, the initial burden is on the person who wants to take the benefit of exception to subsection (b) of section 27 of the Act. He has to prove with positive evidence that he had no notice of first sale and he had purchased the property for consideration.
Once the proof is made by the second transferee, it is then for the first purchaser to disprove the assertion made by such person by bringing such material as to displace the contention of the second purchaser. In this case, the respondents have been able to show that they had no notice of first sale. They had purchased the land for value and consideration in good faith. On the other hand, the appellant failed to substantiate his claim. He has not been able to dislodge the evidence of the second purchaser. He had not issued any notice to the second purchaser. The High. Court has observed that the respondents on oath categorically denied the awareness of any bargain between the plaintiff and Adalat Khan. In Khair-ul-Nisa v. Muhammad Ishaque PLD 1972 SC 25, this Court observed as follows:-- "Under the provisions of the Specific Relief Act, 1877 a contract can be specifically performed against any other person claiming title to the property arising subsequently to the original contract but an exception has been made in the case of transferee for value who has paid him money in good faith and without notice of the original contract for valuable consideration. In a suit for specific performance of contract the onus lies heavily on the person whose title arises subsequent to the contract to sell and he must prove that he is a transferee for value and has paid the money in good faith and without notice of the original contract. Under section 27(b) of the Specific Relief Act negative is to be proved by the subsequent transferee. If he appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden and the onus will then shift to the plaintiff to prove that the subsequent transferee had the notice of the original contract."
6. In Ghulam Nabi v. Muhammad Yaqoob PLD 1983 SC 344, it was held as follows:-- "Protection under section 53-A is subject to the proviso that nothing in the section shall affect the rights of a transferee for consideration who has no notice of the contract."
' Property Act does not affect rights of a transferee, for consideration, having no notice of contract or of performance thereof.
7. For the foregoing reasons, this appeal has no force. The same is dismissed with no order as to costs.