' The subject-matter of these two appeals is agricultural land measuring 3.22 acres situate at Deh Raj Wah, Taluka Moro in Nawabshah District. Under an agreement in writing dated 28-3-1962 the appellant Abdul Karim agreed to purchase the said land from Mohammad Zaki, the respondent No. 1 for and at the price of Rs. 30,000 payable in instalments, the last of which was payable on 1st of March 1966. Prior to the agreement the appellant was in possession of the said land as a lessee but subsequent to the agreement the appellant continued to remain in possession not as a lessee but expressly in part performance of the said agreement. By notice dated 23-1-1963, the respondent No. 1 seller purported to rescind the sale agreement dated 28-3-1962 on account of the alleged failure of the appellant to carry out his obligations. The respondent No. 1 then proceeded to sell and convey the said land in favour of Rais Jan Mohammad, the respondent No. 2, by a registered sale deed dated 18-8-1965. This led to a suit for specific performance by the appellant and for cancellation of the sale deed in favour of the purchaser/respondent No. 2 as being a transferee with notice of the prior transaction between the appellant and the respondent No.
1. The respondent No. 2 also filed a separate suit against both the appellant Abdul Karim and the seller Mohammed Zaki, the respondent No. 1, for a declaration that he was the owner of the said land and for possession and mesne profits. Both the suits were consolidated and disposed of by a single judgment.
2. The learned Additional District Judge, Nawabshah found that respondent No. 1 had committed breach of the agreement dated 28-3-1962 but did not grant the relief for specific performance as according to him the respondent No. 2 was a bona fide purchaser for value without notice. The relief granted to the appellant was confined to the refund of Rs. 20,844 paid by him towards the price of the land with interest at 6% per annum. The suit filed by respondent No. 2 was decreed and he was granted the declaration sought and also mesne profits from the date of the suit until possession was delivered to him. The respondent No. 1 has not come in appeal, and, therefore, the limited question in these appeals in the right of the appellant to have the agreement dated 28- 3.1962 enforced against the respondent No. 2 under clause (b) of section 27 of the specific Relief Act which reads as follows :- "(27) Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against- "(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."
3. Mr. G. H. Abbasi, the learned counsel for the appellant Abdul Karim contended that the lower Court erred in discarding cogent and reliable evidence led on behalf of the appellant that the respondent No. 2 had the knowledge of the agreement dated 28-3-1962 between the appellant and the owner Mohammed Zaki. The second and the more formidable contention of the learned counsel was that the lower Court in finding that the respondent No. 2 had no notice of the prior transaction almost exclusively relied on the bare denial by the respondent No. 2 of the knowledge of the previous transaction while ignoring the circumstances which sufficiently demonstrated that the respondent No. 2 should not be allowed to retain the benefit of transfer in his favour which prima facie he had no right to obtain.
4. In support of his second contention Mr. Abbasi invited my attention firstly to the sale deed dated 18-8-1965 in favour of respondent No. 2 in paragraph 2 of which it is stated that: "the possession of the land in question has been handed over to the purchaser which shall be held and enjoyed by the purchaser without any interruption from the vendor or any person claiming through or under him."
' In the suit filed by respondent No. 2, however, the allegation is that the appellant was in possession of the said land "but the nature of his possession was that of a lessee as continuously he was holding the suit land as lessee for a number of years and on enquiry also the defendant No. 1 (the appellant herein) always proclaimad himself to the lessee as usual and it was, therefore, that the plaintiff (the respondent No. 2 herein), had no notice or knowledge of the defendant No. l's (the appellant herein) possession as alleged sale agreement holder".
' In his deposition all that the respondent No. 2 had to say about the appellant's possession was that it was that of a lessee for last 7-8 years and the appellant had caused it to be known that he was lessee of the land. The learned lower Court came to the conclusion that the respondent No. 2 had no notice actual or constructive, of the contract between the appellant and the respondent No.
1. The learned Judge seemed to think that although the respondent No. 2 had the notice of the appellant's possession as a lessee he could not be fixed with notice of the previous transaction under which the land was possessed by the appellant. Neither the learned Judge nor the counsel appearing for the respondent were unconscious of the legal position that in the circumstances of the case the respondent No. 2 should have enquired into the nature of the appellant's possession for otherwise he would have constructive notice of all the equities in favour of the appellant. In his A plaint, the respondent No. 2 did allege that on enquiry made, presumably by him, the appellant had proclaimed himself to be a lessee but this case of enquiry by the respondent No. 2 was abandoned at the trial. A suggestion was made to the appellant in his cross-examivation that he had so proclaimed before Rais Ghulam Jan, the father of respondent No. 2, which suggestion was denied but no attempt was made to prove the allegation by examining the father as a witness. This visual aspect of the case was disposed of by the lower Court by referring to the fact that the appellant was in possession of the land since Independence as a lessee and the respondent No. 2 as a neighbouring Zamindar could have only the knowledge of such possession and that there was nothing in the circumstances which would have led the respondent No. 2 to know of the change to the nature of possession held by the appellant. As a neighbouring zamindar, and for that a Rais of the locality, what was more probable was that the respondent No. 2 was aware of the 3 years prio transaction between the appellant and the respondent No.
1. The learned Judge ignored that, notwithstanding the knowledge of the respondent No. 2 that the appellant was holding the land as a lessee, he, according to the plaint. Did cause to be made an enquiry into the character of the appellant's possession before sale in his favour and since the appellant proclaimed himself to be lessee he had no knowledge of the previous agreement. This bare allegation, as it was, was readily abandoned at the trial and is even otherwise worthy of no credit for it is impossible to believe that the appellant would so proclaim against his own interest.
Be that as it may. It was not even the case of respondent No. 2 in his deposition that by reason of his knowledge that the appellant was in possession as a lessee since Independence, he did not deem it necessary to make any enquiry. And even as regards the appellant's possession as a lessee it is significant that the respondent No. 2 did not even care to be apprised of its terms and as to when it was due to expire. These circumstances examined in the context of the false assertion in the-sale deed c that the respondent No. 1 had handed over the possession of the land to respondent No. 2 leave no doubt in my mind that, if nothing more, the appellant's case against respondent No. 2 falls within the third illustration of clause (b) of section 27 of the Specific Relief Act which is as follows:- "A contracts to sell land to B for Rs. 5,000. B takes possession of the land. Afterwards A sells it C for Rs. 6,000. C makes no enquiry of B relating to his interest in the land. B's possession is sufficient to affect C with notice of his interest, and he may enforce specific performance of the contract against C."
5. Before I part with this contention I must refer to the two decisions of the Supreme Court of Pakistan on which reliance was placed on behalf of the contesting respondent, reported as Mst.
Khair-un-Nina v. Muhammad Ishaque and others (1) and Abdul Kazak Howuldar v. Sh, Mohammad Shaft (2). The first case is an authority for the proposition that in a suit for specific performance of a 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 and that if the subsequent transferee 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. It will suffice to say that this case is not an authority for the proposition that the Court will in presence of such denial of notice refrain from examining the circumstances which may affix that person with notice actual or constructive. The second case relied upon by the learned counsel was pressed into service to meet the argument of Mr. Abbasi that possession of the appellant over the premises in dispute at the time of the transfer in favour of the respondent No. 2 was sufficient to put the latter on enquiry and that if he wilfully abstained from an enquiry which he ought to have made he should be deemed to nave constructive notice of what he would have found had he made that enquiry. With this broad proposition that if a tenant be in possession of land which is transferred it is the duty of the purchaser to make an enquiry from the tenant as to the nature and incident of his title, the Supreme Court was unable to agree. The Court went on to observe that :- "Immovable property in a town of an agricultural estate may have hundreds or even thousands of tenants on it. It cannot be the duty of a person who purchases large property to make an enquiry from every one of the tenants of the property as to any agreements relating to the property which he may possess and that tenants are in possession of the property which is < purchased is "not a fact which by itself will put the purchaser on enquiry, for this may be and will probably be the normal incident of the property purchased."
' With the above proposition I am not only bound but in respectful agreement. But the facts of the present case are matariatly different in as much as the property involved is a compact piece of agricultural land situate in a village, in possession of a single person, the purchaser alleging that the had made enquiry into the nature of this possession, the sale deed reciting that the purchaser was, handed over its possession and the purchaser blissfully oblivious of the duration of the tenants' lease of the quantum of rent. The Supreme Court has further observed in that case that : - "A duty to make enquiry would arise only if there be some circumstance which puts the purchaser on enquiry and the question as to whether there were circumstances putting the {{FOOT NOTE}}
(1) PLD 1972 SC 25 (2) PLD 1962 SC 134 {{FOOT NOTE}} transferee on enquiry is a matter to be decided on facts of a particular case."
' To my mind the facts of the present case had clearly the effect of affixing on respondent No. 2 constructive notice of the prior agreement between the g appellant and the respondent No. 1.
6. In this view of the matter it is unnecessary to examine the other contention of Mr. Abbasi that the learned lower Court has erred in disbelieving the oral evidence led on bahalf of the appellant that the respondent No. 2 had in fact the notice of the prior agreement between the appellant and the respondent No. 1.
7. The result is that these appeals are allowed and the appellant's suit No. 22 of 1966 is decreed against both the respondents and the suit filed by respondent No. 2 being Suit No. 23 of 1966 is dismissed. The appellant will be entitled to cost throughout.