' MALIK MUHAMMAD QAYYUM, J.---This is a defendants' regular first appeal from the judgment and decree of the trial Court dated 18-12-1991 passed in a suit for specific performance of an agreement to sell instituted by respondents Nos.1 to 4 against Faqir Ullah, predecessor of respondents Nos.5 to 12, Muhammad Amin, predecessor of respondents Nos.13 to 16 and the appellants.
2. In the plaint respondents Nos.1 to 4/plaintiffs claimed that Faqir Ullah Khan and Muhammad Amin, predecessors,of other respondent were owners of land measuring 113 Kanals situate in village Talvara, District Lahore which they agreed to sell to the predecessors of respondents Nos. 1 to 4 for a sum of Rs,4,23,125 out of which an amount of Rs,1,10,000. Was paid as earnest money. In the written statement filed by them, the respondents/defendants admitted having entered into an agreement to sell on 3-11-1985 but alleged that they had received Rs,40,000 only as earnest money and the remaining amount of Rs,70,000 was not paid to them which has resulted in frustration of the contract. It was averred that the time for performance of the contract was essence of the contract after the expiry of which, the respondents/plaintiffs were not entitled to have the agreement specifically enforced.
3. It appears that although on the application filed by respondents/plaintiffs, the trial Court had restrained respondents Nos.5 to 12/defendants from alienating the land in dispute but through a deed of sale dated 8-12-1987 which was registered on 10-12-1987, respondents Nos.5 to 16 sold the land to the present appellants. On an application filed under Order 1, Rule 10, C.P.C. By respondents Nos.1 to 4/plaintiffs, the appellants were inpleaded as defendants to the suit. In their written statement, they dubbed the agreement between the vendees and the vendors as bogus, collusive and without consideration. It was alleged that the appellants were bona fide purchasers for valuable consideration of the land without notice of any existing agreement for sale.
4. Out of pleadings of the parties, the trial Court framed the following issues on which parties produced their evidence:--
(1) Whether this suit is not competent in the eye of law? OPD
(2) Whether the plaintiffs are entitled to the specific performance of the agreement dated 7-2-1984 ? If so, on what terms? OPP.
(3) Whether defendants Nos.1 to 5 failed to perform their part of the agreement? OPP
(4) Whether the defendants Nos.1 to 5 received Rs,1,10,000 from the plaintiffs as earnest money?
OPP.
(5) Whether the defendants Nos.6 to 8 are bona tide purchasers of the suit land for consideration and without notice? OPD
(6) Whether the agreement to sell dated 7-2-1984 is collusive, bogus, without consideration? OPD
(7) Relief.
5. In support of their case, the plaintiffs/respondents examined Abdul Rashid, P.W.1, Muhammad Aslam, P.W.2, the two marginal witnesses to the agreement for sale (Exh.P-1), and Khadim Hussain, and their attorney appeared as P.W.3, while the statement of Ishtiaq Ahmad, son of Nemat Ali was recorded as P.W.4 in rebuttal. No evidence was produced by respondents Nos.5 to 16 (defendants Nos. 1 to 5). The appellants however, examined only one of them Abdul Hanif as their solitary witness. The suit was decreed by the trial Court on 18-12-1991. Hence this appeal.
6. The first contention raised by Mian Iqbal Hussain Kalanuri, learned counsel for the appellants was that the appellants were bona fide purchasers for value of the suit land without any notice of any agreement for sale in favour of the plaintiffs/respondents and as such the suit of the plaintiffs/respondents could not be decreed against the appellants.
7. We are afraid, this contention of the learned counsel is devoid of any merit. Admittedly it was during the pendency of the suit for specific performance that the appellants had purchased the land in dispute from respondents Nos.5 to 16. The sale in their favour was, therefore, clearly hit by the doctrine of lis pendens which finds legislative recognition in section 52 of the Transfer of Property Act, 1882. Even though section 52 of the Transfer of Property Act, 1882 was not in force to the Province of Punjab yet in Mool Chand and others v. Ganga Jal and others (AIR 1930 Lahore 356) a Full Bench of the Lahore High Court held that the principles underlying the provision were applicable to the Province. Also see Pir Abdullah Shah and 8 others v. Humayan and 5 others (PLD 1957 Lahore 1054), Haider Ali and another v. Akbar Ali and another (PLD 1973 Lahore 546) and Sh.
Ata Muhammad v. Major Zubair Muhammad Khan and 7 others (1980 CLC 446). It may also be mentioned here that the principle of lis pendens is fully applicable in respect of suits for specific performance as held in Mst. Jhandi v. Syed Baqir Ali Rizvi and another (1987 CLC 459). Jahar Lal Bbutra and others v. Bhupendra Nath Basu and others (AIR 1922 Cal. 412 (2)) and Atar Ali v. Abed Ali and others (PLD 1954 Dacca 158).
8. Mian Iqbal Hussain, learned counsel for the appellants, however, attempted to argue that as the appellants were not aware of the pendency of the suit, the principle of lis pendens has no applicability to them. This contention of the learned counsel is again not legally sound. The doctrine of pendente lite is not simplicter based upon the principle that filing of a suit is notice to the whole world but moreso on the public policy that no one should be allowed to affect the rights of the parties pending the decision of cause before a Court of law. It is useful to refer to Beliamy v.
Shabine ((1857) 1 De G. And J 566 in which the rationale on which the doctrine of lis pendens rests was propounded by Turner L.J. In the following words: "It is as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation---that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to he defeated by the same course of proceeding."
' In the same Lord Cranworth explained that the doctrine did not rest on the ground of notice and observed that: "It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite- party."
' This judgment was followed by the Privy Council in Faiyaz Hussain Khan v. Prag Narain ((1907) XXIX Allahabad 339).
9. In view of the above legal position, even if it be assumed as has been contended by Main Iqbal Hussain, though the record shows to the contrary that the appellants had no notice of the pendency of the suit yet the plea that the appellants are bona fide purchasers for value without notice, is not available to them. It was so held by a Division Bench of this Court in M/s. Aman Enterprises Kotli Loharan, Sialkot v. M/s. Rahim Industries Pakistan Ltd. And another (PLD 1988 Lahore 717). Reference may also be made to Mst. Jhandi v. Syed Baqir Ali Rizvi and another (1987 CLC 459).
10. Before parting with this aspect of the matter, we may also state that not only alienation had taken place during the pendency of the suit but further that it was also violative of the order of temporary injunction issued by the trial Court restraining respondents Nos.5 to 16 from alienating the suit land. The respondents cannot, therefore, 'successfully resist the claim for specific performance of the agreement.
11. It was next contended by the learned counsel the appellants that as there was no prayer in the amended plaint for cancellation of the sale deed executed by respondents Nos.5 to 16 in favour of the appellants. The suit was not maintainable.
12. We are not impressed with this argument. The appellants having purchased the property in dispute from respondents Nos.5 to 16 during the pendency of the suit have stepped into their shoes and the agreement for sale in favour of the plaintiffs/respondents can be specifically enforced as against them in terms of section 29(b) of the Specific Relief Act, 1877 which ordains that not only the parties to agreement but also their successors are bound by it. The only exception in this behalf is that of bona fide purchaser for value without notice of the existing agreement, which plea, as already observed by us, is not available to the appellants as they have purchased the property during the pendency of the suit. The appellants being successors of respondents Nos. 5 to 16 are bound to convey the property to respondents Nos.1 to 4 plaintiffs in specific performance of agreement dated 7-2-1984 which binds them also.
13. Mian Iqbal Hussain, Advocate then argued that the agreement for sale, between respondents Nos.1 to 4 and the predecessors of respondents Nos.5 to 16 was collusive and fictitious. This argument has no substance. In the written statement filed by respondents Nos.5 to 16, the execution of the agreement was not disputed by them. However, as it was pleaded by the appellants in their written statement that the agreement was fictitious and bogus, the trial Court framed issue No,6 in this behalf. No evidence whatsoever was led by the appellants to prove this issue. So much so, that one of the appellants who appeared as their solitary witness did not say anything in this regard while appearing as D.W.1. On the other hand, the plaintiffs/respondents had examined Abdul Rashid, P.W.1 and Muhammad Aslam, P.W.2, the marginal witnesses of agreement for sale (Exh.P-1) who categorically deposed that the agreement (Exh.P-1) was duly executed and consideration was also paid in their presence.
14. The learned counsel then urged that as respondents Nos. 5 to 16 had only half share in the land measuring 113 Kanals the suit only to that extent should have been decreed by the trial Court. We find it ironical that the case of the appellants themselves is that they had purchased 113 Kanals of land from respondents Nos.5 to 16 but yet it is being argued by the learned counsel that respondents Nos.5 to 16 owned only half share in that land. Be that as it may, F neither in the written statement filed by respondents Nos.5 to 16 nor by the appellants, the title of respondents Nos.5 to 16 to 113 Kanals of land was disputed rather it was admitted that they were the owners of this area of land.
15. The last argument of the jparned counsel was that the learned trial Court has erred in allowing the plaintiffs to deduct a sum of Rs,40,000 out of consideration on account of failure of the respondents/defendants to hand over the tube well in working condition. This part of claim of the appellants has been conceded by Syed Qurban Ala Gillani, Advocate appearing on behalf of respondents/plaintiffs who has no objection if the decree of the trial Court is modified to that extent had the respondents/plaintiffs are directed to pay a sum of Rs,40,000 in addition to the amount ordered by the trial Court.
' As a result of what has been discussed above, this appeal is allowed only to the extent that the plaintiffs/respondents are directed to deposit a sum of Rs,40,000 with the trial Court by or before 28-2-1995 failing which their suit shall stand dismissed. The appeal in all other respects fails and is dismissed with no order as to costs.