The petitioner-plaintiff filed a suit for specific performance of an agreement to sell dated 27-5- 1960 (Exh.PI) executed by defendants-respondents Nos. 1 and 2 namely Muhammad Sarwar and Nazir, the real brothers in favour of the plaintiff of the plaintiff for a consideration of Rs.3,000 in regard-to the sale of a portion of the house No.9-C situated in Mandi Chishtian, District Bahawalnagar measuring 9 Sarsaies, being 9/40th share of the said house. The property in dispute consists of one room of the said house. It is alleged in the plaint that the petitioner-plaintiff purchased the said property from the defendants-respondents Nos. l and 2 vide agreement to sell dated 27-5-1960 and the total sale consideration was paid at the time of the execution of .The said. 'agreement and as the property in dispute was an evacuee property, it was agreed ' between the parties that the vendors will get sale-deed executed in favour of the petitioner within one month conferment of the proprietary rights to the ',:,:vendors and the cause of action arose due to the fact that after obtaining the0,, ~?Proprietary rights, the vendors sold the property in dispute to Faqeer Muhammad, defendant-respondent No.3 vide registered sale-deed (Exh.D-3) registered on 19-12- 1981 for a consideration of Rs.30,000 and refused to get the said property transferred in the name of the petitioner. The vendors-defendants Nos. l and 2 vide their written statement dated 20-6-1982 have not denied the 'execution of agreement dated 27-5-1960 in favour of the petitioner. However, the delivery of the possession has been denied. The subsequent vendee Faqeer 'Muhammad contested the suit by filing a separate written statement. Out of the pleadings of the parties, the learned trial Court framed the following issues:-- (1)Whether the defendants Nos. l and 2 entered into agreement to sell the disputed property to the plaintiff for a consideration of Rs.3,000 and executed an agreement to sell deed on 27-5-1960? OPP (2)Whether the plaintiff has paid a sum of Rs.3,000 to the defendants Nos. l and 2? OPP (3)If issues Nos. l and 2 are proved in affirmative, whether the plaintiff is entitled to the specific performance of the agreement dated 27-5-1960? OPP (4)Whether the suit is within time? Opp (5)Whether the plaintiff is estopped to bring this suit on account of his word and conduct? OPD (6)Whether the defendant No.3 is a bona fide purchaser for value without notice? OPD 3.
(7)Whether the defendants Nos. l and 2 were not competent to enter into the alleged agreement? OPD 1 and 2.
(8)Whether the suit is bad due to non joinder of necessary parties?OPD 1 and 2 (9)Relief.
2. The petitioner-plaintiff produced Muhammad Yousaf clerk of Settlement Departrtment, as P. W.1 who stated that P. T. O. Was issued to vendors--defendants Nos. l and 2 on 29-12-1959. The PTD (Exh.D-1) was issued on 19-7-1974, P.W.2 Muhammad Anwer petitioner-writer is the scribe of the agreement Exh.P-1 and has stated that it was written by him. P.W.3 Ahmad Yar, stamp-vendor stated that he had sold the stamp paper to defendant Muhammad Sarwar on which the agreement Exh.P-1 has been written. P.W.4 Shahab-ud-Din is the marginal witness of the above said agreement. P.W.5 Muhammad Anwer son of Inayat A.I has stated that he knows the parties and has supported the case of the plaintiff in regard to the agreement, sale consideration, and delivery of possession. The defendants produced Muhammad Sabir son of Roshan Din D.W.1 who stated that the disputed agreement to sell was executed in 1960 for a consideration of Rs.3,000.
Rs.2,000 were paid by the petitioner in advance and the balance amount of Rs.1,000 was to be paid to the vendors by the petitioner after the confirment of proprietary rights at the time of registration of sale-deed. Muhammad Sarwar defendant appeared as D.W.2 who admitted the execution of agreement to sell (Exh.P-1) for a consideration of Rs.3,000 and has stated that Rs.2,000 were received from the petitioner in advance and the balance amount of Rs.1,000 was to be paid at the time of registration of sale--deed and the petitioner was asked by the vendors again and again to purchase the property in dispute and to get the sale-deed registered his favour after making payment of the balance amount of Rs.1,000 and on the refusal of the petitioner to do so, the vendors sold the property in dispute to defendant No.3 Faqeer Muhammad. The subsequent vendee Faqeer Muhammad appeared as D.W.3 who has stated that he had purchased the property in dispute for a consideration of Rs.30,000 and that he had no prior knowledge of the agreement between the plaintiff and defendants Nos. l and 2. The plaintiff's special attorney Muhammad Islam son of Sher Muhammad appeared in rebuttal as P.W.6 who stated that the property in dispute was purchased by Muhammad Shafi plaintiff from Sarwar and Nazir defendants and total consideration of Rs.3,000 was paid and the possession was also delivered at that time to the plaintiff Muhammad Shaft and it was agreed between the parties that the vendors will get the sale-deed executed and registered in favour of Muhammad Shafi after obtaining the proprietary rights. The plaintiff Muhammad Shafi kept on inquiring from the defendants but about 2/3-4 years ago Muhammad Shaft came to know that the proprietary rights have been obtained.
(The statement of this witness was recorded on 10-9--1984). He further asserted that since the time of the execution of the agreement the possession of Muhammad Shafi is continuous. He also stated that possession of the room in dispute was handed over by Muhammad Shafi to the witness's father Sher Muhammad and that after purchasing the said room. Muhammad Shafi had spent Rs.8,000 on its repair. In his cross-examination he has admitted that his family house is adjacent to the room in dispute and that Muhammad Shaft plaintiff had never given this room on rent to anyone and has explained that the possession was obtained by his father Sher Muhammad, of the room in dispute, from Muhammad Shafi after the execution of an agreement between them under which his father Sher Muhammad had given Rs.3,000 to Muhammad Shafi and had purchased the room in question and that his father himself never paid rent to Muhammad Shafi and similarly his father never paid any rent to defendants Nazir and Sarwer. He admits that subsequent vendee Faqeer Muhammad had filed an ejectment petition against him. He also denied the suggestion that 8/9 years ago Nazir and Sarwer asked Muhammad Shafi plaintiff to get the sale-deed registered in his favour but he refused. The defendants Nazir and Sarwer have also migrated and left this city 17/18 years ago. This witness has also clarified that previously his father was special attorney of plaintiff Muhammad Shaft and after the death of his father, and on the institution of the present suit, he obtained special power of attorney from Muhammad Shaft and has stated that he is not a relative of Muhammad Shafi. This witness has also stated in the cross- examination that Muhammad Shafi has also migrated to Faisalabad. It is further stated that 2/4 months after its purchase, the room in dispute was sold by Muhammad Shaft plaintiff to his father and the possession was also delivered to him and before it the possession of this room was with Muhammad Shafi and Muhammad Shafi, after selling this room and his shop, migrated to Faisalabad about 14 years ago and he came to Chishtian many times thereafter and he has denied that his father was ever a tenant of either Nazir and Sarwar defendants or Faqeer Muhammad defendant.
3. The trial Court-Civil Judge, Chishtian vide its judgment and decree dated 4-2-1986 dismissed the petitioner's suit. Issue No. l in regard to the agreement to sell was decided in favour of the.
Plaintiff and it was held that defendants Nos. l and 2 entered into agreement to sell the disputed property to the plaintiff for a consideration of Rs.3,000 and executed the agreement on 27-5-1960.
In regard to issue. No.2 it was held that only Rs.2,000 were paid by the petitioner to defendants Nos. l and 2 at the time of execution of the agreement to sell and the balance amount of Rs.1,000 was to be paid by the plaintiff at the time of registration of sale-deed. Issue No.7 was also decided in favour of the plaintiff and against the defendants and it was held that defendants Nos. l and 2 were competent to enter into the agreement to sell. Issue No. 8 was also decided against the defendants and it was held that suit was not bad and there was no non joider of any necessary party.
However--- issues Nos.3, 4, 5 and 6 were decided against the plaintiff on the basis of which the petitioner's suit was dismissed. While deciding issue No.3 it was held that the plaintiff was not entitled to the specific performance of the agreement dated 27-5-1960 because the proprietary rights were given and the P.T.D. Was issued in favour of the defendants-vendors on 19-7-1974 and the petitioner-plaintiff did not take any action and slept over for a long time. Similarly issue No.4 of limitation was decided against the plaintiff and it was held that the suit was barred by time because P.T.D. In favour of the vendors was issued as far back as on 19-7-1974 and the names of the vendors were entered and have appeared since then in the Revenue Record and due to this their is a presumption of knowledge with the plaintiff of the confirment of proprietary rights. Rest of the house was sold by defendants Nos. l and 2 long ago to a third party and, therefore, it was generally known that the defendants Nos. l and 2 had obtained the proprietary rights. Issue No.5 of estoppel was also decided against the plaintiff and in favour of the defendants and in regard to issue No.6 it was held that subsequent vendee--defendant No.3 is a bona fide purchaser for value without notice.
4. The learned Additional District Judge, Bahawalnagar vide his judgment and decree dated 8-3- 1987 dismissed the petitioner's appeal upholding the findings of the learned trial Court on issues Nos. l, and 3 to 8. However, the decision of the trial Court in regard to issue No.2 was modified and it was held that the plaintiff had paid the whole sale consideration of Rs.3,000 at the time of execution of the agreement dated 27-5-1960 and it was further held that the petitioner-plaintiff is entitled to recover Rs.3,000 from defendants Nos. l and 2 who shall pay the same to the petitioner- plaintiff within two months.
5. 1 have heard the learned counsel for the parties and have also seen the record
6. The learned counsel for the petitioner submits that it is an admitted position between the parties that the plaintiff migrated to Faisalabad long time ago and was not living in Chishtian where the property in dispute is situated and, therefore, had no knowledge or information that the vendors- defendants Nos. l and 2 had been conferred proprietary rights as back as in 1974 and there is nothing on record to show that the defendants ever informed the petitioner of their having obtained proprietary rights and no notice ever was issued to the petitioner in this regard. It is next submitted that period of limitation of three years in the petitioner's suit under Article 113 of Schedule I of the A Limitation Act, 1908 is to be computed against the petitioner from the date when the plaintiff got the notice that the specific performance of agreement is refused because in the instant case no date was fixed for the performance of the agreement and in law the refusal of performance by the vendors-defendants Nos. l and 2 will be presumed from 19-12-1981, the date when-the vendors got the sale-deed registered and executed in favour of Faqeer Muhammad defendant No.3 and the present suit was instituted on 18-1-1982 within one month of the sale in favour of the subsequent vendee and, therefore, the suit is well within time. Reliance is placed upon Mst. Bibi Khatoon and seven others v. Abdul Jalil PLD 1978 Supreme Court 213. In the said case the agreement was made in 1961 between the parties that the sale deeds in regard to the shops in question will be executed and registered as soon as P.T.Ds. For shops were issued by the Settlement Department in favour of the vendors. The P.T.Ds. Were issued in 1962 and the suit was filed after about 8 years in 1970 which was contested on the ground of limitation and it was held by the Honourable Supreme Court that there was no evidence showing respondent having knowledge of the date when the PTDs were to issue or actually issued and, therefore, no particular date fixed for performance of agreement and the suit for specific performance of contract to sell, held, fell not within 1st Part but within Second part of Article 113, and limitation ran from the date respondent- plaintiff had notice of refusal of performance and not from the date of issue of P.T.Ds. The reliance is also placed on Miran alias Meer Muhammad v. Ghulam Hussain PLD 1985, Karachi 674 in which it has been held that period would start to run only when promisor refused to perform his part of the contract and such refusal was notified promisee and it has been explained that vested rights cannot be extinguished and remedies cannot be cut down by regulatory statute (Limitation Act) unless all the conditions prescribed for curtailment are fully complied with in letter and spirit. The benefit of doubt, if any, should be given to the party who has acquired valuable right for good consideration and not to the one who is trying to back out from his commitment. Pocketing of the advantages and trying to schedule himself behind the regulatory provisions of the statute and seeking to deprive the other from the rights acquired. In this case it was held that even the filing of rent proceedings by promisor would not tantamount to infer, 'refusal', within the meaning of Article 113 of the Limitation Act, 1908 and to attribute to promisee that he had notice of such intention.
7. It is next contended by the learned counsel for the petitioner that subsequent vendee Faqeer Muhammad has failed to prove that he is a transferee for value who has paid his money in good faith and without notice of the original contract and, therefore, his case does not fall within the exception of clause (B) of Section 27 of the Specific Relief Act (I of 1877). He has also failed to prove that he made any diligent inquiry in regard to the absence of any prior agreement and it is submitted that both the Courts below acted illegally and with material irregularity in not considering the statement of Muhammad Islam P.W.6 who stated that he plaintiff had migrated to Faisalabad long ago and Sher Muhammad, the witness's father, came into possession of the property immediately after the execution of the agreement in favour of the plaintiff and after his death, the witness is continuously in possession and there is no evidence that respondent No. 3 the subsequent transferee ever visited Muhammad Islam P.W.6 to inquire as to how was in possession of the disputed property and if he had visited and made inquiry from Muhammad Islam, he would have come to know that the property stood sold to the plaintiff long ago. The subsequent transferee Faqeer Muhammad in his cross-examination as D.W.3 has admitted that he never visited Faisalabad to meet the plaintiff Muhammad Shafi and that he is running an iron shop from the last 8/10 years which is just across the road from the disputed room at a distance of 50 feet and in these circumstances it is contended that it is not believable that he had no notice of the prior agreement between the plaintiff and the promisors-respondents Nos. 1 and 2 and, therefore, he is not a person who has paid his money in good faith and without notice of the original contract.
Reliance is placed on Haji Abdur Rehman and 3 others v. Noor Ahmad amd 3 others (PLD 1974 Baghdad-ul-Jadid 25) in which it has been held that mere denial of notice of previous transaction is not enough and that in order to succeed on the issue, the subsequent vendee must establish, apart from payment of value that:
(a) he acted in good faith; ,
(b) he had no notice of the original contract; and
(c) in the above two aspects he took reasonable care.
And it is for the subsequent vendee to show that he acted like a reasonable man of business and with ordinary prudence. Moreover, inquiry into the title necessarily as a part, therefore, and inquiry as to who (and in what circumstances and in what capacity) is in actual possession of the property. It is next submitted that the petitioner-plaintiff had paid the entire sale consideration at the time of the execution of the agreement to sell and was put in possession of the premises in performance of the agreement to sell and, therefore, he had fulfilled his part of contract and was not required to do anything further under the agreement and reliance is placed on Mrs. Mariam and others v. Muhammad Ayub (1985 CLC. 2531 (Karachi), wherein it has been held that "In these circumstances, a very heavy burden was cast on the respondents to establish circumstances which could persuade the Court to refuse a specific performance .... The default in completion of sale, if any, was on the part of the defendants." In the said case, the arguments of the learned counsel for the defendants that because of inordinate delay on the part of the prior purchaser to enforce his right under the agreement the defendants are greatly prejudiced because in the meantime the prices of the property in law have gone very high, was repelled and it was held that there was no delay as such, on the part of the vendee as he was not required to do anything further, having paid the entire consideration and taken possession of the property in the part performance.
8. On the other hand, the learned counsel appearing on behalf of respondents supported the impugned decisions on merits. It is contended that both the Courts below have recorded the findings correctly on the relevant issues after taking into consideration the necessary evidence and in support thereof has made the following submissions:- (i)That the plaintiff after entering into an agreement of purchase with the promisors-defendants Nos. 1 and 2, admittedly sold away his rights and interest in the property in dispute to Sher Muhammad, deceased father of Muhammad Islam P.W.6 and as such had no locus standi to institute the present suit and has referred to para. No. 4 of the judgment of the trial Court which held that "the present plaintiff has no locus standi to bring the present suit against the defendants Nos. 1 and 2 for specific performance of contract, as the present plaintiff has sold away the same to Sher Muhammad, father of special attorney of the plaintiff".
(ii)That Muhammad Islam P.W.6 is not a truthful witness as he is on inimical terms with Faqeer Muhammad subsequent vendee because he has himself admitted in the cross-examination that Faqeer Muhammad has instituted an ejectment suit against him.
(iii)That the evidence brought forward by respondents shows that the plaintiff Muhammad Shafi had been asked by the promisors to get the sale-deed registered in his favour but he had refused and in these circumstances the plaintiff himself ought to have appeared in the witness-box to rebut the said evidence and presumption, therefore, in law is to be drawn against the plaintiff because of his failure to appear as his own witness. Reliance in this regard, is placed upon Fazal D&d and others v. Jehandad and others (1991 CLC 1783 (High Court Azad J and K), Mst. Ahmadi Begum v. Israr A.I and another (1985 CLC 2335), and Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519).
(iv)That the limitation in this case is to run under first Part of Article 113 of the Limitation Act and not under Second Part of the said Article because in the agreement (Exh. P-1) a date is fixed for the performance of the contract and that is within one month from the date of confirment of proprietary rights and the P.T.D. Was issued in 1974 and the suit was instituted in 1982 which was clearly barred by time as having been instituted much after the prescribed period of limitation of three years.
(v)That defendant No.3 Faqeer Muhammad is a bona fide purchaser for value who has paid his money in good faith and without notice of the original contract and, therefore, his case falls in exception given in Clause (B) of Section 27 of the Specific Relief Act (I of 1877) and he had himself appeared as D.W.3 and had stated in categorical terms that he had no prior notice of the earlier contract and his denial shifted the onus on the plaintiff to prove that the subsequent transferee had the notice of the earlier contract, Reliance is placed upon Mst. Khair-ul--Nisa and 6 others v.- Malik Muhammad Ishaque and 2 others (PLD 1972 Supreme Court 25) and Mst. Surraya Begum and others v. Mst. Suban Begum and others (1992 SCM R 652).
(vi)And lastly it is contended that there are concurrent findings of facts of both the Courts below against the petitioner-plaintiff and this Court cannot interfere in those findings in the exercise of its jurisdiction under section 115, C.P.C., Reliance in this connection is placed upon Abdul Hameed v.
Ghulam Muhammad and others (1987 SCM R 1005), Muhammad Zaheer Khan and another v.
Muhammad Zamir Khan (1987 SCM R 1144), and Muhammad Anwar v. Arahad Jillani (1988 SCM R 1190).
9. After having heard the arguments of the learned counsel for the parties at a considerable length and after carefully examined the record, I am convinced that both the Court below acted illegally and with material irregularity in dismissing the petitioner's suit and appeal and that the contentions made by the learned counsel for the respondents have no force.
10. It is an admitted position between the parties that the promisors executed the agreement to sell in favour of the petitioner for a consideration of Rs.3,000 and according to the promisors- respondents Nos. l and 2, they received 2/3 of the sale consideration i.e. Rs.2,000 from the petitioner at the time of its execution and the balance mount of Rs.1,000 was to be paid at the time of the registration of the sale-deed. However, the learned First Appellate Court has correctly held that whole of the sale consideration had been paid to respondents Nos. l and 2 at the time of execution of the agreement because of the evidence led by the petitioner and the agreement itself which is not denied and has been proved shows that whole of the sale consideration was received by respondents Nos. l and 2 at the time of its execution. The learned counsel appearing on behalf of the respondents has not been able to show anything from the record to come to a different conclusion. The evidence led by the petitioner has also established beyond any shadow of doubt that the possession was delivered to the petitioner at the time of the execution of the agreement.
The testimony of the witnesses has not been dislodged by the respondents in this regard and P.W.6 Muhammad Islam has in detail given the background and of the fact of delivery of possession. The agreement itself also shows that the possession was delivered to the petitioner at the time of its execution and as the execution of the agreement is not denied, the contents of the agreement also stand proved. The respondents have produced D.W.1 Muhammad Sabir who says that the possession was not delivered to the petitioner at the time of the execution of the agreement but in cross-examination he has admitted that he was not present when 'the said agreement was written. He further admits that Sher Muhammad had never given any rent to the respondents in his presence. D.W.2 sis defendant-promissor himself and he being an interested witness, his evidence in regard to the delivery of possession cannot be relied upon especially when he admits execution of the agreement. In these circumstances, it is held that the entire sale consideration was paid by the petitioner to the respondents Nos. l and 2 at the time of the execution of the agreement and the possession was also delivered to him at that time.
11. Both the Courts below have illegally held that the petitioner's suit was barred by time and have failed to apply the correct law. The present suit clearly falls within Second Part of Article 113 of the Limitation Act, 1908 and the period of the Limitation is to be computed against the petitioner from the date when he got the notice that the specific performance of the agreement is refused because in the instant case no date was fixed for the performance of the agreement and the argument of the learned counsel for the respondents that in this case a date was fixed for the performance of the contract because it is A written in the agreement that the sale-deed will be executed and registered in favour of the petitioner within one month of the confirment of proprietary rights has no force because there is no evidence on record to show that either the petitioner or the respondents Nos. 1 and 2 had the knowledge of the date when PTD was to be issued, therefore, it is a case in which no date was fixed for performance of the agreement and the present suit falls within Second Part of Article 113 of the Limitation Act, 1908 and the period of limitation is to run from the date when the plaintiff got the notice that the specific performance of the agreement is refused and not from the date of issuance of P.T.D. In favour of respondents Nos. 1 and 2. The law laid sown by the Honourable Supreme Court of Pakistan in Mst. Bibi Khatoon and seven others v. Abdul Jalil (supra) is very clear on the subject and the same is respectfully followed here. The facts of the said case also are exactly similar to the facts of the present case. In the instant case, it is the case of the respondents that they never refused to perform their part of the contract and there is nothing on the record to show that they ever issued any notice to the petitioner of their refusal to perform their part of the contract. The only evidence which they have brought forward is that asked the petitioner to get the sale-deed registered but he refused. It does not stand to reason as to why the petitioner would refuse to get the sale-deed registered in his favour because he had paid the entire consideration and had also obtained the possession of the property in dispute. The evidence is also very vague and' evassive. No date or period is given as to when the petitioner refused to get the sale-deed registered in his favour and, therefore, the date of refusal is held to be F3 the date when respondents Nos. 1 and 2 sold the property in dispute to respondent No. 3 i.e. 19-12-1981 and the present suit was instituted on 18-1-1982 well within the period of limitation and it is held that the suit is within time.
12. The subsequent vendee-respondent No. 3 has been able to prove that he is transferee for value who has paid his money in good faith and without notice of the original contract. Mere denial on his part is not enough and he has failed to bring his case within-exception contained in Clause (B) of Section 27 of the Specific Relief Act (I of 1877). The notice contemplated by Section 27 of the Specific Relief Act must be one derived either upon bona fide and diligent inquiry on the part of the subsequent transferee or from various other surrounding circumstances. In order to succeed' on the issue, whether a person has purchased the property without the knowledge of the previous sale or C contract for sale in favour of another, the subsequent vendees must establish, apart from payment of value that:
(a) They acted in good faith;
(b) They had no notice of the original contract; and
(c) In the above two aspects, they took reasonable care.
1992 SCMR 652) are distinguishable on the basis of facts and circumstances of the present case. In the former decision the appeal of the subsequent transferee was dismissed. In such like cases the initial burden would be on the plaintiff to prove his prior contract which if discharged, the burden of proof of the subsequent bona fide transfer for value without notice would be on the party alleging the same and mere denial by the subsequent transferee would shift the onus on the plaintiff to prove that subsequent transferee had the notice of the earlier contract only when there was no other evidence on the record. In the instant case all the evidence brought forward and all the circumstances show that the subsequent transferee has failed to discharge the burden which is placed upon him in law. The conducted no unquiry whatsoever in regard to the title of the property in dispute and as such it cannot be considered that he purchased the property in dispute for value in good faith and without notice of the original contract. Both the Courts below have also failed to take notice of the evidence which was produced by the plaintiff in rebuttal. Muhammad Islam P.W.6 appeared in rebuttal and the value of his statement has not been considered by both the Courts below. The last argument of the learned counsel for the respondents is that this Court cannot interfere in the concurrent findings of the Courts below. The authorities relied upon by him referred to above in para. 8(vi) are distinguishable on facts from the present case and the lay, is very clear that if this Court comes to the conclusion that the judgments of the Courts below suffer from illegality or with material irregularity, it can interfere in its revisional jurisdiction under section 115, C.P.C. Even if, the findings of the Courts below F are concurrent. In the instant case, as already held, the judgments of the Courts below suffer from illegality and with material irregularity.
13. The upshot of the above discussion is that this revision petition succeeds which is accepted and the judgments and decree dated 4-2-1986 of the Civil Judge 1st Class, Chishtian and judgment and decree dated 8-3-1987 of the Additional District Judge-III, Bahawalnagar are set aside and the petitioner's suit is decreed with costs throughout.