M. JAVED BUTTAR, J.- This revision petition under Section 115, CPC is directed against the judgment and decree dated 26.1.1994, passed by District Judge, Chakwal whereby the petitioner's appeal against the judgment and decree dated 27.7.1983 of the Civil Judge, Chakwal, was dismissed.
2. The facts, in brief, are that the property in dispute, a Shop No. B-VII-2-S-16(J), Railway Road, Chakwal, being an Evacuee Property, was allotted to deceased respondent/defendant No. 1 Muhammad Ashraf, a non-claimant .Displaced person. Muhammad Ashraf, being unable to pay the transfer price of Rs.7105.14 (mentioned in Ex.D1), entered into an agreement to sell with the petitioner on 16.6.1964 (Ex.P1) for a sale consideration of Rs.1,000/- plus the transfer price, payable by the petitioner. Soon thereafter the deceased defendant Muhammad Ashraf entered into an agreement of association with respondent No. 2/defendant Mahboob Khan, Patwari, which was accepted by the Settlement Authorities and PTO and PTD were issued in favour of Mahboob Khan.
The petitioner Raja Muhammad Gul, on the strength of his prior agreement to sell, instituted the present suit for specific performance of the contract against Muhammad Ashraf (since deceased) and Mahboob Khan, on 16.6.1967, before the Civil Court at Chakwal. It was averred that Muhammad Ashraf had agreed to transfer the ownership of the shop in dispute for a consideration of Rs.1,000/- in addition to any expenses which might have been incurred by him in this behalf and it was agreed that the transfer document will be executed in favour of the petitioner after the issuance of allotment order/PTD by the Settlement Department. It was further averred that he had paid a sum of Rs.2700/- at different times till the execution of agreement to sell (Ex.P1) and he was ready to pay the balance amount, that he may be held liable for.
3. The suit was contested by both the defendants through separate written statements and both of them denied all the averments of the plaintiff, including the fact of execution of agreement (Ex.P1).
On 22.1.1968, the trial Court framed the following preliminary issues:-- "(1) Whether this Court has no jurisdiction to try the present suit? OPD.
(2) Whether the suit is not maintainable in its present form? OPD.
(3) Whether the suit is barred by time? OPD.
(4) Whether the plaintiff has no cause of action? OPD"
4. PW-1 Raja Zawar gave a statement in Court on 1.4.1968 that the agreement to sell (Ex.P1) was executed by the defendant in favour of the plaintiff and his signatures as its marginal witness were Ex.P I /a and that the defendant had put his signatures on Ex.P I in his presence. This witness was not cross-examined at all. On 26%9,1968, the respondents/defendants conceded issues Nos. 2 to 4 to the plaintiff and the trial Court vide its judgment dated 10.12.1968, held that it had juridiction to try the suit and thus all the preliminary issues were decided in favour of the plaintiff. On 19.12.1968, the trial Court formulated five issues on merits. The parties produced their oral as well as documentary evidence on these issues and closed their evidence but when the trial had almost concluded, the trial Court struck off the issues already framed and framed seven new issues on 10.10.1970 on merits. The parties agreed to rely on the evidence already produced and no further evidence was produced. The issues on merits framed on 10.10.1970 are as under:-- "(1) What is the effect of transfer made by Department in favour of defendant No. 2? OPD.
(2) Whether agreement Ex.P I in-between plaintiff and defendant No. 1, is void?
(3) Whether plaintiff is bound by appellate order Ex.P.6 and is not entitled to challenge it? OPD.
(4) Whether this Court has no jurisdiction to examine the validity of PTO and PTD issued in favour of defendant No. 2?
(5) Whether the defendant No. 2 is bound by the agreement between plaintiff and defendant No. 1?
OPP.
(6) Whether the plaintiff is tenant under defendant No. 1 and is estopped to bring this suit? OPD.
(7) Whether the plaintiff is entitled to specific performance of contract and upon what conditions?
OPP.
(8) Relief."
5. The trial Court vide its judgment and decree dated 7.6.1971 dismissed the suit holding that the agreement to sell was not specifically enforceable because the shop in dispute having been directly transferred to Mahboob Khan respondent No. 2 could not made the subject-matter of specific performance against Muhammad Ashraf respondent No. 1. The petitioner's appeal was dismissed by the District Judge, Jhelum on 18.10.1972. The petitioner's Civil Revision No. 44 of 1973 was, however, accepted by this Court on 10.11.1980 and the case was remanded back to the trial Court for disposal in accordance with law with an observation that the petitioner did not dispute the jurisdiction of the authorities conferring the proprietary rights on respondent No. 2 and he simply objected to the arrangement made by Muhammad Ashraf deceased respondent No. 1 with respondent No. 2 during the existence of the contract which he sought to be specifically performed.
It was, therefore, held that the suit as such was not barred. The learned Judge thus concluded that the question whether respondent No.2 could defend the suit on account of his being a bona fide purchaser for value, if raised, could be decided under Issue No. 5, but the same still remains undisposed of. In the circumstances the decrees and the judgments under revision were set aside and the case, as mentioned above, was remanded to the trial Court for fresh decision. The trial Court vide its impugned judgment and decree dated 27.7.1983 again dismissed the suit giving fresh findings on all the issues. The Additional District Judge, Chakwal accepted the petitioner/plaintiff's appeal and remanded the case back to the trial Court for fresh decision on all the issues. The appeal of both the defendants/respondents (FAO No. 26/1988) against the order of remand was, however, accepted by this Court on 30.4.1988. The remand order dated 6.3.1988 was set aside and the case was remanded to the District Judge, Chakwal for fresh decision on the petitioner's appeal on merits in accordance with law. The District Judge, Chakwal, as mentioned above, has dismissed the petitioner's appeal on merits through the impugned judgment and decree dated 26.1.1994.
Hence this revision petition.
6. The District Judge, Chakwal has given findings that the agreement to sell (Ex.P1) was not a valid agreement because at the time when it was executed by defendant No. 1 Muhammad Ashraf, he was not owner of the property in dispute and the Central Government was owner and that to the mind of the District Judge, the agreement was only a Deed of Association, that the petitioner/plaintiff was never ready and willing to fulfil his end of the bargain and respondent No. 2 Mahboob Khan is a bona fide purchaser.
7. I have heard the learned counsel for the parties and have also seen the record.
8. It is contended by the learned counsel for the petitioner that after the execution of the agreement to sell, the defendant Muhammad Ashraf illegally entered into an agreement of association with defendant No. 2 Mahboob Khan and on coming to know of the same, the petitioner filed an objection petition before the Deputy Settlement Commissioner, seeking cancellation of the agreement of association but the DSC rejected the petitioner's objection petition on 6.11.1964 (Ex.D1) in the personal presence of Muhammad Ashraf as well as Mahboob Khan and thereafter the petitioner's appeal was dismissed by the Additional Settlement Commissioner, Rawalpindi on 28.1.1965 (Ex.P6) in the presence of the counsel of all the parties including Mr. Zia-ul-Hassan Zaidi, the learned pleader of respondent No. 2 and also in the presence-of respondent No. 2 himself, with an observation that the agreement between the petitioner and Muhammad Ashraf was a proper agreement which never took the shape of a regular association deed, as required by the Settlement Authorities, therefore, the petitioner may approach the competent Civil Court for necessary remedy as the Settlement Organization was not concerned with the private agreements of the parties. In this back-ground, it is argued that respondent No. 2 Mahboob Khan is not a bona fide purchaser for valuable consideration without notice because he was in the knowledge of the existence of agreement to ,sell executed by Muhammad Ashraf in favour of the petitioner which is admittedly prior in time then the agreement of association entered into between Muhammad Ashraf and respondent No. 2. It is submitted next that under the agreement between the petitioner and the deceased respondent Muhammad Ashraf, the petitioner was bound to pay Rs.1,000/- as sale consideration in addition to the transfer price to be settled by the Settlement Department which is Rs.7105.14 as mentioned in the decision dated 6.11.1964 of DSC Chakwal (Ex.D1), therefore, under the agreement in all the petitioner is to pay Rs.8105.14 for the transfer of the shop and the petitioner through evidence, the statements of accounts (Exs.P3 to P5) has proved the payment of Rs.2700/- in total to the deceased respondent Muhammad Ashraf and thus under the agreement only the balance of Rs.5405.14 is payable by the petitioner for the transfer of the shop. It is submitted further that the District Judge has incorrectly held that the agreement to sell dated 16.6.1964 (Ex.P1) is an agreement of association between the petitioner and Muhammad Ashraf, which is not enforceable by the Civil Court, whereas from the plain reading of Ex.P1 shows that it is an agreement of sale and not an agreement of association and the same became enforceable the moment respondent No. 1 became entitled to become its owner through the Settlement Department and the Appellate Court has illegally held that Ex.P1 was not a valid agreement because at the time when it was executed by respondent No. 1 Muhammad Ashraf, he was not the owner of the property in dispute and the Central Government was the owner. It is maintained that a person entering into an agreement for sale of property having imperfect title is bound to make good the contract on subsequently acquiring interest in such a property. Reliance in this regard is placed on Shamoon and others Vs. Ahmad and others (1986 SCM R 888). Reliance is also placed on Muhammad Ramzan Vs. Mst. Yaqoot Begum and others (1991 SCM R 819) wherein the agreement of sale of an evacuee property before its transfer in the name of the transferer/allottee, was earlier in time than the one with subsequent transferees and it was held that the transferer was, therefore, legally bound to perfect the title of the first vendee in the property through the sale-deed after issuance of a PTD in his favour, as agreed between the parties. It is also argued that the impugned judgments suffer from misreading of evidence as the petitioner was all along willing to perform his part of the contract because he made payment of Rs.2700/- to Muhammad Ashraf and it was only Muhammad Ashraf who refused to act upon the agreement as he mala fidely entered into an agreement of association with defendant No. 2 Mahboob Khan. It is reiterated that the petitioner has paid Rs.2700/- to Muhammad Ashraf as part of sale consideration and the petitioner is ready to pay the balance amount. Reference in this regard is made to the statement of the petitioner as PW-1 recorded by the trial Court, on 8.4.1969.
Reference is also made to the statement of PW-4 Muhammad Sadiq to show that the petitioner had been paying various amounts to Muhammad Ashraf till he backed out from honouring the agreement. Learned counsel also argues that the execution of agreement (Ex.P1) by Muhammad Ashraf in favour of the petitioner is an admitted fact. Reference in this regard is made to the statement of Muhammad Ashraf himself recorded by the trial Court as DW-3, on 1.10.1969. In regard to the status and right of defendant No. 2 Mahboob Khan, it is urged that he is not a bona fide purchaser without notice, he does not even allege to be a bona fide purchaser without notice, he has not set-up this plea in his written statement and in his statement as DW-4 he has not stated that he made inquiries about the title of the petitioner because the possession of the property throughout has remained with the petitioner and it was for Mahboob Khan to inquire as to how the petitioner was in possession and Mahhoob Khan does not say that he was kept in dark by Muhammad Ashraf in regard to the existence of agreement to sell dated 16.6.1964 (Ex.P1) executed by Muhammad Ashraf in favour of the petitioner which according to the learned counsel, establishes that at the time when Mahboob Khan entered into an agreement of association with Muhammad Ashraf, he was in the knowledge of the existence of agreement to sell in favour of the petitioner which is prior in time. It is submitted next that in any case, defendant No. 2 Mahboob Khan was aware of the existence of the agreement between the petitioner 'and Muhammad Ashraf, before the issuance of PTD as he was associated in the proceedings whereby the petitioner's objection was rejected by the DSC on 6.11.1964 (Ex.D1) and the order dated 28.1.1965 passed by the Additional Settlement Commissioner (Urban), Rawalpindi (Ex.P6) whereby the petitioner's appeal against the same was dismissed as these orders show the presence of Mahboob Khan as well as his counsel but the PTD was issued in favour of Mahboob Khan on a subsequent date which is not available on the record and according to the learned counsel, PTD has not been produced in evidence by Mahhoob Khan deliberately in a mala ,fide manner. It is thus argued that Mahboob Khan/defendant No. 2 is not a bona fide purchaser without notice and in fact he deliberately entered into an agreement of association with Muhammad Ashraf deceased in a mala fide manner knowing fully well that Muhammad Ashraf had already executed an agreement to sell in favour of the petitioner.
9. Further reliance is placed on Mian Muhammad Ismail v.
Manzoor Ahmad and others (1990 CLC 1112 (Lahore)), wherein the contention that the specific performance of the contract could not be enforced against subsequent transferee as he was a transferee for value in good faith and without notice of original contract was held to have no substance because the evidence on record fully proved that subsequent transferee of the suit property had notice of prior contract between the original vendee and the vendor. Reliance is also placed on Mian Zafar Iqbal and others v. Bashir Ahmad and others (PLD 1989 Lahore 152 (D.B.)), wherein while narrating the general rules applicable to the interpretation of a document it has been held that "The two rules of the most general application in construing a written instrument are-1st that it shall, if possible, he so interpreted, ut res maglis valeat quam pereat, and secondly, that such a meaning shall be given to it as may carry out and effectuate to the fullest extent the intention of the parties. (See Legal Maxims by Herbert Broom, Tenth Edition (1939) at 361. Then, "in construing a deed, every part of it must be made, if possible, to take effect, and every word must be made to operate in some shape or other. The construction, likewise, must be such as will preserve rather than destroy...". It is thus argued that the plain reading of the agreement in question shows that it is an agreement of sale and the Appellate Court has wrongly and vaguely held that it is an agreement of association unenforceable by the Civil Court. Further reliance is placed on Mahmooda Sultana v. Nasim Mumtaz and another (1990 M LD 1028 (Lahore)), wherein it has been held: that under Section 27 of the Specific Relief Act (I of 1877), a subsequent transferee is entitled to protection only when he establishes by unimpeachable evidence that he entered into a subsequent transaction in good faith and without notice of earlier transaction. It has also been held: that possession of the prior vendee constitutes a notice to the subsequent vendee who is required to make an honest enquiry in respect of prior transaction and it was concluded that person entering into transaction of sale with the owner of the property without making any enquiry is not protected under Section 27 of the above Act. Learned counsel submits that in the instant case, the possession has throughout remained with the petitioner which constituted a notice to Mahboob Khan, the subsequent vendee and under the law he was thus required to make an honest enquiry and prove through unimpeachable evidence not only that he entered into the subsequent transaction in good faith but also that he made honest enquiry but had no notice or knowledge of the prior transaction and as the defendant No. 2 has failed to discharge this onus because he does not even allege to be a vendee in good faith without notice of earlier transaction, therefore, the Courts below have acted illegally in holding him to be the bona fide purchaser.
10. Learned counsel for the respondents, on the other hand, has submitted that the agreement to sell dated 16.6.1964 (Ex.P-1) is not a registered document and there is no presumption of public knowledge attached to it, that the defendant No. 2, Mahboob Khan (now respondent No. 7) submitted his deed of association which was accepted by the Settlement Department and thereafter P.T.O. And P.T.D. (not produced) were issued in his favour and the agreement to sell (Ex.P- 1) was never produced by the petitioner before the Settlement Department before respondent No. 2 entered into an agreement of association with the deceased respondent No. 1 and in these circumstances, the Courts below have correctly held that such an agreement to sell is not specifically enforceable , after the issuance of PTD. It is also argued that if it is established that the deceased respondent No. 1, Muhammad Ashraf entered into an agreement of association with the subsequent transferee, Mahboob Khan, without consent of the petitioner and that Muhammad Ashraf did not intend to honour his part of the agreement then the petitioner has the alternate remedy of suing him for damages. Learned counsel for the respondents while making his submissions, however, conceded that defendant No. 2, Mahboob Khan (respondent No. 7) has nowhere stated neither in his written statement nor in his statement as D.W.4, that he is a bona fide purchaser without notice of prior agreement or that he made any enquiries about the nature of petitioner's possession and in this regard it is merely argued that since Mahboob Khan is a PTD holder, therefore, he need not to say anything as he is a transferee directly from Settlement Department. It has also been argued that the petitioner did not deposit any instalment with the Settlement Department and, therefore, the petitioner is a defaulter and as the petitioner refused to perform his part of the agreement, therefore, he cannot ask for the specific performance of the same. Learned counsel for the respondents has generally supported the judgments of the Courts below.
11. The Appellate Court has incorrectly held that the agreement to sell dated 16.6.1964 (Ex.P-1) is an agreement of association between the petitioner and deceased Muhammad Ashraf. The plain reading of the document shows that it is an agreement to sell and it is not understandable that how it can be termed as agreement of association. Similarly it has been illegally held by the Courts below that Ex.P-1 is not a valid agreement enforceable under the law because at the time when it was executed by the deceased respondent Muhammad Ashraf in favour of petitioner, he was not the owner of the property in dispute and the Central Government was the owner. The person entering into an agreement of sale of property having imperfect title is bound to make good the contract on subsequently acquiring interest in such a property. Learned counsel for the petitioner has correctly placed his reliance on Shamoon and others v. Ahmad and others (supra) and Muhammad Ramzan v. Mst. Yaqoob Begum (supra). It is thus. Held that the document Ex.P-1 is an agreement to sell and the same became enforceable by the petitioner through Courts when the executant/vendor, acquired interest in the property. It is also established from the record that the agreement to sell in favour of the petitioner is prior in time than that of the agreement of association entered into between the defendants. It is established from the record that petitioner paid Rs.2700/- to the deceased respondent , Muhammad Ashraf, as part performance of the agreement on his part. There is nothing on the record to show that the petitioner was never willing to perform his part of the agreement. In fact the evidence points to the contrary. As soon as the petitioner came to know of agreement of association, he challenged the same through an objection petition which was dismissed by the D.S.C., Chakwal, on 6.11.1964 (Ex.D-1) and thereafter the petitioner's appeal was dismissed by the Additional Settlement Commissioner, Rawalpindi on 28.1.1965 (Ex.P-6), with an observation that agreement between the petitioner and Muhammad Ashraf was an agreement of civil nature which was not a deed of association and, therefore, the petitioner may approach the competent Civil Court for the enforcement of the same as the Settlement Organization had no concern with the private agreement of the parties. These facts establish that the agreement of association entered into between the deceased respondent Muhammad Ashraf and defendant No. 2, Mahboob Khan was entered into by them without the consent of the petitioner. It also establishes that it was defendant No. 1, Muhammad Ashraf who had backed out from the agreement and had refused to perform his part of the agreement.
12. There is nothing on the record to come to the conclusion that subsequent transferee, Mahboob Khan (respondent No. 7) is a bona fide purchaser without notice. The facts brought on the record through evidence establish otherwise. The defendant No. 2, Mahboob Khan has not set-up his plea that he is a bona fide purchaser without notice. He does not even allege to be a bona fide purchaser without notice and in his statement also as D.W.4 he has not stated that he made enquiries about the property in dispute and about the title of the petitioner because possession of the property throughout remained with the petitioner and it was for Mahboob Khan to enquire as to how the petitioner was in possession. Similarly Mahboob Khan does not say that he was kept in dark by Muhammad Ashraf in regard to the existence of agreement of sale dated 16.6.1964 (Ex.P-1) executed by Muhammad Ashraf in favour of the petitioner. Learned counsel for the petitioner has thus correctly argued that these facts establish that at the time when Mahboob Khan entered into an agreement of association with Muhammad Ashraf, he was in the knowledge of the existence of the agreement to sell in favour of the petitioner which is admittedly prior in time. The document Ex.D-1 and Ex.P-6 also prove that Mahboob Khan was aware of the existence of agreement (Ex.P-1) from the very beginning. The petitioner's objection petition was rejected by the D.S.C. On 6.11.1964 (Ex.D-1) in the personal presence of Muhammad Ashraf as well as Mahboob Khan and the petitioner's appeal was dismissed by the Addl. Settlement Commissioner, Rawalpindi on 28.1.1965 (Ex.P-6) in the presence of counsel of all the parties, including Mr. Zia-ul-Hassan Zaidi, learned Pleader of Mahboob Khan and also in presence of Mahboob Khan himself. These facts establish that Mahboob Khan became vested with the knowledge of existence of agreement to sell executed by the deceased defendant Muhammad Ashraf in favour of the petitioner from the very beginning.
The PTD was issued in favour of Mahboob Khan after the dismissal of the petitioner's appeal by the Addl. Settlement Commissioner (Urban), Rawalpindi, on 28.1.1965 (Ex.P-6), establishing that prior to the acquiring of title in the property in dispute, Mahboob Khan became aware of the existence of prior agreement between the petitioner and Muhammad Ashraf. Strangely enough, Mahboob Khan has not produced the PTD in evidence. It is thus concluded that defendant No. 2, Mahboob Khan, is not a bona fide purchaser without notice and in fact he deliberately entered into an agreement of association with the deceased defendant Muhammad Ashraf in a Inaba fide manner knowing fully well that Muhammad Ashraf had already executed an agreement of sale in favour of the petitioner.
Circumstances also show that even before entering into the agreement of association, Mahboob Khan had the knowledge of the existence of agreement between the petitioner and deceased Muhammad Ashraf because the petitioner is throughout in possession of the property in dispute and such a possession, in the circumstances, constitutes a notice to the subsequent vendee who is required to make an honest enquiry and as Mahboob Khan did not make any such enquiry, therefore, he is not entitled to the protection under Section 27 of the Specific Relief Act (I of 1877).
13. In view of the above-mentioned, the revision petition is accepted with costs throughout. The impugned judgments and decrees of the Courts below are set aside and the petitioner's suit for specific performance of agreement dated 16.6.1964 (Ex.P-1) is decreed as prayed for subject to the payment of balance of sale consideration of Rs.5405.14 which has been established to be payable by the petitioner. The above-said amount shall be deposited by the petitioner in the Executing Court on or before 1.5.2K and this amount shall be payable to the defendant No. 2/respondent No. 7, Mahboob Khan from whose name the property in dispute is to be transferred to the name of the petitioner.