Mehdi Khan, the predecessor-in-interest of the appellants filed a suit against the respondents 1 and 2. It was .Alleged in the plaint that suit-land measuring 100 Kanals belonged to Provincial Government and was granted to respondent No.2 under section 10(3) of the Colonization of Government Lands Act (Punjab) Act, 1912 (hereinafter referred to as the Act) under the Islamabad Oustees Scheme vide a Mutation No. 122 attested on 30-7-1969, On 2-8-1969 respondent No.2 executed an agreement promising to sell the suit-land to said Mehdi Khan for a consideration of Rs.20,000 he received a sum of Rs.18,000 and put him in possession of the' suit-land. Another agreement was executed on 3-11-1969 and it was registered on 6-11-1969. Under the terms of the agreement, Mehdi Khan was to deposit the dues concerning the suit-land. A General Power of Attorney was also executed in favour of Gulab Din and got registered on the asking of the said Mehdi Khan. In October, 1972, said Mehdi Khan filed a suit seeking a declaration in respect of the suit-land. Said Gulab Din, General Attorney of respondent No.2 received the balance amount of Rs.2,000 and conceded the suit. A decree was passed in favour of Mehdi Khan which was incorporated in the Revenue Record vide a Mutation No. 160 attested on 28-7-1973; that all the dues were paid except the last installment. It was further stated in the plaint that about 25 days prior to the. Institution of the suit, Mehdi Khan learnt that respondent No.2 had gone back upon his words and has cancelled the Power of Attorney in favour of said Gulab Khan and instead has appointed one Wazir Khan as his Attorney who acting as such had obtained the sale-deed of the disputed land from the Provincial Government on 17-6-1976 and has then sold the land to respondent No. l for a consideration of Rs.1,20,000; vide a registered sale-deed, dated 19-6-1976. In this background the present suit was filed on 16-7-1976. Respondent No.1 in his written statement claimed himself to be a bona fide purchaser for consideration and without notice and expressed ignorance regarding the other averments in the plaint. Respondent No.2 in his written statement denied the execution of the agreement and further averred that even if the execution is proved, then the agreement is void being illegal as he was not the owner of the land at the time, the agreement was entered into.
Other averments in the plaint were also denied. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit of the appellants vide a judgment and decree, dated 7-2-1983. Respondent No.1 filed an appeal which was heard by a learned Additional District Judge, Sahiwal who allowed the same and dismissed the suit of the appellants vide a judgment and decree, dated 3-3-1984. During the pendency of the present R.S.A., Muhammad Asghar respondent No.3 was impleaded as a party being a subsequent vendee vide an order, dated 5-6- 1984 in C.M. No. 1079 of 1984.
2. Learned counsel for the appellants contends that the impugned judgment and decree of a learned Additional District Judge is contrary to law. No one has turned up for the respondents despite notice. They are proceeded again--t ex pane.
3. I have gone through the records of the learned trial Court, copies whereof are appended with this R.S.A.
I find that the learned Additional District Judge on his own examined the evidence on record and after a thorough examination has concerned with the findings of the learned trial Court on Issues Nos.1 to 3 which related to the execution of the two agreements and the power of attorney in favour of Gulab Din. The learned Additional District Judge has also agreed with the findings of the learned trial Court to the effect that respondent No.1 is not a bona fide purchaser without notice. The learned Additional District Judge has, however, proceeded to set aside the judgment and decree of the learned trial Court for the following reasons:
(1) The agreement was found to be violative of section 19 of the said Act;
(2) the suit was not competent in the absence of prayer for cancellation of sale-deed in favour of respondent No. 1.
4. According to the learned Additional District Judge, there is no mention in the agreement that its completion is postponed till the conferment of the proprietary rights upon respondent No.2 and as such the agreement is hit by the bar contained in section 19 of the said Act. I am afraid, the said observation of the learned Additional District Judge is result of misreading of the agreement which he has taken pains to reproduce in the impugned judgment itself verbatim. The agreement narrates that respondent No.2 has agreed to sell the- land to the appellants for Rs.20,000; that he has received Rs.18,000 in presence of witnesses and balance of Rs.2,000 will be received at the time of registration of sale-deed or attestation of mutation; that he has delivered the possession to the appellants; that in case there is a change to the allotment, the appellants shall be entitled to the land so allotted and that in case of refusal on the part of respondent No.2 the appellants shall have the right to get the contract specifically enforced. A proper reading of the said provisions of the agreement lead to only one conclusion that the matter of registration of sale-deed or attestation of mutation was postponed because of the fact that proprietary rights had not been conferred on respondent No.2 by the time the agreement was executed. It is nobody's case, that respondent No.2 was not vested with the proprietary rights at the time the suit was filed rather he had sold away the land to respondent No. 1. In this view of the matter, the case is fully covered by the judgments of Supreme Court in the case of Muhammad Afzal and another v. Rehmat A.I and others 1991 SCM R 1785, Said A.I Shah v. Muhammad Shafi 1989 SCM R 1594 and Haji Abdullah Khan and others v. Nisar Muhammad Khan PLD 1965 SC 690 and the suit cannot be held to be hit by bar of section 19 of the said Act. The said findings of the learned Additional District Judge are accordingly set aside.
5.So far as the second reason forwarded by a learned Additional District Judge is concerned, respondent No.1 was duly impleaded in the suit. Under section 27(b) of the Specific Relief Act, 1877, the appellants were entitled to seek specific performance of the agreement even against the subsequent vendee except bona fide vendee without notice and with consideration. Both the learned Courts below have concurrently found that respondent. No.1 was not such a vendee and as such was bound by the terms of the agreement sought to be specifically enforced. Once it was found that respondent No. l came to purchase the land with knowledge of the agreement, a decree for specific performance could have been passed against him as well and there was no question of getting the sale-deed cancelled. In other words, it was not the sale-deed but the bona fides of the respondent No.1 that matter, which the learned Additional District Judge himself found to be lacking. The said finding of the learned Additional District Judge is also consequently set aside.
6. In view of the above discussion, this R.S.A. Is allowed. The judgment and decree, dated 25-3-1984 of a learned Additional District Judge, Sahiwal is set aside while that dated 7-2-1983 of the learned trial Court is restored without any orders as to costs.