MAULVI ANWARUL HAQ, J.-- On 16.6.1979, respondents Nos. 1 and 2 filed a suit against the respondents Nos. 3 and 4 and Muhammad Ibrahim, the predecessor-in-interest of the appellants.
In the plaint it was stated that the respondents Nos. 3 and 4 had agreed to sell the suit land, to respondents Nos. 1 and 2 for a consideration of Rs. 23,600/. And had received Rs. 500/- as earnest money and had executed a receipt and agreement on 1.1..1976. It was agreed that the transaction would be completed on 25.7.1976, that the respondents Nos. 3 and 4 proceeded to sell the land to the said Ibrahim vide registered sale-deed dated 4.3.1976. According to the plaint the said Ibrahim was aware of the said agreement. The appellants in their written statement claimed to be bona fide purchaser without notice being in ignorance of the sale-agreement; that respondents No. 3 and 4 however,' in their written statement' allegedly filed by them on 3.6.1979 proceeded to doing specifically pare 2 of the plaint wherein the details of the alleged agreement were stated and proceeded to make a statement in para 3 of the said statement that respondents Nos. 1 and 2 had filed an application before the Sub-Registrar Wazirabad at the time of registration of sale-deed on 4.3.1976 praying that the sale in favour of Ibrahim be not attested. In reply to para 4, they proceeded to admit the agreement by stating that they had only taken Rs. 500/- from respondents Nos. 1 and 2. The following issues were framed:-
(1) Whether the plaintiffs have no locus standi to bring this suit? OPD.
(2) Whether the suit is not maintainable in the present form? OPD.
(3) Whether the suit is barred by lime? OPD.
(4) Whether the plaintiffs are estopped by their conduct to bring this suit? OPD.
(5) Whether the suit is bad for mis-joinder of parties, if so, with what effect? OPD.
(6.) ,'Whether the defendant Nos. 1 and 2 executed agreement to sell dated 1.1.1976 in favour of the plaintiffs and received Rs. 500/- as earnest - money? OPD,
(8) Whether the plaintiff are entitled to the decree for specific performance of agreement to sell in question dated 1.1.1976', if so, on what terms? OPP.
19) Relief.
Evidence of the parties was recorded. Issues Nos. 1 to 6 were found in favour Of respondents Nos. 1 and 2 However, issue No. 7 was ansv. Ed in Favour of appellants, and consequently issue No. 8 was decided against respondents Nos. 1 and 2. The suit was dismissed 23.2.1986. A first appeal filed by respondents Nos.
1 and 2 heard by an Additional District Judge, Gujranwala, who allow the same and decreed the suit on 1.3.1987.
2. Learned counsel for the appellants contends that one of the appellants had entered the witness- box and denied the knowledge of the agreement by Ibrahim. According to the learned counsel this was sufficient to discharge onus of issue No. 7. Learned counsel further argues that there was literately no evidence on record that Ibrahim was aware of the agreement or that respondents Nos.
1 and 2 had filed the application, relied upon by the learned Additional District Judge, before the Sub-Registrar. Learned counsel for the respondents on the other hand has tried to support the impugned judgment and decree 'of the learned Additional District Judge.
3. I have gone through the record of the learned lower Courts. This was a case whereby respondents Nos. 1 and 2 were seeking enforcement of the alleged contract not only against the original executor but also against the successor of the appellants. The matter was therefore, covered under section 27(b) of the Specific Relief Act, 1877. Unlike rigours of section 41 of the Transfer of Property Act, 1882. It the burden of subsequent purchaser under the said section 27(b) is very light and may be discharged by statement on oath of denial of knowledge. Whereafter the onus to prove in positive terms attributing. Knowledge of agreement to the subsequent vendee shift to the plaintiff seeking performance of the contract.
4. Applying said test to the evidence on record, in the present case, I do agree with the learned counsel for the appellants that they had managed to shift onus to. Respondents Nos. ,1 and 2. This is also an admitted position , on 'record that there is no evidence on record in support of the plea that Ibrahim was aware of existence of the agreement alleged by respondents Nos. 1 and 2 in their plaint. The learned Addl. District Judge has proceeded to rely on the contents of the written statement alleged filed by respondents Nos. 3 and 4 I have already referred to the said document in some detail while analysing the history of the case. I find no nexus between the said written statement and the plaint. It was no where stated in the plaint that respondents Nos. 1 and 2 had filed some application. I have already stated above, that according to the said written statement dated 3.6.1979., the respondents Nos. 3 and 4 had denied the agreement; then they had proceeded to make statement regarding filing of the application before the Sub-Registrar and learned counsel of the appellants has very rightly wonders as to in respect to which allegation the said narration was made. Learned counsel for the respondents is unable to state as to what necessitated the mentioning of the said fact in the said written statement. Be that as it may learned Additional District Judge found it proper to go by the said averments in the written statement. Now while doing so the learned. Addl. District Judge simply forgot that under the law of the land pleadings do not constitute evidence of their contents. On the other hand, the facts pleaded, unless admitted by the other party have to be proved. It is a matter of record that none of the persons, i.e. Respondents Nos. 3 and 4 who are stated to have filed the said written statement appeared in the witness-box to support the contents thereof. Without cross-examination of the said person, the written statement could not have been read into evidence and even if the written statement could be referred to as a piece of evidence it cannot be relied upon as an evidence of the fact stated in it. Learned counsel for the appellants has relied upon the case of Abul Majid Vs. Syed Muhammad A.I. Shamim and, 10 others (2000 S.C.M.R. 1391) in support of the said proposition. I find that the Supreme Court of Pakistan had re-affirmed the rule laid down in the case of Khair-un- Nisa Vs. Muhammad ishaque and others (PLD 1972 S.C. 25), and has observed that "It is trite law that pleadings are not evidence by themselves and that a statement of a defendant in written statement could not be used as evidence when amounting to admission of plaintiff's pleas, without the examination of the concerned party in its support." The learned counsel for the appellants is thus very' much right in claiming that there was no evidence whatsoever on the record in support of the finding recorded by the learned Additional District Judge while reversing the finding of the Trial Court on issue No. 1. I am also in agreement with the proposition propounded by learned counsel that even if the written statement could be read as evidence of its' contents then at the most the same constitute an admission on the part of a party under whom, the appellant claims.
According to Article 31 of the Qanun-e-Shahadat Order 1984, the statement made by said party was to constitute admission only if same was during the subsidence of interest. In the case in hand, the said respondent No., 3 and 4 had parted with interest in favour of Ibrahim a longtime before the filing of the said written statement and the said statement made in the written statement do not constitute an admission within the meaning of law so as to be binding on the appellant.
5. This R.S.A. Is accordingly allowed. The judgment and decree dated 1.3.1987 of learned Addl. District Judge is set aside and that of the learned Trial Court dated 23,2.1986 dismissing the suit of the respondents Nos. 1 and 2 is restored, with costs throughout.