On 19-8-1979 respondents Nos. 2 to 6 filed a suit against respondent No.1 and the appellants. In the plaint it was stated that the suit land measuring 160 Kanals was owned by respondent No.1 who agreed to sell the same to the plaintiffs/respondents (hereinabove referred to as plaintiffs) for a consideration of Rs.52,000. A sum of Rs.24,000 was paid as earnest and respondent No.1 executed an agreement, dated 17-11-1975. He then received another sum of Rs.8,600 through another agreement, dates: 1-7-1979 promising to transfer the suit land after receipt of balance amount 9- 4-1979; that plaintiffs went to the office of Sub-Registrar on9-4-1979 but respondent No.1 did not turn up; a Punchayat was convened wherein respondent No.1 demanded that consideration be enhanced. Consequently, the price was fixed at Rs.87,000. Another agreement was executed on 19- 6-1979 whereunder a sum of Rs.29,400 was paid to him and the respondent No.1 promised to transfer the suit land to the plaintiffs by 19-7-1979. On this date the plaintiffs also went to the said office but respondent No.1 did not come. It was further stated that respondent No.1 has proceeded to sell the suit land to the appellants vide registered sale-deed, dated 8-8-1979 and appellants are trying to dispossess the plaintiffs and to alienate the suit land. With these averments it was prayed that a decree for specific performance of agreement be passed and the sale-deed, dated 8-8- 1979 to be declared illegal.
2. The respondent No.1 in his written statement denied all the averments in the plaint. He proceeded to state that he has proceeded to sell the land to the appellants because the plaintiffs had not turned up on the date fixed for performance and that he had very rightly transferred the land to the appellants. This written statement was filed on 7-7-1980. The appellants in their written statement categorically stated that they have purchased the land in good faith without any notice of the agreement and have paid consideration to respondent No.1. The learned trial Court framed the issues relevant being Issue No.8 which is being reproduced here:-- "Whether the defendants Nos.2 to 6 are the bona fide purchasers of the suit land for consideration without notice? OPD (2 to 6)."
The evidence of the parties was recorded. The learned trial Court found all other issues in favour of the plaintiffs but found said Issue No.8 in favour of the appellants and consequently; dismissed the suit vide judgment and decree, dated 23-10-1982. Feeling aggrieved the plaintiffs filed a first appeal which was heard by a learned Additional District Judge, Sheikhupura, who allowed the same and decreed the suit of the plaintiffs on 10-10-1987.
3. Learned counsel for the appellants contends that the learned Additional District Judge has misread the pleadings as well as evidence on record while reversing the finding of the learned trial Court on Issue No.8 and consequently passed the decree in favour of the plaintiffs. According to the learned counsel the impugned judgment and decree proceeds in direct contravention of lawdeclared by the superior judiciary, of the country on the subject. He relies upon cases Mst.
Surraya Begum and others v. Mst. Suban Begum and others 1992 SCM R 652, Muhammad Ashraf v.
A.I Zaman and others 1993 SCMR 1442, Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 and Ayub A.I Khan and others v. Brig Gut Sher Khan 1989 M LD 261.
3-A. Learned counsel for the respondents on the other hand argues that very heavy burden lay upon the appellants to prove negative which they have failed to do. Reliance is placed on case Malik Muhammad Ishaque and another v. Mirza Almas A.I Beg and others PLD 1969 Lah. 762.
4. I have gone through the record of the learned trial Court with the assistance of learned counsel for the parties. I have carefully examined the plaint and find specific reference in para. 5 of the plaint as to the particulars of the sale made by respondent No.1 in favour of the appellants but there is not even a slight allegation that they were aware of the agreement in favour of the plaintiffs. On the other hand the appellants had specifically, taken the plea that they were not aware of the agreement and are bona fide purchasers Learned counsel present agree that neither the plaintiffs got amended their plaint nor filed any additional pleading with the leave of the Court to meet the said contention of the appellants. However, in the course of their evidence they produced Mana P.W.4 who stated that when Sarwar Khan did not turn up on the date fixed for registration of the sale-deed he alongwith some other persons went to the appellants and told them that agreement has been executed in favour of plaintiffs whereupon they stated that they will tackle the matter. To similar effect is the statement of Mehmooda P.W.4 who states that Ameer one of the plaintiffs, told him that Sarwar Khan is going to sell land to the appellants whereupon they went on the suit land and begged the appellants not to purchase the land but the appellants stated that they shall purchase. Bahu one of the plaintiffs appeared as P.W.6 and stated that the appellants were aware of the agreement. Siraj Munir one of the appellants appeared as D.W.4 and chatted that the appellants were not aware of the agreement and had thus, been so aware they would have not purchased the land. I find that the learned Additional District Judge appears to be impressed by the statement of Sarwar Khan respondent No.1 who appeared as D.W.3. The learned Additional District Judge has observed that this witness appears to be truthful.
5. Now Sarwar Khan respondent No.1 proceeded to state while in witness-box as D.W.3 that he agreed to sell the land to the plaintiffs and probably he received Rs.60,000 from them; that he transferred the land to the appellants and he had told. Them that he had received earnest money for this land and that they may take some other land but they told him that in case the earnest money is to be returned they will repay and the responsibility for the delivery of possession will not be of Sarwar Khan.
6. A bare comparison of statement made by this witness with his written statement negates the observation of the learned Additional District Judge as to his truthfulness. In the written statement he has stated that since the plaintiff did not approach him on the date fixed for performance of the agreement, he proceeded to sell the land to the appellants. Like plaint of the plaintiffs there is not a word in the written statement of respondent No.2 that the appellants were aware of the agreement between the respondent No.1 and the plaintiffs.
7. It is now well-settled that following the said case of Mst. Khair-un---Nisa the apex Court has consistently laid down that unlike the case of purchasers who seek protection of section 41 of Transfer of Property Act, 1882, the burden on a subsequent purchaser under section 27(b) of the Specific Relief Act, 1877, is much lighter and ordinarily is discharged by a statement made by such vendee that he had no knowledge of agreement as held in the said case of Mst. Surraya Begum and Muhammad Ashraf relied upon by the learned counsel for the appellant.
8. It is also trite law that a plea has to be taken in the pleading before it can be allowed to be proved. This is the rule of Secundum allegata et Probata. Rule is that in case the plea is not taken in the pleading the party would not be allowed to lead evidence in support thereof and even if some evidence is allowed the same would not be looked into. Reference to be made to the case of Amir Shah v. Ziarat Gul 1998 SCM R 593. There is no plea at all by the plaintiffs that the appellants were aware of the agreement. In the absence of said plea they should not have been allowed to lead the evidence referred by me above.
9. I may state that plea taken in the course of evidence by the respondents and particularly the story narrated by respondent No.1 as D.W.3 does not at all ring true and rightly disbelieved by the learned trial. Court. The rules of evidence are primarily rules of prudence. A fact is stated to have been proved to exist if a prudent person can be said to have believed that same could have existed. It is highly improbable that the appellants proceeded to purchase the land by-paying almost double price as agreed by the plaintiffs, despite the fact they were told by Sarwar Khan that he has agreed to sell the land to the plaintiffs. No foundation is laid down in the pleading and there is nothing in the evidence as to why the appellants were bent upon to purchase the land when they were actually being told by the P.Ws. And also by the vendor that he has agreed to sell land to the plaintiffs.
10. Having examined variant judgments of the learned Courts below I find that whereas the judgment of learned trial Court is supported by the evidence as also the pleading on record and is in line with law declared by the superior judiciary, the judgment passed by the learned Additional District Judge is a result of gross misreading of the evidence on record and non-- reading of the pleadings of the parties.
11. As a result of above discussion I allow this R.S.A. The judgment and decree, dated 10-10-1987 passed by learned Additional District Judge, Sheikhupura is set aside while that passed by the learned trial Court on 23-10-1982 dismissing the suit of the plaintiffs/respondents is restored with costs.