' MUHAMMAD KHALID ALVI, J.---Brief facts of the case are that the plaintiff-appellant filed a suit for specific performance against respondents on 11-8-1982 with respect to the suit property fully detailed in the head note of the plaint. According to the plaint respondent No,1 Javaid Haider Shah was the owner of the suit-land. He agreed to sell the suit-land to the petitioner through an agreement Exh.P1 dated 28-11-1981, total sale consideration was settled as Rs,2,30,000, out of which Rs,2,00,000 was paid to respondent No,1 while the balance amount of Rs,30,000 was to be paid on 10-1-1982, which was the date fixed for the registration of the sale-deed. On refusal to get the sale- deed registered by respondent No,1 the instant suit was filed with a payers for specific performance of agreement and also for the possession of some land still in possession of respondent No,1
2. During the trial the prayer in the plaint was got amended and mutations of gift and exchange bearing No, 557, dated 13-2-1982, 167 dated 16-2-1982, 195 dated 23-2-1982, 198 dated 11-3-1982 and Mutation No,166 in favour of respondents Nos.2 to 6 'was also prayed to be cancelled.
3. Respondent No,1 submitted his written statement wherein the execution of the agreement dated 28-11-1981 and the receipt of Rs,2,00,000 was admitted. However, it was contested that the appellant had failed to perform his part of contract, therefore, the earnest money of Rs,2,00,000 was liable to be confiscated by him. Respondent No,1 at a later stage tried to resile from his this stance by making an application to amend his written statement but his prayer was refused by the learned trial Court vide order, dated 3-4-1985.
4. Respondents Nos.2 to 6 submitted their separate written statements and took up the stand that they are bona fide purchasers for value without notice, therefore, the transactions are protected.
The execution of the agreement was also disputed and it was submitted that the impugned agreement is result of collusion between the appellant and respondent. No,1 .
5. On the divergent pleadings of the parties, the following issues were framed by the learned trial Court:---
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the plaintiff has no locus standi to bring the suit? OPD
(3) Whether the plaintiff is estopped to bring this sin( by his act and conduct? OPD
(4) Whether the suit has been filed by the plaintiff in collusion with defendant No,1? OPD 2 to 6.
(5) Whether the defendants Nos.2 to 6 are bona fide transferors for value without notice? OPD 2 to 6.
(6) Whether the plaintiff has no locus standi to challenge the gift deed No,557 dated 13-2-1982 and Mutation No,167 dated 16-2-1982?
(7) Whether the plaintiff and the defendant No,1 genuinely entered an agreement of sale on 28-10- 1981 and the same is not a disguise to defeat the transaction in favour of defendants Nos.2 to 6?
(8) If issue No,7 is proved; whether the plaintiff failed to perform, his part of contract? If so, its effect?
(9) Relief.
6. After recording of evidence of the parties, the learned trial Court vide its judgment and decree dated 27-2-1990 dismissed the suit of the appellant-plaintiff.
7. Issues Nos.1 to 4, 7 and 8 were decided in favour of the plaintiff-appellant while Issues Nos.5 and 6 were decided in favour of respondents Nos.2 to 6 declaring them to be bona fide purchasers for value without notice. On Issues Nos.9 and 10 it was held that the plaintiff-appellant is entitled to refund of the amount of Rs,2,00,000 However, he is not entitled to decree for specific performance as respondents Nos.2 to 6 are bona fide transferees for value without notice.
8. It is contended by the learned counsel for the appellant that almost all issues except Issues Nos.5 and 6 have been decided in favour of the appellant. The respondents have not challenged the findings of those issues by filing cross-objection, therefore, the same had attained finality. Even otherwise, Issue No,4 was not pressed before the learned trial Court during the arguments. It is further submitted that under section 27(b) of the Specific Relief Act, 1877 a subsequent transferee claiming to have acquired property through a mode other than by purchase in consideration of cash/money is not protected even though , he has no notice of the agreement to sell with the plaintiff. He relies on case Ghulam Bheek and others v. Mst. Salamat Bibi and others 2001 CLC 107.
Since in the instant case respondents Nos.2 to 6 had acquired the property in dispute after the agreement to sell through various mutations of gift and exchange without making any payment in the shape of money/cash therefore, they are not entitled to the protection contained under section 27(b) of the Specific Relief Act, 1877.
9. On the other hand, learned counsel for the respondents contends that respondents Nos.2 to 6 are protected under section 27(b) of the Specific Relief Act, 1877, as according to him, it is not the requirement of law that consideration only be in the shape of money. His contention is that consideration can be in the shape of love and affection or in the shape of some property given in exchange. It is further submitted with reference to case of Sh. Nazir Ahmad v. Haji Ghulam Hussain and others 1985 CLC 7 and Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCM R 652 that once the subsequent transferee enters into witnesses-box and states that he is a bona fide purchaser for value without notice. The onus to prove that he had the notice shift to the other side. It is next contended on the strength of Umer Farooque and 3 others v. Province of Sindh through Deputy Commissioner, Hyderabad and 5 others 1998 CLC 760 that grant of a decree for specific performance is a discretionary relief and in the circumstances of the case, the plaintiff- appellant is not entitled to this discretion. It is finally submitted that respondents can defend the decree of the learned trial Court without filing cross-objection with respect to those issues which were found against them.
10. We have considered the arguments of the learned counsel for the parties and have also gone through the record of the learned trial Court.
11. The language of section 27(b) of the Specific Relief Act, 1877 is reproduced below for advantage of ready reference.
"27. Relief against parties and persons claiming ' under them by subsequent title. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against: ' any other person claiming under him by a title arising subsequently to the contract, a transferee for value who has paid his money in good faith and without notice of the original contract:"
12. It is evident from the language of the section itself that a subsequent transferee is only protected if he had acquired property through sale by making payment through cash/money and not by any other mode whether it be a gift or exchange. The argument of the learned counsel of the respondent that love and affection or the land in exchange can also be treated as a consideration equivalent to money cannot be accepted because it would be stretching too far to the word "money" used in this section.
13. Since in this case respondents Nos.2 to 6 are not protected under the provisions of section 27(b) of the Specific Relief Act, 1877, therefore, the case law relied upon by the learned counsel for the respondents that the appellant should have proved the knowledge of the respondents is irrelevant and not applicable to the circumstances of the case.
14. Learned counsel for the respondents have failed to point out any such conduct of the plaintiff- appellant in the circumstance of the case by which it could be held that the discretion should not be exercised in his favour rather it is evident on record through Exh.P.3, that the plaintiff-appellant did all to perform his part of contract even submitted an application on 10-1-1982 before the Sub- Registrar where he was present on the target date with the balance money for the registration of sale-deed but the same could not be done due to absence of respondent No, 1 . There could have been some substance in the arguments of learned counsel for the respondents that the agreement was a result of collusion between the appellant and respondent No,1 because of their close relationship, but unfortunately this issue was neither pressed before the learned trial Court nor any affidavit of the learned counsel representing respondents No8.2 to 6 before the trial Court has been placed on record nor any cross-objection has been filed in this Court, therefore, the same cannot be attended in the circumstances.
15. For what has been stated above, this appeal is allowed by setting aside the impugned judgment and decree passed by the learned trial Court and suit of the appellant as prayed for is decreed. No order as to costs.