MIAN SAQIB NISAR, J.----Appellants' suit for specific performance, has been disallowed by the learned trial Court, vide judgment and decree, dated 1-2-1994. Hence this appeal.
2. Briefly stated the facts of the case are, that originally Abdul Aziz, predecessor--in-interest of the present appellants, filed a suit for specific performance on 21-6-1987, against Rab Nawaz, Shamim Akhtar and Shahnaz Akthar, claiming that the defendants through an agreement, dated 25-8-1982 (Exh. P.1), had agreed to, sell the suit land measuring 126 Kanals, 6 Marlas, situated in Atipur Chatha (Akal Garh), Tehsil Wazirabad, District Gujranwala; to him for a total consideration of Rs.2,75,000, out of which, an amount of Rs.1,75,000 was paid at the time of the, execution of the agreement, whereas. For the remaining amount, it was settled between the parties, that within one week, after the disposal of some writ petition, pending in the High Court, the balance amount shall be paid and the transaction, shall be finalized. It is also the case of the plaintiff, that the possession of the property was delivered to him under the agreement, though earlier he was in possession as lessee under the owners.
3. There is another important aspect of the matter, that one Abdul Latif, filed a suit against Shamim Akhtar, Shahnaz Akhtar, Rab Nawaz and Abdul Aziz, for permanent injunction, asserting that the above three owners, had sold the suit property in his favour, therefore, they be restrained from further alienating the property to any third party i.e. The present appellants. It is the case of the appellants, that in this suit, a compromise was effected inter se the parties, whereby Rabnawaz, conceded of having received a sum of Rs.67,000 from Abdul Latif and it was settled between the parties, that Abdul Aziz, shall pay the said amount to Abdul Latif, who shall have no claim over the property, thus on the payment of the aforesaid amount, coupled with the amount of Rs.2,08,000, earlier paid to Rabnawaz, Abdul Aziz shall be deemed to be the owner of the suit property. On the basis of this settlement, the suit was dismissed, vide judgment and decree, dated 16-5-1984 (Exh.P- 8).
4. Thereafter, Abdul Aziz, on the basis of the aforesaid decree procured a Mutation No. 2898, dated f1-8-1985, Exh. P-11/1, contemplating his ownership to the suit property: In the meantime, respondent No.10, claiming of having purchased about 63 Kanals of land from Muhammad Anwar, the attorney of Rabnawaz, moved an application to the Revenue Authorities for the cancellation of the above mutation on the ground that no decree had been passed in favour of Abdul Aziz, therefore, the mutation could not be sanctioned; this mutation was accordingly cancelled on the Revenue side, constraining the original plaintiff to bring the present suit for specific performance on 21-6-1987. In this suit, again defendant No. 10, originally, was not a party, defendants Nos. 11 and 12, who also prior to 21-6-1987, had purchased 7 Kanals, 13 Marlas of land vide registered sale deed, dated 2-2-1987.
From the owners through Muhammad Akram were not impleaded but subsequently, they were made party; Shamim Akhtar and Shahnaz Akthar, in defence denied having ever appointed their brother Rabnawaz as their attorney, vide registered power of attorney, dated 1-4-1979; Rabnawaz denied of having ever entered into any agreement to sell with the appellants or having appeared or participated in the matter initiated by Abdul Latif, which culminated into the decision of the Court Exh. P-8. The other defendants pleaded being bona fide purchasers for valuable consideration without notice of any agreement with the appellants. On account of pleadings of the parties, following issues were framed:--
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether the suit is time-barred? OPD
(3) Whether the plaintiffs are estopped from filing this suit? OPD
(4) Whether the suit property has not been described correctly? If so, to what effect? OPD
(5) Whether the defendants Nos. 5 and 6, are bona tide purchasers for value? If so, to what effect?
OPD (5-A) Whether the defendant No. 4 (now defendant No.10) Muhammad Munir is the bona tide purchaser for value of the suit land without notice through the decree of Civil. Court, dated 25-1- 1986? OPD-10
(6) Whether the defendant No.1, was a lawful attorney of the defendants Nos.2 and 3; If so, its effect? OPP
(7) Whether there has been the impugned sale agreement between the parties? OPP
(8) Whether the plaintiffs predecessor had paid an amount of Rs.1,25,000 under the sale agreement? OPP
(9) Whether the plaintiffs are entitled to the specific performance as prayed for? OPP
(10) Relief.
The parties were put to trial. The appellants' side examined P.W.1 Muhammad Nawaz, who is the scribe of Exh. P.1; P. W.2 Muhammad Din, states that he was present, when the bargain was settled between the appellants and Rabnawaz etc., and the payment was made in his presence; P. W.3 Muhammad Ashfaq, is one of the plaintiffs/successors of Abdul Aziz, who had died during the trial of the case; P. W.4 Muhammad Aslam son of Haji Jalal Din, claims to be the marginal witness of the document Exh. P-1; P.W.5 is Abdul Razaq, who claims to be the witness of the Mutation No. 2898 and about the bargain and the payment of the consideration to Rabnawaz. Besides, the above, the appellants placed on record copy of tile plaint in the suit instituted by Abdul Latif, written statement of the defendants, the statement of Rabnawaz and the final decision of the suit Exh. P.8/1. In rebuttal, the respondent examined Rashid Nawaz Khan as D.W.1, Shahnaz Akhtar as D.W.2, Muhammad Riaz Malik as D.W.3 and Shamim Akhtar as D. W.4; the defendants side also produced documentary evidence Exh. D.1 a copy of passport of Shahnaz Akhtar contemplating that she from 30-10-1977 to 12-7-1981, was abroad. Besides, D.W.10., produced some receipts about the payment having been made to Rabnawaz through his attorney Muhammad Anwar. The learned trial Court, alter conducting the trial, while giving its findings on the issues decided Issues Nos. 1 to 3, in favour of the appellants, and Issues Nos. 5 and 5-A in favour of defendants, dismissed the suit.
4. Learned counsel for the appellants contends that the appellants though were earlier lessees of the suit property, but on the execution of the sale agreement, their possession was converted to be under the agreement and in part performance thereof. It is also submitted that it has been proved on the record, that Exh. P-1 was duly executed by Rabnawaz, on his behalf and as an attorney for his sister, and in this regards, marginal witnesses and scribe had also appeared, but their evidence for invalid reasons has been disbelieved by the Court below.
5. Learned counsel for the appellants has emphasized on the proceedings in the suit tiled by Abdul Latif, to state that in this suit, Rabnawaz in unequivocal terms has admitted that the agreement of sale was entered into between him and the appellant; it is in pursuance of the proceedings and the decision in that case, that the appellant made the payment of an amount of Rs.67,000 to Abdul Latif. Moreover, Mutation No. 2898, dated 11-8-1985, Exh. P-11/1 was sanctioned in favour of the appellants, and this mutation had not been challenged by the respondents in any proceedings.
5. On the other hand, learned counsel for the respondent No.9, states that Shahnaz Akhtar, was not in Pakistan during the period from 30-10-1977 to 12-7-1981, therefore, there is no question of execution of any power of attorney in favour of Rabnawaz on 1-4-1979, as allegedly claimed by the appellants. It is, also stated that the two ladies had vehemently denied of having ever executed the power of attorney, mentioned above, thus it was incumbent upon the appellants, to prove the power of attorney, but no evidence has been led in that regard. Moreover, Rabnawaz, had also denied his statement in the suit allegedly filed by Abdul Latif, though certified copies have been brought on the record but the document particularly the statement of Rabnawaz, in the matter has not proved in accordance with law. It is also submitted that Shamim Akhtar and Shahnaz Akthar, had never appeared in the case allegedly filed Abdul Latif, or appointed Rab Nawaz to appear on their behalf as an attorney, therefore, any statement allegedly made by Rabnawaz is not binding upon them. Finally, it is stated that the suit allegedly filed by Abdul Latif, and the proceedings conducted therein, are fraudulent and result of manoeuvring by the appellant.
6. Learned counsel for the respondent No. 10, who is the subsequent purchaser, has stated that he is the buyer of the property without notice of any earlier alleged transaction of sale between Rabnawaz and the appellant and has purchased the property for valuable consideration; the sales in his favour are through a registered document, which are before the institution of the suit.
7. We have heard learned counsel for the parties. The key propositions involved in the case are whether the agreement to sell Exh. P.1, was executed by Rab Nawaz and he was acting as an attorney, for his two sisters. In order to prove the document, the appellants examined P.W.1, Muhammad Nawaz, scribe of the document. According to the statement of this witness, though it is deposed that the agreement was drafted at the instructions of Rabnawaz, but he has conceded in his examination-in-chief, that he did not know Rabnawaz personally. It is stated that Rabnawaz, was identified through his identity card, but there is no number of the identity card on the agreement to sell. Even the agreement to sell has not been incorporated in any register of P.W.1. We are not convinced if this witness has validly proved the execution of the agreement to sell. The other marginal witness of the document Ch. Abdul Rahim, son of Noor Muhammad has not been examined by the appellants and to valid reason for this omission has been given, whereas Muhammad Aslam son of Jillal Din, other marginal witness was not examined in affirmative, rather he has been produced in rebuttal. We find that as the onus to prove valid execution of the agreement to sell in affirmative nature, was on the shoulder of the plaintiffs, therefore, examining this witness in rebuttal is not of any help to the appellants. Moreover, from the deposition of this witness, appearing as P.W.4, we find his testimony most inadequate and insufficient to prove the execution of Exh. P-1, when the other marginal witness has not been produced and the scribe of the document did not personally know Rabnawaz.
8. As regards the other limb of above proposition, whether Rabnawaz was a validly appointed attorney on behalf of his sisters, suffice it to say that neither particulars of power of attorney, have been incorporated in the agreement Exh. P. 1, nor any attempt on behalf of the appellants, has been made to prove this power of attorney, when the same has been denied by the said defendant. It is settled law, that for a valid transaction, entered into by the attorney, it is sine qua non that his authority must be strictly proved. The power of attorney, on the basis of which, appellants claim that Rabnawaz had authority on behalf of his sisters, has not been established on the record and this is a serious lapse on part of the appellant.
9. Furthermore, the other witnesses produced by the appellants to prove the bargain, are neither direct witness of the agreement to sell Exh. P-1, nor they have stated that if part payment of consideration was made in their presence, resultantly, we concur with the findings of the learned trial Court, that the appellants have not been able to prove the execution of the agreement to sell, as also the authority of Rabnawaz, on behalf of his sisters, to enter into the agreement.
10. As regards the question, whether the agreement to sell is proved on the basis of decree mentioned above in the suit filed by Abdul Latif. Case of the appellants is that Abdul Latif had instituted suit against Rabnawaz and others for the purpose of seeking injunction and claiming that earlier to the agreement to sell, Exh. P-1, he had an agreement with Rabnawaz and paid him Rs.67,000. It is also his case that Rabnawaz, appeared in the matter and it was settled that amount of Rs.67,000 shall be paid by the appellants, directly to Abdul Latif. In the written statement, Rabnawaz, denied of having ever appeared before the Court, in that case or having made any statement. The appellants though have produced certified copies of the statement of Abdul Latif and Rabnawaz and decision of the Court, whereby suit of Abdul Latif, was dismissed. But suffice it to say that institution of the suit, and the proceedings conducted therein, were denied by Rabnawaz.
In such situation, by simply placing on the record, certified copies of the proceedings and the statements, etc. Were not sufficient discharge about the institution of the suit and the proceedings: the appellants in this circumstance, was obliged to examine the Advocate, who had appeared on behalf of Rabnawaz and had identified) him, at the time of his alleged statement. He should have also examined Abdul Latif, from whose testimony, it could be ascertained, whether he filed suit mentioned above wherein Rabnawaz appeared and made statement. Abdul Latif, has not been, examined to establish if an amount of Rs.67,000 as allegedly claimed by the appellants, was paid to him by the appellants in pursuance of the suit and the decision of the case. It may be pertinent to state here that the said suit was dismissed by the Court and we are surprised as to how after dismissal or that suit, appellants could seek the mutation of sale in his favour, when there was no decree in his favour. Even otherwise, as narrated in the facts the mutation procured by the, appellants in the manner mentioned above, was cancelled by the Revenue Authorities and the appellant did not challenge this order in the same hierarchy or even before the Court in the instant suit.
11. As regards the question that the appellants are in possession of the suit property and because there is mention in the agreement to sell that his possession shall be under the agreement, suffice it to say that 'admittedly the possession of the appellants qua the suit property was that of lessees.
As the appellants have failed to prove valid execution of the agreement to sell Exh. P-1 in his favour, resultantly to say that his possession be recognized under the agreement is without any force. Even according to the Revenue Record, his possession continues to be that of lessees and not as- owner of the property, particularly, when the mutation in his favour has been set aside by the Revenue Authority.
12. Attending to the question of subsequent purchasers to be bona tide purchaser, it may be sated that the transaction in favour of said respondents has been executed through registered documents. The said respondent appeared in the Court and made statement of having purchased the property without notice of any agreement to sell, between the appellant and Rabnawaz and for valuable consideration. The appellants did not lead any rebuttal evidence to disprove this fact and to establish in positive terms that the respondents had the knowledge of the agreement to sell and have purchased the property with due notice and are not bona fide purchasers. The case of the appellants thus squarely hit by the case reported as PLD 1972 SC 25.