' Mehmood son of Sultan, respondent herein/plaintiff filed a suit for specific performance of the agreements dated 9-12-1986 and 5-7-1987 against Shameer son of Bahadur, respondent No,2. It was contended therein that property measuring 10 Kanals, 18 Marlas was sold out to him by Shameer being owner in possession of the land against a consideration of Rs,40,000. It was alleged that Rs,32,000 were paid in advance to respondent No,2 by respondent No,1 Mehmood. The property was pledged with the Bank therefore, the sale-deed could not be executed and it was stipulated that the sale shall be completed on the redemption of the land. Another amount of Rs,1,000 was paid to Shameer and in this way it was asserted, an amount of Rs,33,000 has been received by the said Shameer from Mehmood respondent No, 1 .
Another agreement dated 5-7-1987 was executed between the parties. It is stated that the property was redeemed from the Bank and despite the fact that Mehmood respondent was ready to pay the remaining amount of Rs,7,000 to Shameer, respondent, he refused to complete the sale, and instead he alienated the disputed property in favor of Ghulam .Muhammad, respondent No,3 through Mutation No,594 who further sold it to petitioner Muhammad Yar through Mutation No,607 dated 25-1-1991, which gave cause of action to respondent plaintiff Mehmood to bring the suit for specific performance of the contract against the defendants. It was prayed that both the Mutations bearing Nos.594 and 607 in favor of Ghulam Muhammad and Muhammad Yar be set aside because Shameer had already sold out the disputed property to Mehmood, plaintiff.
2. Ghulam Muhammad, respondent No,3 herein/defendant No,2 was proceeded against ex parte.
Shameer respondent/defendant No,1, owner of the land in dispute appeared in Court and got his statement recorded, wherein he stated that he had compromised with the plaintiff Mehmood and he had no objection in decreeing the suit in favor of the plaintiff. He further stated that he has not sold the disputed property to Ghulam Muhammad, defendant-respondent.
3. Muhammad Yar, petitioner, who was defendant No,3, contested the suit by filing the written statement. He contended that Shameer sold out the disputed property to Ghulam Muhammad in consideration of Rs,50,000 and Mutation No,594 dated 26-6-1990 was sanctioned in his favor and subsequently said Ghulam Muhammad sold out the same land to him through Mutation No,607 dated 28-1-1991 and possession was also delivered to him.
4. The learned Civil Judge, Chiniot, proceeded to frame the following issues from the divergent pleadings of the parties:--
(1) Whether the defendant No,1 made an agreement dated 9-12-1986 to sell out the disputed property to the plaintiff and received Rs,33,000 as a token money and that agreement was renewed on 5-7-1987 and plaintiff is entitled to the decree of specific performance and Mutation No,594 in favor of defendant No,2 and Mutation No,607 dated 28-1-1991 in favor of defendant No,3 executed by defendant No,2 about the disputed property are against law and facts and are liable to be set aside? OPP.
(2) Whether the plaintiff's suit is mala fide and frivolous one and defendants are entitled to get special costs? OPD.
(2A) Whether the plaintiff has no cause of action to file the suit? OPD.
(3) Whether the plaintiff is estopped to bring the suit due to his words and conduct? OPD.
(3A) Whether the plaintiff is estopped to bring the suit? OPD.
(4) Whether the plaintiff's suit is time-barred? OPD.
(4A) Whether the sale made by defendant No,1 in favor of defendant No,2 and sale made by defendant No,2 in favor of defendant No,3 through Mutations Nos.594 and 607 is bona fide and with consideration and without notice? OPD 2 and 3.
(5) Relief.
5. The parties led their evidence. The learned Civil,Judge recorded a finding on Issue No,1 in favor of the plaintiff Mehmood by observing that the agreement in favor of Mehmood plaintiff stands proved, but at the same time he observed that the disputed property had been sold out by defendant No,1 to defendant No,2 and defendant No,2 has sold out the same to defendant No,3 and all the P. Ws. Have not uttered a single word that defendants Nos.2 and 3 had any knowledge of any agreement between the plaintiff and defendant No,1, therefore, he declared the petitioner Muhammad Yar as bona fide purchaser and treated the suit of the plaintiff Mehmood as money suit and awarded a decree for Rs,33,000 with interest at the rate of 6 per cent. From the date of the agreement i,e, 9-12-1986 up to the date of decree, i,e, 28-6-1994 and till it is recovered, in favor of the plaintiff Mehmood and against Shameer, defendant No,1, while the suit against Ghulam Muhammad respondent and Muhammad Yar petitioner was dismissed vide judgment and decree dated 28-6-1994.
6. Mehmood, respondent No,1 /plaintiff filed an appeal against the judgment and decree dated 28- 6-1994 before the Additional District Judge, Chiniot, the same was accepted by the learned Additional District Judge vide his judgment and decree dated 9-1-1996 by reversing the finding of the trial Court on Issue No,1. According to the First Appellate Court the agreement to sell dated 9- 12-1986 and 5-7-1987 Exhs. P.1 and 2 have been admitted by Shameer when he got recorded his statement on 20-2-1994. It was further observed that Mehmood plaintiff has proved the execution of these documents by statements of P.Ws.1 to 5. It was further observed that the land in dispute was alienated by Shameer to Ghulam Muhammad respondent No,3 on 26-6-1990 vide Mutation No,594 Exh.D/1. Ghulam Muhammad alienated the land to the petitioner Muhammad Yar vide Mutation No,607 on 18-1-1991 Exh.D-2, therefore, it is clear that respondent No,2 Ghulam Muhammad alienated the land to Muhammad Yar petitioner during the pendency of the suit. Under the principle of lis pendens if a suit property is alienated or any embargo on the rights of plaintiff is created by defendant it has no effect on the rights of the plaintiff. According to the learned Additional District Judge, the right of the petitioner was hit under section 52 of the Transfer of Property Act on the principle of lis pendens and therefore, transfer in tavour of the petitioner does not affect the right of the plaintiff.
7. On the question of bona fide purchaser, the learned Additional District Judge observed that:-- "In order to prove the assertion that defendants were bona tide purchaser for value without notice they had to prove on record that prior to sale they made essential enquiries about the disputed land that no charge over it was existed when they entered into bargain with vendor i,e, respondent No,
1. They have not brought on record any evidence in this respect."
8. Agreement between Mehmood plaintiff and Shameer defendant, who was owner of the land in dispute, is admitted. The only question for consideration before the Court in this case is whether defendants Ghulam Muhammad and Muhammad Yar were bona fide purchaser for value with consideration and without notice. The learned Additional District Judge reversed the finding of the learned Civil Judge through the impugned judgment by observing that prior to the sale of the disputed land the petitioner and defendant Ghulam Muhammad had not 'made reasonable enquiries about the disputed land about the charge over it. To my mind, this observation is not legally sustainable. The title of the property was not in dispute, therefore, the learned Additional District Judge misdirected himself to observe about the enquiries of the title of Shameer under section 41 of the Transfer of Property Act (IV of 1882). In this case the interpretation of section 27(b) of the Specific Relief Act (I of 1877) was involved. To appreciate the real controversy between the parties, the provision of section 27(b) of the Act is reproduced:-- "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--
(a) '.........................
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;"
' To discharge the onus of proving the bona fide purchaser with value without notice the petitioner has produced Ghulam Muhammad as D.W.1, and himself appeared as D.W.2. Ghulam Muhammad, defendant No,2 while appearing as D.W.1 has categorically stated on oath that he had, no knowledge of the agreement of sale between Mehmood plaintiff and Shameer when he purchased the land. Similar statement was made by Muhammad Yar petitioner while appearing as D.W.2. In the case reported as Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) while interpreting section 27(b) of the Specific Relief Act the Hon'ble Supreme Court as a principle held:-- "Specific Relief Act (I of 1877), S.27(b)--Interpretation-- Expression 'except a transferee for value who has paid his Money in good faith and without notice of the original contract--Contract to sell property---Specific performance-- Person claiming title to property arising subsequently to original contract for sale of property---Burden lies heavily on such person to prove that he was transferee in good faith without notice of original contract for valuable consideration. "
' The same view was also followed by the Hon'ble Supreme Court in case reported as Muhammad Ashraf v. Ali Zaman and 2 others (1992 SCM R 1442). In the present case, Ghulam Muhammad defendant, the subsequent vendee, appeared as D.W.2 in support of his claim, but the plaintiff Mehmood has not appeared in rebuttal to discharge the onus of proving that Ghulam Muhammad and Muhammad Yar had the knowledge of the previous agreement between him and the vendor, because .Under the law the onus of proof had been shifted on him. The learned Civil Judge on the appreciation of evidence rightly concluded that the agreements to sell dated 9-12-1986 and 5-7- 1987' were proved by plaintiff Mehmood by producing scribe and the marginal witnesses and an admission was also made by Shameer who was owner of the property before the Court. The advance money received by the vendor amounting to Rs,33,000 was also proved on the record. He was also right in saying that the plaintiff could not prove that Ghulam Muhammad and Shameer had the knowledge of the agreement to sell because the plaintiff had not appeared in the witness- box in rebuttal to discharge the onus. In this view of the matter, the learned Civil Judge was right in decreeing the suit of the plaintiff to the extent of Rs,33,000 and dismissing the suit against Ghulam Muhammad and Muhammad Yar. The First Appellate Court has not appreciated the evidence on the record in its true context and also has not interpreted the provisions of section 27(b) of the Specific Relief Act and misdirected himself while observing that an enquiry was not made by the purchaser Ghulam Muhammad and Muhammad Yar about the title of the property. As stated earlier, title of the property was not in dispute, therefore, the question of application of Transfer of Property Act, was not involved in this case.
' Resultantly, the order of the learned Additional District Judge dated 9-1-1996 through which appeal of Mehmood, plaintiff, was accepted is set aside and the judgment and decree of the Civil Judge, Chiniot, dated 26-6-1994 is restored with costs. The revision petition is accepted.