Ghulam Rasool, respondent No,8 and Mumtaz Bibi, respondent No,9, were the owners of the suit land measuring 37 Kanals, 8 Marlas, described in the plaint; they through Kamal Din, respondent No,10, their attorney, had agreed to sell the land in favour of Madad Ali Shah and Muhammad Naqi Shah, through an agreement dated 5-7-1985, for a consideration of Rs,50,000, out of which Rs,10,000 were received by the sellers, the date for the finalization of the transaction was fixed as 31- 12-1985, however, the sale could not be finalized on that date. Both the parties blame each other for not completing the contract. Anyhow, on 2-9-1986, Muhammad Yousaf, the present appellant, predecessor-in-interest of the appellants, purchased the suit land vide registered sale deed.
Thereafter, on 21-9-1986, respondent No,1/Madad Ali Shah and Muhammad Naqi Shah, predecessor of respondents Nos. 2 to 7, brought a suit for specific performance against Ghulam Rasool, Mumtaz Bibi and Kamal Din, (respondents Nos.8, 9 and 10), in which the present appellant was also impleaded as a party. The suit was contested by the sellers reiterating their position that the time was the essence of the contract and that the present appellant independently took up the plea, that he was bona fide purchaser without any notice of any agreement to sell between Ghulam Rasool etc. And the respondents plaintiffs. Issues were accordingly framed, Issue No,5 was, whether the defendants Nos.4 and 5 are bona fide purchasers, for value; parties led evidence, and ultimately, the learned Civil Judge, finding this issue in favour of the appellants defendants dismissed the suit. However, on appeal filed by the respondent, the finding on this issue has been reversed and the suit has been allowed.
2. Learned counsel for the appellants has argued, that the burden though of this issue was on the shoulders of the present appellant (Muhammad Yousaf), and he had discharged the burden by stating that he had no knowledge about the agreement to sell, but there is no evidence led at all by the respondents; even they did not make a statement, that the present appellant has knowledge of the earlier agreement to sell. He has relied upon the judgments reported as Mst.
Khair-un-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 and Abdul Hague and others v. Shaukat Ali and 2 others 2003 SCM R 74.
3. Confronted with the above, learned counsel for the respondents Nos.1 to 7 states, that the respondents were in possession of the property, and resultantly, this fact was sufficient to put the appellant to the notice of the agreement to sell'
4. I am afraid, there is no proof of the respondent's possession. This is not even mentioned in the agreement to sell, that the possession has been delivered nor any documentary evidence has been led, to prove this fact, which could have put the subsequent vendee, to inquire about the nature of the possession. Resultantly, the findings of the learned Appellate Court, are against the record and the law laid down in the afore-mentioned judgments, which cannot be sustained; the findings on this issue of the learned Appellate Court, are set aside with the result that the findings of the Trial Court on Issue No,5 are sustained. In the light of above the judgment and decree of the Court of appeal, is set aside and that of the trial Court is upheld. Accordingly this appeal is allowed.