1. CH. IJAZ AHMAD, J.~ The brief facts out of which present appeal arises are that plaintiff-respondent No. 1 filed a suit for possession through specific performance of contract against respondent- defendant No. 2 before the Civil Judge lst Class, Gojra on 15.11.1990. The contents of the plaint reveal that respondents Nos. 1 and 2 entered into an agreement to sell dated 6.12.1989 in respect of land in-question measuring 6 Kanals and 14 Marlas for consideration of Rs.85,000/- per Acre and plaintiff-respondent No. 1 paid Rs.5,000/- as earnest money to defendant-respondent No. 2.
2. According to the contents of the agreement to sell, date of completion of registered sale-deed, was fixed as 15.1.1990, but later on, the said date was extended with mutual consent of the parties as 23.1.1990. Subsequently, it was extended one day more as 24.1.1990. The defendant-respondent No. 2 gave notice to plaintiff-respondent No. 1 for cancellation of agreement to sell and forfeiture of earnest money on 24.1.1990 and the land in-question alongwith share of Mst. Rashidan Bibi, co- sharer was sold by defendant- respondent No. 2 to the appellants on 8.2.1990 for consideration of Rs. 1,10,000/- and in this regard mutation No. 2201 was sanctioned on 8.2.1990. The contents of plaint further reveal that the plaintiff- respondent No. 1 (Muhammad Shafi) had been asking to defendant-respondent No. 2 (Mehmood Ahmad) to act upon his part of the contract but he had been putting the matter one pre-text or the other and subsequently, he alienated the suit land in favour of the appellants vide Mutation No. 2201, dated 8.2.1990. The respondents filed the written statement controverting the allegations levelled in the plaint. Out of pleadings of the parties, the learned Trial Court framed the following issues:- Issues:
(1) Whether the plaintiff had no locus standi and cause of action to file the present suit? OPD
(2) Whether the plaintiff is estopped to file the present suit by his conduct? OPD
(3) Whether the plaintiff's suit is deficiently stamped and its effect? OPD
(4) Whether the suit is not maintainable in its present form? OPD
(5) Whether the plaintiff's suit is bad for nonjoinder of necessary parties? OPD
(6) Whether the plaintiff is entitled to the decree for specific performance on the basis of impugned agreement dated 6.12.1989, if so, on what terms and mutation No. 2201 is illegal and liable to be set-aside as prayed for? OPP
(7) Whether the defendants are entitled to special costs, if so, to what extent? OPD (7-A)Whether the defendants Nos. 2 to 4 are bona fide purchasers for value without notice of the suit land and as such they are protected under Section 27 of the Specific Relief Act? OPD
(8) Relief.
3. The learned Trial Court decreed the suit of the plaintiff vide judgment and decree dated 21.10.1996.
4. The appellants being aggrieved preferred an appeal before the learned Addl. District Judge, Gojra on 12.11.1996, who dismissed the same vide judgment and decree dated 4.7.1997, hence the present second appeal.
2. The learned counsel of the appellants submits that in the circumstances of the present case, originally, the time fixed by the parties in the agreement to. Sell dated 6.12.1989, was extended mutually by till 15.1.1990, therefore, time is the essence of contract, but this fact was not considered by both the Courts below in its true perspective and judgments of both the Courts below are not in accordance with law laid down by the Superior Courts, In support of his contention, he relied upon the following judgments:- "Muhammad Sharif v. Mst. Fajji alias Phaji Begum, etc." (1998 SCMR 2485).
5. "Ashraf Hanif v. Mst. Najma Alavi" (2001 CLC 1029).
6. "Malik Elahi Bux and others v. Muhammad A slam" (2002 CLC 433).
7. "L.C.C.H.S.L. v. Dr. Nusratullah Chaudhry, etc." (2002 CLR SC (Pak) 1694).
8. He further submits that the appellants had purchased the land in-question without knowledge of the previous agreement executed between respondents Nos. 1 and 2, but this fact was not considered by both the Courts below, therefore, the judgments of both the Courts below are not sustainable in the eye of law. In support of his contention, he relied upon the following judgments:- "M/s. Pak United Housing Enterprises v. Ramazan, etc." (1992 CLC 1 678).
9. "Cantonment Board v. Secretary Govt, of Punjab, etc." (1995 CLC 626).
10. He further submits that the appellants purchased the land in-question alongwith co-sharer Mst.
11. Rashidan Bibi, measuring 8 kanals for consideration of Rs 1,10,000/-; whereas respondent No. 1 allegedly had executed an agreement to sell with respondent No. 2 on 6.1-2.1989 for the land measuring 6 Kanals and 14 Marlas for consideration of Rs. 85,000/- per Acre, therefore, the suit of the plaintiff-respondent No. 1 was not maintainable, as he did not implead Mst. Rashidan Bibi, co- sharer as defendant in the suit. He further submits that the appellant has given statement on oath that the appellants have no knowledge qua the agreement to sell executed between respondents Nos. 1 and 2 before purchasing the land in-question from respondent No. 2. He further submits that the respondents failed to bring on record sufficient evidence that the appellants have knowledge about the previous agreement executed between respondents Nos. 1 and 2, therefore, the judgments of both the Courts below are the result of mis-reading and non-read of .The record as is evident form statement of Muhammad Shafi, who appeared before the learned Trial Court as PW-2 and subsequently, he appeared as PW-7, which was corroborated by the statements of Abdul Hameed PW-3 and Khalid Mehmood PW^4. He further, submits that Muhammad Shafi PW-7 stated in his statement that he went to Muhammad Shafique, petition-writer alongwith consideration for the purpose of execution of sale-deed, but this fact was not borne out from the statement of petition-writer Muhammad Shafique. He further submits that the learned Trial Court has given findings against the appellants on surmises and conjectures qua the knowledge of previous agreement and bona fide purchasers as is evident form paras Nos. 13 and 18 of the impugned judgment of the learned Trial Court. He further submits that the first Appellate Court has reaffirmed the findings of the learned Trial Court without application of mind as is evident from para No. 3 of the impugned judgment of first Appellate Court-
3. The learned counsel of the respondents submits that the appellants have . Executed the agreement with respondent No. 2 on 25.1.1990, which has not been brought on record by the appellants. Both the Courts below after proper appreciation of evidence on record, have given findings of facts against the appellants that the appellant? Have the knowledge of the agreement to sell executed between respondents Nos. 1 and 2 and also the appellants are not bona fide purchases, therefore, the second appeal is not maintainable. He further submits that the appellants failed to prove on record through reliable evidence that the appellants had purchased the land from respondent No. 2 without notice and knowledge of the previous agreement to sell executed between respondents Nos. 1 and 2 and also the appellants are bona fide purchasers, In fact, the appellants and respondent No. 2 in connivance with each other, concocted a false story to defeat the right of respondent No. 1. He further submits that the time is not essence of contract qua the agreement to sell with regard to immovable property.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to re-produce the operative part of the judgment of first Appellate Court to resolve the controversy between the parties:- "From the evidence discussed above, it is crystal clear that the appellants had the knowledge of sale agreement in favour of the respondent-plaintiff from the very beginning. They in-connivance with the respondent- plaintiff, entered into sale agreement on 25.1.1990 and this was intentionally concealed and agreement was not produced on record and the transaction was shown to be on subsequent date and evidence in this regard as discussed above, is totally doubtful and n6t confidence inspiring. The learned Trial Court after proper appraisal of record rightly decided this issue in favour of the respondent- plaintiff No. 1 and against the appellants and also rightly came to the conclusion that the appellants are not bona fide purchasers for value without notice. The Teamed Trial Court after proper .Appraisal of record rightly decided all the issues. The findings of the learned Trial Court are correct. There is no non-reading or mis-reading of evidence on the part of learned Trial Court. The findings are upheld."
12. Mere reading of the aforesaid operative part of the impugned judgment clearly reveals that the first Appellate Court, re-affirmed the judgment of the learned Trial Court after proper appreciation of evidence and after application of independent mind, It is settled principle of law that time is not essence of contract qua the agreement relating to immovable property, In the absence of terms and conditions question of forfeiting the earhest money does not arise, It is basic and fundamental principle of agreement and contract regarding the immovable property, time never be considered as essence of the contract and in a very special and extraordinary evidence on record, the time is considered to be an essence of the contract, I have examined the whole record, the ^present appellants failed to bring on record any evidence to show that time is the essence of the agreement, therefore, contention of the learned counsel of the appellants has no force, In arriving to this conclusion, l am fortified by the law laid down in the following judgments:- " Abdullah's case (1992 CLC 1561).
13. "Seth Essa Bhay's case (PLD 1973 SC 39).
14. "Raja Nasir Khan's case (PLD 1998 Lah. 20).
15. It is also settled principle of law that subsequent purchaser must have to prove on record that he did not have knowledge of prior contract. Both the Courts below have given concurrent findings of facts against the appellants that the appellants have knowledge of prior agreement, therefore, the appellants are not bona fide purchasers. Tn arriving to this conclusion, I am fortified by the law laid down in "Mamtazul Karim's case" (1970 DLC 211 = 22 DLR 146). It is also settled principle of law that possession of vendee constitute a notice to the subsequent vendee, who is required to make an honest inquiry in respect of prior transaction, as per law laid down in "Mehmuda Sultana v. Naseem Mumtaz and another" (1990 MLD 1028). According to Section 27(b) of the Specific Relief Act, it is the duty and obligation of the appellants to prove on the record that the appellants have paid money to respondent No. 2 in good faith and without knowledge of original contract executed between respondents Nos. 1 and 2. Both the Courts below after proper appreciation of evidence, have given findings of fact against the appellants that the appellants have knowledge qua the prior agreement to sell, therefore, the appellants are not entitled of any protection under Section 27 of >the Specific Relief Act because it is the condition precedent that the appellants, have to first discharge their burden to prove regarding want of knowledge. The appellants failed to fulfil the four conditions prescribed by the legislature in its wisdom under Section 27(b) of the Specific Relief Act, therefore, both the Courts below were justified to decide the case against the appellants. In arriving to this conclusion, I am fortified by the law laid down in the following judgments:- "Malik M. Ishaque, etc. v. Mirza Almas AH Beg, etc." (PLD 1969 Lah. 762).
16. "Said Habib v. Haji Matiur Rehman and 5 others" (1980 CLC 1450).
17. "Niamat AH v. Hassan Muhammad and others" (1987 M.L.D. 30).
18. "Ghulam Hussain, deceased v. Kama! Yusuf and others" (1989 M.L.D. 1169).
19. "Mst. Surraya Begum, etc. v, Mst. Suban Begum and others" (1992 SGMR 652).
20. "Muhammad Ashraf v. AH Zaman and others" (1992 SCMR 1442).
21. It is pertinent to mention here that the agreement to sell was executed between respondents Nos. 1 and 2 on 6.12.1989 with regard to the land measuring 6 Kanals and 14 Marlas for consideration of Rs.
22. 85,000/- per acre. Respondent No. 1 had paid Rs.5,000/- as earnest money to respondent No. 2. The date for execution of sale-deed was fixed as 15.1.1990, which was mutually extended till 23.1.1990.
23. The respondent No. 2 sent notice to respondent No. 1 on 24.1.1990 that the respondents have allegedly cancelled the agreement to sell dated 5.12.1989 and forfeited the earnest money as is evident from Ex.D/1. Respondent No. 2 had executed the agreement to sell with appellants on 25.1.1990.
6. In case, the aforesaid facts are put in juxta position, then findings of the Courts below are valid and there is no doubt that respondent No. 2 has executed an agreement with the appellants simply to frustrate the agreement executed with respondent No. 1 on 6.12.1989. It is settled principle of law that interference in concurrent findings of fact, can be made by this Court only when the evidence is misread and finding is based on surmises and conjectures, or based on inadmissible evidence; or there existed an error or defect in the procedure which may possibly have introduced an error or defect in the decision on merits. The learned counsel of the appellants failed to bring this case within parameters prescribed by the Superior Court qua the interference by this Court while exercising power under Section 100, CPC, as per principle laid down by the Honourable Supreme Court in "Chaudhry Muhammad Saleem v. Fazal Ahmad and two others" (1997 PSC 549) and "Abdul Majid's case" (PLD 1995 S.C. 38).' It is pertinent to mention here that respondent No. 1 had filed the suit against respondent No. 2 and appellants qua the land measuring 6 Kanals and 14 Marlas, therefore, the judgments of both Courts below are up-held to the extent of land measuring 6 kanals and 14 marlas. In the given circumstances of the present case, Mst. Rashidan Bibi was not proper party j in the proceedings.
24. In view of what has been discussed above, the appeal has no merit and the same is dismissed.