1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- This revision application under section 115, C.P.C. Is directed against the judgment and decree, dated 23-12-1987 passed by the learned Additional District Judge Badin, dismissing Civil Appeal No,11 of 1986, thereby maintaining the judgment and decree, dated 17-7-1986 and 2-8-1986, respectively, passed by the learned Senior Civil Judge Badin, dismissing Suit No,105 of 1976.
2. ' The relevant facts giving rise to this revision application are that on 15-8-1968, the applicant filed a suit for Specific Performance of Contract, cancellation of the document and permanent injunction against Dhani Bux and Ghulam Hussain, alleging that the agricultural land, described in the Schedule to the plaint, admeasuring 78-11 acres, Deh Ghirathri, Tappo Khairpur, Taluka and District Badin was owned by the defendant No,1 Dhani Bux, who by registered Agreements of Sale, dated 21-6-1949, 15-1-1952, and 19-2-1960 agreed to sell 8 Anas, 4 Anas, and 4 Anas share for an amount of Rs,7,000, Rs,3,500 and Rs,4,000. He received Rs,7,000, Rs,2,640 and Rs,3,000 respectively from the plaintiff/applicant and put him into possession of the land. The plaintiff continued to be in possession of the suit-land had been requesting for execution of the Sale-deed which was avoided on the pretext that he had applied for permission from the Collector, which was not granted, as yet.
3. On 1-4-1968, defendant No,1 Dhani Bux executed Sale-deed in favour of defendant No,2 Meer Ghulam Hussain, transferring 77-03 acres out of his total holding and undertook to get the Katha mutated in favour of defendant No,2, after obtaining permission from Collector.
4. ' The defendant No,1 filed his written statement contending that at the time of execution of Agreement, he was ill, sick and infirm, therefore, the contents of the Agreements were not explained to him. The documents were obtained through fraud and without consideration. It was also alleged that the possession of the suit-land was handed over to plaintiff as Lessee and not under any Agreement of sale. He further averred that while executing Sale-deed, in favour of defendant No,2, he was in his full sense and it was for consideration.
5. ' One Rehmat Ali, claiming to be General Attorney of defendant No,2, filed his written statement, raising various pleas and denied most of the averments made in the plaint for want of knowledge.
6. He contended that he was in physical possession of the land and had purchased the same without knowledge of contract in favour of plaintiff, after obtaining permission from the Collector. It was also alleged that mutation was made in the record of rights in favour of defendant No,2.
7. ' On the pleadings of the parties, the learned trial Court framed as many as 14 Issues. The plaintiff examined his General Attorney Abdul Rehman and witness Ghulam Rasool, who produced Sale Agreement and other documents. Defendant No,1 did not lead any evidence. Defendant No,2 examined Ghulam Abbas and one witness Usman. The Issues framed by the learned trial Court were as follows:--
(1) Whether the suit is not maintainable?
(2) Whether suit is not in proper form?
(3) Whether suit does not disclose any cause of action against, dated (sic) No,2?
(4) Whether suit is bared under section 42 of Specific Relief Act as no proper relief has been prayed for?
(5) Whether the suit is barred by limitation?
(6) Whether proper Court-fee is paid?
(7) Whether the plaintiff entered into Sale Agreement?
(8) Whether plaintiff is in possession of the suit-land, if so, since when?
(9) Whether defendant No,2 is bona fide purchaser of valuable consideration without knowledge or information of earlier agreement?
(10) Whether defendant No,2 is in possession since sale was made in his favour?
(11) Whether the plaintiff has performed his part? -
(12) Whether agreements to sell executed by defendant No,1 are within scope of the Transfer of Property Act?
(13) Whether any fraud was committed?
(14) What should the decree be?
8. ' The learned trial Court decided Issues Nos.3, 6 7, 8 and 13 in favour of the plaintiff but decided Issues Nos.1, 2, 5, 9, 11 and 12 against the plaintiff. While deciding Issue No,10, the learned trial Court held that the possession of land was with plaintiff excepting the period from 1968 to 1971, when it was with defendant No,2. No finding was given on Issue No,4. The Suit was ultimately dismissed.
9. ' The plaintiff preferred Appeal, which was also dismissed by the learned Additional District Judge, Badin.
10. ' I have heard Mr. Jhamat Jethanand, learned counsel for the applicant/plaintiff and Mr. Basharat Ahmed Jatt, learned counsel for the respondents/defendant.
11. ' Mr. Jhamat has submitted that registered Sale Agreement Exh.59-A, Exh.59-B and Exh.59-C have been produced in evidence and the execution thereof has not been denied. He has further submitted that Sale-deed in favour of defendant No,2 (Exh.59-F) was executed on 1-4-1968 and the mutation in favour of defendant No,2 was made on 28-5-1968.
12. ' Mr. Jhamat has submitted that he will submit his arguments on five points only:-
(1) Findings of learned two Courts below on Issues Nos. 1 and 2 are not correct;
(2) The learned two Courts below have misdirected in not giving any finding on issue No,4;
(3) The findings on issues No,5 are result of misreading of evidence;
(4) The findings on issues No,9 are without any evidence and the burden of proving that the defendant No,2 was entitled to protection under section 27(b) of Specific Relief Act, was on defendant No,2, which he has failed to discharge;
(5) Issues Nos. 11 and 12 have been decided against the evidence on record; ' During the course of arguments, Mr. Basharat Ahmad Jatt, learned counsel for the respondents stated that the objections raised in Issues Nos. 1 to 6 before the lower Court are not pressed by him.
13. He further stated that, he will place reliance on the provisions contained in section 27(b) of the Specific Relief Act only. Mr. Basharat Ahmed Jatt has not denied the execution of Sale Agreements between the applicant and defendant Dhani Bux and the possession of the applicant over the suit- land, as held by the learned two Courts below. In support of his contention, Mr. Basharat Ahmad Jatt has placed reliance on three recent judgments of Honourable Supreme Court.
14. ' First case is Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCM R 74. In this case sale in favour of defendant was assailed by the plaintiff on the ground of having prior agreement to sell in his favour and sought specific performance of the Agreement. The learned Trial Court decreed the suit. However, First Appellate Court held that the plaintiff failed to prove knowledge of prior agreement on the part of defendant and reversed the judgment of the learned trial Court. The judgment and decree of the First Appellate Court was reversed by the High Court. When the matter reached before the Honourable Supreme Court, it was held that, "the plaintiff had failed to discharge the onus to prove the knowledge of defendant of the prior agreement to sell. The protection of section 27(b) of Specific Relief Act 1877, was available to the defendant, who was transferee of suit-land for value in good faith and without notice of any prior agreement to sell".
15. Judgment and Decree passed by the High Court was set aside and the judgment of First Appellate Court was restored.
16. ' The second judgment on which Mr. Basharat Ahmad Jatt has placed reliance is Mohammad Bashir v. Chiraghuddin, 2003 SCM R 774. The third judgment is Mohammad Saleh v. Qamaruddin, 2003 SCM R 1915. The principle propounded in the first judgment has been reiterated in the later two judgments.
17. ' Mr. Jhamat Jethanand, learned counsel for the applicant submitted that since Mr. Basharat Ahmed Jatt has placed his entire reliance on the provisions contained in section 27(b) of the Specific Relief Act, therefore, the other contentions raised by him, need not to be considered.
18. Regarding the protection sought by the learned counsel for the respondents under section 27(b) of the Specific Relief Act, Mr. Jhamat Jethanand has contended that the answer is contained in section 3 of the Transfer of Property, Act 1882. He has placed reliance of the following provisions contained in section 3 of the Transfer of Property Act, 1882. "a person is said to have notice of a fact when he actually knows that fact, or when but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.
19. ' Explanation 1.--- Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest, in such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under subsection (2) of section 30(XVI of 1908) of the Registration Act, 1908, from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated; ' Provided that:
(1) the instrument has been registered and its registration completed in the manner prescribed by the Registration Act, 1908 and the rules made thereunder:--
(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act; and
(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
20. ' Explanation II. Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, person who is for the time being is in actual possession thereof.
21. Mr. Jhamat Jethanand has submitted that admittedly the Sale Agreements executed in favour of the applicant are prior to the Sale-deed executed in favour of defendant Dhani Bux and all three Sale Agreements are registered documents. The entries are also appearing in the Revenue Record.
22. If the defendant Dhani Bux would have made inquiry from Tappedar and had asked for issuance of Fard-e-Haqiat" he would have known that entries of registered sale agreements in favour of the applicant are already there in the Revenue Record. He has further submitted that registration of documents is itself a notice and if defendant Dhani Bux would have obtained Search Certificate from the office of the Sub-Registrar, he would have acquired information about the registration of Sale Agreements in favour of the applicant.
23. ' Mr. Jhamat Jethanand has next contended that the applicant has been held to be in possession of the suit property at the time of execution of the Sale-deed in favour of defendant No,2 and it also amounts to notice of title in favour of the applicant.
24. ' Mr. Basharat Ahmed Jatt is not able to rebut the above contentions of Mr. Jhamat Jethanand.
25. In view of the above circumstances, I am persuaded to agree with the submissions made by Mr. Jhamat Jethanand that subsequent Sales Deed executed in favour of defendant Dhani Bux was with Prior notice of Sale Agreement in favour of the applicant and. Therefore, defendant Dhani Bux and all other persons deriving right, title or interest in the suit property are not entitled to the protection contained in section 27(b) of the Specific Relief Act.
26. ' For the foregoing reasons, the impugned judgments and decrees of learned two Courts below are hereby set aside and the suit is decreed as prayed. The revision application is allowed accordingly.