MUHAMMAD MUZAMMAL KHAN, J.--- This R.S.A. Assails judgments and decrees dated 22.3.1997 and 27.4.2000 passed by the learned Civil Judge and learned Additional District Judge, Narowal, respectively, deciding the list against the appellants.
2. A short factual background of the case is that respondent No. 1 filed a suit for specific performance of an agreement to sell dated 22.10.1985 before the Civil Courts, Narowal, on 31.7.1989.
According to respondent No. 1 under the sale through his agreement to sell dated 22.10.1983, was with regard to 38 kanals, 8 marlas for a consideration of Rs. 76,800/-. Respondent No. 1 also asserted in the plaint that at the time of execution of the agreement to sell, respondent No. 2 received an amount of Rs.61,000/- as earnest money, and agreed to execute sale-deed after a period of two years. Respondent No. 1 also challenged sale-deed dated 7.7.1985 that a land measuring 59 kanals, 1 marla was purchased by the appellant. He also challenged sale-deed dated 17.9.1984 through which in favour of one Muhammad lqbal having been executed in violation of his agreement to sell, above-referred.
3. The appellant being defendant in the suit, controverted the assertions in the plaint and pleaded to be a bona fide purchaser for valuable consideration, without notice of the agreement dated 22.10.1983 in favour of the respondent No. 1 contested the suit by filing a written statement and both the vendees took similar defence in their written statements. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, who was seized of the matter, after going the needful vide his judgment and decree dated 22.3.1997 dismissed the suit of respondent No. 1.
4. Respondent No. 1 aggrieved of the decision of the Trial Court dated 22.3.1997 filed an appeal before the Additional District Judge, where he succeeded as his appeal was accepted and his suit was decreed, reversing the judgment and decree of the Trial Court, through appellate judgment and decree dated 27.4.2000. The appellant (one of the subsequent vendees) has come-up before this Court in second appeal against the judgment and decree of the first Appellate Court dated 27.4.2000. The other vendee Muhammad lqbal has not appealed against, it and appears that he had died pending suit and was represented by Mst. Sharifan Bibi, etc. Who have been shown as proforma appellants in the memorandum of appeal.
5. Learned counsel for the appellant submits that a well-reasoned judgment of the Trial Court has unnecessarily been reversed by the first Appellate Court without meeting the points evolved by the learned trial Judge and that too, in a slip shod manner, without assigning sufficient reasons in favour of his decision. He further contends that findings of the first Appellate Court that the appellant is not a bona fide purchaser for valuable consideration without notice ar based on mere conjectures. According to him, notices sent to respondent No. 1 by respondent No. 2 were not within his knowledge as the same were not addresses to him. He ...Further asserts that a public notice which appeared in daily newspaper 'Nawa-i'-Waqt' dated 14.12.1984 was published when he was away to Sindh and thus could not gain knowledge of this notice. This also a case of the appellant that respondent No. 1 did not plead in his plaint that the appellant was aware of the agreement to sell in his favour, besides arguing that there is no evidence on the file, showing that the appellant had the knowledge of the agreement as asserted by respondent No. 1.
Learned counsel for the appellant further elaborates his arguments by saying that agreement to sell in favour of respondent No. 1 was not reported before the revenue authorities, as such, it could not have been in his knowledge. He also adds that DWs. 3 to 5 have stated while in the witness-box that respondent No. 1 had accompanied the appellant at the time of agreement to sell in his favour but this part of their statements, was not subjected to any cross-examination by respondent No. 1, creating in a presumption that respondent No. 1 was aware of the sale from its very inception but he did not object to it and thus was estopped to challenge it. According to his assertion, when the sale was completed in favour of the appellant, the agreement to sell asserted by respondent No. 1 was not in existence, at that time and has subsequently been prepared by anti-dating the same.
He also asserts that since respondent No. 1 throughout the exercise of completion of sale in his favour, accompanied him, there was no necessity of any further investigation by the appellant because he could have easily objected to the sale in his favour, had he been in possession of any agreement to sell. It is also a case of the appellant that since respondent No. 1 has not challenged sale-deed in his favour, in the plaint and thus, it could have been annulled by the first Appellate Court or by this Court, while hearing the second appeal.
6. Conversely, learned counsel for the respondents refuted the assertion of the appellant, supported the first appellate judgment and urged that land formin subect of a reement to sell in favour of respondent No. 1 was transferred in parts included in two registered sale-deeds, one executed in favour of the appellant and one Amjad Khan, the other in favour of Muhammad lqbal, deceased, alone. Muhammad lqbal, deceased is represented through Mst. Sharifan Bibi, etc., who have not appealed against judgment and decree impugned by the appellant and they have been shown as proforma appellants in the memorandum of appeal without signing power-of-attorney in favour of counsel of the appellant, instead of arraying them as pro-forma respondents.
According to him, parts of land included in the sale-deeds of deceased Muhammad lqbal have vested in respondent No. 1 due to non-filing of appeal by his heirs and appeal by the appellant to the remaining part of the land, is not maintainable. He further contends that half of the sale-deed in favour of the appellant was, as a matter of fact, in favour of Amjad Khan son of Inayatullah Khan, who has also not appealed against the first appellate judgment and has been shown like legal heirs of Muhammad lqbal, deceased, as a pro-forma appellant. Learned counsel for the respondents also contends that according to statement of DW.2 Khan Muhammad, the original owner, no sale consideration was received by him from the appellant and other vendees, in absence of any payment under the sale-deed, the same was without consideration, as none of the DWs deposed that some payment under sale-deed in favour of the appellant was made. He also contends that sale-deed in favour of the appellant has not been proved as none of its marginal witnesses have been examined as a witness. He also submits that mere registration of sale-deed, without payment of any price or deliver of possession under it, confers no title to the appellant. He in this behalf relied on Manzoor Ahmad v. Haji Hashmat A.I through legal heirs (2000 CLR 1393) and Siraj Din v. Mst. Jam/la and another (PLD 1997 Lah. 633). Learned counsel for the respondent further elaborates his arguments by saying that all the arguments of the learned counsel for the appellant have no backing in their written statement because those were not pleaded therein. He also contends that a matter which has not been pleaded, cannot be argued especially in second.
Appeal. In this behalf, he relies on Abdul Hague and others v. Shaukat A.I and others (2003 PSCC 8).
He also adds to his arguments by saying that respondent No. 1 had not only given a notice directly to respondent No. 2 but also got it published in daily newspaper with a grate circulation. According to him since the respondent No. 1 was in possession of the land in question, though as a tenant, it was the duty of the appellant to inquiry from him before his purchase. He referred to statement of DW.5 (appellant) to contend that he made no efforts to inquire about the title of the land before purchasing it.
7. Learned counsel for the appellant replying the arguments of respondents, asserted that a registered sale-deed could not have been annulled only on the ground that consideration has not been paid to the vendee especially when the sale-deed was not challenged by the vendor. In this matter, he relied Muhammad Bashir and others v. Chiragh Din through legal heirs and others (2003 SCMR 774) and Muhammad Afzal v. Muhammad Ayub and others (2003 SCMR 961). He further argued that every party had to succeed at the strength of his own evidence and cannot be granted any relief on the basis of lapses of his adversary.
8. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the entire record, which was produced in form of certified copies by learned counsel for respondent No. 1. Sale agreement dated 12.10.1983 in favour of respondent No. 1, on the basis of which, suit for specific performance was filed by him, is not denied by respondent/defendant No. 2 in his written statement.
Its denial by the appellant/defendant, though has no meaning yet respondent No. 1 produced marginal witnesses and scribe to prove execution of this agreement. The appellant has claimed this agreement to sell as an anti -dated document but there is no evidence, worth the name, in support of this assertion. Learned counsel for the appellant emphasized that since his witnesses deposed that respondent No. 1 accompanied the appellant at the time of execution of agreement in his favour and he did not object to the sale, it be presumed that at that time no agreement in favour of respondent No. 1 was in existence. This assertion cannot be accepted for the simple reason that mere vague statements of DWs 2 to 5 cannot be relied to dispel the fact that a person having an agreement to sell of the same property, cannot act in this manner. Had respondent No. 1 been present at the time of sale transaction in favour of the appellant, his signature/thumb- impression must have been obtained on some documents because he was a tenant in possession of the land in question. But there is no such document on the file, as such, on the basis of mere oral assertions that the agreement to sell was anti-dated in presence of evidence of its execution, on the date on which it was executed, cannot be accepted. Likewise, preparation of this document under some collusion between respondents Nos. 1 and 2, by anti-dated the document is not proved o the file. Both these allegations of anti-dating the document and its preparation under collusion between the respondents, were levelled by the appellant and he was required to prove these by producing some positive evidence but there is no an iota of evidence to substantiate those allegations.
9. Assertion of the appellant, that since sale-deed in his favour was not challenged in the plaint, could not be annulled by the first Appellate Court, is also misplaced because in para Nos. 6 and 7 of the plaint, respondent No. 1 has specifically challenged both the sale-deeds dated 10.7.1985 and 17.9.1984 and has clearly pleaded that those sale-deeds have no affect on his rights under the agreement dated 12.10.1983. Even otherwise, had there been no assertion with regard to sale-deed in favour of the appellant, the Appellate Court was competent to grant decree for specific performance of the agreement and the appellant being party to the suit, his sale-deed would have automatically been adjudged, at the strength of the decree so passed.
10. The appellant asserts that respondent No. 1 has not mentioned in his plaint that he had knowledge of the agreement to sell in favour of respondent No. 1, thus, he cannot be graded as a purchaser with notice of his agreement to sell. This argument is also of no help to the appellant because on the first hand, respondent No. 1 did narrate in para 5 of the plaint that he firstly issued a notice to respondent No. 2 on 4.9.1983 for performance of his part of contract, by receiving of remaining sale price, in form of execution of sale-deed and thereafter got published in the daily news paper Nawa-i-Waqt' dated 14.9.1984. The newspaper in which the public notice was published by respondent No. 1 has a big circulation throughout the country and the appellant cannot say that he being away to Sindh was not aware of the agreement, inspite of its' publication, in Sindh Province, as well. Sale-deed in favour of the appellant is dated 7.7.1985, 'much letter than publication in newspaper of notice by respondent No. 1. If at all, it be assumed that the appellant did not himself read this publication, on his return from Slndh, some body from his village must have told him that such notice was published by respondent No. 1 but there is no evidence on the file to show his lack of knowledge on the part of the appellant, inspite of such efforts of respondent No. 1. Since the appellant claimed himself to be a bona fide purchaser, for valuable consideration, without notice of the agreement to sell, it was for him to prove that he made all the efforts to inquire about the title of the land in dispute and these efforts should have been proved on the file, through evidence.
Undeniably, respondent No. 1 was tenant over the land in question and was in possession should have been approached by the appellant for inquiry, before his purchase. The appellant appeared as his own witness as DW.5 and has not uttered a word regarding his efforts regarding ascertaining title of the land subject of suit. Simply denying that he has no knowledge of the agreement to sell or to say that respondent No. 1 had accompanied him during the completion of sale was not enough.
It is unbelievable that a person who has an agreement to sell regarding sale of the same land in his pocket, had given notice to respondent No. 2 owner for execution of sale-deed after receipt of balance sale consideration, besides giving a public notice that he has entered into an agreement to sell with respondent No. 2, which are earlier to the sale-deed in favour of the appellant, would remain silent/quite and would join a person claiming inimical interest in the property. It is settled law that mere denial of knowledge of agreement to sell, is not enough and the person claiming such protection must prove that he under went the necessary inquiry which is lacking in the case in hand. My this view gets support from the alighted judgments of the Hon'ble Supreme Court of Pakistan in the case of Mst. Khair-unNisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SCMR 25) and Mst. Surraya Begum and others v. Mst. Suban Begum and others (1992 SCMR 652). In both these cases view taken was that subsequent purchaser is required to prove necessary inquiry by him and mere denial of knowledge of the agreement to sell, will not protect him under law. This view was also followed in case of Muhammad Shahfi v. Muhammad Sarwar and others (1997 CLC 1231), I respectfully following the view of the Hon'ble Supreme Court of Pakistan, hold that the appellant did not undergo any inquiry regarding title of the land, before purchase of the land, so much so, he did not inquire from respondent No. 1 who was in possession of the land. The appellant was aware of the agreement to sell in favour of respondent No. 1, as latter had published a public notice, intimating his deal with respondent No. 2.
11. -Sale-deed dated 10.7.1985 was executed in favour of the appellant and one Amjad Khan son of Inayat Ullah Khan, the other vendee has not filed any appeal against the judgment and decree of the first Appellate Court. The other sale-deed dated 17.9.1984 was in favour of Muhammad lqbal, deceased, who after filing of written statement, died, pending suit and his legal representatives Mst.
Sharifan Bibi etc. Were impleaded in his place, they have also not filed any appeal, against the judgment and decree, impugned, before this Court. All these vendees have been shown in the memorandum of instant appeal as proforma appellants, it is a new terminology which is not known to law. These persons who are ten in numbers should have been arrayed as respondents though proforma but it has not so been done by the appellant. All these ten persons have not signed memorandum of appeal or power-of-attorney in favour of the learned counsel for the appellant. In this manner, they have not appealed and have accepted the judgment and decree of the first Appellate Court, annulling their sale-deeds. Major parts of those sale-deeds was in their favour who have accepted themselves as not bona fide purchasers' without notice of the agreement to sell.
12. The fact that respondent No. 1 did not report to the revenue authorities regarding his agreement to sell, cannot be benefited by the appellant for the reason that after public notice by respondent No. 1, the appellant did not exert to investigate title of the land subject of his sale-deed, is enough to hold that he had a notice of the agreement to sell. Non-reporting of agreement to sell to revenue authorities is of no much significance because firstly it is neither the requirement of law nor there is any provision in the Land Revenue Act, 1967, for making such entry in the revenue record and secondly the appellant did not prove through evidence that he went to the Patwari and inquired from him with regard to title or agreement of the land in question. I have already noticed, in the foregoing paragraphs that the appellant while appearing as DW5 has not, uttered a word with regard to exercise of investigation done by him, as such, it is not a matter of presumption that he had knowledge of the agreement but it flows from the record. Both the judgments relied by the learned counsel for the appellant in the cases of Muhammad Bashir and others v. Chiragh Din through legal heirs and others (2003 SCMR 774) and Muhammad Afzal v. Muhammad Ayub and others (2003 SCMR 961) proceeds on altogether different facts and are of no help to the appellant.
In the case of Muhammad Afzal (supra), the Courts below had assumed that subsequent purchaser being a resident of a same village, knew regarding agreement in favour of the plaintiff, in that suit and was held to be presumptive finding by the Hon'ble Supreme Court of Pakistan but in, the instant case, as I have held above, notice of agreement to the appellant is not a matter of presumption but there is documentary evidence on the file to show that he had a notice of it.
Similarly, in case of Muhammad Bashir (supra), the Hon'ble Supreme Court of Pakistan extended protection under Section 27(b) of the Specific Relief Act to the subsequent purchaser, without notice of agreement to sell wh o purchased the property bona fide for a valuable consideration.
Whereas in this case it is not so proved and at the same time, co-vendees of the appellant, have accepted this assertion of respondent No. 1 by not filing any appeal against the judgment and decree of the first Appellate Court.
13. For what has been discussed above, scan of evidence and the judgment, I hold that the first Appellate Court has rightly granted respondent No. 1, decree for specific performance, as prayed by him, which is in consonance with evidence on the file. The appellant could not make out any case for interference in second appeal, by this Court, hence, this appeal has no merit in it and is, accordingly, dismissed with no order as to costs. .