P L D 1998 Lahore 444 (PLP)

The judgment, dated 21-6-1992, of the learned Additional District Judge, Chunian, dismissing appeal of petitioners, against judgment dated I$-6-1991 of. the learned Civil Judge Chunian, in a suit for specific performance, has been called in question in this revision, petition. The petitioners: filed,a suit for enforcement of agreement of sale, dated 30-7-1977, executed by late Manzoor Ahmed, predecessor of respondents Nos. l to 7, as well as agreement, dated 4-2-1978, executed by legal heirs of Manzoor Ahmad and for setting aside of mutation of Sale No. 1994, dated 10-11-1985, made in favour of respondents No.8 and

9. It was claimed, that predecessor of respondents No.1 to 7 had agreed to sell iand in issue, and executed an agreement of sale. This agreement was further acknowledged by legal heirs of late Manzoor Ahmad. The agreement was again extended on 12-3-1978. It is the case of petitioners, that they were given possession in part performance of agreement of sale and that in violation of the sale agreement, the land was transferred in favour of respondents No.8 and 9, who had the knowledge of prior agreement of sale, in favour of petitioners, and were bound by the same.

3. After issues and evidence, the learned Civil Judge decreed the suit to the extent of recovery of Rs.41,500 but declined the prayer for specific performance of the sale agreement. This was vide judgment, dated 18-6-1991, of learned Civil Judge, Chunian.

4. Appeal filed by petitioners was dismissed by the learned additional District Judge, Chunian, by his judgment, dated 21-6-1992, who took the view, that the suit was barred by time and respondents Nos.8 and 9 were bona fide purchaser. ?

5. In this revision, the judgments of the two Courts below have. been seriously challenged.

6. Learned counsel for the petitioners, argued, that the suit was within time, no date for execution of sale-deed was given in the agreement and that the limitation would be three years from the date of refusal, which would be deemed to have been made when the land was sold in favour of respondents Nos.8 and 9, in violation of the agreement. He further argued that in terms of the agreement, the sale-deed was to be executed, after the decision of the title by Board of Revenue and also on issuance of guardian certificate and permission of sale by the learned Guardian Judge. According to the learned counsel, the order of Board of Revenue was challenged in writ and the decision in writ was further challenged before the Hon'ble Supreme Court from where the case was remanded and the matter is still sub judice, therefore, the question of bar of limitation would not arise. On the question of bona fide purchase, it was argued, that the learned trial Court, without looking into the evidence, pleadings or the statement of respondents, proceeded to assume bona fide purchase without any basis. It was argued that the pre-conditions for making out a case of bona fide purchase was missing, hence the respondent could not avoid the contract of the petitioners. Lastly, it was submitted, that the petitioners being in possession. this fact alone should be sufficient notice to respondents No.8 and 9 as to the rights of the petitioners. ?

7. Conversely, learned counsel for respondents, .submitted that concurrent findings of facts were recorded by the two-Courts, below which could not be challenged in revisional jurisdiction. He further argued that the limitation would start from the date of the agreement and pendency of proceedings on the revenue side or before Consolidation Authorities would immaterial and avoiding bar of limitation. Lastly argued, that the respondents were bona fide purchaser and were fully protected in law. 8.? The submissions made by learned counsel for the parties have been considered and the copies on record annexed with this revision have been reviewed.

9. Under Article 113 of Limitation Act, if date for performance of agreement is given in the agreement, then a suit for specific performance can be filed within three years from the date recorded in the agreement. If no date is provided, the suit can be filed within three years from the date when the purchaser had notice of refusal.

10. In the present case, the initial agreement Exh.P-2 executed by late Manzoor Ahmad provided that the sale-deed would be executed till 15-5-1978. He could not execute the sale-deed before his death. Later Exh.P-1 was executed by the legal heirs of late Manzoor Ahmad, who agreed to execute sale-deed, .after the decision of the issue of title by the Board of Revenue. The agreement provided, that a stay order had been issued by the Board of Revenue, therefore, no sale-deed could be executed. The endorsement. Exh.P-3, at the back of agreement, dated 20-7-1997, provided that some time would be consumed by attestation of mutation of inheritance and obtainment. of guardian certificate thereafter, vendee would be given notice after obtaining guardian certificate and attestation of mutation of inheritance, for registration of sale-deed. It. thus becomes obvious, that as per terms agreed with the respondents, no specific date was given for performance of the agreement but the execution of sale-deed was dependent, either on the decision of Board of Revenue, or on the attestation of mutation of inheritance and issuance of guardian certificate. The case was thus covered by the later part of Article 113 of Limitation Act which provided for three years limitation from the date of notice of refusal of sale. It is neither the case of respondents that notice was given to the petitioners, for performance of obligation under the sale agreement, after any decision by the Board of Revenue or after the attestation of mutation of inheritance and issuance of guardian certificate nor any evidence was led to prove any actual date of refusal. The learned Additional District Judge, took the view, that the period of limitation would start either from the date of agreement, or from the date of endorsement or decision of the Board of Revenue. The view taken by the learned Additional District Judge is absolutely against fact and contrary to law.. The decision of Board of Revenue, dated 18-9-1976, Exh.P-5 was challenged in the High Court, in Writ Petition No.5865 of 1978, which was decided on 28-2-1979, vide Exh.P-7. The order of High Court was further challenged before the Hon'ble Supreme Court, where leave was granted on 31-10-1984, and status quo was ordered to be maintained copy of leave granting order is Exh.P-6. The appeal was finally decided on 15-5-1990, vide Exh.P-9 when the case was remanded to the Board of Revenue for determination of the case afresh in the light of the remand order. This being so, the initial order of Board of Revenue would not be conclusive to start period of limitation for filing of suit for specific performance as title was sub judice and injunctive order was issued, firstly by the High Court, then by the Hon'ble Supreme Court and finally the matter was remanded. The learned Additional District Judge, thus committed grave jurisdictional error, in assuming commencement of limitation from the date of decision of the Board of Revenue. As a matter of fact, the issue has not yet been concluded in the hierarchy on the consolidation side. No evidence has been led to prove that the respondents refused to execute the sale-deed with notice to the petitioner. On the contrary, their conduct of selling the land in favour of respondents Nos.8 and 9, can be assumed to be refusal on their part. The mutation of sale was made on 10-11-1985 and in this way, the suit could be filed within three years from the said date. The suit in this case, having been filed on 20-11-1985, was within time and could not be adjudged as barred by limitation. Findings of the learned Additional District Judge, on the question of limitation are therefore, reversed.

11. The learned Civil Judge, allowed return of the amount paid by the petitioners and declined to grant relief of specific performance. The crucial issue in appeal was, as to whether respondents No.8 and 9 could plead bona fide purchase for value without notice. In the written statement, no preliminary plea of bona fide purchase for value was raised and on the contrary, in para.5 of the written statement, it was stated that the defendants had purchased the land in good faith. Both the purchasers did not appear in the Court and only one defendant, Sardar appeared as D.W.2. On the contrary, the petitioners had alleged in the plaint, that respondents No.8 and 9 had knowledge of the agreement of sale. The agreement of sale, accepted by the Courts below also indicates transfer of possession. Copy of Jamabandi, Exh.D-1 indicates, that Shafi, one of the petitioners and Ibrahim, father of petitioners Nos. l and 2 are in possession of the property. Evidence has been led to show, that the petitioners were in possession which could be presumed to be a notice to the subsequent buyer, under the provision of Transfer of Property Act.

12. With a view to prove bona fide purchase for value, the subsequent purchaser has to prove, that he acted in good faith, he had no notice of the original contract and that he was purchaser for value and took reasonable care. It is also necessary, that the subsequent purchaser shall make statement on oath, pleading bona fide or, lack of knowledge and purchase for value, with a view to shift the burden on the other side. Be that is it may, unless and until, these prerequisites are attended to, no conclusion can be drawn on the plea raised by the subsequent purchaser. In this case, the ,learned Additional District Judge did not examine the evidence at all and assumed bona fide purchase for value on imaginary basis and hypothetical consideration. It was binding duty of the Court to first appeal to re-appraise the entire oral and documentary evidence, considered the reasons recorded by the Court below and also to record findings, supported by independent reasons. In this case, neither the evidence was attended to nor the basic ingredients of section 27(6) of Specific Relief Act, kept in view yet an observation was made that respondents No.8 and 9 could not be proved to have the knowledge of previous agreement. Such a finding, cannot sustain in law. It appears, that the learned Additional District Judge, being oblivious of the evidence on record, proceeded to determine this part of the issue.

13. Another point of concern could be, as to whether in the given circumstances, the petitioners would be entitled to the grant of relief in equity under section 22 of the Specific Relief Act. No doubt, the grant of specific performance is discretionary but the discretion has to be exercised on sound judicial principles. No effort has been made to examine these aspects of the matter in appeal.

14. For the reasons above, this revision is accepted, the judgment of the learned Additional District Judge, dated 21-6-1992 is set aside, with the result, that the appeal of petitioners, before him shall be deemed to be pending which shall now be decided by the learned Additional District Judge, within three months, in the light of the observations made hereinabove. The parties shall appear before the learned Additional District Judge on 18-12-1997. No order as to the costs. A.A./M-687/L Case remanded