2009 PLP 1314 (MLD)

MAZHAR HUSSAIN MINHAS, J.

Mst. Saeeda Anwar, etc., hereafter called appellants, have filed Regular First Appeal against the judgment and decree, dated 22-3-2008 passed by learned Civil Judge, Lahore, whereby suit for possession through specific performance of agreement to sell, dated 11-3-2002 and 6/10-4-2002, with permanent injunction filed by Malik Bashir Ahmed, hereinafter called respondent No.1, has been decreed in his favour. Naveed Aamir Raja and Muhammad Ibrahim respondents Nos. 2 and 3 respectively have also filed a separate Appeal bearing No.142 of 2008. Since both the appeals are directed against the same judgment and decree, hence are being disposed of through this single judgment.

2. Brief facts giving rise to these appeals are that respondent No.2 as general attorney of respondent No.3 on 11-3-2002 entered into an agreement to sell Plot No.36 measuring 4-kanals (100 x 180 sq.ft.) situated in Block No.10, Sector-B-1, Quaid-e-Azam Town, (Township), Lahore for a consideration of rupees two lac to respondent No.1 and received an amount of Rs.1,00,000 as token money vide receipt of even date.' Date for payment of earnest money was initially fixed as 16-3-2002 and for the payment of balance amount of sale price as 9-12-2002. Agreement to sell was written on 6-4-2002 and was executed by respondent No.2 on 10-4-2002 after receiving balance earnest money amounting to Rs.29,00,000 in Soneri Bank Limited, Liberty Gulberg, Lahore. It was attested by witnesses namely Muhammad Ashraf son of Abdul Ghani, Zahid Hussain son of Khushi Muhammad and Mian Muhammad Akhtar son of Mian Allah Bukhsh, father-in-law of respondent No.2.

3. As per averments in the plaint, on 14-11-2002 respondent No.1 approached respondent No.2 and asked him for execution of the sale-deed after taking the balance amount of Rs.1,70,00,000, but latter requested for extension of time on the' ground that he had not been able to get the property vacated from the tenants. Therefore, vide Endorsement of even date on the reverse of the agreement to sell, period for execution of the sale-deed was extended from 9-12-2002 to 9-1-2003. This extension was also attested by the aforesaid witnesses. On 25-12-2002 respondent No.1 along with the witnesses of agreement to sell again visited the disputed plot and asked respondent No.2 to execute the sale-deed within the stipulated period, but the latter did not give any positive response. On 8-1-2003 respondent No.1 along with marginal witnesses of the agreement to sell, namely, Zahid Hussain and Muhammad Ashraf, and Muhammad Hussain marginal- witness of receipt, dated 11-3-2002 tried to approach respondent No.2 in his factory Messrs Hi-Noon Textiles Mills, Mohlanwal, Multan Road, Lahore but on latter's behest the administration of the factory did to allow them to enter the premises. Prior to that on 3-1-2003 Mian Muhammad Akhtar, an attesting witness of agreement to sell, was also contacted by respondent No.1 through telephone with the request to ask respondent No.2 to execute the sale-deed but he also expressed his inability in this regard. Having not been able to persuade respondent No.2 to honour his commitment and execute the registered, sale-deed after receiving the balance amount, on 11-1-2003 respondent No.1 filed suit for possession through specific performance of agreement to sell and permanent injunction.

4. Respondent No.2 filed separate written statements on his own behalf and on behalf of respondent No.3 wherein he disclosed that the disputed plot had already been sold to the appellants for valuable consideration in year, 1994 and since then they were in possession and had constructed their ships over there. In view of this disclosure, respondent No.1 moved an application under Order VI Rule, 17 read with Order I, Rule 10, C.P.C. to amend the plaint and implead the appellants as defendants. Appellants Nos.1 to 3 also moved an application under Order I Rule 10 read with section 151, C.P.C. to become party in the suit. Vide separate orders, dated 16-6-2003 both the applications were allowed. Consequent thereupon, respondent No. 1 filed amended plaint on 20-6-2003 impleading the appellants and respondents Nos.2 to 4 as defendants and also challenging the agreements to sell, dated 16-11-1998 in favour of appellants Nos.1, 2 and 4 and agreement' to sell, dated 11-11-1998 in favour of appellant No.3. As per these agreements, land measuring 13-marlas 75 sq.ft. had been transferred to appellant No.1 for a consideration of Rs.13,05,000, land measuring 10-marlas had been transferred to appellant No.2 for a consideration of Rs.10,20,000, land measuring 2-kanals had been transferred to appellant No.3 for a consideration of Rs.28,00,000 and land measuring 16-marlas 150 sq.ft. had been transferred to appellant No,4 for a consideration of Rs. 15,90,

000. Respondent No.2 in his written statement to the amended plaint raised preliminary objection that respondent No.1/plaintiff had the knowledge that the plot in dispute had already been disposed off in favour of appellants through separate agreements to sell executed in the years, 1998 and they had raised the constructions over their respective portions and had been carrying on their business. He further pleaded that in view of the agreements to sell already executed in favour of the appellants, he was not willing to make any fresh agreement to sell, however, on the undertaking of respondent No.1 that he would himself, get the concurrence of vendees and that if he did not succeed to persuade them to forego their rights in the disputed property, agreement to sell would come to an end, he executed the impugned agreement, as such, it was a contingent agreement. Pleas of estoppel, non-joinder of necessary parties and protection of section 53-A of the Transfer of Property Act, 1882 in favour of the appellants were also raised. On merits also the averments of the plaint were controverted.

5. Respondent No.4 also submitted separate written statement whereby it was recorded that plot in dispute was initially allotted to S.M. Naqi Haider son of Syed Bashir Hussain and from time to time was transferred to Mst. Najma Bilqees wife of Mian Muhammad Asad, Muhammad Hanif Wattoo son of Malik Sher Muhammad, Yousaf Ali Khan son of Ghulam Hussain Khan and Sh. Shamim Riaz son of Sh.Riaz Ahmed. Ultimate transferee was respondent No.3 who had appointed respondent No.2 as his general attorney.

6. The appellants also filed separate written statement raising the plea that the disputed plot was purchased by them from respondent No.3 in year, 1994 for valuable consideration. Possession was handed over to them and they constructed shops on their respective portions and started their separate business. In 1998, on their demand, respondent No.3 executed a general power of attorney in favour of respondent No.2 who executed separate agreements to sell in their favour. They further pleaded that under section 53-A of the Transfer of Property Act, 1882, suit was barred and they could not be deprived of their rights in the disputed property on the basis of impugned agreement to sell as they were not party to this document. It was further pleaded that they were paying wealth tax as well as income tax from the income derived from the disputed property since, 1997 and respondent No.1 was very well aware of this fact. Averments of the plaint on facts were also denied by the appellants.

7. From the pleadings of the parties, following issues were framed by the learned trial Court:-- (1) Whether the suit is not maintainable and the agreement, dated 11-3-2002 and 6/10-4-2002 and extended on 14-11-2002 is contingent and conditional due to the reason mentioned in preliminary objections Nos. 1 to 2? OPD. No.1 (2) Whether the plaintiff is estopped by his conduct to bring the present suit for reasons mentioned in the preliminary objection No.3? OPD No.1. (3) Whether there was any undertaking and plaintiff had knowledge of alleged agreement in favour of defendants Nos.4 to 7, and the suit is false and frivolous. as the plaintiff did not fulfil the conditions as mentioned in preliminary objections Nos.6 and 7? OPD. No.1. (4) Whether the plaintiff has concealed certain facts and. came to the Court with unclean hands? OPD. No.1. (5) Whether the suit is barred under section 53-A of Transfer of Property Act? OPD. No.4-7. (6) Whether the plaintiff was aware of the agreements to sell allegedly executed in favour of defendants Nos. 4 to 7 OPD. No.4-7. (7) Whether the alleged agreement, dated 16-11-1998 in favour of Abdul Sattar defendant No.5 and alleged agreement, dated 11-11-1998 in favour of Mst. Iqbal Begum defendant No.6 and alleged agreement, dated 16-11-1998, in favour of Shakeel Amjad-defendant No.7, and alleged agreement, dated 16-11-1998, in favour of Mst. Saeeda Anwar are sham and fictitious agreements having been executed in favour of defendants Nos. 4 to 7 OPP. (8) Whether the defendant No.1 had disclosed the said sham and fictitious documents before executing the agreement, dated 11-3-2002 and 6/-10-4-2002, to plaintiff? OPD. No.1. (9) Whether defendant No.1 on behalf of defendant No.2 executed agreement, dated 6/10-4-2002 and 11-3-2002 in favour of plaintiff after receiving Rs.30,00,000? OPP (10) Whether the plaintiff is entitled to decree for possession through specific performance after making the payment of Rs.1,70,00,000? OPP (11) Whether the suit is liable to be decreed as prayed? OPP (11A) Whether the plaintiff has no cause of action and the plaint is liable to be rejected? OPD. No.2 (11B) Whether the defendant No.2 is entitled to get special costs under section 35-A, C.P.C.? OPD. No.2. (11C) Whether the plaintiff is estopped by his conduct? OPD No.2. (12) Relief.

8. In order to prove his case, respondent No.1 examined five witnesses, namely, P.W.1 Zawar Haider, Officer Soneri Bank, himself as P.W.2, P.W.3 Muhammad Ashraf, Property Dealer, P.W.4 Zahid Hussain, P.W.5 Muhammad Hussain, Property Dealer: Besides the oral evidence, documentary evidence was also adduced which is comprised of statement of accounts of respondent No.2 Exh.P1, statement of accounts of respondent No.1 himself Exh.P2, receipt of token money Exh.P3, impugned agreement to sell Exh.P4, copy of suit, dated 28-12-2002 Exh.P5, copy of entitlement of the plot in favour of respondent No.3 Exh.P6 and power of attorney of respondent No.3 in favour of respondent No.2 Exh.P

7. On the other hand, respondent No. 2 examined five witnesses, namely, himself as D.W.1, Muhammad Arif D.W.2, Waqar Hussain D.W13., Mehmood Raza D.W.4., and Raja Zahoor Ahmed D.W.5. The appellants examined fifteen witnesses, namely, Muhammad Anwar, husband/attorney of appellant No. 1 D.W. 6, Qazi Abdul Sattar D.W. 7, Liaqat Ali D.W. 8, Ashraf Mehmood D.W. 9, Muhammad Naeem Latif D.W.10, Iftikhar Ahmed D.W.11, Muhammad Raza D.W. 12, Shafqat Rehman D.W. 13, Fida Hussain D.W. 14, Abdul Khaliq D.W. 15, Ghulam Muhammad D.W. 16, Abdul Sami Mirza D.W.17, Zahoor Ahmed Raja attorney/brother of appellant No.4 D.W.18., Rana Saleem-ud-Din D.W.19 and Muhammad Sharif D.W.20. On behalf of respondent No.4, Babar Javed Butt, Estate Director appeared as D. W.21. The appellants tendered in evidence documents Exh.D-1 to D-19 including the agreements to sell in their favour Exh.D.W.1/1 to Exh.D.W.1/4 and Exh.D.4/1 to Exh.D-7/36. In view of the above evidence produced by the parties, learned trial Court decreed the suit as prayed for.

9. We have heard arguments of learned counsel for the appellants, learned counsel for respondents Nos. 2 and 3, learned counsel for respondent No.1 and have examined the record with their able assistance.

10. In their respective arguments, learned counsel for the parties have reiterated the same contentions which are embodied in their pleadings. Main points for consideration which have emerged out of their arguments are:-- (i) was the impugned agreement to sell in favour of respondent No.1 a contingent agreement and was enforceable subject to concurrence of the appellants; (ii) was the plot in dispute already transferred to the appellants for valuable consideration in year, 1994 and they were put in possession over their respective portions under that sale agreement and subsequent written agreements to sell Exh.D.W.1/1 to Exh.D.W.1/4 were genuinely executed in their favour; (iii) did respondent No.1 prior to the execution of impugned agreement to sell Exh.P4 in his favour, know about the transfer of disputed property to the appellants through the above-mentioned agreements to sell; and (iv) was protection of section 53-A of the Transfer of Property Act, 1882 available to the appellants.

11. Now we proceed to discuss and answer the above questions in the light of evidence available on the record. As regards first question, respondent No.2 has admitted in his written statement as well as oral statement before the learned trial Court that he executed agreement Exh.P4 after receiving an amount of Rs.30,00,000 from respondent No.1, as general attorney of respondent No.3. He has further admitted that in the impugned agreement to sell, he did not disclose that the property had already been transferred to the appellants and agreements to sell Exh.D.W.1./1 to Exh.D.W.1/4 had been executed in their favour. According to him, in year, 2002 Muhammad Hussain, Property Dealer (P.W.5) established contact with him through Muhammad Arif and desired to purchase the property. He told them that he had already transferred it to the appellants as general attorney of the original owner. Said P.W.5 again approached him and asked that Malik Bashir Ahmed-respondent No.1., Malik Ashraf (P.W.3) and Zahid Hussain (P.W.4) would persuade the appellants to forego their rights in the property, therefore he agreed to executed the impugned agreement to sell. He has further deposed that to fulfil the above condition in the agreement, respondent No.1 approached the appellants and tried to persuade them but they did not agree upon the sale. In his statement respondent No.2 has referred to a cutting in note Exh. P4/6 in the impugned agreement to sell and has stated that this cutting was made due to the reasons that respondent No.1 had not succeeded in getting, the concurrence of the appellants for transfer in his favour and that the condition for payment of double amount in case of non-registration of the sale-deed, was not acceptable to him. For facility of reference, the note (Exh. F.4/6) is reproduced as under:--

12. The above note (Exh.P.4/6) was scribed by Muhammad Ashraf (P.W.3) at the time of payment of earnest money amounting to Rs.29,00,000 to respondent No.2 in Soneri Bank Gulberg Branch on 10-4-2002. Learned counsel for respondents Nos.2 and 3 has argued that the above recital .was added to the impugned agreement in view of the understanding between the parties that sale in favour of respondent No.1 would be completed subject to appellants' concurrence and the cutting clearly manifests that if they did not agree to forego their rights in the disputed property, the agreement to, sell would not be acted upon. As regards this contention, Articles 102 and 103 of the Qanun-e-Shahadat B Order, 1984 clearly provide that if the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of the property except the document itself, and no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to, or subtracting from its forms. Under proviso-3 to Article 103, existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under such contract grant or disposition of property, may be proved, but there is nothing on record to substantiate the version of respondent No.2 that in addition to the impugned agreement to sell, any oral agreement was also made between the parties to the effect that respondent No.1 would persuade the appellants to forego their rights in the property and agree to the transfer of property in his favour. Respondent No.2 entered into impugned agreement to sell on 11-3-2002 and after receiving a token money of Rs.1,00,000, executed receipt (Exh.P.3) duly attested by Muhammad Hussain (P.W.5) and his father-in-law Mian Muhammad Akhtar. In this receipt, it was mentioned that remaining amount of earnest money would be paid to him on 16-3-2002 and remaining sale price would be paid on 16-12-2002. Neither in receipt (Exh.P.3) nor in the impugned agreement to sell executed on 10-4-2002, it was mentioned that besides the written agreement there was any other condition precedent for the completion of sale. Subsequently by mutual agreement, period for implementation of the agreement was extended from 9-12-2002 to 9-1-2003 vide an endorsement, dated 14-11-2002 recorded on the reverse of the impugned agreement. This written was also signed by respondents Nos. 1 and 2 as well as Muhammad Ashraf (P.W.3), Zahid Hussain (P.W.4) and Mian Muhammad Akhtar, father-in-law of respondent No.2. Even at that time it was not mentioned by respondent No.2 that respondent No.1 was required to get the concurrence of appellants for sale of the disputed property in his favour. It is pertinent to mention that appellants Nos.3 and 4 are mother and brother of respondent No.2 while appellants Nos. 1 and 2 are wife of a friend and a friend/business partner of his brother, respectively. But it is very strange that he without their knowledge, sold the disputed plot to respondent No.1, showing it to be the property of respondent No.3 and received a huge amount as earnest money. This conduct of respondent No.2 is highly dubious and contumacious. There are numerous judgments of the Hon'ble apex Court as well as of this Court' and the High Courts of other provinces that oral evidence of intention of the parties against the terms of the agreement in writing was not admissible. In Bolan Beverages (Pvt.) Limited v. Pepsico- INC and 4 others (PLD 2004 SC 860), it has been laid down that once an agreement had been reduced in writing, oral evidence was to be excluded while proving the terms thereof as against the terms specifically reduced in writing. In "Mst. Baswar Sultan v. Mst. Adeeba Alvi": (2002 SCMR 326), also it has been held that a party cannot be permitted to adduce oral agreement or statement to contradict or vary the terms of proved agreement executed by him. In Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519), it has been observed by the Hon'ble Supreme Court of Pakistan that oral evidence as to intention of parties to document is inadmissible and express terms of document cannot be contradicted by any oral evidence of intention of parties where both parties rely on document in which case there is prohibition to admit oral evidence qua intention of parties to document. Hence, in view of the above factual and legal position, the contention of learned counsel for respondents Nos. 2 and 3 is untenable that impugned agreement to sell was a contingent agreement enforceable subject to acquiescence of the appellants.

13. Now we proceed to consider the claim of the appellants that the suit property was purchased by then from respondent No.3 for valuable consideration in year, 1994 and possession was delivered to them, and that subsequently in year, 1998 agreements to sell Exh.D.W.1./1 to D.W.1/4 were respectively executed in their favour by respondent No.2 as general attorney of respondent No.3. To prove sale of the plot in their favour, the appellants have examined Muhammad Arif (D.W.2) who has deposed that in year, 1994 he got the disputed property purchased from respondent No.3 in favour of the appellants and in year, 1995 he constructed a wood godown and four shops over there as a contractor. The statement of D.W.2 is highly discrepant and self-contradictory. In examination-in-chief, he has not mentioned the price of the land and has simply stated that it was paid to Sarfraz son of Muhammad Ibrahim, but in cross-examination he has deposed that he got adjusted an amount of Rs.75,000 on behalf of the appellants against' the amount due from respondent No.3. During cross-examination, he says that he. did` not obtain receipt of that amount from respondent No.3 Muhammad Ibrahim as that amount was adjusted in his account, and does not remember whether or not any receipt was issued by his son Sarfraz. Subsequently he says that Sarfraz issued receipt of amount paid to him and that receipt is lying in his house. He has stated that 4/5 months after the sale of disputed property in favour of appellants, Sarfraz sent a message that his father Muhammad Ibrahim was seriously ill, therefore, they should either get the property transferred or get power of attorney executed, upon which power of attorney in favour of respondent No.2 was 'obtained. This statement of the witness is totally against the record. Power of attorney (Exh.P-7) in favour of respondent No.2 was scribed on 23-10-1998 and registered on 31-10-1998. His statement regarding the price of property has also been contradicted by D.W.5 Raja Zahoor Ahmad son/attorney of appellant No.3. According to him, the plot was purchased by the appellants for consideration of Rs.75,00,000, but D.W.5 has stated that it was purchased for Rs.70,00,000 and the amount was paid to respondent No.3. D.W.5 Raja Zahoor Ahmad was re-examined as D.W.18 as attorney of appellant No.4 Shakil Amjad Raja. He deposed that bargain was struck in year, 1994 in the shop of Muhammad Arif and amount of rupees seventy lac was settled as sale price. After about a week, payments were finalized with Muhammad Ibrahim in office of his son of Sarfraz. He further stated that 5/6 months thereafter, Muhammad Arif was called by Sarfraz and the latter prepared five receipts which were signed -by Muhammad Ibrahim. One of those receipts was handed over to Muhammad Arif, while four receipts .were given to him. Those receipts were most important documents to prove the alleged sale in favour of appellants, but the same have not been produced. Another fact 'which belies the statements of D.W.2 and D.W.5 regarding the price of the property is that total price of the different portions of the plot purchased by the appellants recorded in the agreements to sell Exh.D.W.1/1 to Exh.D.W.1/4 comes to Rs.67,00,000 which is less than the actual price allegedly paid by the appellants. There is no cogent evidence- on the file to prove the purchase of the disputed property by the appellants in year, 1994. Respondent No.3 himself was a most important witness to prove the sale in favour of appellants, but he has not entered the witness-box to support their version. He has not even signed the written statement, and the same has been signed/filed by respondent No.2 on his behalf as attorney.

14. As regards the agreements to sell in favour of the appellants, respondent-No.2 as D.W.1 has deposed that in year, 1998 respondent No.3 on appellants' instance appointed him as' general attorney and he transferred the disputed property to them through separate agreements to sell (Exh.D.W.1/1 to Exh.D.W.1/4). All these agreement except Exh.D.W.1/3 are purported to have been executed on 16-11-1998 in favour of appellants Nos.1, 2 and 4 respectively and are attested by D.W.17 Abdul Sami Mirza and Tariq Mehmood Butt. However, agreement to sell Exh.D.W.1/3 in favour of respondent No.3 is shown to have been executed on 11-11-1998 and is attested by D.W.11 Iftikhar Ahmed and D. W.12 Muhammad Raza. However, execution of these documents is not proved in accordance with law. Uncle Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, execution of a document is not proved unless two attesting witnesses are examined to prove its execution. In this respect, reliance may be placed on "Sana Ullah and another v. Muhammad Manzoor and another" (PLD 1996 SC 256). It has been held in this judgment that where both the attesting witnesses of document in question are alive and available but not produced, execution of the document is not proved. Similarly, in "Qasim Ali v. Khadim Hussain (deceased) through legal representatives and another" PLD 2005 Lah. 654 it has been observed that two attesting witnesses of agreement to sell must be examined to prove execution of the same. Agreement to sell relating to immoveable property if not proved by examining two attesting witnesses inspite of the same having been admitted by co-defendant, the same would not stand proved. Agreements to sell Exh.D.W.1/1, Exh.D.W.1./2 and Exh.D.W.1/4 are purported to have been attested by two marginal witnesses, but only one witness namely, Abdul Sami Sarfraz (D.W.17) has been examined. Second witness, namely, Tariq Mehmood Butt has not been produced to prove the 'execution of these documents. Therefore, in view of the dictums laid down in the above judgments, the execution of these agreements is not legally proved. Agreement to sell Exh.D.W.1/3 in favour of appellant No.3 is attested by Iftikhar Ahmed (D.W.11) and Muhammad Raza (D.W.12). According to both these witnesses, they visited the office of Sh. Muhammad Siddique, Advocate where they attested the agreement, but any payment was not made in their presence and it was simply acknowledged by respondent No.2 and his mother Mst. Iqbal Begum that payment had already been made and further passed on to Muhammad Ibrhaim. It is evident from their own statements that transaction of sale did not take place in their presence and they simply put their signatures on the document in question being colleagues of D.W.5 Raja Zahoor Ahmed who is son of appellant No.3 Mst. Iqbal Begum and brother of respondent No.2 Naveed Aamir Raja. Thus, transaction under this document is also not proved from the evidence on record. According to the appellants as well as respondent No.2, the plot was transferred to the appellants by respondent No.3 by way of oral sale in year, 1994 but at that time any transfer deed was not executed. Now the question arises what was the need for subsequent preparation of these documents. This question stands answered by D.W.6 Muhammad Anwar, attorney of appellant No.1. He has stated that government had announced a policy for regularization of the property on which tax had not been paid, by payment of penalty and he got regularized the disputed property by paying penalty of Rs.200,

000. This statement finds support from the income tax and wealth tax returns filed by the appellants and receipts for payment of tax, copies of which are available on the record as Exh.D-4-7/3 to Exh.D-4-7/20. We are of the considered view that these arguments were prepared by respondent' No.2 who himself is a Chartered Accountant, to claim tax rebate under the Tax Amnesty Scheme announced by the Government, and were not executed to provide legal cover to the oral sale allegedly made by respondent No.3 in favour of the appellants in years, 1994. Our view is fortified by the fact that so far these documents have not been submitted to L.D.A. for incorporating the names of appellants as purchasers of the disputed property. As per statement of D.W.21 Babar laved Butt, Assistant Director, Estate Management, Quaid-e-Azam Town, L.D.A., so far Muhammad Ibrahim is owner of the plot who has appointed Navid Anwar Raja as his attorney, and appellants haven not moved any application for transfer of the plot in their names.

15. Now we advert to the question, had respondent No.1 knowledge of the agreements to sell (Exh.D.W.1/1 to Exh.D.W.1/4) at the time of execution of the impugned agreement to sell in his favour, and whether protection of section 53-A Transfer of Property Act, 1882 is available to the appellants. It is admitted by respondent No.2 and is also proved from the evidence of respondent No.1 (P.W.2), Zahid Hussain (P.W.4) and Muhammad Hussain (P.W.5) that respondent No.2 struck the bargain of disputed plot with respondent No.1 for a consideration of Rs.200,00,

000. An amount of Rs.100,000 was received by him on 11-3-2002 vide a receipt (Exh.P-3). Thereafter on 6-4-2002 agreement to sell (Exh.P-4) was written and finally executed on 10-4-2002. At the time of its execution, respondent No.2 received an amount of Rs.29,00,000 as earnest money in Soneri Bank, Gulberg Branch, Lahore, which as per statement of P. W.1. Zawar Haider, Bank Officer, was deposited in his account No.4166-01/PLS saving. In this agreement it was not disclosed by respondent No.2 that the disputed plot had already been alienated to the appellants by respondent No.3 in year, 1994 and through agreement to sell Exh.D.W.1/1 to Exh.D.W.1/4 had also been executed. At the time of execution of this document, a note which has already been reproduced, was also written that in case of cancellation of the bargain, neither the amount paid by the vendee i.e. respondent No.2 will be forfeited nor the vendor would be liable to pay double of that amount, nor the vendor shall sell this property to any other party. Even in this note it was not mentioned that the disputed plot, had already been disposed of to the appellants and their concurrence was required to complete the impugned sale. On 14-11-2002 through endorsement (Exh.P-4/7) recoded on the reverse side of the agreement, period for completion of the sale under this agreement was extended from 9-12-2002 to 9-1-2003. Even at that juncture it was not pointed out by respondent No.2 that the appellants were having any interest in the disputed plot. In the impugned agreement it was categorically mentioned that the plot was free from all encumbrances. The relevant clause is reproduced as under:-- Thus, throughout this period respondent No.2 kept silent about so-called sale of the disputed plot in favour of appellants and for the first time he disclosed this fact in his written statement filed before the learned trial Court on 25th April, 2003. It has been argued by learned counsel for the appellants and learned counsel for respondents Nos. 2 and 3 that the appellants have constructed shops over their respective portions which were rented out to the tenants, therefore, it was duty of respondent No.1 to make enquiry before entering into agreement as to whether there was any prior agreement to sell in respect of the disputed property. As regards this contention, respondent No.1 (P.W.2) has stated that a dhara/show-room ,was constructed at the disputed plot in which Waqar Ahmad was a tenant under respondent No.2 who was doing furniture work, and no other shop was existing there. P.W.3 Muhammad Ashraf and P.W.4 Zahid Hussain have also corroborated the statement of respondent No.1 that there was no other tenant at the spot except Waqar Ahmad. P.W.3 has further stated that on 14-11-2002 respondent No.2 promised that he would remove the woods lying there and also evict Waqar Ahmad within one month and would get the sale-deed registered. In the above facts and circumstances, any prudent man could not have an idea that the property had already been sold or any instrument regarding its disposal was in existence. It has been held in Abdul Razzaq Hawaldar v. Sh. Muhammad Shafi (PLD 1962 SC 134) that it cannot be the duty of a person who purchases large property to make an enquiry from every one of the tenants of the property as to any agreement relating to the property which he may possess. A duty to make enquiry would arise only if there be some circumstance which puts the purchaser on enquiry. That tenants are in possession of the property which in purchased is not a fact which by itself will put the purchaser on enquiry, for this may be and will probably be the normal incident of the property purchased. It has been further observed by the Hon'ble apex Court that when a person purchases a property, his vender may tell him that all the persons who are on the property are tenants and he may at the same time produce registered leases or rent notes executed by the tenants. If there was nothing suspicious, the need of any further enquiry would not arise at all. In this case as mentioned above, P.W.2, P.W.3 and P.W.4 have consistently stated that only Waqar Ahmed was occupying the dhara or shop as tenant and was working there as a carpenter (furniture maker). There is nothing on the record to show that any other person was present over the disputed property as a tenant of the appellants. Since respondent No.2 promised to get the disputed property vacated from Waqar Ahmed tenant and remove the woods lying there, therefore there was no occasion for respondent No.1 to inquire from the appellants as to whether or not they had purchased the property from respondent No.3. It has also been argued that since the appellants had submitted the income tax and wealth tax returns to the Income Tax Department, therefore respondent No.1 had sufficient notice of the sale of the property in their favour. In this respect reference may be made to section 150(1) of the Income Tax Ordinance, 1979 which reads as under:-- (1) That all particulars contained in:-- (a) any statement made, return furnished or accounts or documents produced under the provisions of this Ordinance; or (b) any evidence given, or affidavit or deposition made, in the course of any proceedings under this Ordinance other than proceedings under Chapter XII; or (c) any record of any assessment proceedings or any proceeding relating to recovery of a demand, shall be treated as confidential and no public servant save as provided in this Ordinance, shall disclose any such particulars. In view of this provision of law, the income tax and wealth tax returns filed by the appellants with the Income Tax Department were their privileged documents and no other person could have access to that record. Therefore, on the basis of those documents, knowledge of prior sale of the disputed property in favour of the appellants cannot be attributed to respondent No.1.

16. Now we come to the argument of the appellants regarding the protection of section 53-A of Transfer of Property Act, 1882 available to them on the basis of prior sale in their favour. In this respect we may refer to "Muhammad Yousaf v. Munawar Hussain and 5 others" (2000 SCMR 204) wherein it has been held:-- (5) "Before proceeding further it would be necessary to examine in brief the scope of section 53-A of the Act. The said provision of law enables the transferee to protect his possession provided the conditions laid down therein are fulfilled. The said conditions are the existence of the agreement and the transferee having been put in possession in part performance of the said agreement. In other words as rightly observed by the learned Judge of the Lahore High Court, the aforesaid provision of law is a shield and cannot be used as a sword."

17. In the present case, appellants do not qualify for the benefit under section 53-A of Transfer of Property Act, 1882, on the touch stone of the principle propounded in the above judgment. As discussed above, neither oral sale allegedly made in their favour in year, 1994 nor the execution of agreements to sell (Exh.D.W.1./1 to Exh.D.W.1/4) in their favour is proved from the evidence on record. Therefore, they are not entitled to benefit under the said provision of law. Reference may also be made to "Noor Muhammad v. Abdul Ghani" (2002 CLC 88) whereby a single Bench of this Court observed that where execution of the document was itself not proved, as a corollay the obtaining of possession under, the agreement to sell did not arise and protection under section 53-A of the Transfer of Property Act, 1882, could not be extended. In another judgment reported as "Mina Abdul Ghani v. Mrs. Farrukh Taj and others" (1987 MLD 261) a Division Bench of this Court has observed that mere possession of property or copies of title documents thereof in a case where alleged agreement to sell in respect of disputed property was found to be a forged document, held could not lead to presumption that possession of appellant over property was under agreement to sell.

18. As a sequel of above discussion, we hold that agreement to sell Exh. P.4 in favour of respondent No.1 was not a contingent or conditional agreement, appellants were not in possession of the suit property under any valid agreement or title deed and suit of respondent No.1 was rightly decreed in his favour. Both the appeals, therefore, having no merits are dismissed. No order as to costs. S.A.K./S-144/L Appeals dismissed.