1994 PLP 2007 (SCMR)

‑‑‑‑S. 27(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Two agreements to sell relating to land in question‑‑‑Plaintiff in whose favour agreement to sell was prior in time to that of defendant brought suit for specific performance of agreement to sell which was dismissed by Trial Court but decreed by Appellate Court‑‑‑High Court, in revision however, restored Trial Court's decree whereby plaintiff's suit was dismissed‑‑‑Validity‑‑‑Plaintiff's plea was that Appellate Court's finding of fact to the effect that defendant had notice of prior agreement to sell in favour of plaintiff could not have been interfered with by the High Court in revision and that mere non‑mentioning of notice in plaint would not non‑suit plaintiff‑‑‑Leave to appeal was granted to consider the pleas raised and also to consider whether High Court had misinterpreted S.27(b), Specific Relief Act, 1877. Muhammad Munir Paracha, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 7th November, 1993. ABDUL QADEER CHAUDHRY, J.‑‑‑Leave to appeal has been sought against the judgment of the High Court dated 10‑4‑1993.

2. The brief facts of this case are that Ghulam Rabbani obtained the land in dispute through a pre‑emption decree dated 12‑6‑1974. He entered into an agreement to sell the suit land for a consideration of Rs.22,500 vide agreement dated 23‑6‑1974. According to this agreement the whole consideration was paid by the petitioner to the vendor. However, the sale‑deed could not be executed and registered, as the pre‑emption decree was challenged before the higher forums. Ultimately the decree was confirmed by this Court on 9‑3‑1983. Ghulam Rabbani died and was survived by his brother Ghulam Farid, respondent No.

1. It is averred that Fazal Khanr respondent No. 2, through an oral agreement. purchased land in dispute from Ghulam Farid. Fazal Khan brought a suit. for specific performance and got a decree on 4‑9‑1983. In these circumstances, the petitioner filed a suit for specific performance of the agreement to sell dated 23‑6‑1974. His case was that there was no agreement to sell in favour of Fazal Khan by Ghulam Farid and the decree was a collusive to defeat the right of the petitioner. The suit was contested. The learned trial Court dismissed the suit of the petitioner. The appeal was accepted and a finding was recorded that respondent No. 2 did not act in good faith as he had notice for agreement to sell. Respondent No. 2 challenged the order of the Appellate Court in a civil revision, which was accepted by the impugned judgment.

3. The learned counsel for the petitioner submitted that there is a clear finding of fact recorded by the Additional District Judge that Fazal Khan had the notice of purchase and this finding of fact could not have been interfered by the High Court; particularly when the High Court itself observed that "there is no cavil with this proposition that initial onus to prove that the purchaser had no notice of the previous agreement for sale is upon the petitioners but this proposition is subject to the exception that it is for plaintiff who is enforcing agreement for sale to allege in the plaint that the defendant has purchased the property with notice and knowledge of agreement for sale . . . . " he stated that mere non‑mentioning of notice in the plaint does not non‑suit the petitioner. According to the learned counsel the learned High Court has misinterpreted section 27(b) of the Specific Relief Act. The contention raised requires consideration. We grant leave to appeal. A.A./S‑818/S Leave granted.