1984CLC1615 (PLP)

‑‑S. 41 read with Specific Relief Act (I of 1877), S. 42‑Petitioner purchasing plot in dispute from respondent during pendency of suit for specific performance of contract filed by another respondent --Contention that petitioners were bona fide purchasers of plot in question for consideration without notice and thus protected under S. 41, Transfer of Property Act, 1882, held, not acceptable in circum stances. P L D 1983 S C 53 ; 1980 C L C 1450 and P L D 1975 Lah. 619 distinguished. The Civil Revision calls in question judgments and decrees, dated 12th March, 1980 and 6th January, 1983, passed respectively by a learned Civil Judge Jauharabad and a learned Additional District Judge, Khushab.

2. Ashiq Hussain, respondent No. 2, vide an agreement to sell, dated 7th April, 1974, agreed to sell his constructed plot No. 65, Block No. 2, Mandi Town Jauharabad in favour of Abdul Rehman, respondent No. 1, for Rs. 13,

000. He received a sum of Rs. 3,000 as earnest money at the time of execution of the agreement to sell. Subsequently, he failed to execute the sale‑deed in favour of Abdul Rehman, who filed a suit for specific performance of the contract against Ashiq Hussain on 9th October, 1974. During pendency of the suit Ashiq Hussain sold the plot in question in favour of the petitioners. They were, therefore, also impleaded as parties by respondent No. 1 in his suit for specific performance of the contract.

3. The suit filed by respondent No. 1 was contested by respondent No. 2 as well as by the petitioners, who contended that no agreement to sell was executed in favour of respondent No. 1 and that no earnest money was received from him by respondent No.

2. It was alleged by the petitioners in their written statement that they were bona fide purchasers, for considera tion, without notice from respondent No.

2. A number of legal objections were also taken in the pleadings by the petitioners. The learned trial Judge framed as many as 13 issues arising out of parties pleadings. After record ing the parties evidence, he decreed the suit of respondent No. 1 for specific performance of the contract on 12th March, 1980. The petitioners filed an appeal which was also dismissed by the learned Additional District Judge, Khushab, on 6th January, 1983 and hence the present Civil Revision.

4. It has been mainly argued on behalf of the petitioners that they were bona fide purchasers of the plot in question for consideration without notice and they were thus protected under section 41 of the Transfer of Property Act. This contention appears to be fallacious. Ashiq Hussain, respondent No. 2, while appearing as D. W. 1 admitted the execution of the agreement to sell in favour of respondent No. 1 and receipt of Rs. 3,000 as earnest money from him. He failed to produce any evidence to substan tiate his allegation that respondent No. 1 had avoided the payment of the balance of the sale price and, therefore, he was compelled to sell the property in dispute in favour of the petitioners.

5. It is a common ground between the parties that during pendency of the suit for specific performance of the contract filed by respondent No. 1, against the respondent No. 2, the petitioners purchased the disputed plot from respondent No.

2. The suit for specific performance of the contract was filed by respondent No. 1 against respondent No. 2, in October, 1974, whereas the agreement to sell in respect of the disputed plot was executed by respondent No. 1 in favour of the petitioners on 21st February, 1976, i.e. during the pendency of the suit for specific performance of the contract. It cannot therefore, be believed that the petitioners purchased the suit property without notice. Reliance on behalf of the petitioners has been placed on A P L D 1983 S C 53, 1980 C L C 1450 and P L D 1975 Lah. 619, but all these judicial precedents are distinguishable on merits because in the circumstances of the present case, as already observed, the petitioners pur chased the disputed plot from respondent No. 2 during pendency of the suit for specific performance of the contract filed by respondent No. 1 against) respondent No.

2. They cannot, therefore, be considered bona fide purchasers for consideration without notice and are thus entitled to) the protection provided by section 41 of the Transfer of Property Act.

6. For the foregoing reasons there is no substance in the present Civil Revision and it cannot be said by any stretch of imagination that the impugned judgments suffer from any illegality or material irregularity. In the view of the matter, the Civil Revision is dismissed in limine. M. B. A. Revision dismissed.