2003 PLP 551 (MLD)

(7) Whether the plaintiff has not come to the Court with clean hands? OPD. (8) Whether the defendant No. 1 agreed to sell the suit property in favour of the plaintiff vide impugned agreement to sell? OPP. (9) Whether the defendant No.2 is a bona fide purchaser for consideration of the suit property without notice? (10) Relief.

6. To prove the agreement to sell dated 20‑11‑1982 the appellant examined Muhammad Skafi and Sardar Muhammad as P. Ws. 1 and

2. Power of attorney in favour of Sardar Muhammad and agreement were produced in evidence as Exhs.P.1 and

2. On the other hand, Muhammad Ali and Shah Din appeared as D. Ws. 1 and 2, whereas Mst. Rashida Begum respondent‑defendant appeared as D.W.3. On behalf of respondent‑defendant No.2 Ashfaqur Rehman, Syed Shabbir Hussain appeared as D.W.4, Maqbool Ahmad D.W.5 and defendant No.2 himself appeared as D.W.6. Issue No. 1 was decided in favour of defendant No. 2 and it was held by the learned Civil Judge that the suit was not maintainable in its present form. Issue No.2 was decided in favour of the appellant‑plaintiff holding that there is no evidence on record to prove any alleged collusion. Issues Nos.3, 4 and 5 were decided against the respondent. Issues Nos.6 and 7 remained undecided. On issues Nos.8 and 9, the learned Civil Judge observed that:‑‑ "However, as per contents of her written statement she has admitted the execution of agreement but has alleged that it was entered into through said Muhammad Hussain who subsequently not only got back the earnest money but also Rs.4,000 as compensation. In this way it can be concluded that agreement was entered into between the parties and Rs.25,000 were paid. Now onus shifts to defendant No.1 to prove that she paid back Rs.25,000 to Muhammad Hussain or for that matter to plaintiff but there is no evidence from her side." Issue No.9 regarding bona fide purchaser without notice and with consideration was decided in favour of respondent‑defendant No.2. The learned Judge observed: "...Plaintiff is not entitled to get specific performance of the agreement due to the reasons that she has not sought declarations against the registered sale‑deed in favour of defendant No.2. However, she is entitled to get recovery of Rs.25,000 from defendant No. 1. " The learned Civil Judge proceeded to decree the suit against the respondent/defendant No.1 to the extent of recovery of Rs.25,

000. However, the suit against the respondent No.2 was dismissed vide judgment and decree dated 4‑4‑1991.

7. On appeal filed by the appellant against the judgment and decree passed by the learned Civil Judge dated 4‑4‑1991, the learned Additional District Judge endorsed the findings on all the issues by observing that:‑‑ "The evidence on record proved the execution of agreement Exh.P.2. and payment of Rs.25,000 as advance money by the appellant to respondent No.

1. The learned trial Judge, therefore, in view of the evidence on record had rightly decided Issue No. 8 in favour of the appellant against the respondents."

8. On Issue No.9 the learned Additional District Judge observed:‑‑ "The evidence on record specially the sale‑deed Exh.P.W.4/1 proved that respondent No.2 had purchased the property in question for consideration in good faith. Since respondent No.2 according to the evidence available on record was bona fide purchaser for consideration without notice of previous agreement in favour of the appellant relating to the sale of the property in question, the learned trial Judge had rightly held that the appellant had failed to prove that she was entitled td decree for possession of property in question through specific performance of the agreement in question, specially when she had not sought any specific relief against respondent No.2 in the form of cancellation of sale‑deed existing in his favour in respect of the property in question and was entitled to recover only the amount paid by her under the agreement to respondent No. 1."

9. Learned counsel for the appellant contends that both the Courts below decided Issue No. 8 in favour of the appellant holding that she had purchased the disputed property from respondent No. 1 through an agreement to sell dated 20‑11‑1982. But on Issues Nos. 1 and 9 both the Courts below erroneously recorded the findings that the suit was not maintainable and that the respondent No.2 was a bona fide purchaser with consideration without notice. Further contends that there was no defect in the form of the suit nor defendant‑respondent No.2 was a bona fide purchaser for value without notice. According to him, both the Courts below did not give any reason for giving the findings in favour of the respondents and the findings recorded on Issues Nos. 1 and 9 by both the Courts below do not satisfy the requirement of bona fide purchaser with consideration without notice. The learned counsel placed reliance on:‑‑ 1984 SCMR 1139 (Muhammad Sharif v. Mst. Sughra Bano and others); 1984 CLC 2248 (Bakhtawar v. Sher Muhammad and others) and PLD 1972 SC 25 (Mst. Khair‑ul‑Nisa and others v. Malik Muhammad Ishaque and others).

10. With the assistance of the learned counsel for the appellant I have examined the findings of the two Courts below on Issues Nos. 1 and

9. While deciding the Issue No. 1, both the Courts have non‑suited the appellant on the ground that no relief had been claimed by the appellant seeking setting aside of the sale of the property in question in favour of respondent No.2 or relief by way of cancellation of the sale‑deed in respect of the property got registered in favour of the respondent No.2. The above‑stated findings do not fulfil the requirement of law as envisaged in section 27(b) of the Specific Relief Act, which reads as under:‑‑ "

27. Relief against parties and persons claiming under them by subsequent title.‑‑‑Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against:‑‑ (a) ................................. (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract".

11. The above view of both the Courts below that suit for possession through specific performance was not maintainable and could have not been decreed because of failure of the plaintiff to sue for cancellation of the registered sale‑deed executed in favour of subsequent vendee, found favour in case of Syed Mithal Shah v. Khawaja Rafiullah and another (PLD 1975 Karachi 930) but this authority was overruled by the Hon'ble Supreme Court in case of Muhammad Sharif v. Mst. Sughran Bano and others (1984 SCMR 1139). The Hon'ble Supreme Court while interpreting the provisions of section 39 of the Specific Relief Act (I of 1877), which deals with the cancellation of documents, has ruled:‑‑ "Suit for specific performance and injunction is maintainable even if plaintiff failed to sue for cancellation of registered sale -deed executed in favour of some other party while asking for specific performance of earlier agreement."

12. The onus of proving the bona fide purchaser with consideration without notice under the law was on Ashfaqur Rehman, respondent P No.2, the subsequent vendee. It has been held in the case reported as Mst. Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) as under:‑ "Held: Under the provision of section 27(b) of the Specific Relief Act, 1877 a contract can be specifically performed against any other person claiming title to the property arising subsequently to the original contract but an exception has been made in the case of transferee for value who has paid him money in good faith and without notice of the original contract. It is, therefore, for the transferee to prove that he was a transferee in good faith and without notice of the original contract for valuable consideration. In a suit for specific performance of contract the onus lies heavily on the person whose title arises subsequent to the contract to sell and he must prove that he is a transferee for value and has paid the money in good faith and without notice of the original contract. Under section 27(b) of the Specific Relief Act negative is to be proved by the subsequent transferee. If he appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden and the onus will then shift to the plaintiff to prove that the subsequent transferee had the notice of the original contract. "

13. On the touchstone of the above‑stated judgment of the Hon'ble Supreme Court the appellant's attorney Sardar Muhammad appeared as P.W.3 in the witness‑box. He has specifically stated that respondent No.2 was aware of the earlier agreement to sell dated 20‑11‑1982 regarding sale of Plot No.828, Block‑C, Faisal Town Scheme in favour of the appellant. In this view of the matter, the appellant has discharged the onus of proving that the respondent: defendant had notice of the earlier agreement to sell executed by respondent No. 1 in favour of the appellant. Respondent Ashfaqur Rehman appeared in the witness‑box as D.W.5. He nowhere stated that he had no notice of the agreement to sell dated 20‑11‑1982 in favour of the appellant. In the written statement, respondent No.2‑defendant has taken a plea that the suit is mala fide and collusive inter se the plaintiff and defendant‑respondent No.1 who has prepared an ante‑dated agreement to sell in order to deprive the respondent‑defendant No. 2 of the suit property. The registered sale‑deed produced by the respondent No.2 defendant dated 17‑12‑1983 shows that the plot was purchased by respondent No.2 in consideration of Rs.18,000, whereas respondent No.2 asserted in his written statement that defendant No.1 contracted to sell with him regarding suit property for Rs.1,25,000 as per agreement dated 15‑9‑1983 and defendant No. 1 received Rs.25,000 as earnest money. The defendant No.1 subsequently received the balance amount of Rs. 1 lac and executed the sale‑deed in his favour on 17‑12‑1983. At the time of execution of he sale‑deed as well as receipt of balance amount the actual and physical possession of the suit plot was also delivered to the defendant No. 2‑respondent No.2. A perusal of the sale‑deed would show that there was no mention of the agreement to sell dated 15‑9‑1983 or receiving of Rs.100,000 (Rupees one lac) at the time of registration of the sale‑deed by the Registrar. The defendant‑respondent No.2 appeared in the witness‑box and has not stated that he was not aware of the previous agreement to sell executed by respondent No.1 in favour of the appellant. The evidence and the circumstances clearly show that respondent No.2 had the knowledge of agreement to sell dated 20‑11‑1982 entered into by Mst. Rashida Begum, respondent No.1 with appellant before the sale‑deed dated 17‑12‑1983 which was executed and registered in favour of respondent No.2.

14. In this view of the matter, both the Courts below have recorded a finding on Issue No.9 erroneously, which cannot be sustained. Resultantly, the findings on Issue No.9 are reversed and it is observed that respondent No.2 is not the bona fide purchaser with consideration without notice. For what has been discussed above, this appeal is accepted, judgment and decree of the Civil Judge as well as of Additional District Judge are set aside. The suit for possession through specific‑performance filed by the appellant is decreed. The appellant shall deposit the remaining sale price of Rs.73,000 in the Court to be paid to the respondent No. 1, within one month from today and registered sale‑deed shall be executed by respondent No. 1 in favour of the appellant, failing which the suit of the appellant shall stand dismissed. Q.M.H./B‑109/L Revision allowed.