1989 PLP 1169 (MLD)

(4)Whether there is any agreement to sell the suit land in favour of plaintiff? (5)Whether the deceased S.M. Sohail, attorney of defendants Nos.1 to 7 did not receive 1st instalment from the plaintiff on 30‑4‑78 in respect of the suit land? (6)Whether the registered sale‑deed in favour of the defendants Nos.9 to 14 regarding the suit land, dated 23‑12‑78 is liable to be cancelled? (7) What should the decree be?" The appellant examined himself and one witness Isso and closed his side. The respondents 1 to 8 did not lead any evidence. The respondents 9 to 14 examined D.W. Ghulam Hussain, Mubarak, Jan Muhammad and Palio and closed their side. The trial Court found that there was agreement of sale but it has come to an end due to the failure of the appellant to perform obligation and as such there existed no valid agreement in favour of the appellant. The trial Court found that the appellant has not asserted that respondents 9 to 14 have any notice of agreement of sale in favour of the appellant. The trial Court found that respondents 9 to 14 are bona fide purchasers for value without notice, as such the sale‑decd cannot be treated as null and void. The trial Court dismissed the suit vide judgment, dated 12‑5‑

82. The appellant is aggrieved against the judgment, dated 12‑5‑1982 of the Senior Civil Judge, Mehar. Mr. S. Madadally Shah assails the judgment and decree of the Court below and submits that the trial Court erred in holding that the respondents 9 to 14 are subsequent purchasers without notice of previous contract. The trial Court in its judgment has observed as follows? "So far as this issue is concerned, there is nothing in plaint that the defendants have notice of prior agreement and they are subsequent purchasers with notice. The defendants have put themselves in box and denied the notice of prior agreement. This denial is support to discharge the burden. The burden then shifts to plaintiff to prove this fact. He can prove this fact only when he alleges. But as I have discussed above, there is no such allegation in plaint and as such there is no question of proving the same. There is nothing on record to suggest that the sale‑deed in favour of defendants is liable to be cancelled." The provision of law is well‑settled that in a suit for specific performance where a subsequent transferor/purchaser wants to retain the benefits of the B transfer/ purchase in his favour, the onus rests on him to establish the circumstances mentioned in section 27(b) of the Specific Relief Act. In the decision reported in A I R 1934 P C 68 while dealing with this question, the position of law was explained as follows:‑? "the section lays down a general rule that the original contract may be specifically enforced against a subsequent transferee, but allows an exception to that general rule, not to the transferor, but to the transferee, and, in their Lordships' opinion it is clearly for the transferee to establish the circumstances which will allow him to retain the benefit of transfer which prima facie, he had no right to get." In Mst. Khair‑ul Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (P L D 1972 S C 25), the Hon'ble Supreme Court held as follows:‑‑ "It will be noticed that under this provision of law, 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." It was further held:‑‑ "It is thus quite clear that 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." The appellant averred in paragraph 10 of the plaint that the respondent 9 to 14 were in knowledge, about the sale agreement between appellant and deceased S.M. Sohail regarding the suit land. It is further averred that respondent No.14 is co‑villager of the appellant and respondents 9 to 13 are residing near to the village of the appellant; their lands are also situated near the lands of the appellant. The respondents 9 to 14 denied contents of paras. 7 to 13 as false, misleading, ambiguous and not maintainable in law. The appellant (Exh.43) has stated in examination‑in‑chief that "I am hari of the suit land i.e. the above survey numbers". He has stated that S.M. Sohail verbally told him that "he relinquish the possession in his favour and that he will receive the remaining instalments". He admitted in his cross‑examination that respondents 9 to 14 reside one mile away from the suit land. They have not got lands adjoining the suit land. To a question he replied that the respondents 9 to 14 were in knowledge of the possession of land handed over to him. D.W. No.1 Ghulam Hussain (Exh.51) has stated that "I do not know if there was any sale agreement in respect of suit land in favour of plaintiff'. He denied the suggestion in cross‑examination that S.M. Sohail during his lifetime sold the suit land to appellant. To a question in cross‑examination, he replied "it is incorrect to suggest that I and other defendants were in knowledge about the sale of land in dispute by S.M. Sohail to plaintiff'. He also denied the suggestion that if S.M. Sohail received the earnest money and the first instalment from the plaintiff. D. W. Mubarak admitted' that the appellant paid first instalment to S.M. Sohail. Under Section 27(b) of the Specific Relief Act, four things are required to be established; (1) that the transfer is for value; (2) that the money has been paid; (3) that the purchase was done in good faith, and (4) that the purchase including payment of money was without the notice of the original contract. The C first two elements are positive and the last two elements are negative, in character. The onus of proving that the subsequent purchaser had no notice of a prior claim is ordinarily discharged by denial. As observed in Khairunnisa v. Muhammad Ishaque (P L D 1972 S C 25): "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 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." It has been held in Kanshi Ram v. Ishwardas (A I R 1923 Lah. 108) as under:‑‑ "Where the consideration is paid in full and the vendor are ignorant of the original contract, good faith must be presumed in the absence of any evidence to the contrary." In the present case defendant No.10 (Exh.51) appeared in the witness?box and pledged on oath that he had no notice of the earlier agreement for sale and no apparent justification has been indicated to disbelieve the said denial. The appellant has not produced any evidence in rebuttal. On the contrary the appellant averred in his plaint that the respondents 9 to 14 were in knowledge, about the sale agreement between the appellant and deceased S.M. Sohail. This burden was on him which he failed to establish. He averred in his plaint that respondent No.14 was a co‑villager of the appellant. He admitted in his cross‑examination that the lands of respondents 9 to 14 are also not situated and/or adjoining the land in suit. In these circumstances, the finding of the trial Court about defendants 9 to 14 being purchasers for valuable consideration and without notice is not open to interference. The learned counsel for the appellant has not been able to satisfy me that the finding of the learned Civil Judge on this question is not supported by E the evidence on record. I find that the reasons given by him in his judgment for holding that respondents 9 to 14 were not aware about the transaction in favour of the appellant; is unexceptionable. I have already found that the trial Court arrived at its finding on a due consideration and assessment of evidence on record and as such I have no jurisdiction to interfere with that finding. In the result, I find no merit in the present appeal which is accordingly judgment and decree of the trial Court are hereby confirmed. In I dismissed. The the circumstances of the case, the parties shall bear their own costs. M.Y.H./G‑119/KAppeal dismissed.