1987 PLP 2870 (MLD)

This Regular Second Appeal is directed against the judgment and decree of the learned Additional District Judge, Lyallpur, dated 29-4-1975, whereby respondent No.2's first appeal was accepted and the suit of the present appellant plaintiff was dismissed.

2. It was a suit for specific performance of an agreement dated 30-11-1966 whereby allegedly the respondent Hassan Muhammad bound himself to transfer the land in dispute in favour of the appellant Niamat Ali, through a registered sale deed to be executed before 15-5-1968 on payment of a further sum of Rs.2,500 as he had already received earnest money to the tune of Rs.2,

000. Before the terminal date, however, he sold it away in favour of the respondent Muhammad Sharif by a registered sale deed dated 9-8-1967. It was already in possession of the appellant as tenant and he came to know of the subsequent sale when the respondent Muhammad Shafi called upon him to deliver possession thereof. Consequently, he brought the present suit to specifically enforce the agreement executed in his favour earlier in time by the vendor.

3. The suit was resisted by both the vendor as also the subsequent vendee. The former denied the agreement relied upon by the appellant while the latter claimed to be a bona fide purchaser for value without notice of the appellant's interest in the land. The following issues were framed:- (1) Whether this suit is not maintainable in its present form? O.P.1). (2) Whether defendant has executed the agreement to sell dated 30-11-1.966 in favour of plaintiff? O.P.P. (3) Whether land in dispute was purchased by defendant No.2, within the knowledge of plaintiff, if so, to what effect? O.P.D. (4) Relief. Yet another issue was added, namely:-- Whether defendant No.2, is bona fide purchaser without notice, if so, what is its effect? O.P. D. (Objected to) The trial Court decreed the suit but in appeal it was reversed and the suit was dismissed.

4. The Courts below concurrently found that (i) the agreement Exh. P.1 was executed by the vendor Hassan Muhammad in favour of the appellant, (ii) the latter way in po-4,E-ion of the land is tenant, (iii) he had come to know of the subsequent sale made in favour of defendant No.2, when the latter asked him to deliver possession, and (iv) defendant No.2, had not of enquired the appellant the nature of his possession. Mian Nisar Ahmad, Advocate for the appellant submitted that these were the questions of fact and that the concurrent findings thereon could not be assailed in the present appeal. He added, however, that due to failure of the learned Additional District Judge to read the evidence of Noor Muhammad, D.W. his judgment was vitiated. He stressed that in his statement," the witness who was none else than a son of the defendant Hassan Muhammad and also his Attorney clearly admitted that the respondent Muhammad Shafi was told of the prior agreement made by his father in favour of the appellant and that the respondent took it lightly pointing out that being a Girdawar he would see to it. Counsel submitted that the trial Court took due notice of this piece of evidence showing that the respondent Muhammad Shafi had quite a fair notice of the appellant's prior interest in the land, but then he did not attach any importance to it expressing arrogance in his capacity as Girdawar to ward off all its evil effects. A perusal of the impugned judgment really discloses that this piece of evidence was not at all discussed. Since it was taken as a bed rock for the conclusion drawn by the trial Court against the respondent, it simply behoved the lower appellate Court to have given a word or two about it in dissent. Relying upon Advocate General, Government of East Pakistan Dacca v. Benoy Bhusan Majumdar and 3 others (P L D 1971 S C 179) and Malik Muhammad Ishaque and another v. Mirza Almas Ali Beg and others (P L D 1969 Lahore 762), counsel argued that drawing erroneous conclusions or ignoring evidence altogether would call for interference in revision. He observed that some respect had to be given to the opinion expressed by the lower Court especially when it was horne out by the record and that here the lower appellate Court altogether ignored it without giving any reason whatsoever to the contrary. The contention seems indefensible inasmuch .as the testimony of Noor Muhammad, D.W. was of considerable importance. It succinctly establishes that the respondent Muhammad Shafi had ample notice of the appellant's prior interest, but then he in his own way taking airs ignored it. This simple omission suffices to upset the impugned judgment.

5. Something more was also agitated in support of the Regular Second Appeal. Since possession of the appellant as tenant was found as a fact, according to counsel, there was a duty cast upon the respondent Muhammad Shafi as subsequent vendee to have made rather a deeper inquiry in regard to the appellant's interest. The record shows that the respondent did not call upon him to know, about the nature and extent of his interest in the property. Reliance was placed upon Vinayak Moreshwar Natu v. Gyanoba Hariba Navale (AIR 1923 Bombay 13), Baba Sah and another v. Hajee Muhammad Akbar Sahib and others (AIR 1923 Madras 563), Ibrahim v. Yusaf and others (AIR 1918 Lahore 39), Shah Muhammad v. Inayat Ullah and others (PLD 1953 Lahore 87) and Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others (P L D 1974 B J 25) for the view the- appellant's possession over the land even as tenant sufficed tq. put the subsequent vendee on inquiry. As already remarked the evidence does not establish this requirement and therefore failure on the part of the respondent in this behalf was fatal to his claim. Counsel for him contended that he had enquired from the vendor as also consulted the revenue record and that in the circumstances he could not do anything more. In face of the authorities cited above, particularly from this Court itself, the respondent was not absolved by making a cursory investigation from the revenue record or for that matter the vendor himself. The statement of Noor Muhammad, D.W, who was a son as also Attorney for the vendor goes a long way to help the appellant in establishing that *the respondent had knowledge of his prior interest in the land. He was examined on the additional issue which was pointedly framed to determine the respondent's claim of being a bona fide purchaser without notice. He did not put a single question on this aspect justifiying an inference that the witness was true. It was claimed that possession of the appellant over the land was not something new to put the respondent on curiosity and that the old stalemate in the shape of his continuous possession left no room behind to put the respondent on any inquiry whatsoever in regard to the nature of his possession. The rejoinder was that the case was not being pressed under section 53-A of the Transfer of Property Act where entering into possession as a part performance may be a new event to make any subsequent purchaser aware of the interest of the occupant. Reliance in fact was placed on section 27 (b) of the Specific Relief Act which had its own pre requisites. One of them obliged any subsequent vendee to call on the old occupant so as to enquire about the nature of his possession. Here the respondent seems to have failed to do anything. This was admitted by him unequivocally. Burden to prove the absence of notice was claimed to have been squarely discharged by the respondent by making a statement and the onus was said to have been shifted to the appellant to prove otherwise. Reliance was placed on Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (P L D 1972 S C 25). Assuming that the burden shifted, the respondent's own witness Noor Muhammad conceded that he had notice of the appellant's prior interest. There was no rebuttal to it.

6. The lower appellate Court proceeded to observe that the agreement held by the appellant was no more enforceable as the subject-matter of the transaction had already passed to the respondent` under a valid registered sale deed. This observation was not legally correct because specific performance could be enforced even against a successor-in-interest under section 27 (b) of the Specific Relief Act. The only exception was a subsequent vendee without notice of such a prior agreement. Since the respondent is being held to have had such a notice, the specific performance could be enforced even against him.

7. As a result I accept the appeal with costs throughout, set aside the impugned judgment and decree and restore that of the trial Court. The appellant shall deposit the remaining consideration amount of Rs.2,500 in the trial Court within two months from today for paying the same to defendant No.1 who shall execute and get registered a sale deed of the suit land in his favour. Otherwise he will be entitled to get it executed through the Court. M.Y.H./L-13/L??????????????????????????????????????????????????????????????????????????????????? Petition accepted.