1989 PLP 261 (MLD)

6. On the 17th September, 1975, Mr. Muhammad Afzal Bhatti, Advocate, Sargodha, P.W.1, acting on the instructions of Malik Gul Slier Khan Noon, sent on his behalf and on behalf of Malik Farooq Ahmad and Mst. Zeenat Begum, a telegraphic notice (Exh. P.2 and copy Exh. PW.6/E) to the appellants stating that his clients had got the land, which they had agreed to sell to the appellants on the 15th and 29th December, 1972, vacated since two years and had also got mutations sanctioned in their favour on the 29th June, 1973, and asserting that the appellants had been informed many a time telephonically and through servants to get the sale completed but they had never responded. The appellants were called upon to get the sale transaction completed according to the agreements within ten days otherwise the vendors would not be bound by the agreements and the appellants' earnest money would be treated as confiscated. The notice was replied to on the 22nd September, 1975, by the appellants' counsel, Mr. Muhammad Akbar Cheema, Advocate, Sargodha, P.W.7, through telegram whose copies are Exhs. PW 7/B, PW7/C and PW7/D and which was addressed to Mr. Muhammad Afzal Bhatti, Advocate. The appellants said that they were prepared to purchase the property and were ready to make full payment of the balance price as agreed upon although encroachments had not yet been removed nor litigation in the Court ended. The vendors were asked to contact the appellants in the chamber of Mr. Muhammad Akbar Cheema, Advocate, in the District Courts, Sargodba, on the 24th September, 1975, before noon for the purpose of purchase of necessary stamps and execution of sale‑deed. A request for telegraphic reply was made.

7. On the 24th September, 1975, Mr. Muhammad Afzal Bhatti Advocate, informed Mr. Muhammad Akbar Cheema, Advocate, through telegram (Exh. P 18 that he could not contact Malik Gul Slier Khan Noon, etc. in spite of t making efforts and asked Mr. Muhammad Akbar Cheema to tell his clients Ayub Ali, etc., to contact his client, Malik Gul Slier Khan Noon, directly if they so liked. The same day, after receiving the aforementioned telegram, Mr. Muhammad Akbar Cheema sent, on the instructions of the appellants, through registered post to Malik Gut Sher Khan Noon and Mr. Muhammad Afzal Bhatti, Advocate notice whose copy is Exh. PW7/A. Mention was made in the notice of the fact that the sale‑deeds were to be executed by Malik Gut Sher Khan Noon after removal of unauthorised encroachments on the site and establishing his title in the Revenue Records and further that he was under obligation to demarcate the plots on the site as they were mixed up with plots of other persons. It was pointed out that encroachments were still un-removed, Malik Akbar Ali Tiwana had brought a suit for demarcation of land which was pending in the Civil Court with next date of hearing as the 13th October, 1975, and that one of the unauthorised occupants of the site had also sued Malik Gut Sher Khan Noon. After recapitulating that his clients had immediately replied to the notice dated the 17th September, 1975, on the 22nd September, 1975, that they were prepared to get the sale‑deeds registered and pay the balance price and that they would remain present in the chamber of Mr. Muhammad Akbar Cheema on the 24th September, 1975, for completion of the deeds but neither Malik Gut Sher Khan Noon nor any of his representatives contacted the appellants or their counsel the notice reiterated that the appellants were prepared to complete the transaction and pay the balance price as and when Malik Gut Sher Khan Noon intimated them that he was willing to complete the contract. The notice threatened that if there was no response from Malik Gul Sher Khan Noon within a week the appellants would be forced to bring a suit for specific performance of contract.

8. As it appears from the endorsement (Exh. D1/1) of the Sub‑Registrar, Sargodha, Malik Gut Sher Khan Noon presented application, Exh. D.1, before the former at about 7 or 8 o'clock in the morning of the 26th September, 1975, for certifying his presence after calling out the appellants as he had gone there to get the sale‑deeds registered. The Sub Registrar, Mr. Aman Ullah Khan Lashari, D.W.1, recorded the presence of Malik Gut Sher Khan Noon as attorney of Mst. Zeenat Begum and Farooq Ahmad Khan Noon. He noted that the appellants had been called but they had not turned up. He kept the application pending to be taken up later in the day. The application was again taken up at about noon. When called Sultan Mahmood, appellant 2, put in appearance. He had also made a similar application, Exh. D.2, which made mention of the fact that he had been present in the registration office from 7.30 a.m. to 12 noon but the other party had not turned up. Ayub Ali Khan, appellant 1, did not enter appearance. The Sub‑Registrar noticed m his order, Exh. D.1/2, that Sultan Mahmood (Appellant 2) could not produce any deed with purchase money for registration and that in the absence of production of sale‑deed registration could not be effected. The Sub‑Registrar handed over the application to Malik Gut Sher Khan Noon after certifying his presence. It may be mentioned that Malik Muhammad Ashraf, Advocate, Sargodha, P.W.2, identified Malik Gut Sher Khan Noon before the Sub‑Registrar.

9. On Sultan Mahmood's application, Exh. D.2, the Sub‑Registrar noted that Sultan Mahmood was identified by Syed Mustafa Hussain Tajdar Dehlvi, P.W.6. He recorded the presence of Malik Gul Sher Khan Noon as well. His order stated that Sultan Mahmood had come at 11.00 a.m., that he had no deed or stamp and that he had not produced anything for registration. After certifying his presence the application was made over to him.

10. On the 29th September, 1975, Malik cut Sher Khan Noon, acting on his own behalf and as attorney of Malik Farooq Ahmad Khan and Mst. Zeenat Begum, executed and got registered the sale‑deed, Exh. D.3, conveying the entire land measuring 20‑1/4 kanals, which was the subject‑matter of the above‑referred to two agreements of sale with the appellants, to Muhammad Nawaz, Allah Dad, Noor Bakhsh and Umar Daraz, who are respondents 2 to 5 in R.F.A. No. 40 of 1984 and .respondents 4 to 7 in R.FA. No. 41 of 1984, for a consideration of Rs. 4,75,000 which the appellants had agreed to pay. As per endorsement of there Registrar on the sale‑deed Rs. 4,75,000 were paid in cash by the vendees to Walik, Gut Sher Khan Norm. The same day the appellants riled two suits, one against Brigadier Malik Gut Sher Khan Noon and the other against Malik Farooq Ahmad Khan, Mst. Zeenat Begum and Mst. Sabira Bibi for specific performance of contracts of sale of the land in dispute. Subsequently Muhammad Nawaz, Allah Dad, Noor Bakhsh and Umar Daraz sold away the land after carving it out into smaller plots to other respondents who had to be impleaded as parties.

11. The appellants blamed the vendors for committing breach of the contract of sale. They contended that though they had asked the vendors to get the land vacated by ejectment of occupiers and thereafter to have the sale‑deed executed and registered and receive the balance of purchase money they had dilly‑dallied the matter and had not made the occupiers of the land vacate the possession. They pleaded that one Malik Anwar All Tiwana had brought a suit against the vendors touching the land in dispute. Referring to the correspondence that had passed between the parties' counsel they said that they were prepared to purchase the land but the vendors had secretly sold it away. They pleaded that Muhammad Nawaz, Allah Dad, Noor Bakhsh and Umar Daraz were in the know of tale agreements of sale which they had concluded with the vendors.

12. The vendors threw blame upon the appellants for not paying the balance of the purchase money and getting the sale‑deed executed and registered. They asserted that the appellants had never been ready for the performance of their part of the contract and, therefore, being fed up with their behaviour they had given them notice on the 17th September, 1975, for paying the outstanding amount of price and getting the sale‑deed registered. They said that they had received no reply to the notice and even on the 26th September, 1975, when Sultan Mahmood, appellant 2, had turned up in the Sub‑Registrar's office he was not ready to pay the balance of sale consideration and get the sale‑deed registered. The appellants were said to be estopped by their word and deed from bringing the suit.

13. The vendees, namely, Muhammad Nawaz, Allah Dad, Noor Bakhsh and Umar Daraz, maintained that they were bona fide purchasers for consideration of the property in dispute without having notice of the agreements of sale between the appellants and vendors. They also pleaded estoppel against the appellants.

14. The rest of the respondents, the subsequent vendees, whom Muhammad Nawaz, Allah Dad, Noor Bakhsh and Umar Daraz had sold the land in dispute in the shape of small plots, expressed ignorance of the agreements of sale between the appellants and vendors. They justified their construction of buildings on the plots they had purchased.

15. The learned trial Court found the appellants to be wanting in their readiness and willingness to perform their part of the contract. It observed that the appellants were short of cash and, therefore, could not fulfil their promise of payment of balance of price. It decided the issue of estoppel also against them. The learned Court accepted the plea of Muhammad Nawaz, Allah Ditta, Noor Bakhsh and Umar Daraz that they were bona fide purchasers without knowledge of the existence of agreements between the appellants and vendors. For refusing to grant the discretionary relief of specific, performance of contract the learned Court kept in view inter alia the fact that the land had passed on to on fewer than forty persons who had raised constructions thereon. It may be incidentally mentioned that the learned trial Court wanted to grant the appellants' application for issuance of temporary injunction pendente lite restraining the aforementioned respondents and subsequent vendees from proceeding with raising construction on the various plots of the land in dispute they had purchased subject to the appellants' depositing of the remaining amount of sale consideration intended to be paid to the aforementioned subsequent vendees but the appellants refused to deposit the requisite amount. Consequently the injunction application was dismissed.

16. At the very outset the learned counsel for the appellants raised the plea of lis pendens which the appellants had neither pleaded nor urged in the memoranda of appeals. The learned counsel contended that since the vendors sold the land in dispute the day the appellants instituted their suits the alienation of land would be hit by the doctrine of lis pendens and as such the transfer would not affect the appellants 'rights under the agreements of sale. However, the perusal of the record does not bear out the fact that the sale took place during the pendency of the suits, rather there are positive indications that the suits was filed after the transaction of sale had been completed. The endorsement of the Registrar on the sale deed, Exh D.3, states that the deed was presented for purpose of registration between 11.00 a.m. and 12.00 noon, on Monday, the 29th September, 1975. It was executed and registered the same day. The plaints of the suits, as is evident from the endorsements of the learned Senior Civil Judge, Sargodha, thereon, were taken out of the petition box of the Court when it was opened for the last third time just before the rising of the Court at the end of the closing hours, that is to say, at or just after 1.30 p.m.. as the working hours of the Court in those days were from 7.30 a.m. to 2.00 p.m. To the same effect arc the observations of the learned trial Court in its order of the 6th November, 1975, rejecting the appellants' application for the grant of temporary injunction referred i to above. In the circumstances the rule of lis pendens does not coma into play.

17. The learned counsel for the respondents conceded, and rightly so, that the learned trial Court's finding on the issue of estoppel against the appellants could not be justifiably sustained. The learned counsel for the contesting parties agreed that 'the questions for resolution, whose answers in the affirmative the appellants must secure to succeed, are whether the appellants were ready and willing to perform their part of the contract and whether the vendees, Muhammad Nawaz, Allah Dad. Noor Bakhsh and Umar Daraz, had knowledge of the agreements of sale between the appellants and the vendors when they purchased the land.

18. The appellants did not have any contact with Malik Gul Sher Khan Noon or with any of the other vendors after the agreements of sale had been concluded and earnest money had been paid till the receipt of notice from Malik Gul Sher Khan Noon on the 17th September, 1975. The argument of the learned counsel for the appellants that the vendors ought to have given, according to the terms and conditions of the agreement, at least a month's notice to the appellants informing them that they had got the encroachments cleared and demarcation carried out and asking them to pay the balance of the purchase money loses force in face of the appellants' readiness to pay the price and get the sale deeds executed and registered despite the existence of litigation between Malik Gul Sher Khan Noon and Malik Anwar Ali Tiwana, as intimated by them in their reply (Exhs PW.7/B, PW.7/C and PW.7/D) to the notice given by Malik Gul Sher Noon as also in their notice (Exh PW.7/A) sent by‑their counsel, Muhammad Akbar Cheema, PW7, on the 24th September, 1975, to Malik Gul Sher Khan Noon and his counsel, Mr. Muhammad Afzal Bhatti, Advocate, PW 1.

19. The appellants' readiness to pay the balance of the price and get the sale -deeds executed and registered on the 24th September, 1.975, when they were desirous of meeting Malik Gul Sher Khan Noon, whom they had called to the chamber of Malik Muhammad Afzal Cheema; Advocate, or even on the 26th September, 1975, when Sultan Mahmood. appellant 2, came face to face with Malik Gul Sher Khan Noon in the presence of the Sub‑Registrar before whom both had moved applications, Exhs. D.1 and D.2, for getting their presence marked, remains to be decided. The Sub‑Registrar, Mr. Aman Ullah Khan Lashari, D.W.1, made categorical statement that the bargain of sale could not be completed because of the refusal of Sultan Mahmood, appellant

2. Malik Muhammad Ashraf, D.W.2, bore out that Sultan Mahmood had stated that he had no money. Sultan Mahmood did not come in the witness box to rebut what Aman Ullah Khan Lashari and Malik Muhammad Ashraf had said against him. No reason or explanation for his non‑appearance has been given. The appellants did not produce satisfactory evidence to show that they were possessed of sufficient means to pay the balance of sale price on the 24th September, 1975, or 1 even thereafter before the sale‑deed was executed and got registered by Malik Gul Sher Khan Noon in favour of other vendees. Ayub Ali Khan, appellant 1, did not attend the Sub‑Registrar's office. He tried to show that he had obtained two drafts of Rs. 2,00,000 each in his own name and another draft of Rs. 1,00,000 in the name of his son from Mianwali Bank on the 23rd and 24th September, 1975. He produced Muhammad Hafeez Khan, the then Manager of Muslim Commercial Bank, Mianwali Branch, P.W.3, to say that according to the records of the Bank Ayub Ali Khan had got prepared on the 23rd September, 1975, a draft of Rs. 2,00,000 and another of Rs. 1,00,000 in the name of his son on the 24th September, 1975. However, Muhammad Hafeez Khan was not Manager of Muslim Commercial Bank, Mianwali Branch, when the drafts were issued nor did he himself prepare the drafts. He gave evidence without record. He could not be effectively cross‑examined in the absence of the Bank record. This type of oral evidence was hardly sufficient to prove the issuance of‑the drafts. Asif Hayat, Assistant, Habib Bank, Mianwali, P.W.4, stated that a draft of Rs. 2,00,000 payable at Habib Bank Branch of Katchery Bazar, Sargodha, was prepared in the name of appellant 1, Ayub Ali Khan, on the 23rd September, 1975. Asif Hayat produced photostat copy of the draft as also of appellant's application for getting the draft prepared. According to the learned counsel for the appellants none of these drafts was encashed. It shows that the appellants lacked cash. In these circumstances the inference drawn by the learned trial Court that the appellants had no adequate funds for paying the outstanding balance of price of the land in dispute cannot but be endorsed.

20. As is evident from the agreements the appellants were to sell the land after dividing it into smaller plots to different persons and in all probability they were to pay the balance of the price after receiving the same from the subsequent vendees to whom the plots were intended to be sold. It seems that the appellants were unable to find customers to purchase the land at higher price so as to leave good margin of profit for them and, therefore, were not very keen to finalize the sale. Had they been anxious to get the land they would have at least established contact with the vendors after payment of earnest money and would not have remained non‑communicative till the 17th September, 1975, when they received notice from Malik Gul Sher Khan Noon through Mr. Muhammad Afzal Bhatti, Advocate. It could not be difficult for the appellants to have personally contacted the vendors earlier because they were living to the same town. The vendors did not reap any extra benefit by‑selling the land to Muhammad Nawaz and others as the price received by the vendors was the same which they were to get from the appellants. If the appellants had paid them the price even on the 26th September, 1975, when appellant 2 met Malik Gul Sher Khan Noon in the Sub‑Registrar's office, the latter would have conveyed the land to them as he was eager to part with it and was not to get and did not get anything over and above the agreed trice. The fault lay with the appellants who were not ready to pay the balance of 'he price. They were to bear the expenses of execution and registration of the sale deed. They did not even offer to pay such expenses.

21. The learned counsel for the, appellants, relying upon what has been laid down in Bishan Das v. Gurbakhsh Singh (A I R 1934 Lah. 63(2)) and Puran Das Chela v. Kartar Singh (A I R 1934 Lah. 398), took up the point that real contest on the issue touching willingness and readiness to perform the contract being between the appellants and the vendors and the vendors having‑ failed to come forward to give evidence presumption should be drawn in favour of the appellants and against the vendors for the purpose of settling the issue. No doubt failure of a party coming forward with a case to give evidence on matters within his knowledge ought to be weighty factor when the value of the case put forward on his behalf is appraised. The distinctive feature of the instant case is that the vendors after having divested themselves of all rights in the land in dispute by selling it to Muhammad Nawaz and others ceased to have any interest in the litigation; whatever was to be the outcome of lis they would not lose or gain anything. Therefore, they might have thought it better now to step into the witness box. Their non‑appearance as witnesses is least helpful in or effectual on tie process of formulation of decision on the controversial issue.

22. The question whether Muhammad Nawaz had knowledge or notice of the agreement of sale between the appellants and vendors may now be dealt with. Both the learned counsel for the parties relied upon what is quoted in Mst. Khair ul‑Nisa v. Malik Muhammad Ishaque P L D 1972 Supreme Court 25 that the subsequent transferee can effectively discharge the onus of proving himself to be a transferee in good faith and without notice of the previous contract by just appearing in the Court and stating on solemn affirmation that he had no knowledge of the previous contract and the onus then shifts on to the plaintiff to prove that the transferee had the knowledge of the original contract. In support of his arguments the learned counsel for the respondents referred to the deposition Muhammad Nawaz, respondent, D.W.4, to the effect that he and his co-vendees had no knowledge of any earlier contract of sale touching the land in dispute and more specifically that they had no such knowledge regarding the appellant s contract and contended that after the statement of Muhammad Nawaz on oath the onus shifted on to the appellants to show that the vendees had the knowledge of the appellants' contract with the vendors. The learned counsel for the appellants pointed out that Ayub Ali Khan, appellant 1, while appearing as P.W.8, repudiated the assertion of Muhammad Nawaz by saying that Muhammad Nawaz had acted in bad faith to bring the appellants' contract to an end and to have sale‑deed registered in favour of himself and his co‑vendees and that they were aware of the appellants' contract of sale. The learned counsel submitted that since this portion of Ayub Ali Khan's statement had not been questioned in cross-examination it should be deemed to have been admitted. In support of his argument he invoked the assistance of the rule laid down in Syed lqbal Hussain v Mst. Sarwari Begum (P L D 1967 Lah. 1138), Mst. Zar Jan v. Mst. Najmun Nisa(P L D 1967 Peshawar 118), and Mst. Noor Nisa v. Abdul Salam (P L D 1982 Peshawar 42). However, Ayub Ali Khan did not explain as to how Muhammad Nawaz and others acquired knowledge of the earlier contract of sale. His simply saying that they had the knowledge would not go to prove such knowledge especially when Muhammad Nawaz had categorically denied such a knowledge. It is doubtful if the respondents could have extracted any significant advantage in cross‑examination of Ayub Ali Khan touching his one sentence perfunctory statement that Muhammad Nawaz and his co‑vendees had the knowledge of the earlier contract.

23. Syed Mustafa Hussain Tajdar Dehlvi, P.W.6, who has business rivalry with Muhammad Nawaz, D.W.4, has rightly been given not much credence by the learned trial Court regarding evidence pointing to the knowledge of the previous J contract of sale on the part of Muhammad Nawaz. Though Syed Mustafa Hussain Tajdar Dehlvi said that he had been carrying on partnership business with Muhammad Nawaz, the latter gave a lie to this fact. Syed Mustafa Hussain Tajdar Dehlvi could not produce any documentary material having bearing on his alleged partnership with Muhammad Nawaz.

24. The respondents tried to use their advertisement appearing in weekly Nizam‑i‑Jamhuriat of Sargodha, dated the 28th September, 1975 (Exhs P.2 and P.21), citing information of the contract of sale between the appellants and the vendors. The copies of the weekly, Exh P.2 and P.21, were just tendered by the appellants while closing their affirmative evidence. No person from the u management of the weekly appeared to say as to when the journal was actually published, what its quantum of circulation was and whether it reached the vendees. The journal is a local publication of Sargodha and its circulation seems to be confined to a limited circle. It cannot be presumed that the vendees became ever aware of the advertisement. Therefore, the advertisement can hardly be used for imputing knowledge of the previous contract to the vendees. Looking to the circumstances of the case and taking over all collective view of the evidence knowledge of the earlier contract on the part of Muhammad Nawaz and his co- vendees cannot be said to have been established.

25. In view of the decision on the questions for determination going against the appellants, the appeals necessarily fail and are dismissed with costs. M.Y.H./A-496/L Appeal dismissed.