1985 PLP 1370 (SCMR)

Nemo for Respondents. Date of hearing: 20th February, 1985. SHAFIUR RAHMAN, J.‑‑The petitioner an unsuccessful defendant claiming to be a prior vendee of a tenanted land, seeks leave to appeal against the judgment of the Lahore High Court, dated the 5th of May, 1977 whereby the decree obtained by the subsequent vendee by a registered deed for specific performance of contract, was upheld. On the 20th of August, 1969 the respondents Muhammad Rafique and Anwar the owners of the tenanted land a share of which is now in dispute reported a sale of the land to the petitioner. When the mutation came up for attestation the vendor denied receipt of the consideration for the sale and its completion were upon the Revenue Officer ‑refused its attestation. However, subsequently he reported the receipt of the consideration on which the mutation was attested on 21‑11‑1969. However, in the meantime, on the 26th of August, 1969 by a registered deed the vendor agreed to sell the same land to the four respondents including Allah Bachaya jointly in equal shares. The respondents instituted a civil suit claiming the specific performance of the agreement. The suit was resisted by the petitioner on the strength of the earlier sale reported to the Patwari in his favour on 20‑8‑1969. The trial Court, however, decreed the suit of the plaintiff‑respondents for specific performance on their paying the balance of sale price Rs. 32,500 before 24th of July, 1974 failing which their suit was deemed to be dismissed with costs. A first appeal was taken to the High Court. During the pendency of the appeal a compromise was entered into between the petitioner and three of the vendees other than Allah Bachaya under which the petitioner was allowed the 3/4th share of the property in suit. The contest was reduced to 1/4th share of Allah Bachaya. The High Court held as a fact that the sale in favour of the petitioner on the report made to the Patwari on the 20th of August, 1969 was in fact completed on the 21st of November, 1969. As before that date on the 26th of August, 1969 the vendors had under a registered instrument agreed to sell the same property to the four respondents, the petitioner could not defeat their suit for specific performance. Hence giving effect to the compromise and excluding that portion the rest of the claim to the extent of 1/4tt share of Allah Bachaya, the decree of the trial Court was affirmed ant his appeal was dismissed. The learned counsel for the petitioner has argued on the strength of the report made to the Patwari that the sale in favour of the petitioner was complete in all respects on the 20th of August, 1969 and for the reason on the 26th of August, 1969 he was left with no title or interest which could justify the agreement to sell entered into between the vendors and the four respondents. It could not be given legal recognition and specifically enforced. The learned counsel for the petitioner also relied on the payment of the District Council fee leviable on mutations of land and the record kept by the Patwari for the purpose. The facts as disclosed by the learned counsel for the petitioner sustain the finding of the Courts that there was repudiation by the vendors of the completion of the sale before the Revenue Officer on 29‑8‑1969 and the sale mutation was not attested on that account. The petitioner had full notice of it. He could not, therefore, plead either the payment of District Council fee or the entry made by the Patwari to sustain his submissions because unless the sale itself was admitted by the vendor at the relevant time such incidental steps could not be a substitute for it. It is also not denied that the property was tenanted and there could be no occasion to transfer actual physical possession which may have put a prospective vendor on notice. In such a background of events the findings recorded by the two Courts are based on good evidence and are unassailable. Hence leave to appeal is refused. M.I. Leave refused.