2006 PLP 765 (CLC)

SHEIKH AZMAT SAEED, J.

This civil revision is directed against the appellate judgment and decree, dated 23-10-1996, whereby, the appeal filed by the petitioners against the judgment and decree, dated 11-7-1993 was dismissed.

2. Brief facts leading to the filing of this civil revision are that respondent No.1 executed an agreement to sell in favour of respondent No.2 in respect of 1/3rd share of land measuring 99 Kanals. The said agreement was executed on 7-1-1984 and the earnest money was paid. It appears that said respondent No.1 was only entitled to 24 Kanals and 15 Marlas of land and subsequently sold the same to the present petitioners, vide registered sale-deed dated 7-10-1985. Respondent No.2 tiled a suit for specific performance against the present petitioners and respondent No.1. Respondent No.1 while accepting existence of the agreement to sell in favour of respondent No.2 contended that he had subsequently sold the property to the present petitioners, who inter alia took up the defence that they were bona fide purchasers without notice of the earlier agreement to sell.

3. On the divergent pleadings of the parties, issues were framed; evidence was led whereafter the trial Court vide its judgment dated 17-9-1993 decreed the suit. Aggrieved the petitioners filed an appeal, which failed to find favour and was dismissed, vide the impugned appellate judgment and decree, dated 23-10-1996.

4. Learned counsel for the parties have been heard and the record appended with this petition has also been perused.

5. It is contended by learned counsel for the petitioners that the same were bona fide purchasers without notice of the alleged agreement to sell in favour of respondent No.2. And there was no cogent evidence on the record to prove the knowledge of the petitioners of the earlier agreement to sell. It is further contended that the judgment of the first appellate Court is based on conjectures and surmises rather than hard evidence and influence has been drawn from disputed and unproved facts, which is not warranted by law. Adds that the agreement to sell sued upon pertained to 1/3rd share in 99 Kanals of land while the suit had been tiled in respect of 25 Kanals and 14 Marlas of the land hence the suit was barred by section 15 of the Specific Relief Act. In support of his contentions the learned counsel has relied upon the cases reported as Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25; Atta Muhammad v. Ali Sher and others 1989 MLD 4504 and Din Muhammad v. Bashir Ahmad and 5 others 1979 CLC 466.

6. Learned counsel for the respondent controverted the contentions raised on behalf of the petitioners and stated that a concurrent finding of fact has been returned, which could not be upset or interfered with by this Court in its revisional jurisdiction. In support of the said contentions reliance has been placed upon the judgment of this Court reported as Muhammad Afzaal v. Muhammad Iqbal and another 2004 MLD 1288.

7. A perusal of the judgment of the first appellate Court reveals that the primary basis for holding that the petitioners had knowledge of the earlier agreement to sell is, that the petitioners are residents of the same village hence were in the knowledge of the agreement to sell. In the instant case, the petitioners have specifically denied any knowledge of the prior alleged agreement to sell and in such an eventuality, it is settled law, onus shifts and rests heavily upon the opposite party to prove through cogent evidence that the subsequent purchaser had specific knowledge of the oral agreement. In the instant case, the impugned appellate judgment and decree makes no reference to any cogent evidence in this behalf. Furthermore, the assumption of the first appellate Court that the petitioners were inhabitants of the same village was also disputed by the petitioners and no specific evidence in support A of this assumption is mentioned in the impugned judgment nor could be pointed by the learned counsel for the respondents. The objection of the petitioners that the suit was not maintainable in view of section 15 of the Specific Relief Act has also not adverted to or adjudicated upon by the first appellate Court. In view of the above, the impugned judgments are not sustainable. The said appellate judgment and decree, dated 23-10-1996 is hereby set aside. The case is remanded to the first appellate Court to decide the matter afresh after hearing both the parties. This is an old matter. The first appellate Court is directed to decide the matter, in the light of the above observations, afresh expeditiously if possible within three months from the receipt of this order. F.B./M-71/L??????????????????????????????????????????????????????????????????????????????????????? Petition accepted.