2003 PLP 961 (SCMR)

MUNIR A, SHEIKH, J.

This petition is directed against the judgment, dated 5-5-2000 of a Division Bench of the Lahore High Court, Bahawalpur Bench, Bahawalpur, through which First Appeal tiled by the petitioner against the judgment, dated 26-2-1995 dismissing his suit for specific performance of agreement of sale, dated 25-8-1988 has been dismissed.

2. Respondent No.1 executed an agreement of sale in favour of petitioner of the land measuring 74 Kanals, 3 Marlas on 25-8-1988 after allegedly receiving an amount of Rs.2,50,000 out of the total amount of Rs.2,70,

000. He (respondent No.1) subsequently, on 17-1-1990 through Mutation No.305 sold land measuring 8 Kanals in favour of respondent No.2 out of the said land anal through Mutation No.307, dated 5-4-1990 he further sold land measuring 32 Kanals out of the said land to. respondents Nos.3,4 and 5.

3. The petitioner filed suit in the year 1991 before the trial Court for specific performance of the said agreement of sale. It was contested by respondents Nos. 3, 4 and 5 on the ground that they were bona fide purchasers for valuable consideration without notice of the said agreement of sale executed in favour of the petitioner. Respondent No. 1, executant, admitted the execution of the said agreement of sale in favour of the petitioner. It may be mentioned here that respondent No. 1 is the step-brother of the petitioner. Respondent No. 2 subsequently conceded decree in favour of the petitioner to the extent of land purchased by him measuring 8 Kanals through Mutation No.305, dated 17-1-1990 therefore, the suit to the extent of respondent No.2 was decreed.

4. The trial Court after considering the evidence of the parties came to the conclusion that respondents No.3, 4 and 5 were bona fide purchasers for valuable consideration without notice of the agreement of sale, dated 25-8-1988 executed in favour of the petitioner therefore, the suit was dismissed through judgment, dated 26-2-1995 to the extent of land measuring 32 Kanals whereas for the remaining land measuring 42 Kanals, 3 Marlas it was decreed, which findings of facts have been affirmed by a Division Bench of the High Court through the impugned judgment, dated 5-5-2000 by dismissing the appeal of the petitioner against which leave is sought.

5. Learned counsel for the petitioner when questioned as to what was the evidence on the record produced by the petitioner that the respondents had knowledge of execution of the agreement of sale in favour of the petitioner, submitted that they being residents of the same village and vicinity should be deemed to have the knowledge of execution of the agreement of sale in favour of the petitioner. He when further questioned, admitted that no entry was got made in the Roznamcha-Waqiati of the execution of agreement of sale, dated 25-8-1988 in favour of the petitioner. It is well-settled law that the subsequent purchaser as defendant in the suit for specific performance of an agreement if takes a plea that he had purchased the land bona fide for valuable consideration without notice of the previous agreement of sale, the plaintiff in such a case has to prove by positive cogent evidence that he had the knowledge of the said agreement of sale. No such evidence was produced in this case, whereas learned counsel for the petitioner wants us to presume that they had the knowledge of the agreement being residents of the same locality or village which argument in our considered view is not tenable.

6. The findings of fact recorded by both the Courts below against the petitioner have not been shown to have suffered from misreading or non-reading of any material piece of evidence therefore, no case is made out for interference by this Court.

7. For the foregoing reasons, this petition has no merits which is accordingly dismissed and leave refused. Q.M.H./M-762/S Petition dismissed.