1987 PLP 402 (MLD)

Malik Saeed Hassan for Petitioner. Sardar Khalid Mahmood for Respondent No.1. Nemo for Respondent No.2. Date of hearing: 1st March, 1987. This Civil Revision calls in question the judgment-decree, dated the 16th of February, 1986, of the learned Additional District Judge-II, Okara, whereby he dismissed the petitioner-defendant's first appeal.

2. The respondent Muhammad` Sharif brought a suit for possession through specific performance of an agreement, dated the 14th February, 1980, by which he allegedly purchased the disputed plot measuring 5 Marlas 8 Sarsahis front the other respondent Mehdi Zaman Khan for a sum of Rs.4,

089. He claimed that he had made advance payment of Rs.1,079, undertaken to pay the remainder at the time of registration, obtained possession of the plot, and even effected improvements thereupon worth Rs.6,

800. He added that lately the vendor acting in collusion with the petitioner agreed to sell it to him and hence the suit.

3. The petitioner as also the vendor both resisted the suit. The latter categorically denied having entered into any agreement with the respondent-plaintiff or sold the plot in favour of the petitioner and explained that instead it had been sold by his brother Muhammad Zaman Khan in his favour vide registered sale-deed, dated the 11th of March, 1981. Similar was the plea raised by the petitioner in his own separate written statement. They both objected to the maintainability of the suit for having failed to implead the aforesaid Muhammad Zaman Khan as a necessary party.

4. The trial Court framed appropriate issues on these pleadings, decreed the suit, and the appeal failed.

5. Malik Saeed Hassan for the petitioner relying upon section 5fr of the Registration Act contended that the registered sale-deed, dated the 11th of March, 1981, executed in his favour, though later in time, will prevail against the unregistered agreement to sell, dated the 14th of February, 1980 (Exh.P-1). He added that in having brought the suit for possession, there was no occasion for the respondent to invoke, first proviso to section 50 and that any averment made in the body of the plaint showing his possession was all in vain. Still further, he argued that the respondent failed to show, in terms of section .27(b) of the Specific Relief Act, if the petitioner had notice of his agreement observing that no averment whatsoever was made in the entire plaint to that effect. He urged that what was actually stated therein was that the vendor and the petitioner had between themselves made a collusive transaction of sale of the plot. He submitted that the sale in his favour was by another vendor indeed of another plot and that without having joined him in the suit, no effective decision could have been made. Lastly, lie asserted that the petitioner having already built a house on the plot, there was no reason to assume that the possession lay with the respondent and; therefore, the Courts below misdirected themselves on this point of law.

6. The above-mentioned contentions would really appear to be incontrovertible, in that the element of prior notice of the respondents plaintiff's agreement was not asserted in the plaint, and without the same the subsequent registered sale could not be disregarded. This was so essential an ingredient that it finds mention in all relevant provisions of law, namely, section 50 of the Registration Act, section 27(b) of the Specific Relief Act, and also section 53-A of the Transfer of Property Act. The respondent did not take care to meet it in his plaint and the mere assertion made in regard to the petitioner acting in "collusion" with the vendor Mehdi Zaman Khan did not necessarily mean notice of the prior transaction. Learned counsel for the respondent vainly argued that the possession lay with him. The frame of the suit reveals that a prayer for possession was made and the same pre-supposed that the respondent was not availing it. Claiming such relief was a great indicator supporting the petitioner's plea that possession lay with him. Possibly this was the reason why no specific issue on the point was claimed by the respondent. Absence of possession of the respondent was tantamount to absence of part performance as may have put the petitioner on guard, and consequently subsequent sale made in his favour would prevail.

7. For all these reasons, I accept the revision petition, set aside the impugned judgment/ decree, and dismiss the suit leaving the parties to bear their own costs throughout. H. B. T./M-152/L Revision accepted.