1990 PLP 1632 (SCMR)

ALI HUSSAIN QAZILBASH, J: ‑‑This appeal by leave of this Court arises from the judgment dated 11‑6‑1986 of the Lahore High Court, Rawalpindi Bench.

2. House No.NE/1469 situate on National Glass Factory Road, Rawalpindi, was owned by Muhammad Ayub, respondent No.2. He agreed to sell the suit house to the appellant for the consideration of Rs.24,500 who was in possession of a part of the house as a tenant for a long time. The appellant paid the sum of Rs.4,000 as earnest money to the vendor‑respondent and a sale agreement was executed in favour of the appellant on 13‑2‑1976. It was stipulated in the said agreement that the respondent‑vendor would complete the sale by 13‑6‑1976. It seems that the respondent‑vendor did not honour the agreement to sell and as a result the appellant instituted a suit for a declaration and permanent injunction against the vendor‑respondent on 6‑5‑1976. It was during the pendency of the said suit that the appellant came to know that the vendor‑respondent sold the suit house in favour of the vendee‑respondent No.l through a registered sale‑ deed on 2‑8‑1976. This development compelled the appellant to withdraw his suit with permission of the Court to bring a fresh suit seeking specific performance of the agreement to sell dated 13‑2‑1976. A fresh suit with permission of the Court was filed on 18‑12‑1976 which was contested and the pleadings of the parties led to the framing of as many as 5 issues. The trial Court after recording the evidence of the parties decreed the suit of the appellant vide its judgment dated 4‑7‑1979 and was affirmed by the learned Additional District Judge vide his judgment dated 14‑3‑1983. The respondents filed a regular second appeal in the High Court where they succeeded. The judgments and decrees of the Courts below were set aside and the suit of the appellant was dismissed as per the impugned judgment.

3. Leave to appeal was granted in this case to consider; (1) Whether the learned Single Judge of the High Court was justified in law to upset the concurrent findings of the two Courts below? (2) Whether the protection under section 27(b) of the Specific Relief Act read with Section 53‑A of the Transfer of Property Act was available the vendee‑respondent in the absence of any assertion in his writteL statement or statement recorded by the Court that he was a bona fide purchaser for consideration and without notice?

4. The learned counsel for the parties have been heard and the judgments of the Courts below perused. We are of the view that before adverting to the first question, we would like to deal with the second question because it goes to the root of the case. We have thoroughly gone through the pleadings of the parties. In para 5 of the plaint the appellant has made the following assertions:‑ "That the act of the defendant No.l is illegal, mala fide and against the law and facts and the defendant No.l is legally bound to abide by the terms and conditions of the agreement which was so executed by plaintiff and defendant No.l. The defendant No.2 also knew the facts and the litigation of the plaintiff and defendant No.l is pending in the Court and further, therefore, an agreement has been executed between plaintiff and defendant No.l. The defendant No.2 purchased the said suit house by way of a registered sale‑deed from defendant No.l." Respondents in their written statement denied the said assertion. However, the learned trial Court did not frame any issue nor the parties produced any evidence for and against para 5 of the pleadings and there is no finding either by the trial or the appellate Court on this question. The assertion of the learned counsel for the appellant therefore that in the absence of any material on the record, the learned Single Judge acted illegally in extending the protection of the provisions of section 27(b) of the Specific Relief Act and section 53‑A of the Transfer of Property Act to the respondent, must prevail. The appeal is therefore allowed to the extent that the order of the learned Single Judge passed on 11‑6‑1986 is set aside and the case is remanded to the trial Court who shall ask for from the parties and record evidence for and against the following additional issue framed by us:‑ . (1) Whether respondent No.2 is bona fide purchaser for consideration without notice of the title of the appellant? After recording evidence of the parties for and against the above issue, the learned trial Court is to decide the case afresh on merits. The appeal is accordingly allowed but with no order as to costs. AA./M‑1373/S Case remanded.