2003 PLP 1052 (CLC)

MAULVI ANWARUL HAQ, J.

On 28-3-1989 respondent No. l filed a suit against the appellant and respondent No.2.'In the plaint it was stated that land measuring 37 Kanals 18, Marlas described in para. l of the plaint was owned by respondent No.2 who agreed to sell the same to respondent No. t vide agreement dated 17-10-1988. The consideration was settled at Rs.4,50,000 and the entire amount was paid on the said date. A general power of attorney was also executed in favour of respondent No. l and was registered, on 17-10-1988; that in breach of the said agreement, respondent No.2 proceeded to sell the land to the appellant vide registered sale deed dated 8-11-1988 which was later corrected on 28-11-1988. This sale deed was stated to be illegal and void being without consideration and' ineffective upon the rights of respondent No.l. With these averments a decree for specific performance of the agreement to sell and to declare the said sale deeds to be void, was prayed for. The suit was contested by the appellant who took the plea that he is a bona fide purchaser for value and without notice and that he had no knowledge of the said agreement. Following issues were framed by the learned trial Court:-- (1) Whether the plaintiff has no cause of action to file this suit? OPD. (2) Whether the suit of, the plaintiff is collusive and frivolous and as such the defendant is entitled to special costs under section 35-A, C.P.C.? OPD. (3) Whether the defendant No.2 is bona fide purchaser for consideration without notice of the suit land, if so, to what effect'? OPD.2. (4) Whether the plaintiff has entered into an agreement to sell on 17-10-1988 with the defendant No.l about the disputed land for consideration of Rs.4,50,000 out of which, Rs.4,50,000 were paid as earnest money'? OPP. (5) Whether the sale deed dated 8-11-1988 in favour of the defendant No.2 is without consideration, illegal, void and not binding on rights bf the plaintiff? OPP. (6) If issues mentioned above are proved in affirmative whether the plaintiff is entitled to decree for specific .performance of contract? If so, on what terms and conditions? OPP. (7) Relief. Evidence of the parties was recorded. All the issues were answered against the appellant and the suit was decreed vide judgment and decree dated 19-7-1993.

2. Mr. Alamgir, learned counsel for the appellant has only questioned the findings on Issue No.3. According to the learned counsel whereas the appellant had pleaded and also stated on oath that he was not aware of the agreement, there is no plea to the contrary and no evidence to show that he had the knowledge. According to the learned counsel evidence on record has been misread by the learned trial Court.

3. Ch. Ijaz Akbar, Advocate, learned counsel for the respondent No. 1, on the other hand, has tried to argue that the onus was upon the appellant and that he had failed to discharge the same.

4. We have gone through the trial Court's records, with the assistance of the learned counsel for the parties. We have already referred to the pleadings of the.parties in some detail above. According to the learned counsel for the appellant no plea was taken in the plaint that the appellant was aware of the agreement executed by respondent No.2 in favour of respondent No.l at the time he purchased the land from him. The written statement was filed in Court on 10-3-1990 and in reply to para. 4 it was categorically stated by the appellant that he had no knowledge of any agreement between the respondents and that he had purchased the land for valuable consideration without notice. The suit; remained pending till 19-7-1993. No attempt was made to file a rejoinder' or sqme additional or amended pleadings with the leave of the Court. Muhammad Latif, respondent No. l appeared as P.W.3. There is not a word in his entire statement that the appellant was aware, of the agreement. Noor Muhammad is P.W.2. He has accused respondent No.2 of fraud but in his cross-examination he has stated that he does not know the appellant and' had never talked to him about the said agreement. Now appellant appeared as D.W.3. He opted to remain silent on the issue in the course of his examination-in-chief. However, to the misfortune of respondent No. l the cross-examiner saw to it that the witness states that he was not aware of the, agreement. In fact the relevant suggestion was answered as follows:-- Now the tenor of the suggestion shows that it was Latif i.e. respondent No.1, who had informed the appellant of the said agreement. The suggestion was denied. Needless to state that respondent No.l himself neither pleaded nor stated in the witness-box that he had informed the, appellant of the agreement or for that matter the appellant was in any manner aware of the agreement at the time of sale in his favour. Mr. Alamgir, Advocate has drawn our attention to a judgment of the Hon'ble Supreme Court in the ca&e of Mst. Surraya Begum and others v. Mst. Subhan Begum and others 1992 SCMR

652. Mr. Justice Rustam S. Sidhwa (as his Lordship then was) thus observed in his leading opinion at page 659 of the report:-- "Since in civil suits an issue is to be decided by preponderance of evidence, the initial burden would be on the plaintiff to prove his prior contract which if discharged, the burden of proving the subsequent bona fide transfer for value without notice would be on the party alleging it. Very little evidence and in certain circumstances a mere denial regarding want of knowledge of the earlier contract would discharge this burden and shift the onus on the plaintiff to prove that the subsequent transferee had the notice of the earlier contract. See Ramdeni Singh v. Gumani Raut AIR 1929 Pat. 300 at 301 and Mst. Khairul Nisa's cAse PLD 1977 SC 25."

5. Applying the said test to the contention being raised by the learned counsel for the respondents we find that the question of burden would be immaterial in the present case. Respondent No.l was fully aware of the plea taken by the appellant in his written statement and which was incorporated in Issue No.3, when the trial commenced. The onus of the issue, which for all purposes was in the negative, stood the said plea and subsequent statement in the witness-box. respondent No.l, on the other hand, did not lead any evidence either in affirmative or in rebuttal that the appellant had the notice of the agreement. We may here refer to the finding recorded by the learned trial Court on Issue No.3. Now the learned trial Court has fully noted that in his cross-examination the appellant did state that he was never told by respondent No.1 about the said agreement. To our mind, this was sufficient to shift the burden on to respondent No.l. However, the learned trial Court opted to observe that no evidence has been led on the issue. This may be true of respondent No. 1 but not of the appellant. We, therefore, reverse the findings recorded by the learned trial Court on Issue No.3 and answer the same in favour of the appellant.

6. We may note that in his pleadings as also in the witness-box respondent No.1 as also his witnesses have complained that it was the respondent No.2, who has played the fraud. There is not even an allegation against the appellant that he has committed any fraud or was a party to the said alleged fraud on record. Respondent No.2 did not opt to contest the suit. He has also not put in appearance in this Court despite service. It has been proved on record that respondent No.2 had received a sum of Rs.4,50,000 from respondent No.l under the agreement dated 17-10-1988. This being so, we allow this R.F.A., set aside the judgment and decree dated 19-7-1993 of the learned trial Court and instead pass a decree for recovery of the said amount of Rs.4,50,000 in favour of respondent No.l (plaintiff) and against respondent No.2 (defendant No.1 in the suit). No orders as to costs.