1986 PLP 507 (CLC)

The leaned trial Judge decided all the issues in favour of the plaintiffs and decreed the suit vide judgment dated 23‑4‑1968. The judgment and the decree of the learned trial Judge was assailed in an appeal and the learned District Judge allowed the appeal by reversing the judgment and decree passed by the learned trial Judge.

4. I have heard the learned counsel for the parties at length and have gone through the entire record carefully. As far as issue No.l is concerned to prove the sale, the plaintiffs‑appellants produced P.W.1 Saeed Anwar, who stated, that on the request of Sher Muhammad vendor respondent No.1, the receipt Exh.P.l was scribed by Taj Muhammad in his presence and the consideration amounting to Rs.9,000 were also paid by the appellants‑plaintiffs to the vendor Sher Muhammad, respondent No.l. The witness testified his own writing on the aforesaid receipt. P.W.2 Taj Muhammad also entered the witness‑box and categorically stated that the vendor Sher Muhammad respondent No.1 thumb marked the receipt Exh.P.l in his presence and the marginal witness to the receipt also attested it in his presence. The witness also stated, that the consideration amounting to Rs.9,000 was also passed in his presence. P.W.3 Imam Bakhsh corroborated the version of P.W.1 and P.W. 2 as to the execution of the receipt, Exh.P/1 tend the payment of consideration. The witness also testified, that the possession had also been handed over to the plaintiffs‑appellants. In cross‑examination the witnesses were asked as to why the receipt was not got executed by a petition‑writer, the witnesses replied, that since the petition‑writer was not available, therefore, Taj Muhammad had scribed the receipt. The appellant‑plaintiff Faiz Bakhsh entered the witness‑box as P.W.4 and deposed, that he was a tenant on the suit land and testified the transaction of sale, passing of the consideration and taking over possession. The documentary evidence consisting of Mutation No. 469 Exhs. P.2 and Khasra Girdawaris, Exh.P/3 to P/7 were also produced by Faiz Bakhsh appellant to establish his possession over the suit land.

5. In rebuttal, the evidence was led by the respondents‑defendants. D.W.1 Bahadar Ali stated, that Exh. D/1 agreement to sell was executed by the vendor Sher Muhammad respondent after receiving Rs.7,000 as consideration for the sale. The witness further stated, that the agreement to sell Exh.D/1 was executed on 29‑12‑1963 i.e. nine days after the execution of Exh.P/1. It was also deposed, that the sale-deed was also registered on 2nd of July, 1964, after the payment of balance of Rs.1,000 to the vendor. The witness had not appeared before the Revenue Officer at the time of the attestation of mutation. The Mutation No. 474 attested in favour of the defendant No.2 was not produced till the arguments were addressed before the learned Civil Judge. Abdul Karim D.W.2, brother of the minor defendant, Muhammad Munir also stated, that the stamp paper and the document Exh.D/1 was executed in his presence and after the execution of Exh.D/1 the possession of the land was taken over by the respondents. In cross‑examination Abdul Karim failed to prove the taking over the possession, because he did not know as to who was the tenant and what was sown in the suit land. He also admitted not having seen any one on the suit land, when allegedly the possession was taken over by the defendants‑respondents. D.W.3 Khurshid testified the execution of the agreement to sell and stated, that the vendor Sher Muhammad respondent No.l had thumb‑marked it in his presence and he had identified him before the Registrar. Qazi Muhammad Hassan D.W.4 produced Exh.D.3 to Exh.D8, copies of the plan B‑II. Sher Muhammad vendor, the respondent‑defendant also entered the witness‑box as D. W.5. The perusal of his statement reveals, that with great difficulty he was able to name the minor vendee, defendant No.2, Muhammad Munir. The vendor admitted, that the appellants plaintiffs to be the tenant and denied the sale of land. He admitted, that he had not appeared, before the Revenue Officer at the time of the attestation of Mutation No. 474 attested in favour of the minor respondent‑defendant vendee. Sher Muhammad D.W.5 also asserted, that none was in possession of the land. The father of the minor defendant No.2, Mureed Ghaus also entered the witness‑box as D.W.6 and stated, that the land was purchased for the minor for Rs.8,000 from Sher Muhammad respondent and Faiz Bakhsh plaintiff‑appellant was tenant in respect of the suit land.

6. The perusal of the evidence led in rebuttal is silent as to the attornment by the plaintiffs‑appellants as tenants in favour of the minor defendant No.2 vendee. It is further evident, that the stand taken by the father of the minor defendant No.2, namely, Mureed Ghaus before' the Revenue Officer on 8‑1‑1964 during the proceedings of the attestation of the Mutation No. 469 and in the written statement is irreconcilable if in fact EXh.D.l dated 29‑12‑1963, the agreement to sell had been executed between the minor defendant and the vendor, there was no bar or impediment in the way of Mureed Ghaus, the father of the minor respondent to bring the said fact to the notice of the Revenue Officer. On the contrary, it was asserted before the Revenue Officer, that Rs.100 had been paid as earnest money to the attorney of the vendor for the purchase of land in favour of the minor defendant. This circumstance coupled with the fact, that the vendor defendant Sher Muhammad, while appearing before the Revenue Officer had admitted the transaction of sale in favour of the plaintiffs‑appellants after receipt of consideration for Rs.9,000 goes a long way to establish, that the Exh.D.l was fabricated with a view to defeat the rights of the plaintiffs/ appellants. In this view of the matter, I agree with the findings of the learned Civil Judge on issue No.l.

7. The crucial question following for the determination of this appeal is the applicability and scope of section 53‑A of the Transfer of Property Act and the proviso to the aforesaid section. The said provision reads as under:‑

"53‑A. Part performance.‑‑Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee, has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

8. Applying the criteria laid down in the above‑quoted provision of law and by placing reliance upon Syed Mahbub Ali and others v. Syed Muhammad A I R (31) 1944 Allahabad 212; Inayatullah and others v. Shah Muhammad and others P L D 1961 (W.P) Lab. 372; Muhammad Siddiq and others v. Jurio alias Allah Jurio and others P L D 1959 (W.P.) Kar. 400; Manzoor Ahmad Sabi v. P & T Co‑operative Housing Society Ltd., Karachi; P L D 1962 (W.P.) Kar. 476 and Ko Yon and another v. Ma Mai Wi A I R 1933 Rang. 4 (2), the learned trial Judge held, that on the doctrine of the principle of part performance as contained in section 53‑A of the Transfer of Property Act, the plaintiffs-appellants were protected and, therefore the learned trial Judge decreed the suit.

9. The learned District Judge, while deciding the appeal placed reliance upon the judgment of the Supreme Court of Pakistan reported as Abdur Razzak Howladar v. Sh. Muhammad Shaft P. L D 1962 S C 134 held, that the defendants‑respondents were not obliged to make any inquiry from the tenant i.e. the appellant‑plaintiff with regard to the previous sale, and thus the protection of section 53‑A of the Transfer of Property Act was not available to the plaintiffs‑appellants. The learned District Judge reproduced a paragraph of the judgment of the Supreme Court to reverse the decree passed by the learned Civil Judge. Surprisingly, while reproducing the paragraph of the Judgment of the Supreme Court and by placing reliance thereon, the learned District Judge omitted to notice the very important conditions imposed by the Supreme Court of Pakistan, while dealing with the proposition. The Supreme Court made the following observations:‑ "Immovable property in a town or an agricultural estate may have hundreds or even thousands of tenants on it. It cannot be the duty of a person who purchases large property to make an inquiry from every one of the tenants of the property as to any agreements relating to the property which he may possess."

10. The learned District Judge failed to consider, that the Supreme Court of Pakistan had abridged the above‑noted observations by also observing as under:‑ "A duty to make enquiry would arise only if there be some circumstances which puts the purchaser on enquiry." Another observation of the Supreme Court in this context is also reproduced hereunder:‑ "If there was nothing suspicious the need of any further inquiry would not arise at all. Possession which is prima facie lawful does not call for an enquiry. If, however, a person was in possession without any apparent title, or if the explanation given about the title of such person by the vendor was unsatisfactory, there would be good grounds for making further enquiry. The purchaser cannot be penalized unless he has somehow failed in his duty and his duty would not arise unless there is something in the circumstances which puts a person of ordinary prudence on enquiry."

11. Careful perusal of the judgment delivered by the Supreme Court of Pakistan referred to above reveals, that the august Court, while dealing with the obligation of making an inquiry by the purchasers had also abridged it by laying down the conditions noted above.

12. In this context, it will also be advantageous to reproduce the definition of notice as laid down in section 3, the interpretation clause to the Transfer of the Property Act. The definition runs as under:‑ "A person is said to have notice of fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made or gross negligence, he would have known it." The explanation II is also relevant in this context and is reproduced hereunder:‑ "Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof."

13. The learned District Judge, while reversing the decree passed by the trial Court, had proceeded to rely upon the proviso to section 53‑A of the Transfer of Property Act. The learned District Judge had held the defendant‑respondent as a bona fide purchaser for value having no notice of the transaction of sale between the vendor‑defendant Sher Muhammad and the plaintiff‑appellant.

14. I am conscious of the fact, that every word or even an obiter dicta of the Supreme Court of Pakistan is binding on all the Courts, but I cannot overlook the conditions laid down by the said august Court as to whether there were circumstances to call for an inquiry. In my view, the circumstances of this case justified the making of and inquiry during the proceedings of the attestation of Mutation No. 469 on 8‑1‑1964 and 18‑1‑1964. Ghaus Mureed, the father of the minor defendant No.2 had participated in the proceedings to raise objection as to the attestation of mutation. I will hold, that on 8th of January, 1964, the circumstances did cast a duty on him to make further inquiry with regard to the title of the plaintiffs‑appellants failure on his part to do so, would not make his minor son as bona fide purchaser for value without notice, so as to deprive the appellants of the protection available under section 53‑A of Transfer of Property Act. The irreconcilable stands taken by Ghaus Mureed defendant before the Revenue Officer during the attestation of Mutation No. 469 and in the written statement, disentitles the defendant‑respondent to assert, that, They were not obliged to make an inquiry and to take benefit of the observations made by the Supreme Court of Pakistan in the judgment referred to above and thus reliance on the proviso to section 53‑A of the Transfer of Property Act is patently unwarranted. The position, however, would have been different, if in fact an agreement to sell had been executed on 29‑12‑1963 by Sher Muhammad defendant respondent in favour of the minor defendant No.2, then in the said event this fact would have been straightaway brought into the notice of the Revenue Officer in course of the proceedings for the attestation of the Mutation NO.

469. It is thus obvious that in the given circumstances of this case the explanation II of the definition of notice in the interpretation clause of the Transfer of Property Act would be fully attracted because by deeming provision a purchaser has the notice of the title of any person in possession.

15. For the foregoing reasons this appeal must succeed and accordingly this appeal is hereby allowed. The judgment and the decree dated 21-10-1971 delivered by the learned District Judge Bahawalpur is hereby set aside and the judgment and the decree dated 23-4-1968 delivered by the learned Civil Judge Ahmedpur East is hereby maintained and the suit of the appellants-plaintiffs is hereby decreed However the parties are left to bear their own costs. M.Y.H Appeal Allowed.