2008 PLP 352 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition for leave to appeal has been filed against the judgment, dated 16th November, 2001 passed by Lahore High Court, Multan Bench, Multan whereby R.S.A. filed by petitioners has been dismissed.

2. Precisely stating the facts of the case are that on 21st March, 1964, respondents Nos.6 and 7 namely Capt. Agha Salar Ahmad Shah and Agha Abrar Ahmad Shah executed registered sale agreement with the petitioner in respect of land measuring 192 Kanals and 1 Marla before conformant of proprietary rights upon them, as they had obtained the property under Military Grant Scheme and subject to acquiring proprietary rights, property was to be transferred on the name of petitioner, consideration of which was fixed at the rate of Rs.50,000 out of which a sum of Rs.33,000 was paid by way of earnest money. However, on acquiring proprietary rights, respondents Nos.6 and 7 sold it to respondents Nos.1 to 5 and transferred half of land by means of mutation attested in their favour on 21st November, 1974 and in respect of remaining half of land a sale-deed dated 21st January, 1975 was executed. The petitioner preferred a suit for specific performance on 9th June, 1975. The suit was contested by the respondents, however, it was decreed on 27th November, 1990. Upon filing appeal by the respondents, learned Additional District Judge, Multan, reversed the findings of the trial Court vide judgment, dated 25th March, 1984 as a result whereof the suit of the petitioner was dismissed. Accordingly R.S.A. No.60 of 1984 was filed which has been dismissed by means of impugned judgment. As such instant petition for leave to appeal has been filed.

3. Leaned counsel appearing for petitioners contended that respondents Nos.6 and 7, after having entered, into agreement to sell dated 21st March, 1964 with the petitioners, have no lawful authority to sell the same property to respondents Nos.1 to 5 because legally they were bound to transfer it on the name of petitioners, on acquiring the proprietary rights. He further stated that respondents Nos.1 to 5 had entered into transaction of purchase of property with the respondents Nos.6 and 7 despite of the fact that they had noticed that the property had already been sold by the respondents Nos.6 and 7 to the petitioners.

4. We have heard the learned counsel and have also gone through the impugned judgment carefully. In our opinion the moot question in the instant case for consideration is as to whether the respondents Nos.1 to 5 had notice or knowledge about agreement to sell dated 21st March, 1964 prior to purchase of the property from respondents Nos.6 and 7, in order to protect their rights under the provisions of section 27 of the Specific Relief Act. We called upon the learned counsel to demonstrate that the respondents Nos.1 to 5 were aware about the sale transactions between petitioners and respondents Nos.6 and

7. His contention was that as agreement to sell dated 21st March, 1964 was a registered document, therefore, presumption would be that whole of the world had notice of it. In this behalf it may be noted that since in absence of application of Transfer of Property Act, the registration of agreement to sell was not necessary, therefore, no one could presume that a registered sale agreement has been executed between the parties. In this behalf learned High Court has dealt with this' issue as follows:-- "It is also contended by the learned counsel for the respondents Nos.1 to 5 that the provisions of Transfer of Property Act unless specifically made applicable to Punjab cannot be advantageously invoked by the appellants particularly in the context of a `notice' with reference to a registered document. Reference has been made to Muhammad Sharif and others v. Muhammad Shafi and others PLD 1956 (W.P.) Lah. 675, wherein it has been held that:-- `The Transfer of Property Act not being in force in the region formerly known as the Punjab, the state of the law even after the 1929 amendment of section 3 remains the same, viz., that registration by itself does not amount to notice; the question of notice is one of fact to be determined on the circumstances of each case.' In the nutshell, the arguments of learned counsel for respondents Nos. l to 5 are that in any case, the suit of the present appellants could not be decreed at all." In view of the judgment which has been relied upon by the learned High Court and the proposition of law namely that since the Transfer of Property Act is not applicable, therefore, no one is obliged to know under the law about the registration of sale-deed. As such the arguments so advanced by the learned counsel in this behalf has no force; therefore, accordingly repelled.

5. It is to be noted that neither in the plaint nor in the evidence so led by the petitioners it was urged that the respondents Nos.6 and 7 had knowledge about the sale of the property. Therefore, in such view of the matter they had no obligation to take precautionary measures before entering into sale agreement. It is also important to note that D.W. Abdul Ghafoor when entered into witness-box, a question was put to him in the cross-examination to the effect that as to whether he had knowledge of agreement to sell dated 21st March, 1964, his reply was in negative. Therefore, in such view of the matter we are of the opinion that the learned High Court, after having taken into consideration all important aspects of the case, has rightly concluded that respondents Nos.1 to 5 are bona fide purchaser for value and they had no notice about the agreement to sell dated 21st March, 1964 between petitioner No.1 and respondents Nos.6 and 7, therefore, their rights are protected under section 27(b) of the Specific Relief Act. Thus, in view of above discussion, we are of the considered opinion that the impugned judgment being unexceptionable warrants no interference by this Court, as such the petition is dismissed and leave declined. S.A.K./S-62/SC Leave refused.