Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: GHULAM FARID through Legal Heirs VS Respondent: SHAMSUDDIN
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title: GHULAM FARID through Legal Heirs vs SHAMSUDDIN Case No.: Civil Revision No, 503-D of 1985 Date of Judgment:1993-04-10 Reported As: 1993 CLC 1496 Result: Revision accepted
JUDGMENT
JUDGMENT ' Briefly stated facts of the case out of which this Civil Revision has arisen are that Shamas-ud-Din respondent in this petition filed a suit seeking a decree for specific performance of agreement for sale of land dated 23-6-1974 allegedly executed by Ghulam Rabbani owner of the land measuring 166 kanals 12 marlas situate in the revenue estate of Mianwala, Tehsil Pindigheb, District Attock. As the land in dispute had been transferred in favour of Fazal Khan petitioner in pursuance of a decree for specific performance of contract passed in his favour on 4-9-1983, which decree was passed on the basis of concession of Ghulam Farid petitioner Not, who was the sole heir of Ghulam Rabbani deceased, the said decree has also been challenged in the suit as being collusive and ineffective upon the plaintiffs rights. However, no averment has been made in the plaint to the effect that petitioner No,2 had the knwoledge of existence of the agreement for sale dated 23-6- 1974 in favour of the respondent. Thus suit has been contested by the defendants who are petitioners in this Court. Plea of bona fide purchase for value without notice had been raised by the petitoner No,2. It has also been contended in the written statement that the suit is not within time. On the basis of pleadings of the parties, learned trial Court settled following issues:- (1) Whether Ghulam Rabbani deceased entered into written agreement to sell off the suit land dated 23-6-1974 with the plaintiff for a consideration of Rs,22,500 and also received whole the consideration amount of Rs,22,500 from the plaintiff? OPP. (1-A) Whether agreement to sell in respect of the suit land by defendant No,1 in favour of defendant No,2 is without authority, against law and void? OPP. (2) Whether decree dated 4-9-1983 on the statement of defendant No,1 in favour of defendant No,2 is void upon the rights of the plaintiff and ineffective upon his suit? OPP.
---
## Page 2
(3) Whether agreement to sell dated 23-6-1974 by Ghulam Rabbani deceased in favour of the plaintiff is fake and fictitious one? OPD. (4) Whether the suit is within time? OPD. (5) Whether the plaintiff is estopped by his own acts and conduct to file this suit? OPD, (6) Whether defcandant No,2 is bona fide purchaser for value without notice of the suit land and its effect? OPD. (7) Whether the suit has been incorrectly valued for the purposes of court-fee, if so, its effect and correct valuation? OPD. (8) Whether the defendants are entitled to get special costs from the plaintiff under section 35-A, if so, its extent? OPD. (9) Relief. ' After recording of evidence, vide judgment and decree dated 15-10-1984, the suit was dismissed by the learned Civil Judge Ist Class, Pindingheb on the ground that petitioner No,2 is a bona fide purchaser for value without notice and therefore, no decree for specific performance of contract can be passed in favour of the plaintiff. Other issues, however, were decided in favour of the plaintiff-respondent. Aggrieved of this judgment and decree, respondent filed regular first appeal in the District Court of Attock which has been accepted by the learned Additional District Judge Attock vide judgment and decree dated 26-10-1985. The suit filed by the respondent has been decreed. It has been held by the learned First Appellate Court that petitioner No,2, purchaser did not act in good faith and he had notice for agreement for sale and hence the findings of the learned trial Judge are erroneous and therefore, are not lawful. Aggrieved of the judgment and decree rendered by the lower Appellate Court the defendants have filed this civil revision before this Court. 2. Maulvi Anwarul Hach Advocate has appeared on behalf of the petitioners whereas Malik Nasurllah Awan, Advocate has appeared on behalf of the respondent. Learned counsel for the petitioners has argued that it stands establsihed on record that the petitioner No,2 was a bona fide purchaser for value without notice and therefore, the decree for specific performance of contract could not have been passed in favour of the respondent as per provisions of section 27 of the Specific Relief Act-. Elaborating his argument learned counsel contends that there is no averment in the plaint that the petitioner No,2 had the knowledge of the previous agreement for sale in favour of the plaintiff, and therefore, without averments no decree on the basis of previous agreement for sale could have been passed in favour of the plaintiff. Therefore, the learned Appellate Court has exercised his jurisdiction illegally and with a material irregularity. Learned counsel contendes that there is absolutely no evidence on record that the petitioners had the knowledge of the previous agreement for sale. In support of his argument, learned counsel has placed reliance on case of Mst. Surryia Begum and others v. Mst. Suban Begum and others (1992 SCMR 652) and case of Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25). Criticising the judgment and decree rendered by the learned First Appellate Court on the issue of notice, learned counsel has contended that the learned First Appellate Court while rendering a judgment at variance has not kept in view the law declared in the case reported above according to which real onus to prove notice and knowledge of the previous agreement is upon the plaintiff and therefore, merely because the initial onus of issue No,6 was upon the defendants, it cannot be said that in case of absence of averment of notice in the plaint and affirmative evidence thereof, the onus is discharged by the plaintiff. According to the learned counsel, judgment of the learned trial Court is well reasoned and based upon lawful considerations and hence should not have been interfered by the learned First Appellate Court. Learned counsel for the petitioners has, however, argued that the suit is barred by time, inasmuch as possession was delivered on 28-1-1975 as is clear from Exh.P3, and, therefore, the suit is barred by time w,e,f, the said date. According to the
---
## Page 3
learned counsel, cause of action shall accrue to the plaintiff on 28-7-1975 and the suit has not been filed within three years, which is clearly barred by time as the same has been filed on 8-9- 1983. In support of his contentions, learned counsel has cited the cases reported as AIR 1954 Mysore 29 and AIR 1950 Madras 820. According to the learned counsel the suit is liable to be dismissed on this score as well. 3. As against the abvoe arguments addressed by the learned counsel for the petitoners Malik Nasrullah Awan, Advocate, learned counsel for the respondent has conceded that there is no averment with regard to the notice of agreement for sale. Learned counsel also conceded that there is no specific evidence produced by the respondent to the effect that petitioner No,2 purchased the property in question with notice of the previous agreement of sale. His argument is that onus in fact was on petitioner No,2 to prove that he purchased the property without notice and as he did not appear in the witness box, it cannot be said that the knowledge of the agreement to sell has been denied by him and therefore, the initial onus having not been discharged, the issue has rightly been decided against him by the learned First Appellate Court. According to the learned counsel in order to non suit the plaintiff, it is the petitioner No,2 who had to prove that he made enquiries prior to the purchase of the land and 'he has failed to prove that he held any genuine inquiry. He, therefore, cannot get benefit of section 27 (b) of the Specific Relief Act. He has placed reliance on cases of Suleman Khan v. The Punjab Province (PLD 1953 Lahore 388); Haji Abdul Rahman v. Noor Ahmad and 3 others (PLD 1974 Baghdadul Jadid 25) and Gurbakhsh v. Nikka Singh and another (AIR 1963 Supreme Court 1917). Regarding limitation, it has been contended by the learned counsle for the respondent that the suit has rightly been held to be within time by the two Courts below and the judgments cited by the learned counsel in this behalf are distinguishable on facts and are of no help to him. 4. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. A perusal of the plaint clearly proves that no averments of notice of agreement for sale in favour of the plaintiff has been made in the plaint. There is also no evidence produced by the plaintiff wherein it may have been specifically said that the petitioner who is the purchaser of the land in question had the knowledge of agreement for sale in his favour. There is no cavil with this proposition that initial onus to prove that the purchaser had no notice of the previous agreement for sale is upon the petitioners but this proposition is subject to the exception that it is for plaintiff who is enforcing agreement for sale to allege in the plaint that the defendant has purchased the property with notice and knowledge of agreement A for sale. Unless and until it is alleged at least in the pleadings, there will be nothing to be proved and rebutted. It has been held in case of Muhammad Ramzan v. Muhammad Sharif etc. (1987 MLD 403) at page 404-405 of the report as under:-- "Malik Saeed Hassan for the petitioner relying upon section 50 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 Februarty, 1980 (Exh. P.I). 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, he asserted that the petitioner having already
---
## Page 4
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 the law. ' The abovementioned contentions would really appear to be incontrovertible, in that the clement of prior notice of the respondent 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 provision 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 01 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 it "collusion" with the vendor Mchdi Zaman Khan did not necessarily mean notice of the prior transaction.". ' Similarly in case of:- Mst. Surryia Begum and others v. Mst. Suban Begum and others (1992 SCMR 652) at page 658 of the report, it ha; been held as under:-- "Two legal questions arise in this case. First, the legal rule applicable to subsequent transferees to prove their case, and second, the question of burden of proof in respect thereof. With regard to the first, it is clear that the transferee has to establish circumstances, which will allow him to retain the benefit of transfer, which prima facie he has no right to retain, and since he is the person who has knowledge of the facts as to whether he has paid the consideration and whether he has notice of the original contract, he has to prove by virtue of section 27 (b) that he was (i) transferee for value, (ii) who has paid money in good faith and (iii) without notice of the original contract. If any authority is required for this view, Bhup Narain Singh v. Gokul Chand Mahton and others (AIR 1934 PC 68), Shankarlal Narayandas Mundade v. The New Mofussil Co. Ltd and others (AIR 1946 PC 97), Verden Seth Ram v. Luckpathy Royjee Lallah (9 Moore's I.A. 307) and Mst. Khairul Nisa's case (supra) may be referred. With regard to the second question, it is not necessary to enter upon a discussion of the question of onus where the whole of the evidence in the case is before the Court and it has no difficulty in arriving at a conclusion in respect thereof. See Muhammad Aslam Khan v. Feroz Khan (AIR 1932 P.0 228 at 230). But the question of burden of proof may become material where the Court finds evidence so evenly balanced, that it can come to no definite conclusion, in which event the rule is that the party on whom the onus lies must fail. See Mst. Kausar Khatoon v. Abdul Khaliq (PLD 1971 SC 334). Since in civil suit 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 Ramdani Singh v. Gumani Raut (AIR 1929 Patna 300 at 301) and Mst. Khairul Nisa's case (supra). ' In case of Mst. Khiarul Nisa and 6 otheRs, v. Malik Muhammad Ishaque and 2 others (PLD 1972 Supreme Court 25) it has been held that although initial onus is upon the purchaser to discharge yet it is very light and even if a statement of denial of the knowledge is made, it is sufficient discharge of the onus and then it is for the plaintiff to prove that the purchaser had purchased the property with notice of the previous agreement for sale in favour of the plaintiff. In the case in hand as observed earlier, there is neither an everment of the notice nor any positive evidence is led by the plaintiff. If there was no averment in the plaint, the defendant-petitioners were not called upon to prove that they purchased the property without notice. Consequently, the trial Court had rightly held that it stands established on record that petitioner No,2 is a bona fide purchaser for value. While rendering this finding, Learned Civil Judge has noted that the alleged agreement Exh.P1 dated 23-64974 was disclosed by the plaintiff till 8-9-1983 when the suit was filed. The litigation between the plaintiff and Fazal Khan defendant was for the recovery of produce of the suit land as is evident from the copy of pleadings Exhs.D6, D9, D12 and D 14. During the course of all this litigation existence
---
## Page 5
of agreement to sell in favour of the plaintiff has never been disclosed. In the suits filed against Fazal Khan, copies of the plaints whereof are Exhs.D12 and D14, no disclosure was made regarding existence of an agreement for sale in question. The alleged deed of agreement for sale is in the Revenue Record, it cannot be said, therefore, that the petitioner failed to hold proper enquiry before purchasing the land in question. In cases arising under the Transfer of Property Act wherein provisions are almost identical, regarding necessity, scope and extent of enquiry. In case of Abdur Razzak Howladar v. Sh. Muhammad Shafi (PLD 1%2 SC 134) at page 140-141 of the report, it has been held as under:-- "This brings us to the question of notice for the protection of section 53-A is not available against a transferee for consideration without notice of the contract, and the case of the plaintiff has been that he is such transferee. The High Court had, after a consideration of the whole evidence, come to the conclusion that the plaintiff had no notice of what is contained in clause 11. Before us it has been contended by learned counsel for the appellant on the strength of some cases from pre- partition India which are ultimately based on some English authorities that possession of the defendant over the premises in dispute at the time of transfer in favour of the plaintiff was sufficient to put the plaintiff on enquiry and that if he wilfully abstained from an inquiry which he ought to have made he should be deemed to have constructive notice of what he would have found had he made that anquiry. These cases relate to agreements to sell which were in the possession of tenants. The proposition put forward by learned counsel for the appellant was (and it did receive support from the cases cited) that if a tenant be in possession of land which is transferred it is the duty of the purchaser to make an equiry from the tenant as to the nature and incidents of his title. With this broad proposition we find ourselves unable to agree. 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. A duty to make enquiry would arise only if there be some circumstance which puts the purchaser on enquiry. That tenants are in possession of the property which is purchased is not a fact which by itself will put the purchaser on enquiry, for this may be and will probably be the normal incident of the property purchased. Property may be in the possession of occupancy tenants, or it may consist of only the rent-receiving interest. Would the purchaser of such property be bound to make inquiry from all the tenants as to whether they have not in their possession an agreement for its purchase? When a person purchases a property his vendor may tell him that all the persons who are on the property are tenants and he may at the same time produce registered leases or rent notes executed by the tenant. If there was nothing suspicious the need of any further enquiry 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. To hold that the purchaser has notice of any and every unregistered agreement which may be in the possession of a tenant amounts to giving to every unregistered agreement in favour of a tenant the effect of a registered document. Also this would open the door to fraud. If tenants of property want to protect their interests in respect of agreements that they possess the proper course for them is to get the agreements registered." ' The learned trial Court rendered the findings in favour of the petitoner No,2. Learned Additional District Judge while setting aside this finding has not met the reasons adopted by the learned Civil. Judge for coming to the conclusion that petitoner No,2 did not have the knowledge of agreement for sale in favour of the plaintiff, and, hence; is a bona fide purchasser for value without notice. A
---
## Page 6
perusal of the oral as well as documentary evidence clearly proves that there is no evidence oral or documentary or even circusmtantial, on the basis whereof it could be said that petitioner No,2 had acquired the knowledge prior to the purchase of the property. A comparison of the two judgments and decree clearly demonstrates that the judgment and decree rendered by the learned trial Court is in accord with the record and also in consonance with the law declared by the Supreme Court. The judgment at variance rendered by the learned First Appellate Court being not lawful is not maintainable. The judgments cited by the learned counsel for petitioner No,2 are distinguishable on facts and are not at all attracted to the facts and circusmtances of the case in hand. 5. Regarding issue of limitation, the two Courts below have concurrently held that the time was not the essence of the contract and as soon as the title of the vendor became clear, the suit was filed within a period of three years w.e.L the refusal of the vendor to execute a sale-deed in terms of agreement for sale and hence the case clearly falls under part-II, Article 113 of the Limitation Act, which is reproduced as under:-- {{TABLE}} "ARTICLE 113 OF THE LIMITATION ACT For specific perfor= Three The date fixed for mance of a contract. yeaRs, the performance or if no such date is fixed. When the plaintiff has notice that performance is refused". {{TABLE}} ' Article 113 referred to above has been interpreted by the Hob'ble Supreme Court of Pakistan in case of Mst. Bibi Khatoon and 7 others v. Abdul Jalil (PLD 1978 SC 213) wherein at pages 217 to 219, it has been held as under:- "We agree with these observations both on the proper construction of the Statute and on the objects of the Statute, and whilst we cannot agree with the construction placed on the Statute by Lush, J., in Duncombe's case, it is obvious that Lush, J., had resorted to a very liberal construction of the Statute in order to give effect to its object, which was to give relief to creditoRs, Now even on the assumptions that the view of Lush, J., was the correct view the ratio of the judgment woud be relevant to the construction of Article 113 of the Limitation Act only by parity of reasoning. Secondly, if we were to follow the construction placed upon the Statute by Lush, J., we would be assuming that a very liberal construction of Article 113 was required in order to give effect to the objects of the Article and of the Limitation Act. But we do not think this assumption would be correct. It is true that the Statute of Limitation is supposed to be a Statute of repose. It has been enacted in order that parties should not be negligent about the enforcement of rights, but this does not mean that the Legislature intended to deprive parties arbitrarily of their rights. And as the Act is a bar to a claim which is legally enforceable, any ambiguity in it, and the words the date fixed for the performance" are ambiguous, should be construced in favour of the person whose right is sought to be barred. But as the object of the Statute construed in Duncombe's case was totally different, the maxim "id certum est quoed certum reddi potest" should not be applied to Article 113 in the manner in which it was applied by Lush, J., and on the footing that the maxim is relevant to the construction of Article 113 the correct law has been laid down by the Privy Council in Ghose's case. ' There is also another infimity in Mr. Pirzada's submission. Although he stated that the date fixed under Article 113 meant "the date fixed with reference to a future event which was certain to happen," that certain even, according to learned counsel, was the order of the Settlement Department for the issue of a P.T.D. To Mohabbat Din, deceased. But the issue of the P.T.D. Could not possibly fall in the category of events which were certain to happen, because the question was within the discretion of the Settlement Department, and even if the P.T.D. Had been wrongly refused, this would not have altered the facts that its issue was not an event which was certain or bound to happen. In order to overcome this difficulty, learned counsel attempted to equate the orders of the
---
## Page 7
Settlement Department with those of the Courts. Although the submission is obviously fallacious, we will assume, for the sake of argument, that the Legislature had entrusted to the regular Courts the task of disposing off evacuee property which had passed into the Compensation Pool. Even on this assumption, the question whether Mohabbat Din was entitled to a P.T.D. Or not would have been decided by the Courts in the exercise of their discretion, therefore, it cannot possibly be said that the issue of the P.T.D. Was an event which was certain to happen. We may also with advantage refer here to a judgment of the Privy Council in Lala Ram Sarup v. Court" of Wards through Deputy Commissioner, Delhi and others (1). The facts of this case were that one Saleem, who was a…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.