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Petitioner: Mst. PARVEEN AKHTAR VS Respondent: Mian SALAH-UD-DIN and 3 others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: Mst. PARVEEN AKHTAR vs Mian SALAH-UD-DIN and 3 others Case No.: Civil Revision No. 142 of 2016 Date of Judgment:2019-02-15 Reported As: 2019 MLD 1630 Result: Revision dismissed
JUDGMENT
JUDGMENT MIANGUL HASSAN AURANGZEB, J.---Through the instant civil revision petition, the petitioner (Mst. Parveen Akhtar) impugns the judgment and decree dated 14.01.2016, passed by the Court of the learned Additional District Judge (West), Islamabad, whereby respondent No.1's appeal against the judgment and decree dated 25.04.201 1, passed by the Court of the learned Civil Judge, Islamabad, was allowed and the suit for specific performance of the agreements dated 05.06.1991 and 29.07.1991, instituted by respondent No.1 (Mian Salah-ud-Din), was decreed. Vide the said judgment and decree dated 25.04.201 1, the learned Civil Court had turned down respondent No.1 's prayer in the said suit regarding specific performance of the agreement to sell but had granted the alternate relief of the recovery of an amount of Rs.13,50,000/-. 2. The facts essential for the disposal of the instant revision petition are that vide letter dated 23.05.1990 (Exh.P/5), respondent No.3 (Federal Government Employees Housing Foundation) provision ally allotted a category-VI house to be constructed on plot No.1033, Sector G-11/2, Islamabad, measuring 111.11 square yards ("the suit property"), to respondent No.2 (Syed Muhammad Ali). The house was not transferable until respondent No.3's dues had been cleared and a formal transfer deed was issued in respondent No.2's favour . 3. On 05.06,1991, an agreement to sell (Exh.P/1) was executed between respondent No.2 and respondent No.1, whereby the former agreed to sell the suit property to the latter for a total sale consideration of Rs.4,50,000/-, out of which Rs.50,000/- was paid .as earnest money and the remaining amount of Rs.4,00,000/- was to be paid by 20.07.1991. It was also agreed that respondent No.2 would transfer the suit property to respondent No.1 or his nominee by 20.07.1991 when the remaining sale consideration is paid. Neither was the remaining sale consideration paid nor was the suit property transferred within the time stipulated in the said agreement. 4. On 29.07.1991, a sale agreement (Exh.P/2) was executed between respondent No.2 and respondent No.1, whereby the former agreed to sell the suit property to the latter for a total sale consideration of Rs.4,50,000/-. In
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this agreement, it had been acknowledged that respondent No.2 had received an amount of Rs.3,10,266/- out of the sale consideration from respondent No.1, whereas the remaining amount of Rs.1,39,734/- was stated to have been deducted by respondent No.1 for further payment as construction charges to respondent No.3 on behalf of respondent No.2. It was clearly mentioned in the said agreement that there was nothing outstanding against respondent No.1 towards the suit property . Possession of the suit property was stated to have been handed over to respondent No.1. The suit property was non-transferable until the completion of the house on Plot No.1033. It was clearly mentioned in the said agreement that respondent No.2 had executed two general power of attorneys in favour of respondent No.1, authorizing the latter to construct a house on the said plot. After the completion of the construction of a house on the said plot, respondent No.2 was placed under an obligation to transfer the suit property to respondent No.1 or his nominee without any delay . It was also agreed that if respondent No.2 refused the deal or revoked the general power of attorneys or did not transfer the suit prope rty in favour of respondent No.1 or his nominee, respondent No.2 would pay "triple amount of entire sale consideratio n" to respondent No.1. Additionally , respondent No.1 was also given the right to have the suit property transferred in his favour through a Court of law . 5. Simultaneously with the execution of the sale agreement dated 29.07.1991, respondent No.2 executed two general power of attorneys (Exh.P/3 and Exh.P/4) in favour of respondent No.1 Under Exh.P/3) respondent No.1 was authorized inter alia to take possession of Plot No.1033 and to construct a house thereon "at his own expenses" . The said power 'of attorneys are registered documents. When the abovementioned agreements and general power of attorneys were executed, a house had not been constructed on Plot No.1033. 6. The petitioner claims to have purchased the suit property from respondent No.2's attorney , namely Bashir Ahmed, through sale agreement dated 07.07.1996 (Mark-A) for a total sale consideration of Rs.6,75,000/-. It may be mentioned that Bashir Ahmed happens to be respondent No.2's son. The construction of the house on Plot No.1033 is said to have been completed on 10.05.1996. On 15.08.1996, the suit property was transferred in the petitioner's name in the records of respondent No.3 as well as respondent No.4 (Capital Development Authority). 7. On 29.08.1996, respondent No.1/plaintif f filed a suit for specific performance of the agreements dated 05.06.1991 and 29.07.1991 before the learned Civil Court at Islamabad. When the said suit was instituted, the petitioner had not been arrayed as a defendant therein. The petitioner was subsequently impleaded as defendant No.4 in the suit. 8. Respondent No.2 (as defendant No.1 in the suit) and the petitioner (as defendant No.4 in the suit) contested the said suit by filing their separate written statements. The position taken by respondent No.2 in his written statement was that after paying Rs.50,000/-, respon dent No.1 had not made any further payment to respondent No.2. It was also pleaded that respondent No.2 had not executed a sale agreement with respondent No.1, and that since the suit property was lying vacant, respondent No.1 had forcibly and unlawfully taken the same into his possession. 9. The petitioner , in her written statement, pleaded inter-alia that she was a bona fide purchaser of the suit property for valuable consideration without prior knowledge of the agreements. Further more, it was pleaded that the petitioner had purchased the suit property from respondent No.2 through his attorney , Bashir Ahmad. She also claimed to be in possession of the suit property . The petitioner's case is that she is entitled to protection under Section 27(b) of the Specific Relief Act, 1877 ("the 1877 Act") and Section 41 of the Transfer of Property Act, 1882 ("the 1882 Act"). 10. From the divergent pleadings of the contesting parties, the learned Trial Court framed the following issues:-- "1. Whether the plaintiff has no cause of action? OPD 2. Whether the parties entered into agreement of suit house against sum of Rs.4, 50, 000/- and defendant No.1 has received the same? OPP 3. Whether the plaintiff is entitled to the decree as prayed for? OPP 4. Relief." 11. It may be mentioned that on 04.10.19 99, respondent No.2 was proceeded against ex parte by the learned Civil Court. At no material stage, did respondent No.2 file an application for the recall of the said order .
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12. Respondent No.1 gave evidence as PW.2, whereas Iqbal Rafi, who was one of the marginal witnesses of the agreement to sell dated 05.06.1991, appeared as PW.1. Abdul Khaliq, who was one of the marginal witnesses of the power of attorneys given by respondent No.2 in favour of respondent No.1, appeared as PW.3. What is most intriguing is that respondent No.2 appeared as PW.4 and gave testimony in stark contrast to his pleadings in his written statement. As mentioned above, respondent No.2, in his written statement, had pleaded inter-alia that he had only received token money amountin g to Rs.50,000/- from respondent No.1; that respondent No.1 had taken possession of the suit property forcibly and illegally; and that the remaining sale consideration had not been paid by respondent No.l. Respondent No.2 subsequently took a volte-face by appeari ng as PW.4 and admitted the execution of the agreement to sell dated 05.06.1991 (Exh.P/1), sale agreement dated 29.07.1991 (Exh.P/2), irrevocable general power of attorney dated 29.07.1991 (Exh.P/3), and general power of attorney dated 29.07.1991 (Exh.P/4). Furthermore, respondent No.2, in his examination-in-chief, deposed that he had given the original documents regarding the allotment of the suit property to respondent No.1. More importantly , respondent No.2 also deposed that he had received sale consideration from respondent No.1 and handed over to him possession of the suit property . In his cross-examination, respondent No.2 denied giving a power of attorney to Bashir Ahmad. He also denied knowledge as to the transfer of the suit property in the petitioner's favour . 13. The petitioner entered the witness box as DW.1 and deposed that she had purchased the suit property from Bashir Ahmad for a total sale consideration of Rs.6,75,000/- and that the suit property had been transferred in her name in the C.D.A. records on 15.08.1996. 14. Vide judgment and decree dated 25.04.201 1, the learned Civil Court dismissed respondent No. l's suit to the extent of the prayer for specific performance of the agreements regarding the suit property but granted his alternate prayer of recovery of three times the amount of Rs.4,50,000/- along with costs. 15. Aggrieved by the said judgment and decree, respondent No.1 preferred an appeal before the Court of the learned Additional District Judge, Islamabad. Vide judgment and decree dated 14.01.2016, the learned Appellate Court allowed respondent No.1 's appea l by setting aside the judgment and decree passed by the learned Civil Court, and as a result, respondent No.1 's suit for specific performance was decreed. The said judgment and decree passed by the learned Appellate Court has been assailed by the petitioner in the instant appeal. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONER:- 16. Learned counsel for the petitioner , after narrating the facts leading to the filing of the instant petition, submitted that the judgments and decrees passed by the learned Courts below are at variance; that the judgment and decree passed by the learned Appellate Court suffers from misreading and non-reading of evidence; that the petitioner was the bona fide purchaser of the suit property without notice of the earlier agreements between respondents Nos.1 and 2, and therefore, she is entitled to the protection envisaged under Section. 27(b) of the 1877 Act and Section 41 of the 1882 Act; that the petitioner had purchased the suit property prior to the institution of the suit by respondent No.1; that respondent No.1 was well aware as to the sale of the suit property in the petitioner's favour prior to the institution of the suit; that even after the petitioner's application for impleadment as a defendant in the suit had been allowed and a written statement had been filed by her, respondent No.1 did not amend the suit to challenge the sale agreement dated 07.07.1996 in the petitioner's favour; that the learned Appellate Court erred by not appreciating that under the terms of the sale agreement dated 29.07.1991, respondent No.2 was liable to return triple the amount of the entire sale cons ideration in the event respondent No.2 refused the deal or revoked the power of attorneys given to respondent No.1; and that the learned Appellate Court also erred by not appreciating that respondent No.1 in his suit had also prayed for the grant of the alternate relief for the recovery of Rs.13,50,000/- from respondent No. 1. 17. Learned counsel for the petitioner further submitted that respondent No.2 was the owner of the suit property when the petitioner purchased the same through sale agreement dated 07.07.1996; that the suit property had been purchased from Bashir Ahmad to whom respondent No.2 had given a power of attorney; that the judgment and decree passed by the learned Civil Court did not suffer from any legal infirmity; that vide judgment and decree dated 25.04.201 1, the learned Civil Court had granted respondent No.1 his alternate prayer for recovery of Rs.13,50,000/-; and that the judgment and decree passed by the learned Appellate Court is not sustainable.
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Learned counsel for the petitioner prayed for the revision petition to be allowed by setting-aside the judgment and decree passed by the learned Appellate Court and by restoring the judgment and decree passed by the learned Civil Court. In making his submissions, learned counsel for the petitioner placed reliance on the judgments reported as Shah Nawaz through LRs v. Abdul Ghafoor (2008 SCMR 352), Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494), Binyameen and others v. Chaudhry Hakim and another (1996 SCMR 336) and Vinod Kumar v. Aroza (AIR 1987 SC 2179). CONTENTIONS OF THE LEARNED COUNSEL FOR RESPONDENT NO.1:- 18. On the other hand, learned counsel for respondent No.1 submitted that even though the petitioner claims to have purchased the suit property through respondent No.2's attorney namely , Bashir Ahmad yet the latter was not produced as a witness; that the power of attorney executed by respondent No.2 in favour of Bashir Ahmad was not tendered in evidence by the petitioner but by her counsel as Exh.D/1; that even the original sale agreement dated 07.07.1996 was not tendered in evidence and only its copy was produced as Mark-A; that the execution of the said sale agreement had not been proved by producing its two attesting witnesses; that the petitioner does not come within the meaning of a bona fide purchaser of the suit property; that respondent No.1 had been in possession of the suit property ever since the execution of the sale agreement dated 29.07.1991; that since possession of the suit property was already with respondent No.1 when the sale agreement dated 07.07.1996 was allegedly executed between the petitioner and Bashir Ahmad, it was incumbent upon the petitione r to have taken precautionary measures before entering into the said agreement; that although the agreement to sell dated 05.06.1991 and the sale agreement dated 29.07.1991 were neither registered documents nor compulsorily registerable, the two power of attorneys dated 29.07.1991 were registered documents; that had the petitioner taken the necessary precautionary measures before entering into the sale agreement dated 07.07.1996, she would have discovered the creation of respondent No. 1 's interest in the suit property through the said registered documents; that even otherwise, upon registration the petitioner was deemed to have been in the knowledge of the said power of attorneys; that even if respondent No.2's evidence is discarded, the judgment and decree passed by the learned Appellate Court in respondent No.1 's favour is sustainable; that the petitioner had given evidence as DW.1 and had not produced any document in support of her testimony; that the documents Exh.D/1 to Exh.D/8 were produced by respondent No.l's counsel; and that no plausible explanation had been given for the petitioner's failure to produce the said documents. 19. Learned counsel for respondent No.1 further submitted that the mere fact that the petitioner had not assailed the judgment and decree dated 25.04.201 1 passed by the learned Civil Court means that she admitted the execution of the earlier agreements dated 05.06.1991 and 29.07.1991 between respondent No.1 and respondent No.2; that the learned Civil Court had granted the relief for the recovery of Rs.13,50,000/- in respondent No.l's favour by recognizing the fact that the said agreements had been executed between respondent No.1 and respondent No.2; and that it was in furthe rance of the terms and conditions of the agreement dated 29.07.1991 that the learned Civil Court had granted the relief for the recovery of the said amoun t in respondent No. 1 's favour . Learned counsel for respondent No.1 prayed for the revision petition to be dismissed. In making his submissions, learned counsel for respondent No.1 placed reliance on the judgments reported as Hafiz Tassadaq Hussain v. Lal Khatoon and others (PLD 2011 SC 2%), Haji Abdul Majeed and others v. Amjad Khan (2012 CLC 1483 ), Mushtaq Ahmed and another v. Jaffar and others (2008 SCMR 1018 ), Niamat Ali v. Hassan Muhammad and others (1987 MLD 30), Haji Akram Rehman v. Noor Ahmed and others (PLD 1974 Baghdad-ul-Jadid 25), Vidhyadhar v. Mankikarao (AIR 1999 SC 1441), Kishore Singh v. Barij Bihari Singh (AIR 1993 Patna 122), and Ramdeni Singh and another v . Gumani Rut and another (AIR 1929 Patna 300). 20. I have heard the contentions of the learned counsel for the contesting parties with great interest and keenness and perused the record with their able assistance. 21. The facts leading to the filing of the instant revision petition are set out in sufficient details in paragraphs 2 to 15 above and need not be recapitulated. 22. The entire edifice of the petitioner's case is built on the plea that she was a bona fide purchaser of the suit property for value without notice of the earlier agreements between respondent No.1 and respondent No.2. The
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petitioner seeks protection given to such a purchaser by Section 27(b) of the 1877 Act and 1882 Act. WHETHER THE PETITIONER IS ENTITLED TO THE PROTECTION UNDER SECTION 27(b) OF THE SPECIFIC RELIEF ACT, 1877 :-- 23. Section 27 of the 1877 Act provides inter alia that specific performance of a contract may be enforced against (a) either party thereto; and (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. In the case of Hafiz Tassaduq Hussain v. Lal Khatoon (PLD 2011 SC 296), it has been held that a subsequent vendee has to discharge the following onus:- (1) that he acquired the property for due consideration and thus is a transferee for value, meaning thereby that his purchase is for the price paid to the vendor and not otherwise; (2) there was no dishonesty of purpose or tainted intention to enter into the trans action which shall settle that he acted in good faith or with bona fide; (3) he had no knowledge or notice of the original sale agreement between the plain tiff and the vendor at the time of his transaction with the latter . 24. Assuming that there was no dishonesty on the petitioner's part while purchasing the suit property for due consideration, it was obligatory upon the petitioner to prove that she had no notice of the earlier agreements with respect to the suit property between respondent No.1 and respondent No.2, in order to be given protection under Section 27(b) of the 1877 Act. Notice contemplated by Section 27(b) of the 1877 Act is not confined to actual notice but also includes constructive notice. In this regard, Section 3 of the 1882 Act provides that a person is said to have "notice" of a fact when he actually know s that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation-II to Section 3 of the said Act provides that 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. Where a subsequent transferee of an immovable property acquires it without making any inquiry as to the title of the person in possession, he takes the property subject to the rights and title of the person in possession. When a person purchases property from an owner knowing that it is in the possession of another , he is under a duty to inquire into the nature of that possession and, in the absence of such inquiry , knowledge of title under which possession is held should be attributed to the purchaser . 25. Since in the case at hand, possession of the suit property was with responden t No.1 since 1991, the petitioner was bound to enquire about the nature of respondent No.1's possession of the suit property when she entered into the agreement to sell dated 07.07.1996. There is nothing on the record to show that prior to the execution of the said agreement, the petitioner met respondent No.1 or made enquiries regarding the nature of the latter's possession over the suit property . Due to the petitioner's willful abstention from making such an enquiry or search, she may have been unable to gain actual knowledge of the earlier agreements between respondent No.1 and respondent No.2. However , assuming that the petitioner did not have actual notice of the agreements between respondent No.1 and respondent No.2 regarding the suit property , she shall be deemed to have constructive notice of the said agreements and of respondent No.1's interest in the suit property by dint of Explanation-II to Section 3 of the 1882 Act. Since it cannot be held that the petitioner did not have notice of the agreements between respondent No.1 and respondent No.2 regarding the suit property , I am of the view that the subsequent transaction of sale of the suit property by responden t No.2's attorney in favour of the petition er cannot take precedence over the earlier agreements between respondent No.1 and respondent No.2. In taking this view, I derive support from the law laid down in the following judgments:- (i) In the case of Abdul Jabbar v. Mst. Maqbool Jan (2012 SCMR 947), the Hon'ble Supreme Court held that the appellant, claiming to be a bona fide purchaser for value without notice, was not entitled to the protection under Section 27(b) of the 1877 Act since the land purchased by the appellant was in possession of a person other than the one from whom it was purchased and no enquiry had been made by the appellant as to the nature of possession of such a person. Paragraphs 18 and 19 of the said report are reproduced herein below:-
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"18. It is established from the record that the respondents were in possession of the land in question, cultivating the same, thus the appellants ought to have made an inquiry prior to purchasing the land in question, whether the same encumbrance in any manner and how the respondents are cultivating the land instead of the person from whom they are purchasing the same. 19. Specific performance can be ordered against every transferee from the promisor except a bona fide purchaser under section 27 of the Specific Relief Act. In the case of Daniels v. Davison, (1809) 10 RR 171), Baburam Beg and another v. Madhab Chandra Pally and others , (AIR 1914 Calcutta 333) and Magil Brahma v. Bholi Das (19 CU 352), it was held that possession is tantamount to notice of title of the party in possession and the purchaser ought to have enquired the nature and extent of interest, which burden has not been discharged by the appellants to protect the title as bona fide purchaser ." (ii) In the case of Hafiz T assaduq Hussain v . Lal Khatoon (PLD 201 1 SC 296 ), it was held as follows:- "[T]he subsequent vendee is not obliged to run from the pillar to post in conducting rowing and fishing inquiries, to ascertain if a third party has any interest etc. in the property which otherwise is visibly lacking. But if there exist some overt, prominent and conspicuous indicators about the third party interest, which are so patently noticeable and manifest that those could not and should not be missed and ignored by a purchaser , such as the possession not with the vendor but with someone else, who if approached or its nature investigated would lead to discover such interest, the purchaser is obliged to probe about it, otherwise he may not be able to take resort of the noted equitable rule." (Emphasis added) (iii) Similarly , in the case of Ghulam Rasool v . Muhammad Hussain (PLD 201 1 SC 1 19), it was held as follows:- "7. As far as the plea of the appellants regarding bona fide purchasers of the suit-land and, thus, having the protection of section 27(b) of the Specific Relief Act is concerned, suffice it to say that again there are concurrent findings of three Courts, which are not shown to be the result of any misreading or non-reading of the evidence. The respondents-plaintiffs were admittedly in possession of the suit-land and, this was a sufficient notice to the appellants to have thoroughly inquired about their possession, which was not so probed by them as they have failed to produce any independent witness for this ." (Emphasis added ) (iv) In the case of Rasool Bakhsh Naich v. Syed Rasool Bakhsh Shah (2010 SCMR 988), the factum as to possession of the property in question by a person who was not the seller was held to be sufficient notice to a subsequent purchaser that there was a prior lien and charge over the property . Consequently , it was held that the subsequent purchaser was not entitled to protection under Section…
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