2003 S C M R 774

[Supreme Court of Pakistan]

Present: Javed 1qbal and Tanvir Ahmed Khan, JJ

MUHAMMAD BASHIR and others---Petitioners

versus

CHIRAGH DIN through Legal Heirs and others---Respondents

Civil Petition for Leave to Appeal No.2728/L of 2000 and Criminal Original Petition
No. 8/L of 2001; decided on 20th May, 2002.

(On appeal from the judgment dated 19-10-2000 of the Lahore High Court, Lahore,
passed in Civil Revision No. 1061-D of 1988).

Specific Relief Act (I of 1877)---

----Ss. 12 & 27(b)---Constitution of Pakistan (1973), Art.185(3)--Specific

performance of agreement to sell---Bona fide purchaser for value without notice---
Failure to prove that the defendants had knowledge of prior agreement---Plaintiff
asserted that the owner of suit property had executed agreement to sell in his favour
and has received consideration amount---Owner admitted execution of the
agreement but denied receipt of any consideration amount from the plaintiff---
Owner contended that, despite repeated demands, the plaintiff failed to pay the
consideration amount, therefore, the owner sold the property to defendants---Trial
Court decreed the suit in favour of the plaintiff and the judgment and decree passed
by the Trial Court was maintained by the Appellate Court---High Court in exercise
of revisional jurisdiction 'scanned the whole evidence and dismissed the suit for the
reason that the plaintiff had neither asserted in his plaint that the defendants had
knowledge about the prior, agreement executed in favour of the plaintiff, nor the
witnesses appearing on behalf of the plaintiff proved the same--Validity---High
Court after evaluating the entire evidence had determined a factual controversy qua
the knowledge and notice to the defendants respecting the sale agreement in favour
of the plaintiff---No legal infirmity was pointed out in the judgment warranting
interference by Supreme Court---Leave to appeal was refused.

Rao Munawar Khan, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 20th May, 2002.

ORDER

TANVIR AHMED KHAN, J.--- Leave to appeal is sought against the judgment
dated 19-10-2000 of a learned Single Judge of the Lahore High Court, Lahore
whereby Civil Revision No. 1061-D of 1988 filed by respondents Nos. l and '2 was
accepted by reversing the findings of the Courts below.

Facts briefly narrated are that a suit for specific performance with permanent
injunction was filed by Ahmad Din, the predecessor-in-interest of petitioners Nos. l
to 5, alongwith petitioner No. 6, Shukar Din, against the respondents. It was averred
that Munshi Khan (respondent No.3) had agreed to sell the land in dispute to the
petitioners for a consideration. of Rs. 20,000 through an agreement executed on 14-
12-1978 whereby entire consideration amount was received by him with a
stipulation that the land would be transferred upon conferment of rights by the
Settlement Department. However, he, in a clandestine manner, sold the same to
respondents Nos.l and 2 through a sale-deed executed on 19-4-1981.
Munshi Khan, respondent No.3, did not deny the execution of the agreement but
denied the payment of consideration amount. He further stated that after the
conferment of rights in spite of his approach to the petitioners, they were reluctant
and dilly-dallied the execution of the sale-deed, whereupon he was constrained to
sell the same to respondents Nos.l and 2. Out of pleadings of the parties issues were
framed, the parties led their evidence and the learned trial Court vide its judgment
dated 27-1-1987 decreed the suit of the petitioners. Respondents Nos.l and 2 as .well
as respondent No.3 filed separate appeals against the above judgment, which were
dismissed through a consolidated judgment dated 13-3-1988 rendered by the
learned Additional District Judge, Sialkot. The respondents preferred two Civil
Revisions bearing No.1061-D of 1988 and.2279 of 1990. A learned Single Judge of
the Lahore High Court, Lahore, dismissed Civil Revision No.2279 of 1990 filed by
Munshi Khan respondent No.3, while Civil Revision No. 1061-D of 1988 filed by
respondents Nos. l and 2 was allowed. Hence, this petition for leave to appeal.

We have considered the contentions raised by the learned counsel and have perused
the entire documents placed on record. We have noticed that both the Courts below
had non-suited the respondents simply for non-substantiation of Issue No.8 which
was to the effect that they were bona fide purchasers with consideration and without
notice. The learned Single Judge of the High Court took pains in scanning the entire
record whereby he came to the conclusion that respondents Nos.l and 2 were bona
fide purchasers of the property in dispute without notice. He came to this
determination by referring to the evidence brought on record by the parties. It is
reflected from the perusal thereor that though respondents Nos.l and 2 were
impleaded as parties as subsequent vendees but nowhere in the plaint it was averred
that they has the knowledge of the agreement executed in favour of the petitioners
by Munshi Khan, respondent No.3. It is also to be appreciated that some or the
witnesses appearing from petitioners' side stated that respondents Nos. l and 2 were
told about the earlier sale to the petitioners. However, this factum has not been
substantiated from record as no such question was put to respondent No. l Chiragh
Din in cross-examination who appeared in the witness-box as D. W.6. The learned
Single Judge of the High Court, after evaluating the entire evidence, has determined
as a factual controversy qua the knowledge and notice to respondents Nos. 1 and 2
respecting the sale in favour of the petitioners. Learned counsel for the petitioners
has failed to point out any legal infirmity in the impugned judgment warranting
interference by this Court.

Resultantly, for what has been stated above, the present petition being devoid of any
merit is dismissed and leave declined.
In view of above discussion and dismissal of the main petition, Criminal Original
No.8/L of 2001 filed by the petitioners also stands dismissed.

Q.M.H./M-574/S

Petition dismissed.

2003 SCMR 774 Bona fide Purchaser

Ss. 12 & 27(b)-Constitution of Pakistan (1973), Art.185(3)- Specific Performance of
agreement to sell-Bona fide Purchaser for value without notice-Failure to prove that the
defendants has knowledge of prior agreement-Plaintiff asserted that the owner of suit
property had executed agreement to sell in his favour and has received consideration
amount - Owner admitted execution of the agreement but denied receipt of any
consideration amount from the plaintiff- Owner contended that despite repeated demands,
the plaintiff failed to pay the consideration amount, therefore the owner sold the property
to defendants- Trial Court decreed the suit in favour of the plaintiff and the judgment and
decree passed by the Trial Court was maintained by the Appellate Court-High Court in
exercise of revisional jurisdiction scanned the whole evidence and dismissed the suit for
the reason that the plaintiff had neither asserted in his plaint that the defendants had
knowledge about the prior agreement executed in favour of the plaintiff not the witnesses
appearing on behalf of the plaintiff proved the same Validity – High Court after
evaluating the entire evidence had determined a factual controversy qua the knowledge
and notice to the defendants respecting the sale agreement in favour of the plaintiff-No
legal infirmity was pointed out in the judgment warranting interference by Supreme
Court-Leave to appeal was refused.
1987 MLD 403 Bon fide
Registered sale-deed executed in favour, of subsequent vendee without notice of previous
agreement to sell in favour of prior vendee of disputed plot failed to establish that
subsequent vendee of same plot had prior notice of previous sale in his favour. Registered
sale –deed executed in favour of subsequent vendee without prior notice of prior sale in
favour of plaintiff in respect of same plot, inspite of being later in time held would prevail
against prior unregistered agreement of sale alleged to have been executed in favour of
plaintiff in circumstances
P L D 1987 Lahore 4

Before Muhammad Aslam Mian and Am/ad Khan, JJ

TALIB HUSSAIN-Petitioner

versus

' BABU MUHAMMAD SHAM AND 12 others-Respondents

Civil Revision No. 13-D of 1986, decided on 8th October, 1986.

(a) Transfer of Property Act (IV of 1882)-

S. 41-Purchase of property in good faith--.Protection to such

transaction-Requirements-Where purchaser of property had acted in good faith by taking
all reasonable care to ascertain title of his vendor who was continued to be shown in
revenue record to be owner of land-Such transaction, held, would be protected under S.
41, Transfer of Property Act, 1882.

Abdul Karim v. Fazal Muhammad Shah P L D 1967 S C 411 distinguished.

Muhammad Sarfraz Khan and another v. Farid Khan and 22 others P L D 1972 Pesh. 109
ref:

(b) Civil Procedure Code (V of 1908)-

-- S. 115-Transfer of Property Act (IV of 1882), S. 41-Revisional jurisdiction, exercise
of - Where lower appellate Court had not committed any jurisdictional error of the nature
of misreading or non-reading of evidence in affirming finding of Trial Court, High Court,
held, would decline to interfere in its revisional jurisdiction.

(c) Transfer of Property Act (IV of 1882)-

-- S. 54-Purchase of property in municipal area-Effect of non-registration-Mutation of

property for a consideration of more than rupees one hundred being opposed to S. 54,
held, could not confer valid title to such purchaser where property under sale was situate
in municipal area, provisions of S. 54 having been made applicable to all Municipalities
in Punjab since 6-5-1935.

Zafarullah Cheema for the State.

JUDGMENT

AMJAD KHAN, J.-On 21-10-1968, respondents Nos. 1 to 4 filed a suit for possession
of land on the basis of their title acquired through the registered sale-deed dated
15-9-1964, executed by its owner Muhammad Hussain who had died in the year 1965
and his legal heirs, respondents 5 to 13 herein, were impleaded as defendants Nos. 1 to 9
in the suit ; whereas t4he present petitioner was joined as defendant No. 10 for the reason
that the aforementioned heirs of Muhammad Hussain were stated to have sold the land to
him after the sanctioning in their favour of a mutation on 30-8-1966 with regard to
Muhammad riussain's inheritance. Defendants Nos. 1 to 9 did not contest the suit which
was resisted by the. petitioner alone by pleading title in himself since 9-4-1954 on
account of sale in his favour made by his brother Muhammad Hussain so that thereafter
he had not been left with any right to transfer it to the plaintiffs. In the trial Court, only
two issues, relating to the rival titles claimed by the plaintiffs and defendant No. 10, on
the basis of the sales pleaded by them, were set down for trial. Under the first issue,
learned Civil Judge found that Muhammad Hussain had duly executed the sale-deed Exh.
P. 1 in favour of the plaintiffs therefore there had not been left any title for Muhammad
Hussain in the land to devolve upon his heirs through inheritance. Under the second
issue, he held that defendant No. 10 had not been able to prove the sale in his favour and
had not produced even the receipt relating to the alleged payment of consideration. The
suit was consequently decreed in favour of the plaintiffs on 4-12-1969.

2. Petitioner (defendant No. 10) filed an appeal thereagainst in the Court of District
JLdge, Sialkot which was at one stage dismissed in default and the order of refusal to
restore it, was assailed in F. A. O. No: 64 of 1.971 which was accepted on 3-5-1984 to
remit the appeal for being heard and decided on merits. Pursuant thereto, learned District
Judge took up the appeal and came to the conclusion that it was a fit case wherein trial
Court may have obtained a replication and thereupon he himself obtained the replication
from the plaintiffs and by his order dated 24-7-1984, framed an additional issue No. 2-A
for determining the question whether the plaintiffs are bona fide purchasers of the
disputed land for value and without notice and sent it down to be tried by learned Civil
Judge who, by his order dated 10-9-1984, answered it in favour of the plaintiffs and
defendant petitioner filed objections there against in his appeal. After hearing the appeal,
learned District Judge found that the entries made in Mutation No. 1177 (Exh. D. 1)
which was rejected on 29-4-1959, showed that defendant No. 10 and his vendor brother
Muhammad Hussain had both appeared before the Patwari on 7-5-1957 to admit the
payment of consideration of Rs. 600 and held that the sale had in fact been made in
favour of defendant No. 10 in thus getting the mutation entered. On the basis of this
entry, coupled with the other evidence on the point led by the petitioner, learned District
Judge held that the sale in favour of defendant No. 10 (the present petitioner) had been
proved. He also concluded that the subsequent Mutation bearing No. 1626 (Exh. D. 2)
sanctioned in favour of the petitioner was not a fresh transaction entered into by the heirs
of Muhammad Hussain but was in fact only an acknowledgment of the sale made earlier
through Mutation bearing No. 1177 (Exh. D. 1). On this basis, learned District Judge held
that the petitioner had in fact purchased the disputed land from his brother Muhammad
Hussain some time before 7-5-1957. However, by affirming the trial Court's findings
under issue No. 2-A, he proceeded to dismiss the appeal on 9-10-1984 with the
conclusion that the plaintiffs had acted in good faith by taking all reasonable care to
ascertain the title of their vendor who had continued to be shown in the revenue record to
be the owner of the land and hence their transaction was protected under section 41 of the
Transfer of Property Act. Trial Court's decree for possession of land in favour of the
plaintiffs having thus been upheld by the learned District Judge, defendant No. 10 has
now come up to this Court again, on revision against the decrees of the two Courts below.

2. On 7-1-1985, learned counsel was provided an opportunity to examine the question as

to whether the sale made through a mutation in the revenue estate of Pakka Garha,
admittedly situated within the Municipal limits of Sialkot, could confer a valid title in
view of section 54 of the Transfer of Property Act. He has today argued merely that this
plea was not taken by the plaintiffs in either of the Courts below and, therefore, it may
not be considered in this revision as well. He has, however, referred to Abdul Karim v.
Fazal Muhammad Shah (1) and Muhammad Sarfraz Khan another v. Farid Khan dnd 22
others (2). The former is a pre-emption case with regard to a sale made by means of a
mutation, contrary to the requirements as to form of sale contained in section 54 of the
Transfer of Property Act and was decided on the main consideration that pre-emption is a
right of substitution and a successful pre-emptor is entitled to claim to be substituted into
the transaction, whatever good or bad, as had been secured by the vendee but it was not
held that such a transaction by itself, creates a valid title in the property. Hence, the
aforecited judgment of the Supreme Court is of no avail to the petitioner. The other case,
from Peshawar, rather than helping the petitioner, goes against him on the facts found by
the learned District Judge, whose Court is a final Court of facts. In this precedent case,
title of a purchaser, who may have entered into the transaction after being vigilant and
making diligent, inquiries on the basis of entries appearing in the Jamabandi, was held)
protected and learned District Judge has invoked this very rule in favour of the
plaintiff/respondents on the basis of facts found by him, whereupon` this case really gets
concluded because therein learned District Judge is not shown to have committed any
jurisdictional error of the nature of misreading or non-reading, of evidence. Moreover,
the mutation of the alleged sale obtained by the petitioner for a consideration of Rs. 6G0
cannot be regarded to have conferred a valid title in him regarding the suit land for its
being opposed to the provisions of section 54 of the Transfer of Property Act which has
been made applicable to all Municipalities in the Punjab since 6-5-1935.

(1) P L D 1967 S C 411 (2) P L D 1972 Pesh. 109

3. Decrees of the two Courts below, in favour of the plaintiff-' respondents, are
unexceptionable and there does not emerge any case at all for exercise of revisional
jurisdiction. Hence, dismissed in limine.

A. A. Revision dismissed.

PLD 1987 Lah.4

Purchase of property in good faith. Protection to such transaction Requirements. Where
purchaser of property had acted in good faith by taking all reasonable care to ascertain
title of his vendor, who was continued to be shown in revenue record to be owner of land.
Such transaction, held, would be protected under S.41 Transfer of Property Act,1882
1989 MLD 4823
Purchaser from original allottee. Where such allotment was defective rights of such
purchaser could not protected in terms of S.41, Transfer of Property Act, 1882 as sections
10 and 11, Displaced persons (Land Settlement) Act, 1958 govern the confirmation of
allotment.

2003 MLD1292 (a) ALD 2003 5474

S.41 Specific Relief Act
S.12- Suit for specific performance of agreement to sell- Suit was concurrently courts
below while deciding against the appellant concluded that respondent were bona fide
purchasers for value without notice and the appellate failed to prove his case

2002 YLR 1531 f ALD 2002 5362 Bona fide purchaser v/s Lispendence
Doctrine of Lispendense and doctrine of bona fide purchaser comparison-Distinction-
Rightly of suitor in respect of immovable property during the pendency of the suit or
proceeding are protected under S.52 of Transfer of property Act.1882. On the other hand
equitable doctrine of bona fide purchaser in embodied in S.41 of Transfer of Property act
1882, are attracted and its bona fide are established, it ensures to the benefits of party to
suit or proceeding and in that case the doctrine of bona fide purchaser for value stands
excluded

2004 MLD 581 (c) bona fide purchaser

Subsequent vendee claiming to be bona fide purchaser – Proof-Mere denial of existence
of earlier agreement by the subsequent vendee would not be enough to bring him within
purview of bana fide purchaser

PLD 1985 Kar 481

Suit filed related to title or possession as defenses to the proposed dispossession of
plaintiff. Plaintiff being in possession having had paid entire consideration and was not
required to perform any other act in furtherance of contract concerning property.
Allotment order of property by authority was therefore, receivable in evidence by virtue
of S.53-a Transfer of property Act 1882. Authority is debarred from enforcing any right
against plaintiff save such right as may be expressly provided in allotment order itself.

PLD 2004 Lah 255 (c) Void Transaction

Transfer of property Act, 1882 would not extend to transaction void ab initio

2004 CLc 162 (a) better title

S.41 Vendee cannot transfer a better title than he possess at the time of transfer