PLJ 2017 Lahore 740[Bahawalpur Bench Bahawalpur]
Present: Tariq Iftikhar Ahmad, J.
FAIZ AHMED etc,--Respondents
R.S.As. No. 8 & 11 of 2011, decided on 5.4.2017.
Transfer of Property Act, 1882 (IV of 1882)--
----S. 52--Estoppel--Recording of evidence by local commission--Validity--Recording of evidence is to be in accordance with law, but it is a procedural matter, and if both parties had given their consent and obtained judgments from Courts below without agitating such ground, now in second appeal, it is not available to appellants as they had been estopped by their conduct. [P. 743] A
----It is settled that litigation is a notice to public-at-large and appellant cannot state that he had no knowledge in this respect--It is also settled legal position that every purchaser would be careful regarding property he is intending to purchase that it is free of any encumbrance or bar, whereas, in presence of prior in time agreement and pendency of suit, appellant cannot simply escape and contend that he has no knowledge of prior agreement or Civil Court, thus he cannot be considered as bona fide purchaser, of suit property without notice. [P. 745] B
Mr. Muhammad Aslam Khan Dhukkur, Advocate, Mr. Farooq Haidar, Advocate and Malik Faiz Bux, Advocate for Appellant.
Mr. Muhammad Naveed Farhan, Advocate for Respondents.
Date of hearing: 21.3.2017.
As R.S.A. No. 08 of 2011 (Muhammad Afzal vs. Faiz Ahmed etc) and R.S.A. No. 1l of 2011 (Muhammad Ahmed etc. vs. Faiz Ahmed) are directed against same judgments and decrees rendered by the Courts below, therefore, I intend to decide aforementioned appeals through this single Judgment.
2. Tersely facts necessary for disposal of these appeals are that Faiz Ahmed plaintiff/ respondent filed a civil suit on 07.11.2006 against Muhammad Ahmed and Muhammad Younas defendants/ appellants in R.S.A. No. 11 of 2011 for specific performance of written agreement dated 18.01.2006 (Ex.P1) to purchase land, measuring 01 marlas 1/5/16 sirsahi Block-D Mandi Chishtian according to entries of Register Haqdaran for the year 2005,2006 (suit property), for total price Rs. 11,50,000/-out of which Rs. 6,50,000/- were paid as earnest money through cheques of U.B.L. Chishtian and parties agreed to alienate the suit property within six months on payment of sale price and if the respondent/plaintiff failed to perform his part of the agreement i.e. payment of balance price the earnest money which had already been paid would be forfeited by the appellants/defendants, the possession of the suit property was also delivered to the respondent/plaintiff. The balance amount Rs. 5,00,000/- was also statedly paid by the respondent to the appellants in presence of witnesses namely Irfan son of Muhammad Ahmed, Khalid son of Rafi and Rasheed son of Fazal Din and document for execution of sale was prepared on 04.09.2006, however, appellants refused to sign and execute it in the office of Sub-Registrar. It was contention of the respondent that he had already paid the entire sale price and according to the document prepared for execution of sale on 04.09.2006 showing enhanced sale price i.e. Rs. 14,00,000/- was to avoid apprehension of filing of a suit for pre-emption by somebody. Some new facts had happened when on 30.05.2015 during the pendency of the suit for specific performance Muhammad Ahmed and Muhammad Younas appellants sold the suit property to appellant in Appeal No. 08 of 2011, Muhammad Afzal through registered sale-deed dated 30.05.2008 (Ex.D1). To contest the suit filed by the respondent both the set of defendants now appellants filed their respective written statements. Muhammad Ahmed and another appellants admitted agreement dated 18.01.2006, receipt of earnest money but contended that as the respondent failed to pay the balance price within the stipulated time i.e. six months, therefore, on the strength of terms and conditions of the agreement they forfeited the earnest money and thus, would not be responsible to honour and implement the said agreement, however, also admitted that on the basis of mutual consent of the parties as they belong to same “brothery” through oral arrangement agreed to enhance the sale price from Rs. 11,50,000/- to Rs. 14,00,000/- while adjusting already paid Rs. 6,50,000/- as earnest money and they were ready to execute sale-deed which in fact was written on 09.04.2006, but when the respondent refused to pay the balance amount i.e.7,50,000/- as such were not under any liability to execute the sale-deed in his favour. Further contended that they within their own rights sold the suit property to Muhammad Afzal appellant/defendant through sale-deed dated 30.05.2008 (Ex.D1). Muhammad Afzal appellant in R.S.A. No. 08/2011 subsequent vendee filed written statement and contended that he was bona fide purchaser without notice and knowledge of earlier agreement or pendency of suit for consideration.
3. The learned trial Court on 28.06.2008 framed the following issues:--
1. Whether suit of plaintiff is false and friviolous? OPD
2. Whether the plaintiff is entitled to a decree for specific performance of the agreement dated 18.01.2006? OPP
2-A. Whether registered sale-deed in favour of Defendant No. 3 dated 30.05.2008 is against facts and law, without consideration, collusive, void and inoperative qua the rights of the plaintiff and liable to be set aside? OPP
4. I have heard the arguments addressed by learned counsel for the parties and also perused the record.
5. I consider appropriate to discuss first the arguments of learned counsel for the parties and then record and evidence.
6. Learned counsel for Muhammad Afzal appellant/defendant at the very outset stated that evidence recorded by the learned trial Court was through commission, but it was neither signed by the Presiding Officer, nor any certificate was made on it, thus, no reliance can be placed on said evidence. In this respect he placed reliance on the reported judgment “Ghulam Mustafa and another vs. Abdul Malik” (PLD 2008 Lahore 4). I am not convinced with the arguments of learned counsel because against the impugned judgment of trial Court dated 14.05.2010 appeal was filed by both appellants but from the memorandum of appeal, it is evident that this plea has never been raised. Of course recording of evidence is to be in accordance with law, but it is a procedural matter and if both the parties have given their consent and obtained judgments from Courts below without agitating this ground now in second appeal, it is not available to the appellants as they have been estopped in this regard by their conduct.
7. Next learned counsel contended that appeal is continuation of original suit and every aspect of the disputed matter stands opened. Further stated that necessary issues were not framed which also affected the proceedings and due to these defects the judgments of Courts below are not sustainable. Learned counsel placed reliance on “Muhammad Bashir vs. Muhammad Hussain and 16 others” (2009 SCMR 1256), “Mst. Sikandar Jahan vs. Mst. Ghulam Zainab and 10 others” (2013 CLC 228) (Peshawar), “Mst. Heemat Jehan and another vs. Attaullah Shah” (2012 CLC 686), “Muhammad Ashraf vs. Dilbar Khan” (2011 CLC 304) and “Khaliq Dad Khan and others vs. Mst. Zeenat Khatoon and others” (2010 SCMR 1370).
8. Conversely, learned counsel for the respondents submitted that if an issue is not framed and both the parties were conscious of the controversy, further adduced evidence in this respect, it would not create any negative effect on the judgment of the Court below. In this respect he placed reliance on dictum of this Court reported as “Eada Khan vs. Mst. Ghanwar and others” (2004 SCMR 1524) and “Lahore Development Authority through Director General and another vs. Addl. District Judge and 2 others (2013 YLR 106).
9. It is evident from the record that necessary issues were framed and a minute analysis of the pleadings of the parties as well as issues framed showing that no real controversy was left out from the framing of issues. It is also evident that being conscious of the dispute both the parties led evidence to prove their respective contentions. The only defect/mistake observed in the impugned judgments is that number of issues was not in order that can only be considered as clerical mistake without any consequence on the finding recorded by the learned Courts.
10. Next contention of learned counsel for the appellants was that time was essence of the agreement dated 18.01.2006 (Ex.P1), that was six months but as respondent failed to perform his part of action, i.e payment of balance amount within stipulated period, therefore, he could not get any relief from the Courts below.
11. Article 113 of the first schedule of the Limitation Act, 1908 provided 03 years time to file a suit for specific performance of a contract/agreement from its date of execution, however, in agreement Ex.P1 six months period from the date of its execution i.e. 18.01.2006 was provided to both the parties for its specific performance as respondent was to pay balance amount and appellants Muhammad Ahmed etc. to execute a sale-deed but from the pleadings of the parties it is manifestly clear that the time was extended by the appellants and they agreed to execute a sale-deed after lapse of six months period. In such eventuality and facts the time no more remained essence of the contract.
12. The real controversy which required adjudication in these appeals is as to whether balance amount Rs. 5,00,000/- was paid by the respondent to appellant Muhammad Ahmed etc. At the very outset on the basis of logic and requirements of law when an agreement in writing was executed which is an admitted document between the parties, the subsequent event, that is payment of Rs. 5,00,000/-was to be documented and should not be left only on oral arrangement. It may be mentioned here that onus to prove the said payment was upon the respondent, however, the perusal of oral evidence in this respect showing that he failed to prove the alleged payment. In addition to it the respondent himself adduced in evidence draft of sale-deed dated 04.09.2006 (Ex.P5) showing that he agreed to pay price of disputed property in Rs. 14,00,000/- without mentioning therein that he had already paid earnest money Rs. 6,50,000/-plus Rs. 5,00,000/- however, in the witness-box and in the pleading he contended that enhanced price was recorded only to avoid possibility of filing of pre-emption suit by some one. This plea can hardly be believed on the yardstick for grant of equitable relief which expect that claimant should come to the Court with clean hands, however, while taking lenient view it is held that final sale price agreed between the parties was Rs. 14,00,000/-, out of which admittedly Muhammad Ahmed etc. appellants had already received Rs. 6,50,000/- and balance amount would be Rs. 7,50,000/-, on payment of which they required to execute sale-deed in favour of the appellant.
13. Now this Court is left to determine as to whether appellant Muhammad Afzal in Appeal No. 08 of 2011 is bona fide purchaser. Agreement Ex.P1 dated 18.01.2006 was in existence and a civil suit for specific performance of agreement which was filed by the respondent on 07.11.2006 was also pending before the Civil Court, whereas the sale-deed (Ex.D1) was executed in favour of said appellant on 30.05.2008. It is settled that litigation is a notice to public-at-large and appellant cannot state that he had no knowledge in this respect. It is also settled legal position that every purchaser should be careful regarding the property he is intending to purchase that it is free of any encumbrance or bar, whereas in presence of prior in time agreement and pendency of the suit, appellant cannot simply escape and contend that he has no knowledge of prior agreement or Civil Court, thus, he cannot be considered as bona fide purchaser of the suit property without notice.
14. Section 52 of Transfer of Property Act 1882 provided doctrine/rule of lis pendens. Section 52 is reproduced here below for ready reference:--
“52. Transfer of property pending suit relating hereto:- During the (pendency) in any Court having authority in (Pakistan) or established beyond the limits of (Pakistan) by the (Federal Government) *** of (any) suit or proceeding (which is not collusive and) in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
(Explanation:--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction of discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed from the execution thereof by any law for the time being enforce).”
15. In this respect the dictum of Apex Court provided guide line in judgments “Mst. Tabassum Shaheen vs. Mst. Uzma Rahat and others” (2012 SCMR 983) and “Muhammad Ashraf Butt and others vs. Muhammad Asif Bhatti and others(PLD 2011 Supreme Court 905).
16. In the light of above dictum of the Apex Court and the circumstances of these appeals, appellant Muhammad Afzal by any stretch of imagination cannot be held bona fide purchaser without notice. However, since the execution of sale-deed in his favour had been admitted by the other appellants Muhammad Ahmed etc. therefore, while applying judicious mind, principle of equity and natural justice, Muhammad Afzal is entitled to recover sale price as he paid to these appellants, therefore, Appeal No. 08 of 2011 is accepted to the extent of recovery of sale price of sale-deed (Ex.D1) from Muhammad Ahmed etc. appellants. In case said amount is not paid in one month, Muhammad Afzal appellant can enforce it through filing an execution petition before Court of competent jurisdiction.
17. It is further held that Appeal No. 11/2011 is dismissed with no order as to costs with effect that appellants shall execute sale-deed in favour of respondent on receipt of balance price Rs. 7,50,000/-within one month from today, if they failed to do so, the respondent would be at liberty to file execution petition to enforce agreement dated 18.01.2006.
(Z.I.S.) Appeal dismissed