MUHAMMAD TUFAIL Versus FAQIR MUHAMMAD
This Regular Second Appeal arises from the judgment/decree dated 7-4-1977 of the learned Additional District Judge, Lyallpur, whereby the appellant's first appeal was dismissed.
2. It was a suit for specific performance as also for possession. The allegation made in the plaint by the respondent Faqir Muhammad was that earlier Sheikh Muhammad, defendant No.1, having only mortgagee rights in the land in dispute had agreed to sell the same, as also proprietary rights to be acquired by him in due cojjrse on payment of compensation to the Government at the rate of Rs.5 per unit, in favour of his brother Maula Bakhsh. He claimed that an agreement dated 17-10-1969 to that effect was executed between the two, but somehow it fell through where after a fresh agreement was made between himself and the defendant on 29-11-1969, where under proprietary rights to be acquired by the defendant were intend, be conveyed to him for a sum of Rs. 14,000, out of which Rs. 6,300 had been advanced as earnest money. The final date fixed for complete transfer of the land, according to him, was 29-12-1969, but before the expiry of this period the vendor sold away the land in favour of Muhammad Tufail and Allah Bakhsh, defendants by a mutation dated 9-12-1969. The respondent alleged that he had objected to the attestation of the mutation on the basis of the agreement dated 29-11-1969 earlier executed in his favour by the vendor, but the Tehsildar proceeded to attest it on an adjourned date in favour of the subsequent vendees. He challenged the mutation primarily on the ground that the subsequent vendees had notice of his interest in the land under the foot of the prior agreement dated 29-11-1969 and that it was ineffective against his interest.
3. The suit was resisted by all the defendants. The main plea raised in defence was that the agreement relied upon by the respondent had been revoked and that the earnest money of Rs.6,300 was refunded. It was further urged that the agreement-dated 29-11-1969 was void in law and could not be enforced. Conversely it was claimed that the subsequent vendees were bona fide purchasers for consideration without notice of the respondent's interest in the property and, therefore, the so-called prior agreement could not be specifically enforced against them.
4. Appropriate issues were framed by the trial Court. The suit was decreed. Even the appeal failed and the subsequent vendees have come up in the present regular second appeal.
5. The only point for which this R.SA. was admitted was to see whether without obtaining the proprietary rights, the vendor Sheikh Muhammad could not convey title to the respondent Faqir Muhammad under prior agreement Reliance was placed on Ahsanullah Khan v. Chief Settl ement Commissioner West Pakistan (PLD 1966. (W.P.) Lahore 723) for the view that till such an allottee of mortgagee rights fulfils the conditions of allotment, he could not convey title to any vendee Assuming so , para.14 of the Settlement Scheme does not prohibit transfer of the mortgagee rights as such. What it seems to prohibit was the transfer of title to the land which, of course, was still not acquired by the allottce inasmuch as he had not fulfilled the conditions attaching to the allotment. In the agreement held by the respondent Faqir Muhammad, it was not a sale of proprietary rights in the land taking place in present but only a promise was made to convey the land subsequently on acquiring title after payment of necessary charges to the Government. In simpler words, it was an agreement to sell in future on the happening for contingent,; and tile same was not prohibited by the Scheme. It could be enforced subsequently with impunity when the vendor acquires title. The doctrine of feeding the estoppel as provided in Section 43 of the Transfer of Property Act would apply and it will not lie with the vendor or any subsequent vendee to say that the agreement was bad in law. They will be estopped from raising such a plea, as they could be forced to pass it on to the promisee in specific performance of agreement. A similar agreement ostensibly hit by section 19 of the Colonization of Government Lands (Punjab) Act, 1912, was upheld in Hakim Ali and another v. Atta Muhammad and others (1981 S C M R 993) and Mst. Begum Bibi and others v. Abdul Sattar (1987 S C M R 1). A little distinction was conceived in these cases between a complete sale and an agreement to sell. While in the former, title was intended to pass forthwith as provided in section 54 of the Transfer of Property Act, the latter did not create any interest in favour of the promisee in present though it was held to be enforceable at a future date on the happening of the stipulated contingency. In his case the promisor had, in fact, acquired title and he could be forced to pass it on to the respondent with whom he had entered into an agreement to sell earlier in time.
6. The appellants asserted that they were subsequent vendees for consideration, without notice of the respondent's interest in the property. The Courts below concurrently held that no consideration had been paid by him. This finding of fact cannot be broached in second appeal. Learned counsel contended that when the vendor conceded having received the consideration amount, no other evidence was needed to establish the same. I am afraid the version of the vendor as also of the appellant was disbelieved, and for good reasons. The evidence on the point was not held reliable and its reappraisal cannot be made at this stage, to draw an inference that it sufficed to prove the payment. Besides, the respondent had taken an objection to the subsequent sale at the very first opportunity when the mutation was being attested in favour of the appellants. He made it clear that he was leaving some interest in the property under the foot of an earlier agreement made m his favour by the vender, and that the mutation entered at the instance of the appellants could not be attested. This indication was enough to dispel the appellants' argument that they mad no notice of the respondent's interest in the property. The mutation was attested in their favour subsequent to raising this objection by the respondent and they could not claim the benefit of section 53-A of the Transfer of Property Act.
7. For all these reasons, there is no merit in the appeal and the same is dismissed with costs throughout.
SQ/M-659/L Appeal dismissed.