MUHAMMAD MOOSA Versus ALI AKBAR
This second appeal is directed against the judgment/decree dated 8‑3‑1979 passed by the learned District Judge, Tharparkar at Mirpurkhas in Civil Appeal No.54 of 1976 decreeing the suit filed by Respondent No.3 for specific performance which was dismissed by the learned Civil Judge by his judgment and decree dated 13‑5‑1976.
2. The brief acts leading to !he filing of the above appeal are that Respondent No.3 filed aforesaid suit namely Suit No.35 of 1071 on 15‑3‑1969 for specific performance of the sale Agreement dated 6‑2‑1964 in respect of the suit agricultural land. The above suit was resisted by the present appellants on the ground that they had purchased the same through a registered sale‑deed dated 8‑1‑1969 and, therefore, were bona fide purchasers without notice. The learned trial Court on the basis of the pleadings of the parties framed the following 12 issues:‑
"(1) Whether the defendants are not agriculturists.
(2) Whether the defendant No.1 agreed to sell the suit land on his behalf and on behalf of defendant No.2 to the plaintiff?
(3) Whether .the plaintiff had paid any advance of sale price to the defendants Nos.1 and 2?
(4) Whether the defendant No.1 had also executed lease deed in favour of plaintiff. If so what is the effect
(5) Whether the defendant No.1 was avoiding to perform his part of the contract of sale, if so what is the effect?
(6) Whether the defendant No.3 was aware of the alleged sale agreement between plaintiff and defendant No.1. If so what is the effect?
(7) Whether the sale of the suit land in favour of defendant No.3 is void ab initio, inoperative and of no legal effect?
(8) Whether the plaintiff is in possession of the suit land?
(9) Whether the suit is time‑barred?
(10) Whether the alleged sale agreement between Plaintiff and defendant No.1 is illegal?
(11) Whether the suit is not maintainable in law?
(12) What should the decree be?"
After recording the evidence of the parties and hearing of the parties, the learned trial Court decided the ‑issues Nos.1 to 5, 8 and 10 in favour of Respondent No.3 whereas issues Nos.6,7,9 and 11 were decided in favour of the present appellants. The learned trial Court after having decided the above issues Nos.6,7,9 and 11 against respondent No.3 dismissed the suit. Respondent No.3 being aggrieved by the above judgment and decree filed aforesaid appeal, which was allowed by the learned District Judge, Thar parkar at Mirpurkhas by his above judgment dated 8‑3‑1979 in the above terms. The appellants being aggrieved by the above judgment/decree have riled the present appeal.
3. In support of the above appeal Mr.Zaheeruddin Khan, learned counsel for the appellants has urged as follows:‑
(i) That Sind Act No.I11 of 1899 (The Government Occupants (Sind) Act, 1899 was applicable to the occupants of the Government land and not to the private land.
(ii) That after the execution of lease decd on 6‑2‑1964 by respondent No.2 in favour of respondent No.3 the sale agreement was no longer operative.
(iii) That ;he appellant was a bona fide purchaser for consideration without any notice and, therefore, the above sale could not have been declared as illegal and suit of respondents 1 and 2 could not have been decreed for specific performance.
4. Averting to the first submission. it may be observed that both the Courts below have proceeded on the assumption that Act No.111 of 1899 was applicable as the suit land was restricted land. There was no plea raised by the appellant or by respondents Nos.1 and 2 to the effect that the suit land was not restricted land. However, it has been urged by Mr.Zaheeruddin Khan learned counsel for the appellants that this being a legal point the appellants are entitled to urge even at the stage of second appeal. In my view, the question, whether the suit land was restricted land or not was a question of fact which could have been decided on the basis of the evidence. Since this plea was not raised, both the Courts below have not dilated upon this aspect. I am not inclined to accept that this land was not restricted land as to attract the application of Act III of 1899.
As regards the second submission that after the execution of lease by respondents 1 and 2 in favour of respondent No.3 for a period of five years on 11‑2‑1964 the Sale Agreement had become inoperative, it may be observed that no such ,plea was raised by the appellants or by respondents 1 and 2 through whom the appellants were claiming the right. In the absence of any such, plea, in my view it will not be just and proper to allow the raising of the same at the stage of second appeal. However, it was submitted by Mr.Zaheeruddin Khan that this is so stated in the Lease Agreement, which is in Sindhi language. It will suffice to observe that both the parties proceeded on the assumption that the above Lease Agreement had not brought to an end the sale agreement, on the contrary it has been pointed out by the Courts below that the lease money paid by respondent No.3 was to be adjusted towards the sale price, This finding of the competent Court negates the above contention of the learned counsel for the appellants.
This leads us to the last submission made by, the learned counsel for the appellants that the appellants being bona fide purchaser for consideration without notice were protected and, therefore, the learned Appellate Court was not justified in decreeing the suit. 1t may be pointed out in this behalf that both the Courts below have held that Section 8 of Act No.11I of 1899 is applicable to the suit land. The learned Appellate Court has relied upon the two judgments, one of the lush Court and the other of the Supreme Court, namely the case of Mst.Hawa v. Muhammad Yousuf and others reported in P L D 1969 Kar. 324 and the case of Noora v. The Settlement. and Rehabilitation Commissioner and another reported in 1969 S C M R 517 to conclude that the above sale was invalid in the absence of the requisite permission from the Collector in terms of Section 8 of Act III of 1899. The above finding in my view is in consonance with law. The question that the appellants were bona fide purchaser for consideration without notice is of no relevance in context with section 8 of the above. Act. The appeal has no merits and, therefore, it is dismissed but there will be no order as to costs.
M.Y.H./M‑495/K Appeal dismissed.