SHAH MUHAMMAD And Another vs BAKHTAWAR And Another

ORDER

ASLAM RIAZ HUSSAIN, J.--Shah Muhammad and Muhammad Hadees petitioners seek leave to appeal against the judgment of the learned Single Judge of the Lahore High Court, dated 4-3-1984, accepting the R.S.A. (No. 175/78) filed by Bakhtawar respondent No. 1.

2. The facts giving rise to the petition are, briefly, that Abdul Hayee respondent No. 2 entered into an agreement with Bakhtawar (respondent No. 1) for selling him 58 Kanals of land situated in village Jatri, District Sheikhupura for a consideration of Rs.3,625 was to be paid on 16-11-1967, where after Abdul Hayee respondent was to execute the sale-deed in favour of Bakhtawar respondent.

Abdul Hayee respondent, however, sold the land to Shah Muhammad and Muhammad Hadees petitioners in 1968. Feeling aggrieved Bakhtawar respondent filed a suit against the to petitioners and Abdul Hayee for a declaration to the effect that he was owner-in-possession of the suit-land for which he had paid the entire price in accordance; with the terms of the agreement. In the alternative he prayed for specific performance of the contract against Abdul Hayee.

3. After framing issues and considering the oral as well as documentary evidence adduced by the parties the learned trial Court, decreed the suit for specific performance. The plaintiffs- respondent's prayer for declaration that he was owner-in-possession of the suit-land was, however, disallowed.

Abdul Hayee respondent No. 2 did not challenge this order but Shah Muhammad and Muhammad Hadees (petitioners before us) challenged the judgment of the trial Court through an appeal before the District Judge. The learned Additional District Judge by his judgment, dated -9-1978 accepted the appeal. Bakhtawar respondent thereupon filed R.S.A. Before the High Court which was accepted vide the impugned Judgment.

Hence the present petition.

4. We have heard the learned counsel for the petitioners at some length and have also gone through the impugned judgment.

The main question before the High Court was as to whether or not the petitioners were protected by the provisions of section 27 (b) of the Specific Relief Act, which reads as follows:-- "Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against:--

(a) ...............................................................

(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".

After considering the evidence before it the learned High Court arrived at the conclusion that the to petitioners /defendants neither pleaded nor led to the evidence that they were transferees of the suit-land in good faith, without knowledge of the original agreement of the sale executed by Abdul Hayee in favour of Bakhtawar respondent.

We are inclined to agree with the view taken by the learned Judge in Chamber as we find that not only did the petitioners fail to discharge the onus, which lay heavily' on them, to prove that they' were transferees for value who had paid the price to Abdul Hayee in good faith and without previous notice of the earlier contract between Abdul Hayee and Bakhtawar but also that Shah Muhammad petitioner who had appeared as D.W. 2 before the trial Court did not assert that he and Muhammad Hadees had no knowledge of the previous agreement to sell in respect of the suit-land. Moreover, at one stage during his cross-examination Shah Muhammad even admitted that he knew about the earlier contract.

In this view of the matter, we feel that there is no flaw in the impugned judgment of the High Court warranting interference by this Court. The petition is, therefore, dismissed.