Muhammad Ashiq vs Muhammad Sharif

Stereo.HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

JUDICIAL DEPARTMENT

C.R. No.3000 of 2013

Muhammad Ashiq v.

Muhammad Sharif and others

JUDGMENT

Date of hearing 25.11.2025 Petitioner by Malik Amjad Pervaiz, Advocate Respondent No.1 Rana Qaisar Ali Khan, Advocate by Respondent Proceeded ex parte Nos.2 to 10

Rasaal Hasan Syed, J. This judgment will decide civil revision which arises from judgments and decree dated 01.12.2010 and 22.10.2013 of the courts below whereby suit for specific performance of agreement of sale was decreed and the appeal thereagainst by the petitioner on the plea of bona fide purchase was dismissed by courts below.

2.Facts of the case are that late Muhammad Sharif/respondent No.1 instituted a suit for possession through specific performance of agreement of sale dated 21.3.2000 in respect of suit property against respondent Nos. 2 to 10 claiming that in terms of sale agreement suit property was agreed to be sold to him for a sum of Rs.6,41,128/-, a sum of Rs. 3,00,000/- was paid as earnest money and that the sale deed was to be executed within 30 days from passing of judgment in the revision petition pending before this Court. It was claimed that despite the decision in the said revision petition, the respondents failed to execute sale deed and instead collusively sold the suit property during the pendency of the suit in favour of the

petitioner herein and that he was entitled to a decree for specific performance being always ready and willing to perform his part by paying the balance sale consideration of Rs.3,41,128/-. The suit was contested by respondent Nos.2 to 10. Petitioner also became a party in the suit through an application. After framing of issues and recording evidence, suit was decreed in favour of respondent No.1. Petitioner preferred an appeal thereagainst which was dismissed by learned Addl. District Judge, Daska vide judgment dated

3.Heard.

4.Submissions made by learned counsel for the contesting parties have been given due consideration in the light of documents, pleadings and evidence available on the file, perusal whereof reveals that case of plaintiff late Muhammad Sharif was that vide agreement of sale dated 21.3.2000 the suit property was contracted to be sold in his favour by respondent Nos. 2 to 10 herein and that sale deed was to be executed after the decision of revision petition pending before this Court in respect of matter pertaining the mortgage of the suit property and that despite decision of revision petition on 01.12.2000 respondent Nos.2 to 10 did not execute the sale deed in favour of respondent No.1 although repeated requests were nade who was entitled to a decree for possession through specific performance on payment of balance amount of consideration of Rs.3,41,128/-. On 10.1.2004 an application under Order 1, Rule 10, C.P.C. was filed by petitioner claiming that during the pendency of suit, the property was alienated in his favour and he be allowed to be impleaded as a party. The said application was accepted and petitioner was arrayed as a defendant. He claimed to have no knowledge of the agreement of sale in favour of respondent No.1 and that he

was a bona fide purchaser of land for consideration of Rs. 14,00,000/- and that the land was mutated in his favour.

5.Issues were framed and evidence was recorded wherein plaintiff produced Nazir Ahmad Dillon, Advocate as P.W.1, Syed Afzaal Hussain Kazmi stamp-vendor as P.W.2, Muhammad Sharif plaintiff appeared as P.W.3 and Raza Saleem Khan Manj, Advocate, appeared as P.W.4. In rebuttal respondent Nos.2 to 10 did not appear and they were proceeded against ex parte on 04.3.2010 while petitioner appeared as D.W1.

6.P.W.1 proved attestation of document Ex.P1 by acknowledging his signature Ex.P1/1 and stated that document was entered in the register at serial No. 187 dated 21.3.2000. P.W.2 stamp-vendor proved that the sale of stamp paper No. 1366 dated 21.3.2000 issued by him which was purchased by Muhammad Ismail, one of the defendants, and his signatures were Ex.P1/3. Plaintiff appeared as P.W.3 and proved his case set up in the plaint. P.W.4 Raza Saleem Khan Manj, Advocate stated that he had scribed the document Ex.P1 and confirmed his signatures and seal on the document and that he had read over the document to the parties. The petitioner appeared as D.W.1 and claimed that he had no knowledge of the agreement.

7.Perusal of the pleadings and the evidence on record shows that the respondents No.2 to 10 had admitted in the written statement that the agreement to sell dated 21.3.2000 was executed and they received Rs. 3,00,000/- and that they did not come to the office of registrar after the judgment in revision petition by this Court for execution of sale deed. In view of the admission that they had received the earnest money of Rs.3,00,000/- and agreed to sell the property in favour of plaintiff and that they executed the document,

their claim that they had cancelled the document later and forfeited the earnest money required to be proved but undeniably no document for cancellation of agreement was either produced nor any evidence was produced in that regard. So much so that even no notice for recission of contract was ever served upon the plaintiff. In the case of Baseer Ahmad Siddiqui v. Shama Afroz (1988 SCMR 892) it was observed to the effect that the recission of contract has to be proved by the written document and notice which is not the case herein.

8.After considering the entire evidence the courts below recorded findings to the effect that the agreement to sell by respondent Nos. 2 to 10 was admitted and was otherwise proved by sufficient evidence on record and that there was no rebuttal of the same from said respondents. As to the claim of petitioner that he had no knowledge of the sale agreement it was observed that the petitioner claimed the purchase of property on 18.9.2002 while the suit was filed on 23.12.2000 being so it was an alleged alienation which was barred by rule of lis pendens, therefore, the plea of bona fide purchaser was not available to the petitioner. Reference can be made to the case of Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) where it was observed to the effect that transferee of the suit property pendente lite does not acquire any legal title free from the clog of his unsuccessful transferor in whose shoes he steps for all intents and purposes and has to swim and sink with the predecessor-in- interest and that the transferee pendente lite even if purchaser for value without notice of pendency of suit, who in ordinary judicial parlance is known as bona fide purchaser, in view of the rule/doctrine of lis pendens shall

be bound by the result of suit stricto senso as his transferor would be bound.

9.Even otherwise the absence of knowledge could not be proved nor bona fide inquiry was established. The petitioner’s case was that he came to know about the agreement of sale through patwari halqa who was not produced in evidence. The petitioner had to be establish by admissible evidence that he made bona fide inquiries about presence of previous sale and that he had no knowledge of the same which evidence was lacking. In the instant case petitioner failed to produce any admissible evidence as to the bona fide inquiry into the title of property free from any encumbrances. The courts below, therefore, rightly disbelieved the stance of petitioner as bona fide purchaser.

10.The other relevant factor in this case was that according to petitioner he had seen the record of patwari before purchasing the property but on being cross-examined he could not disclose the details/particulars of the document he had allegedly seen before the purchase and on being confronted that in the revenue record there was entry of injunctive order issued in the suit for specific performance in regard to the sale of property he expressed lack of knowledge which falsified the plea of visiting patwari before purchase of property. In Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others (PLD 2002 SC 303) it was observed that sale made in violation of injunctive order during the pendency of suit would be invalid for all intents and purposes and that legal protection of bona fide purchaser could not be claimed under an invalid transaction which needs to be cancelled by the court under section 151, C.P.C.

11.All these facts and circumstances and legal propositions that arose were taken into consideration by the

courts below who minutely examined the evidence and the law applicable on the subject and, thereafter, concluded that the respondent No.1 was entitled to decree for specific performance and that the petitioner having failed to prove the case of bona fide purchaser without notice and for value, the sale made in his favour during the pendency of suit was invalid and that petitioner had no case to object to the grant of such relief. Findings recorded by the courts below are based on correct analysis of evidence and in accordance with law applicable on the subject. No misreading or non reading of evidence could be pointed out nor any jurisdictional error could be shown in the findings of the courts below so as to warrant any interference therein.

12.Resultantly, the revision petition being without any substance is dismissed. There will be no Order as to costs.

(RASAAL HASAN SYED)

JUDGE

Announced in open Court on 05.12.2025

JUDGE

Approved for reporting

JUDGE

*Rabbani*