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P L D 2003 Supreme Court 494 Present: Iftikhar Muhammad Chaudhry, Actg

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P L D 2003 Supreme Court 494 Present: Iftikhar Muhammad Chaudhry, Actg P L D 2003 Supreme Court 494 Present: Iftikhar Muhammad Chaudhry, Actg. C.J Abdul Hameed Dogar and Sardar Muhammad Raza, JJ JAMIL AKHTAR and others---Petitioners Versus LAS BABA and others---Respondents Civil Petition for Leave to Appeal No.1716 of 2001, decided on 16ti January, 2003. (On appeal from the judgment dated 19-4-2001 of the Lahore High Court Rawalpindi Bench, Rawalpindi in C. R. No. 551-D of 1987). (a) Specific Relief Act (I of 1877)-- ---Ss. 12 & 27---Transfer of Property Act (IV of 1882), S.41---Registration Act (XVI of 1908), Ss. 18 & 49---Suit for specific performance of agreement to sell property- --Vendor entered into agreement to sell with plaintiff and also executed a registered power of attorney to his favour authorising him to sell land---Vendor later on sold land in favour of vendees---Plaintiff filed suit, which was contested by subsequent vendees claiming to be bona fide transferees for consideration and without notice of plaintiff's rights--Validity---Both deeds had been executed on the same date---Subsequent vendees could at most in exercise of due diligence make a probe either into Revenue Record or Registration Office---Property in Revenue Record was still in the name of vendor---Registered deed, if scrutinized, would not have provided any opportunity to subsequent vendees to be alert as same was a simple general power of attorney in favour of plaintiff---Real document to put subsequent vendees on alert was agreement to sell, which had never been registered---Had the parties executed only one document and all contents of both documents been mentioned in one document, which was registered as well, then there had been every occasion for subsequent vendees to have become alert of rights of plaintiff-agent---Registered power of attorney was silent that principal had allowed agent-plaintiff to get property transferred in his own name---Subsequent vendees in such circumstances, despite exercise of due diligence, could not have known or supposed to have known about existence of any agreement to sell' between original vendor and plaintiff--Subsequent vendees were, thus, bona tide purchasers for consideration and without notice within contemplation of S.27 of Specific Relief Act, 1877--No decree for specific performance could be granted in favour of plaintiff. (b) Contract Act (IX of 1872)--- ----Ss. 188 & 214---Power of Attorney Act (VII of 1882), S.2---Agent--Transfer of principal's property---Duty of agent---Appointment of a general attorney is a matter of routine as well as requirement of principal and is never indicative by itself of a sale or absolute sale on behalf of principal; much less a sale in favour of agent himself---General attorney must take special permission from principal while transferring his principal's property in his own name or in the name of his close fiduciary relations. (c) Registration Act (XVI of 1908)--- ----Ss. 18 & 49---Specific Relief Act (I of 1877), Ss. 12 & 27---Transfer of Property Act (IV of 1882), S. 41---Agreement to sell, non-registration of--Effect-- -Such agreement could neither put subsequent vendee on guard nor notice thereof could be taken by a third person. (d) Transfer of Property Act (IV of 1882)--- ----Ss. 12 & 52---Suit for specific performance of agreement to sell ---Lis pendens, principle of---Applicability---Plaintiff would not be bound by transfer made in favour of subsequent vendee during pendency of suit---Such subsequent sale would not matter much, where plaintiff was not found entitled to decree for specific performance of contract---Genuineness or otherwise of any further transaction would be relevant only, if a decree was granted in favour of plaintiff for specific performance. (e) Specific Relief Act (I of 1877)--- ----Ss. 12 & 19---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement to sell---Vendor entered into agreement to sell with plaintiff on payment of Rs.26,000, but later on sold the land to subsequent vendees for Rs.1,00,000---Trial Court dismissed plaintiff's suit---High Court in revision enhanced decretal amount of Rs.26,000 to Rs.1,30,000--Validity--- Vendor had not challenged such increase of decretal amount, thus, he was bound to pay the same---Present value of property according to parties was more than Rs.2,00,000---If property had so much escalated in value, then amount paid by plaintiff had equally escalated in similar proportion---Value of currency had gone down due to high inflationary trends in economy---Plaintiff and his legal heirs needed to be compensated for torture of protracted litigation for last 22/23 years-- -Had amount paid by plaintiff been invested, same would have enhanced in value at least ten times---Plaintiff was entitled by all means to such compensation-- Supreme Court converted petition into appeal and after partially accepting same granted decree to plaintiff for recovery of Rs.2,30,000, out of which decree against vendor would be of Rs.1,30,000 and against subsequent vendees would be of Rs.1,00,000. Hafiz Saeed Ahmed Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners. Sardar Muhammad Aslam, Advocate Supreme Court and M.A. Zaidi, Advocate- on-Record for Respondents. Date of hearing: 16th January, 2003. JUDGMENT SARDAR MUHAMMAD RAZA, J.---Jamil Akhtar and others, the legal heirs of Rasheed Ali deceased have filed this petition for leave to appeal against the judgment dated 19-4-2001 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, in Civil Revision No.551-D of 1987. 2. Las Baba son of Aziz Baba, owner of landed property measuring 101 Kanals, 5 Marlas in village Takht Pari of Tehsil Rawalpindi, entered into an agreement to sell dated 2-6-1979 with Rasheed Ali on payment of Rs.26,000. On the same date Las Baba executed a registered Power of Attorney No.736 in favour of Rasheed Ali whereby the latter was appointed as general attorney, authorising him, inter alia to sell the land as well. 3. The aforesaid agreement to sell had not yet been materialised when Las Baba through a notice dated 4-8-1980 in Daily Jang, Rawalpindi revoked the power of attorney. Rasheed Ali protested through a notice dated 11-8-1980 to which Las Baba gave a reply on 18-8-1980 and on the same day the entire property in question was sold through a mutation in favour of Anwar Hussain and Abdur Razaq (defendants Nos.2 and 3) in equal shares for a sum of Rs.1,00,000. Rasheed Ali brought a suit against all the aforesaid persons for specific performance of contract. It may be mentioned at this stage that during the pendency of suit Rasheed Ali died on 27-4-1982 and the property was further transferred by defendants Nos.2 and 3 in favour of defendants No.4 and 5. Both matters were regulated through an amended plaint. 4. After recording evidence pro and contra, learned Civil Judge, Rawalpindi, vide his judgment dated 16-3-1987 came to the conclusion that though the execution of agreement to sell dated 2-6-1979 Exh.P.1 and general power of attorney dated 2- 6-1979 Exh.P.2 was proved yet the plaintiffs were not entitled to a decree for the specific performance of contract because subsequent vendees were bona fide transferees for consideration and without notice of the rights of Rasheed Ali, the original plaintiff. In appeal learned Additional District Judge, Rawalpindi set aside the judgment of the trial Court and, vide his judgment dated 7-10-1987, granted a decree for specific performance of contract in favour of the plaintiffs. The defendants went in revision before the High Court, where the learned Single Judge in Chambers on 19-4-2001, while agreeing with the overall decision of the learned Civil Judge, enhanced the decretal amount of Rs.26,000 to Rs.1,30,000, holding that because of misrepresentation of Las Baba the plaintiff had to part with an amount of Rs.26,000 which remained in doldrums for more than a decade and hence the plaintiff required to be compensated under section 19 of the Specific Relief Act. Against notice given to the respondents, we have heard the learned counsel on either side at considerable length. 5. Against the decree granted, Las Baba has preferred no petition before this Court and hence the decree against him would stand if not liable to be set aside on other grounds available to the subsequent vendees. 6. First of all, we would take up the question of bona fide purchase claimed by subsequent vendees Though specifically the defendants have not mentioned section 41 of the Transfer of Property Act or section 27 of the Specific Relief Act, yet in their written statement they have taken the plea that the property was purchased by them considering it to be free of all encumbrances. In the circumstances of the present case, we have to see as to whether the subsequent vendees are entitled to any benefit under section 41 of the Transfer of Property Act or under section 27 of the Specific Relief Act. 7. All the three Courts have concurrently held that agreement to sell dated 2-6- 1979 Exh.P.1 and general power of attorney dated 2-6-1979 Exh.P.2 are proved to have been executed. We have noticed with concern that both the deeds have been executed on one and the same date still agreement to sell is not registered though on that very date the general power of attorney Exh.P.2 was duly registered.
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