“how same was labelled and a- party wished to describe same--Suckp: 1412 CIVIL LAW CASES {Vol. XXXIL4 ont) Moazz 2011 CL C1412 [Karachi] Before Munib Akhtar, J Syed MOAZZAM ALI SHAH----Appellant versus MUHAMMAD SULEMAN and others. (@ Specific Relief $. 27(b)---Transfer sagreement for sale 0 vendee by yendor——l amount to or confer 0 “tle acquired thereun an "imperfect title”. Respondents Shaukat ‘Ali 1071 and P&T Co-op PLD 1961 Kar 53 rel (e) Transfer of Pr ---+S, $4-—-Registratic immovable property- unregistered agreem document would aris be registered, but | registration of sale would/could not be nature. [p. 1424] G Industrial D Stone Crushers and vy. Muhammad Ramz Najma Rafi 1995 SC ()- Specific Relie, ---Ss. 12, 27(b) « §,53-A---Suit for sp declaring sale agre. Plea of subsequent on basis of register of suit-land for ve prior agreement b itmovable propert: buyer---Person clai Specific Relief Act entire sale price « Subsequent purcha of prior agreeme subsequent purche even if registered \ any title to purch Second Appeal No.4 of 2007, decided on 8th April, 2011. (a) Specific Relief Act (I of 1877)- --~-Ss. 12, 27(b) & 42---Suit for specific performance of prior sale agreement and declaring subsequent sale agreement as null and void—~ Plea of subsequent purchaser not to’have knowledge/notice of prior agreement before such. suit; and that prior purchaser (plaintiff) had not averred in, plaint that subsequent. purchaser had such noticel knowledge---Burden of proof---When point of knowledge/notice of subsequent purchaser about prior agreement was part of plaintiff's cause of action, then same must be specifically averred in plaint, otherwise he could not be allowed to leave evidence in respec of such fact--When such point of knowledge/notice was simply part of defence plea, then plaintiff could lead evidence to prove contrary thereto even in absence of such averment. in plaint~ Principles. [pp. 1420, 1421] A, B& € Mst. Khair-ul-Nisa and others v. Malik Muhammad Ishaque and others PLD 1972 SC 25; Shah Nawaz v. Abdul Ghafoor and another 2008 SCMR 352; Abdul Haque and others v. Shaukat Ali and otheis 2003 SCMR 74; Pak United Housing Enterprise v. Ramzan and others 1992 CLC 1678 and Muhammad Ramzan v. Muhammad Sharif and others 1987 MLD 403 rel. (b) Civil Procedure Code (V of 1908)--- --S. 100---Question of legal nature and effect of agreement in dispute—-Scope---Court would look at substance of agreement, but nat question being question of law could be raised in second appeal [p. 1422] D (c) Specific Relief Act (I of 1877)--- ~-S. 12---Suit for specific performance of agreement to sell~ Agreement for sale---Evidentiary value---Such agreement would ‘nol confer any title in or to property on buyer. [p. 1423] E cc- 3{Vol. XXXill} wt dents + 1e of prior sale null and void-— (notice of prior laintiff) had not ! such notice! Yedge/notice of rt of plaintiff's ured in plaint, nce in respect ice was simply dence to prove nt. in’ plaint— nad Ishaque and vor and another Ali_and othets nzan and others mad Sharif and * agreement in cement, but not be same---Such second appeal. ment to sell nent would ‘not 11) Moazzam Ali Shah v. Muhammad Suleman 1413 (Munib Akhtar, J) (d) Specific Relief Act (I of 1877)- -—-S, 27(b)-—Transfer of Property Act (1V of 1882), S.54---Subsequent agreement for sale of immovable’ property in favour of subsequent yendee by vendor---Evidentiary value---Such agreement would. not ‘amount to or confer or convey any title to subsequent purchaser, whose ‘title acquired thereunder would remain.either an "equitable right" or an "imperfect title". [p. 1423] F Shaukat ‘Ali Mian v. Trust Leasing Corporation Ltd.-2002 CLD 1071 and P&T Co-operative Housing Society Ltd v. Ch. Manzoor Sahi PLD 1961 Kar 53 rel. (e) Transfer of Property Act (IV. of 1882)--- _a--S. 54---Registration Act (XVI of 1908), S.48---Agreement for sale of immovable propert)---Priority of registered subsequent agreement over unregistered agreement---Scope-—-Question of priority of registered document would arisé in a case when document was required by law to be registered, but not otherwise---Law did not require compulsory registration of sale agreement---Sale agreement registered voluntarily would/could not be given priority over another agreement of same nature. [p. 1424] G Industrial Development Bank of Pakistan v. Muhammad Ayub Stone Crushers and others 2009 SCMR 611; Rasool Buksh and another y. Muhammad Ramzan 2007 SCMR 85 and Tahir Hussain, Malik v. Mst. Najma Rafi 1995 SCMR 1407 rel. © (f) Specific Relief Act (I of 1877)--- s. 12, 27(b) & 42—---Transfer of Property Act (IV of 1882), §,53-A---Suit for specific performance of prior sale agreement and for declaring sale agreement of subsequent purchaser as null and void-— Plea of subsequent purchaser claiming to be.in possession of suit-land on basis of registered sale agreement that he was a-bona fide purchaser off suit-land for valuable consideration without knowledge/notice of prior agreement before such suit~-Validity---Agreement for sale of himovable property would not confer any title in or to property on buyer-—-Person claiming protection under latter part of Cl.(b) of S.27 of Specific Relief Act, 1877 inust have a "title" to suit property and paid entire sale price before acquiring knowledge of prior agreement-—- Subsequent purchaser's statement on oath as witness not to have notice ‘of prior agreement would shift onus on plaintiff to prove that Subsequent purchaser did have such notice---Subsequent agreement, even if registered voluntarily, would not amount to or confer or convey any title to purchaser, whose title acquired thereunder would remain ac3 Moazzam 1414 CIVIL LAW CASES [vol. xxxnp!) ird. purchas' either an "equitable right” or an "imperfect title", thus, defence undejsrehasel, i a Pe S.27(b) of Specific Relief Act, 1877 would not be available to him—| 53-A of Act, Subsequent purchaser during cross-examination admitted that he hai| Hemraj v- Rustor not paid entire sale consideration to vendor and there was balanct amount, outstanding against him-—-Subsequent purchaser «was nol entitled to protection of S.27(b) of Specific Relief Act, 1877 for not\ . having paid entire sale consideration to vendor before acquiring| knowledge of prior agreement--Such plea of subsequent purchaser was repelled and subsequent agreement was declared as null and void and cancelled in circumstances. Ipp. 1424, 1425, 1426, 1429] H, I, J, K, L&P Veeramalai Vanniar (Died) and others v. Thadikara Vanniar and others AIR 1968 Mad. 383; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 and Kali Charan y. Janak Deo AIR 1932 All 694 rel. (g) Specific Relief Act (I of 1877)--- ---Ss. 12, 27(b) & 42---Suit for specific performance of prior sale agreement and declaring ‘sale agreement of subsequent purchaser as null and void---Plea of subsequent purchaser that he was a bona fide purchaser ‘of suit-land for valuable consideration without having knowledge/notice of prior agreement before filing of suit---Admission of subsequent purchaser during cross-éxamination. not to have paid entire sale consideration to vendor and there was. balance amount outstanding against him---Validity—-Subsequent purchaser had not paid entire sale consideration before acquiring knowledge/notice of prior agreement, thus, he would not be entitled to protection of latter part of S.27(b) of Specific Relief Act, 1877---Court in such case could declare subsequent agreement as null and void and cancel the sdime-— Mlustration. [pp. 1425, 1426, 1429] J, K, L & P Veeramalai Vanniar (Died) and others v. Thadikara Vanniar and others AIR 1968 Mad‘383 rel. (h) Transfer of Property Act (IV of 1882)--- --S. 53-A---Specifie Relief Act (I of 1877);. 88.12 & 27(b)---Suit for specific performance. of prior sale agreement-~-Suit property claimed to be in possession of subsequent purchaser in part performance of subsequent agreement---Validity---Provisions of S.53-A of Transfer of Property Act, 1882 would not apply to present case as plaintiff had made claim to suit property under prior sale agreement---Subsequent purchaser, if not entitled to protection of latter part of S.27(b) of Specific Relief Act, 1877, could not resist suit of prior purchaser by taking shelter behind provision of S.53-A of Transfer of Property Act, 1882---Only in case of suit by second purchaser against third Mushtaque A; M Mrs. Razia Ali Z Badal Gahoti for Mumtaz Alam 1 MUNIB AKH wing circumstance eG ae sellers. entere and 2, as buyers, tO of which is not nece respondents Nos.3 to ' the aforesaid respon¢ sprior Purchasers") ¢ iherefore a legal no fatter. Since the Prio fulfil their obligatio (hereinafter referred cancelled. ‘Thereafe appellant (hereinaft means of. register as the "Subsequent judgment to con ‘Agreement. It is appellant was. ™ executed the Sut convenience, both “subsequent Purct 2. The Prio Hyderabad in rel: filed, the Priot possession of tt Purchaser were } Prior Purchasert they did not + Subsequently, the Sellers, 3° dispossessed th ne ac auc eae~ 4Vol. XXXII defence uniter Table to him=- ed that he had ‘e was, balance taser * was’ not 5, 1877 for not fore acquiring ‘purchaser was "and void and »L5,KL&P ara Vanniar and ‘eth Muhammad Janak Deo AIR e of prior sale 't purchaser as vas a bona fide without having uit---Admission it to have paid valance amount ier had not paid ‘notice of prior of latter part of +e could declare el the sdme-—- ara Vanniar and verty claimed to verformance of Of Transfer of as plaintiff had nt?--Subsequent t of S.27(b) of or purchaser by of Property Act, * against third 2011) Moazzam Ali’ Shah ¥. Muhammad Suleman 1415 (Munib Akhtar, J) purchaser, third. purchaser would be entitled to benefit of Proviso to S.53-A of Act, 1882---Principles. Ipp. 1427, 1428] M, N&O Hemraj v. Rustomji AIR 1953 SC.S03 rel. Mushtaque A. Memon for Appellant. Mrs. Razia Ali Zaman Khan for Respondent No.1. Badal Gahoti for Respondent No.2. Mumtaz Alam Leghari, Asstt. A.-G.. ORDER MUNIB AKHTAR, J.-- This second appeal arises in the following circumstances. On-or about 10-6-1992, the respondents Nos. 3 to 6, as sellers, entered into an agreement with the respondents Nos. 1 and 2, as buyers, to sell their agricultural land (the detailed description of which is not necessary) to the latter. The case of the aforesaid respondents Nos.3 to 6 (hereinafter referred to as the Sellers") was that the aforesaid respondent Nos.1 and 2 (hereinafter referred to as the "Prior Purchasers") did not abide ‘by the terms of ihe agreement, and therefore a legal notice dated 11-1-1993 was served by them on the fatter,-Since the Prior Purchasers still, according to the Sellers, failed to fulfil their obligations under the aforesaid agreement dated 10-6-1992 (hereinafter referred to as the "Prior Agreement"), they regarded it as cancelled, Thereafter, the Sellers sold the Subject property. to the appellant (hereinafter referred to as the "Subsequent Purchaser") by means of.a registered document dated 2-3-1993 (hereinafter referred to as the "Subsequent Agreement"). I will have occasion later in the judgment to consider in detail the nature of the Subsequent ‘Agreement. It is also pertinent to note that’ at all material times, the appellant was.a minor and acted through: his’ uncle and guardian, who executed the Subsequent Agreement .on his behalf as well. For convenience, both are, as appropriate and relevant, referred to as the "Subsequent Purchaser". 2. The Prior Purchasers filed a ciyil suit in the civil court at Hyderabad in relation to the Prior Agreement. In the plaint as originally filed, the Prior Purchasers claimed that the Sellers had put them in possession of the suit property. Both the Sellers and the ‘Subsequent Purchaser were impledded as defendants. It is to be noted that while the Prior Purchasers: sought declaratory and injunctive relief in their suit, they did not seek specific performance of the Prior Agreement. Subsequently, they filed an amended plaint, in which they claimed that the Sellers, acting “in league with the Subsequent Purchaser, had dispossessed them fram the suit property. The prayer clause was also auc1416 CIVIL LAW CASES [Vol. XXXII 11911] Moazz amended to include relief by way of specific performance. It is pertinent The parties let to refer to the first three paragraphs of the prayer clause of the plaint Yo.1 (ie., one of the which, as amended, were as follows: appellant (i.e., the $ "() It be kindly declared that the defendant No.1 has already entered’ | support of their rt into a valid and lawful agreement of sale dated 10-6-1992 with | evidence in resp 7 the plaintiffs in. respect of agricultural land bearing survey } 23-12-2002, coneLte’ numbers 323 7-18, 325/714 and 326/6-0 measuring 20-32 acres, | tesative, 1-¢-» a situated in Deh Bhan Bhri Tapo Verato Taluka Hala District ‘gSince this iy, deck a Hyderabad and therefore the defendant No.1 is legally bound to sonsequentialys decid honour the said sale agreement and hence the'sale agreement J ‘rial court eri hh dated 2-3-1993 executed by defendant No.1 in. favour of the | Agreement, whit defendant No.5 is illegal, ab initio void, fraudulent and without { Subsequent ae : any lawful effect and does not confer any right upon the | between the Sellers < defendant No. 5 and is liable to'be adjudged as such, was dismissed. (ii) That the defendants are bound to restore the physical possession SR tere of the suit-land the plaintiffs and the defendants Nos.1 to 5 are | Purchasers, preter! bound to pay the mesné profit at the rate of Rs.20,000 per year, | learned Vilth Addit for the suit-land till the possession is restored to the plaintiff and }- impugned judgmen\ the defendants Nos.1 to 5 are bound to perform the sale | considered the evi agreement dated 10-6-1992, by executing and registering the . tial court on bo sale-deed in favour of the plaintiff for the suit-land alternatively Agreement was V. the Nazir of the court may be directed to execute and complete f terefore, “legally the sale-deed in favour of the plaintiff on behalf of defendents J consequence, Co Nos.1 to3. Agreement was “ill did not confer any (iii) That it.be kindly further declared that the sale agreement dated | accordingly allowe: 2-3-1993, executed by defendant No.1 in favour of defendant | suit of the Prior P No.5 in respect of the suit-land is illegal, mala fide, void and ] (ii). It will be nece fraudulent document and does not confer any right upon the | the judgment. defendant No..5." : . . 5. The Prior 3. The Sellers and the Subsequent, Purchaser filed their written } of the learned app statements contesting the suit. The Subsequent Purchaser specifically filed the present : took the plea in his written statement that’he did not have any knowledge cross-objections. of the Prior Agreement before the filing of the suit. His case was that he concerned, the in was “ bona fide purchaser of suit property for valuable consideration attained finality. 7 without notice. On the pleadings of the parties, the learned trial court dismissed. Being framed a number of issues, of which only the following two are’ relevant went in further a for present purposes: judgment dated 2 it "5. Whether the agreement of sale dated 10-6-1992 between the bemeeeneg plaintiff and defendant No.1 is valid? 7 Ff. the-parties. 6. Whether sale agreement dated 2-3-1993 between defendant No.1. , & Learned : ~3-. etween defendant No. d and 5 is illegal and void?" =° Purchaser) base Act, 1877. He sv aeIt is pertinent ec of the plaint ilready entered 0-6-1992 with vearing survey g 20-32 acres, Hala District gally bound to tale agreement favour of the nt and without ight. upon the ch. ical possession Nos.1 to 5 are 2,000 per year 1e plaintiff and forin the sale ‘egistering the d alternatively : and complete of defendents reement dated of defendant fide, void and ‘ight upon the their written or specifically any knowledge ise was that he consideration red trial court ‘0 are relevant 2 between the efendant No.1 PoE 2011] Moazzam Ali Shah v. Muhammad Suleman. 1417 (Munib Akhtar, J) The parties led their evidence, and both the present respondent Yo.1 (ie., one of the two Prior Purchasers) and the guardian of the appellant (j.e:, the Subsequent Purchaser) appeared as witnesses in support of their respective cases. The learned trial court considered the evidence in respect of Issue No.5 and, by means of its judgment dated 23-12-2002, concluded that this issue ought to be decided in the negative, i:e., against the Prior Purchasers and in favour of the Sellers. Since this issue was so decided, issue No.6 was, more or less consequentially, decided also in the negative. In other. words, the learned trial court found ‘that the Prior Purchasers had violated the Prior Agreement, which had therefore been rendered invalid, and that the Subsequent Agreement had been properly .and validly entered into between the Sellers and the Subsequent Purchaser. As a result, the suit was dismissed. 4. Being aggrieved by the dismissal of their suit, the Prior Purchasers preferred an appeal, which was heard and decided by the learned VIith Additional District Judge, Hyderabad by means of the . impugned judgment dated 4-1-2007. The learned appellate court considered the evidence led at the’ trial, and reversed the learned trial court ‘on both the issues aforesaid. It held that the Prior Agreement was valid and. subsisting. and’ that the Sellers were therefore. “legally bound to honour, the said sale agreement". In consequence, the learned appellate court also held that the Subsequent Agreement was “illegal, void ab initio and without any legal effect" and did not confer any rights on the Subsequent Purchaser. The appeal was accordingly allowed. However, the learned appellate court decreed the suit of the Prior Purchasers only in respect of prayers ‘clauses (i) and (iii). Tt will be necessary also to examine this aspect of the matter later in the judgment. 5. The Prior Purchasers did not file any appeal against the decision of the learned appellate: court. It-is the Subsequent Purchaser who has filed the present appeal, and the Prior Purchasers have not filed any cross-objections. Therefore, insofar as the Prior Purchasers are concerned, the impugned judgment of the learned appellate court has attained finality. This second appeal was earlier heard on 6-4-2009, and dismissed. Being aggrieved by this dismissal, the Subsequent Purchaser went in further appeal to the Supreme Court, which by means of its judgment dated 22-6-2010 set aside the judgment dated. 6-4-2009, ‘and remanded the matter back to this Court for a fresh decision after hearing the. parties. 6. Learned counsel for the appellant (i.e., the Subsequent Purchaser) based his case squarely on section 27(b) of the Specific Relief Act, 1877, He submitted that the Subsequent Purchaser was a bona fide ac1418 CIVIL LAW CASES [Vol. XXXII purchaser of the suit property for valuable consideration without notice. He emphasized.that the Subsequent Purchaser had discovered the fact that there’ was a Prior Agreement only when the suit was filed. Learned counsel submitted that his case therefore came within the latter part of section 27(b), which, in effect, provided that no specific performance of a contract would be ordered against "a transferee for value who has paid his money in good faith and without notice of the original contract". This was the primary case put forward by learned counsel for the Subsequent Purchaser. He submitted that:the Prior Purchasers had to specifically aver in the plaint that the: Subsequent Purchaser had knowledge of ‘the Prior Agreement when he entered into the ‘Subsequent’ Agreement, However, no such averment was to be found in the plaint, either as originally filed or as subsequently amended. Although the. present respondent No.1 (one of the Prior Purchasers) testified in his examination-in-chief that the Subsequent Purchaser did have such knowledge, learned counsel submitted that this statement was beyond the plaint and no such evidence could therefore be led at the trial, in accordance with. well-settled principles. Without prejudice to this contention, learned counsel submitted that even if the evidence of the Prior Purchasers on the one hand, and that of the Subsequent Purchaser on the other, on the point of knowledge was considered, it was clear that they had failed to establish that the latter had knowledge of the Prior Agreement at the time the Subsequent Agreement was entered into. Once the Subsequent Purchaser denied. on oath (which he did in his examination-in-chief) that he had any such knowledge, the onus lay on the Prior Purchasers to establish this fact, which burden they had failed | F to discharge. Thus, learned counsel contended, on any view of the matter, the Subsequent Purchaser was entitled to the protection afforded by the latter portion of section 27(b). Learned counsel further submitted. that the Subsequent Agreement was a registered document, which therefore had priority over the unregistered Prior Agreenient. His case was also that the Prior Agreement was merely an agreement to sell, whereas the subsequent agreement was a registered deed of transfer of possession. Learned counsel also submitted that the position of the Subsequent Purchaser was in any case secured in terms of section 53A of. ‘the Transfer of Property Act, 1882 since he had put in possession of the suit property’ in part performance of the Subsequent Agreement. Learned counsel submitted that the learned appellate court hhad failed to take any of these matters into consideration, and had thus erred: materially in concluding that the Subsequent Agreement was illegal, void ab initio and of no legal effect. Learned counsel also submitted that the learned appellate court, in decreeing the suit only in respect of paragraphs (i) and (iii) of the prayer clause, had in effect, made.a bare declaratory décree which was not capable of execution, and this was also contrary to well settled principles. He therefore prayed that the appeal be allowed, the ac P11] Moa impugned judgment dismissing the suit re 7. Learned ‘cov learned appellate cov Purchasers had beer ‘Agreement: was valit cancellation, dated Prior Purchasers wat could be put upon Purchaser did have into the Subsequent supported this’ concl the entire sale consi« the time stipulated i done. even up to 2 Subsequent Purchast latter part of sectic learned appellate co counsel relied on s such a declaration facts and circumste court had upheld’ th followed as a natur the courts were fu relief, even if such suit had been decre of no moment. Th evidence at the tr subject property in Agreement) and th: and the Subsequer Agreement was a 1 could not, ‘give it « counsel for the St appeal be dismisse: 8.- Learned 4 dismissed. He sub F< Prior Agreement ¥ the trial in suppo: lawfully cancellec Subsequent Purche Prior Agreement discharge.‘ _[Vol. XXXII ithout notice. ered the fact ded. Learned latter part of rformance of who has paid tract". This e Subsequent » specifically ‘edge of the Agreement. nt, either as the. présent fied in his ! have such 1s beyond the the trial, in dice to this dence of the :nt Purchaser vas clear that of the Prior :d into. Once did in his onus lay ‘on ay had failed view of the tion afforded ser submitted nent, which ont. His case nent to sell, f transfer of ition of the ction 53A of., ession of the ent. Learned 1 to take any naterially in ab initio and the learned raphs (i) and atory décree rary to well- allowed, the 2011]. Moazzam Ali Shah v. Muhammad Suleman. 1419 (Munib Akhtar, J) impugned judgment set aside and the decree of the. learned trial court dismissing the suit restored. 7. ‘Learned ‘counsel for thé Prior, Purchasers submitted that the. learned appellate court had come to the correct conclusion that the Prior Purchasers had been able to fully. make out their case that the Prior Agreement was valid and subsisting. They submitted that the notice of cancellation, dated 111-1993 that had, been sent by the Sellers to, the Prior Purchasers was a false and manipulated document, and no credence could be p:t upon, it. They further contended that. the Subsequent Purchaser did have knowledge of the Prior Agreement when he entered into the Subsequent Agreement, and the evidence led at the trial fully supported this’ conclusion. It was also contended by learned counsel that the entire sale consideration was not paid by the Subsequent Purchaser at the time stipulated in the Subsequent Agreement, ‘and this had not been done. even up to 2002, when the evidence was.recorded. Thus, the Subsequent Purchaser was not entitled to the benefit and protection of the later part of section 27(b). As regards the declaration made by the learned appellate court with regard to the Subsequent Agreement, learned counsel relied on section 39 of the Specific Relief Act to contend that such ‘a declaration was perfectly lawful and entirely reasonable in the facts and circumstances of the case, i.c.; when the learned appellate court had upheld the validity of the. Prior Agreement, such a declaration followed as a natural consequence. Learned counsel also coritended that the courts were fully empowered to grant any effective or ancillary relief, even if such relief had.not been prayed for. Thus, the fact that the suit had been decreed only in relation to prayer clauses (i) and (iii) was ‘of no moment. This was especially so when, according to them, the evidence at the trial had also established that the possession of the subject property initially lay with the Prior Purchasers (under the Prior Agreement) and they had been subsequently dispossessed by the Sellers and the Subsequent Purchaser. Their case was that the Subsequent Agreement was a fraudulent document, and its registration did not, and could not, ‘give it. any protection or priority as conterided by learned counsel for the Subsequent Purchaser. They therefore prayed that the appeal be dismissed. 8.-: Learned A.A.-G. also submitted that the appeal ought to be dismissed. He submitted: that although the notice of cancellation of the Prior. Agreement was produced in evidence, the Sellers did not testify at the trial in support of their claim that the Prior Agreement had been lawfully cancelled. He submitted further that the onus lay on the Subsequent Purchaser to establish that he did not have knowledge of the Prior Agreement at the relevant time, which onus he had failed to discharge. ac1420 CIVIL LAW CASES [Vol. XXXIll 9. I have heard learned counsel for the parties; examined the record with their assistance, and considered the’ case-law relied upon by them. As noted above, the main case put forward by learned counsel for the Subsequent Purchaser rests on section 27(b) of the Specific Relief Act. Section 27, as presently relevant, provides as follows: "27. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-- (a) either party thereto; (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;....” ‘The general rule is that specific performance of a contract.can| be ordered against any: party to the contract (clause (a) or any other person claiming under such party by reason of a “title” arising subsequently to the contract (clause (b)). There is however, a limited exception to the latter provision, contained in the last words of clause (b): "except a transferee for-value who has paid his money in good faith and without notice of the original contract”. This of course, is the part of section 27 relied on by the Subsequent Purchaser, and clause (b) must therefore be examined in some detail so that its scope and extent can bel properly determined. 10. The first point to note is that the person claiming the protection| of the latter part of clause (b) must have a "title". The "title" referred to can only mean title to the subject property. I defer consideration of this aspect of clause (b), and proceed first to consider the remaining portion| thereof, on which the Subsequent Purchaser’ rests his case, and” is) particular, the question of the knowledge (or notice) of the transferee} about the prior contfact, As noted above, learned counsel for the) Subsequent Purchaser submitted that the Prior Purchasers had to make af: specific averment in this regard in the plaint, and if they failed to do so, they could not lead any evidence to establish such knowledge or notice, In my view, the-proper resolution of this issue requires consideration of the following question: is the point of knowledge (or notice) part of thé plaintiff's cause of action, or is.it part of any defense to be put forwar by the defendant concerned? If it-is part-of the cause of action, then ii has to be specifically averred in the plaint, since the plaint must disclose all the facts which, taken together,. constitute the cause of action. If) plaintiff fails or omits to disclose any fact in his plaint that is an clemea! of his cause of action, he cannot thereafter be allowed to lead evidence i respect of such fact. On the other hand, if the question of knowledge a notice is simply part of the defense that may be put forward by the ae ‘Dut) Moazza amcerned defendant,’ 1 Fdligation to make such wat forward such a defe }westablish the contrary was made in the plaint. | ii, In my view, the ‘the prior contract soug cause of action, but sim My the. concerned defer | Kiair-ul-Nisa and othe 1972 SC 25, a decision that if the transferee ay totice of the prior cor '(ie., the prior purchas does not mean that the in the plaint, All that is to discharge the burden [avail the protection prt so, then the onus shifts have such knowledge. whether he wishes to p for the plaintiff to secc that’ the defendant did forward, then the par! however, no such defe: View therefore, the poi not part of the cause mandatorily be made concerned does raise s ifa denial is made on Hat trial. It also follow: beyond the pleadings ¢ } lead evidence on the } {, Learned counsel for 1 I Shah Nawaz v. Abdul Haque and others v. United Housing Enter SHC) and Muhammac MLD 403 (LHC): In contrary to anything s this Court in the de dec mn of | the Lahc “binding on me). Reli. ‘ease (supra), where, i