1986 PLP 2856 (MLD)

Abid Hassan Minto for Appellant. Allah Wasaya Malik for Respondent No.1. Abdul Sattar Chughtai and Malik Noor Muhammad for Respondent No.

2. Nemo for Respondent No.

3. Dates of hearing: 26th March and 16th April, 1986. This appeal is directed against the appellate judgment and decree of the learned District Judge, Bhakkar, dated the 8th June, 1983, which affirmed the judgment and decree of the learned Civil Judge, Bhakkar, of the 21st June, 1982, decreeing respondent 1's suit for possession of 24 Kanals 18 Marlas of the land in dispute, situate in the area of village Shahani, Tehsil and District Bhakkar. Muhammad All Khan, son of Ashiq Hussain Khan, respondent 3, was the owner of the land in question. Alleging that respondent 3 had sold him the land in dispute for Rs.14,000 and delivered him possession thereof two years back but ten days before he had again taken over illegal possession of the land, respondent 1, Noor Shah, instituted suit on the 14th February, 1978, for recovery of possession of the land.

2. Respondent 3 by means of the sale‑deed, EXh.D.l, which he executed and got registered on the 26th February, 1978, transferred the land in.‑dispute to Ata Hussain Shah, respondent 2 for a consideration of Rs.25,

000. Respondent 2 was accordingly 'Joined as defendant alongwith respondent 3 in the suit brought by respondent

1. Nazar Hussain Shah, appellant, brought suit to pre‑empt the last mentioned sale. He did not make respondent 1 party to the suit. Respondent 2 confessed judgment and the pre‑emption suit was decreed in the appellant's favour on the 23rd July, 1970. As stated by the appellant and respondent 2 the purchase money has been paid by the, appellant to respondent

2. On the motion of respondent 1 the appellant had to be impleaded defendant in his suit.

3. The appellant and respondents 2 and 3, as defendants contested respondent 1's suit. Respondent 3 denied having sold the land to respondent

1. He pleaded that he had sold the land. to respondent 2 and this fact was confirmed by the latter. The appellant contended that he had secured land through decree of Court and paid Rs.25,000 to respondent 2 and, therefore, his rights under section 54 of the Transfer of Property Act were protected. He pointed out that respondent 1 had earlier brought a suit which had been dismissed and maintained that its decision operated as res judicata under section 11 of the Code of Civil Procedure to the suit in hand.

4. Respondent 1 produced Mushtaq Hussain, P.W.2, and Sajjad Hussain, P.W.3, to bear out taking place of bargain of sale of the land in dispute between him and respondent

3. He examined Sheikh Muhammad Akhtar, petition‑writer, P.W.1, the scribe of the receipt. Exh.P.l, acknowledging the receipt of 116.14,000 as price of the land in dispute by respondent 3 from respondent 1, on the 7th December, 1977, which he said was executed by respondent 3 by affixing his signature and thumb‑impression. He added that the money had been paid in his presence. Allah Wasaya, P.W.4, and Allah Dad Khan, P.W.5, are the marginal witnesses of the receipt. They confirmed payment of Rs.14,000 by respondent 1 to respondent 3 in their presence. As P.W.6, respondent 1 deposed that he had purchased the land from respondent 3 about three years‑before (about two years before the institution of the suit), that he had paid Rs.14,000 to respondent 3 who had executed the receipt Exh.l. He added that respondent 3 was not getting the sale‑deed registered nor mutation of sale sanctioned. He further stated that respondent 3 had taken forcible possession of the land.

5. Respondent 1 had earlier instituted suit against respondent 3 for a declaration that he was the owner and in possession of the land in dispute and that respondent 3 had no concern whatsoever with it. Respondent 3 filed written statement admitting the claim of respondent 1 in entirety and made statement (copy Exh.P.2) on the 23rd January, 1978; that he had been owner of land and that he had sold it to respondent 1'for Rs.14,000 and further that he had not got the sale‑deed registered. The learned Civil Judge thought that‑ respondent 1 had adopted the course of obtaining consent decree in order to evade payment of stamp duty and registration fee. Considering that respondent 1 had approached the Court with unclean hand he was not prepared to grant him the discretionary relief of declaration and dismissed the suit. The order of the learned Judge (copy Exh.P.3) runs as follows,‑‑ "Noon Shah has filed the above titled suit against Muhammad Ali Khan and has prayed‑ for a decree of declaration to the effect that he is the owner and in possession of the suit land measuring 24 Kanals and 14 Marlas, situated in Mauza Shahani. It is stated that in fact, the plaintiff is the owner and in possession of the suit land but the defendants has got his (dfs.) name entered in the Revenue record as the owner of the suit land without any right, the defendant was called upon to get the entries in the Revenue record corrected but he has declined. Hence the suit. The defendant filed a written statement in which he accepted the claim of the plaintiff. The statement of the plaintiff as well as that of the defendant were record8d by me on 23‑1‑1978 wherein both the plaintiff and the defendant have admitted that in fact the plaintiff has purchased the suit land from the defendant in consideration of Rs.14,000 and that the sale was not made through any registered sale‑deed. It is also conceded that the defendant was the owner of the same before he sold it to the plaintiff. It is, therefore, evident that the plaintiff wants to give to the transaction of sale a colour of consent decree without even mentioning the fact of sale and thereby intends to evade the court‑fee and the Registration fee. The plaintiff has come to the Court with unclean hands, the relief of declaration is discretionary relief and cannot be granted to a person who does not come to Court with clean hand. For the foregoing reasons, I hereby dismiss the suit of the plaintiff." The learned Courts below have believed the evidence produced by respondent 1 and have accepted his assertion especially in view of the written statement filed by respondent 3 and the statement made by him in the earlier suit that the land had been purchased by respondent 1 from respondent 3 against the price of Rs.14,000 which respondent had duly received. As the above order was not determinative of the issues arising in the present suit it was rightly not treated by the learned Courts below to operate as res judicata. The concurrent finding of fact recorded by the learned Courts below on the crucial issue has not been shown to be the result of any misreading of evidence. Therefore, it cannot be displaced in second appeal.

6. As the sale in favour of respondent 2 and subsequent acquisition by the appellant through pre‑emption suit to which respondent 1 was not a party took place during the pendency of the suit they would bet hit by the doctrine of lis pendens and would not affect the right of respondent 1 to claim ownership and possession of the land.

7. The learned counsel for the appellant raised a new point which was not urged before the learned Courts below. He pointed out that vide Notification No.15246‑74/2237/LR, dated the 30th December, 1974, the Provincial Government had extended the provisions of section 54 of the Transfer of Property Act, 1882, to the whole of the Province of Punjab and when the sale of the land is said to have taken place in favour of respondent 1, these provisions were in force and since no sale‑deed had been executed and registered no valid sale could be said to have taken place nor the property could be said to have passed to respondent

1. It may be mentioned that this notification was superseded by Notification No.3007‑78/1511‑LRI, dated the 22nd November, 1978, whereby the application of the provisions of section 54 was restricted only to municipalities and all notified areas as declared and notified under section 241 of the Punjab Municipal Act, 1911. The area where the land in dispute is situate is under the latter notification and was prior to the issuance of the first mentioned notification, immune from the application of section

54. In such circumstances the sale, as observed by the Supreme Court of Pakistan in Abdul Karim v . Fazal Muhammad Shah P L D 1967 S C 411 is not altogether void for the defect is curable by getting a document drawn up and registered to perfect the inchoate title of the vendee. Now when the requirement of compulsory registration of sale‑deed has been dispensed with the sale would be in order and a mutation can very well be entered and sanctioned.

8. In view, of what has been stated above there is no room for interference with the decisions of the learned Courts below. The appeal is dismissed with costs. H.B.T Appeal dismissed.