2019 PLP 1158 (YLR)

SYED MUHAMMAD ATTIQUE SHAH, J.

The petitioner through the instant Civil Revision under Section 115 of the Civil Procedure Code, 1908, has called in to question the validity of judgment and decree dated 06.01.2014, passed by learned Additional District Judge-VI, Abbottabad, whereby the appeal filed by the petitioner as well as that of proforma respondent No.2 against the judgment and decree dated 29.10.2010 of Civil Judge-I, Abbottabad was dismissed.

2. Brief but essential facts of the case are that initially Respondent No. 1 Sheikh Asif Latif instituted a suit for declaration etc. against the respondent No. 2 claiming therein that he is owner in possession of half share in the house/kothi built up in Khasra No. 5042 total measuring 1 Kanal on the basis of Iqrar Nama dated 30.06.1998 which was purchased by him from respondent No. 2 against a sale consideration of Rs. 600,000/- and a registered general power of attorney was also executed by respondent No. 2 in his favour. Later, the general power of attorney was revoked by respondent No. 2 through cancellation deed dated 23.01.2002 and thereafter alienated the property in question in favour of respondents Nos. 3 to 5 through mutations Nos. 12698 and 12699 as well as 15393. Since Khalid Shehzad Sethi (defendant No. 1) had already received the sale consideration of the house in question, therefore, revocation of power of attorney as well as alienation of same property to defendants Nos. 2 to 4 was illegal and the mutations entered and attested in their favour are liable to cancellation. The said suit was contested by respondent No. 2 by filing his written statement, wherein he denied the factum of any sale in favour of respondent No. 1, however, he admitted the execution of general power of attorney in favour of respondent No.

1. Similarly, respondent No. 5 also filed his written statement wherein he claimed that he has bonafidely purchased 1/2 share in the suit house and being a bona fide purchaser, his rights are protected under Section 41 of the Transfer of Property Act, 1882. During pendency of suit, the present petitioner was also impleaded in the suit as defendant No. 5 who in his written statement also claimed himself to be a bona fide purchaser. The learned trial court summarized the pleadings of the parties to issues and after recording pro and contra evidence, decreed the suit of the respondent No. 1 for possession through specific performance of contract/agreement dated 30.06.1998 vide its judgment and decree dated 29.10.2010.

3. Both the petitioner as well as respondent No. 2 assailed the said judgment and decree of the trial court through their independent appeals before the learned appellate court. The learned appellate court dismissed both the appeals through its consolidated judgment and decree dated 06.01.2014, hence the instant Civil Revision.

4. Arguments heard and record gone through.

5. Respondent No. 1 brought a suit for declaration, possession, specific performance of agreement against the respondent No. 2, that he is owner in possession of half portion of the suit house which was purchased by him from respondent No. 2 in lieu of sale consideration of Rs. 600,000/- through Iqrar Nama dated 30.06.1998 and in this respect a general power of attorney was also executed in his favour by respondent No. 2, however, subsequently, the same portion of the house was alienated by respondent No. 2 in favour of respondents Nos. 3 and 4 by revoking general power of attorney through revocation deed dated 23.01.2002. Respondent No. 2 took the plea that he never alienated the suit house in favour of respondent No. 1 and the sale deed dated 30.06.1998 is a forged and fictitious document. Respondent No. 2 admitted the execution of general power of attorney in favour of respondent No. 1, however, claimed that when he lost trust over him, the same was revoked, whereas, respondents Nos. 3 to 5, claimed themselves to be the bona fide purchasers of the suit house.

6. In order to prove his case, respondent No. 1/plaintiff produced Notary Public (PW-1) who attested the sale deed dated 30.06.1998 (Ex PW-1/1) in presence of parties, Stamp Vendor (PW-3) from whom the stamp was purchased by respondent No. 2/defendant No. 1 for execution of sale deed and power of attorney, Petition Writer (PW-4) who scribed sale deed and power of attorney, PW-6 and PW-7, marginal witnesses to sale deed as well as power of attorney (Ex PW6/1). On the other hand, the attorney of respondent No. 2 defendant No.1 namely Azhar Mehmood when appeared in the witness box as DW-2, during course of his cross-examination has admitted the factum of said transaction by stating that:-- He also admitted during cross-examination that the suit property was earlier sold 12/15 years ago by respondent No. 2/defendant No.1 and thereafter in the year 2006 the same was sold to defendants Nos. 2 to

4. While going through the evidence of the respondent/plaintiff, it has been established that the respondent/plaintiff has fully proved his case by producing ample, cogent, reliable and confidence inspiring evidence. It is also worth to note that the above referred PWs were passed through lengthy and searching cross-examination by the petitioners, however, nothing favourable was extracted from their mouth in favour of the petitioners/defendants nor any dent has been made in their stance regarding execution of Ex PW1/1. Thus in view of the above, the respondent/plaintiff has fully established his stance and the courts below have rightly held him entitled to the decree in their concurrent findings.

7. Now, moving towards the case of defendants Nos. 2 to 4 in the main suit and added defendant No. 5 Fawad Khan (petitioner herein). They all are claiming themselves to be the bonafide purchasers of the suit property and seeks protection under Section 41 of the Transfer of Property Act, 1882. Defendants No. 2 to 4 derived their title in the suit property from defendant No.1 and since the respondent/plaintiff Sheikh Asif Latif Sethi, succeeded to prove that the suit property was sold to him vide sale agreement dated 30.06.1998 (Ex. PW-1/1), therefore, the subsequent mutations in favour of defendants Nos. 2 to 4 as well as in favour of petitioner/defendant No.5, were rightly ordered to be cancelled by the learned courts below. The defendant No. 5 has admittedly purchased the suit property during pendency of the suit. Section 52 of the Transfer of Property Act, 1882 provides that:- "

52. Transfer of property pending suit relating thereto. During the [pendency] in any Court having authority in [Pakistan], or established beyond the limits of [Pakistan] by [the 'Federal Government, [any] suit or proceeding [which is not collusive and] in which any right to immovable property is directly and Specifically in question, the property cannot be transferred to otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."

8. In view of the above, the transfer made in favour of defendant No. 5/petitioner herein was hit by the principle of lis-pendence as such he could not claim any right over the suit property "Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti (PLD 2011 SC 905)". Moreover, admittedly the petitioner has alienated the property during pendency of litigation, therefore, his conduct debar him from seeking meaningful relief through revision petition in hand (Rafique Ahmed and others v. Yar Muhammad and others [1992 CLC 881]).

9. The Courts below have rightly and legally attended all the facts and circumstances of the case by correct application of law on the subject. No illegality, irregularity or jurisdictional error could be pointed out in the concurrent findings of learned courts below which otherwise cannot be set at naught by the revisional court in view of the dicta handed down by the Honourable Apex Court in the case law reported as Nazir Ahmed through L.Rs. v. Umra and others (2002 SCMR 1114) and Shafi Muhammad and others v. Khanzada Gul and others (2007 SCMR 368).

10. Consequently, the instant revision petition being devoid of any merit, is dismissed. ZC/54/P Revision dismissed.