2002 PLP 1531 (YLR)

(3) Whether the plaintiffs have come with unclean hands? OPD (4) Whether the defendant No. 1 executed registered agreement to sell dated 27‑11‑1963 (amended) in favour of the plaintiffs? OPP (5) Whether the defendant No. 1 did not appoint Sher Muhammad as General Attorney through registered General Power of Attorney dated 27‑11 -1963? OPD (6) Whether the General Power of Attorney dated 26‑11‑1963 is forged and fraudulent? OPD (7) Whether the defendants Nos.3 to 8 are bona fide purchasers for value without notice? OPD (8) Whether the registered sale‑deed dated 22‑6‑1976 in favour of defendants Nos.3 to 8 is illegal, inoperative on the rights of the plaintiffs? OPP (9) Relief. During the trial on the application of the parties, additional issues were also framed which are reproduced as under‑‑‑ (7‑A) Whether no rights were created in favour of plaintiff No.2 on the basis of decree dated 17‑12‑1975 because Mst. Hamida Begum was not owner of the property and therefore, registered sale‑deed dated 24‑10‑1982 is of no legal consequence? OPD 3 to 8. (7‑B) Whether the registered sale‑deed, dated 24‑10‑1982 is of no legal significance as it was executed after the registered sale‑deed, dated 21‑6‑1976? OPD (7‑C) Whether the defendants Nos.3 to 8 are not bound by the decree, dated 17‑12‑19759 OPD 3 to 8. (7‑D) Whether registration of sale‑deed dated 24-10‑1982 and mutation of sale in favour of plaintiff No. 1 is against law and of no legal consequence in presence of Mutation No.249 dated 15‑7‑1978? OPD 3 to 8. (7‑E) Whether the registered sale‑deed dated 24‑10‑1982 is of no legal value in view of preliminary objection No. 13? OPD 3 to 8.

11. Parties produced their respective evidence. The trial Court treated Issues Nos.7‑A to 7‑E except 7‑D as preliminary issues and decided those issues vide its order dated 31‑7‑1993. These issues were decided against defendants‑respondents and the case was adjourned for further proceedings.

12. Thereafter, the case was transferred to some other trial Court whereafter hearing, the Civil Judge rendered its findings on Issues Nos. 1 to 8 and consequently vide its judgment and decree dated 9‑12‑1993 dismissed the suit. Respondents Nos. 1 and 2 filed an appeal from the judgment and decree of the trial Court. The learned Additional District Judge, Kasur accepted the appeal of respondents Nos. 1 and 2 vide its judgment and decree dated 12‑10‑1994 reversed' the decision of the trial Court and decreed the suit.

13. The present petitioners who are subsequent transferees filed the present revision petition which was accepted by the order of this Court dated 6‑6‑1997. On appeal filed by the other party before the Supreme Court of Pakistan, the judgment of this Court was set aside and the case was remanded for deciding the civil revision afresh. The observation of the Hon'ble Supreme Court of Pakistan has been reproduced in the opening paras. of this judgment.

14. The learned counsel appearing for the petitioners in support of his arguments raised the following legal contentions‑‑‑ A. That in the present case the dispute relates to the surrendered land in which proprietary rights had been acquired much after the agreement in favour of the plaintiffs and the sale deed was also executed after the sale deed made in favour of defendants No.3‑8, therefore, the agreement dated 26‑11‑1963 being void ab initio, the ex parte decree was also a nullity in the eye of law being based on such an agreement. B. That all the proceedings based on a void agreement are to be treated as nullity and could not be looked into in the present case. C. That the principle of doctrine of lis pendent do not apply in judgments which are void nor the agreement which is void can be permitted to be given preference to the sale made in favour of defendants Nos. 3 to 8 after acquiring the proprietary rights. D. That in the alternative it is respectfully submitted that section 52 of Transfer of Property Act, was not applicable on account of proceedings being collusive and the mala fide of the defendant No.1 and plaintiff No.1 for which facts have already been taken note of by the learned trial Court while deciding Issue No.7‑D and Issue No.8. E. That ex parte decree passed in favour of the plaintiff in the suit for specific performance earlier by itself would not create right when admittedly the sale‑deed was executed after the sale deed made in favour of defendants Nos.3‑8 and mutation sanctioned in favour of defendants Nos.3‑‑8 which was already brought on record. This mutation was never brought to the notice of civil Court and subsequently mutation was got sanctioned after making unauthorized entries in the Revenue Record in the name of Mst. Hameeda Begum and getting the same in favour of plaintiffs. F. That all the contentions of the learned trial Court that it was for defendants Nos.3 to 8 to have filed objections before the executing Court immediately, the defendants Nos.3 to 8 were never impleaded as party in any proceedings in spite of knowledge of right created in favour of defendants Nos.3 to 8 by virtue of sale‑deed, dated 21‑6‑1976 challenged separately. G. That Mr. Justice Munir A. Sheikh in his judgment dated 19‑9‑1988 has clearly observed that defendants Nos.3 to 8 had a separate remedy meaning thereby that all the questions on the side of defendants Nos.3 to 8 were required to be determined irrespective of the fact concerning the plaintiffs and defendants. H. That Issue No.7 as to bona fide purchasers was decided in favour of the defendants/petitioners and finding was not set aside by the Additional District Judge. I. That the original agreement dated 27‑11‑1963 was not brought on record as observed by the High Court and ex parte decree was passed without impleading Provincial Government in the ownership rights having been transferred later on. J. Validity of agreement/decree can be challenged in subsequent proceedings with special reference to Issue No.7 to be decided after decision on Issues Nos.7‑A to 7‑F. K. That in; a suit for specific performance no right is created unless sale‑deed executed‑‑‑Order 21 rule 39, Civil Procedure Code. L. That in the present case the, principle of section 43 of Transfer of Property Act is not attracted to the facts of the present case. Cases titled Gul Muhammad v. DS/CSC (1986 CLC 2853), Government of Sindh v. Khalil Ahmed and others (1994 SCMR 782), M.K. Mohammad and others v. Mohammad Aboobaker (1991 MLD 801), Inayat Ali Shah v. Anwar Hussain (1995 CLC 1906), Riaz Ahmed v. Dr. Amtul Hameed Koser etc. (1996 CLC 678), Mir Hasmat Ali v. Birendra Kumar Ghosh and others (PLD 1965 Dacca 56), Allah Yar Khan v. Mst. Sardar Bibi and others (1986 SCMR 1957), Wajid Ali and others v. Board of Revenue, Punjab etc. (PLD 1982 Lah. 716), District Gurdaspur Mahajreen Cooperative House Building Society v. Atta Muhammad etc. (1989 MLD 938), Inraloke Studio Ltd. v. Srimati Santi Devi and others (AIR 1960 Cal. 609 (V 47 C 167), Haji Abdul Rehman and others v. Noor Ahmad etc. (PLD 1974 Baghdad‑ul‑Jadid 25), The Chief Land Commissioner, Punjab, Lahore and others v. Ch. Atta Muhammad Bajwa etc. (1991 SCMR 736) and Mst. Fareeda Khanum v. Raza Muhammad (1989 CLC 1745) were cited by the learned counsel . for the petitioners to seek support for the legal contentions raised by him.

15. On the other hand learned counsel for the respondents controverted the arguments of the petitioners and maintained that the decree, dated 17‑12‑1975 has attained finality. Further this decree was executed and the sale‑deed, dated 24‑10‑1982 was executed in favour of respondents Nos. 1 and 2, through the process of Court. Adding to his argument the learned counsel submitted that the decree may it be ex parte had become final and it could not be nullified in collateral proceedings. Next it was argued that by virtue of the decree, dated 17‑12‑1975 the respondents No. 1 and 2 had become owners and Mst. Hameeda Begum was‑divested of rights as such, she could not execute sale deed, dated 22‑6‑1976 in favour of the petitioners. Next it was contended by the learned counsel for the respondents that the petitioners were not bona fide purchasers for value and by virtue of principle of lis pendens any alleged alienation by Mst. Hameeda Begum in their favour was of no legal effect. The learned counsel in support of his arguments referred to cases titled Haji Abdullah Khan and others v. Nasir Muhammad Khan etc. (PLD 1965 SC 690), Mst. Raji and others (PLD 1956 M. Abdul Majeed v. The East Pakistan Province etc. (PLD 1956 Lah. 615), Din v. Muhammad Din (PLD 1964 SC Manzoor Hussain and others v. Zulfiqar Ali and others (1983 SCMR 137), Hakim Ali and others v. Atta Muhammad and others (1981 SCMR 993), Mst. Khanzadi v. Government of Sindh and others (2000 SCMR 1252), Ltd. Col. Shah Dad v. Border Area Allotment Committee (1986 SCMR 88), Messrs Aman Enterprises Kotji Loharan Sialkot v. Messrs Raheem Industries Pak Ltd. and others (PLD 1988 Lahore 717), Abdul Saeed Khan and others v. Basharat Ali and others . (PLD 1995 Lah. 255), Faqir Muhammad and others v. Abdul Marian and others (PLD 1995 Lah. 405). Industrial Development Bank of Pakistan through Deputy Manager Chaudhry Manzoor v. Saadi Asmat Ullah and others and case titled Mukhtar Baig and others v. Sardar Baig and others reported as 2000 SCMR 45.

16. I have considered the arguments advanced‑ by the learned counsel for the patties and perused the record. One of the crucial questions in the present case relate to the worth and legal effect of ex parte decree, dated 17‑12‑1975. This decree although ex parte but was maintained up to the Supreme Court. It was based on agreement to sell, dated 27‑11‑1963. The first impression which appears is that in the face of the decree although it was ex parte, but Mst. Hameeda Begum was divested of her rights and that respondents Nos. 1 and 2 acquired the title in the property but when the facts deeply analysed it transpired that on 17‑12‑1975 a decree was procured by respondents Nos.1 and 2 in respect of the land which was not the property of Mst. Hameeda Begum. Admittedly the land vested in the Provincial Government and it was only on 3‑11‑1976 when it was transferred in favour of Mst. Hameeda Begum. If a decree is procured by a person against another person in respect of property which did not vest in that person, it would merely be a decree without corpus. A decree without corpus does not confer any right. Therefore, the arguments that the decree has attained finality qua Mst. Hameedal Begum although appears to be attractive but it is fallacious because when the decree was passed Mst. Hameeda Begum was not having any title in the property. Accordingly, I hold that the decree procured by respondents Nos. 1 and 2 did not confer any right in their favour in the suit property as it was non est. I, therefore, find that the decree although enjoyed the validity as it was upheld up to the Supreme Court but the sane was not enforceable decree because the corpus for which the decree was passed was not in existence at the time of passing the decree.

17. There is sufficient weight in they argument of learned counsel for the petitioners that the agreement to sell, dated 27‑11‑1963 was void. Therefore, no decree could be procured by the respondents Nos. 1 and 2 on the basis of said agreement to sell.

18. M. L. R. 89 was notified or 23‑8-1961. It was enacted to re‑constitute M.L.R. 84 of 1960. This Regulation was called the Scrutiny of Claim (Evacuee Property) Regulations. Through this Regulation all certificates in Forms QPR‑V and UR‑V and certificates showing title to land issued under the original Regulation and any allotment of land made on the basis of any such certificates stood cancelled and were deemed never to have been issued or made. It further provided that fresh order for the allotment of land shall be made on the basis of entitlement certificate after necessary scrutiny. Para. 8 of the Regulation provided that every claimant holding land at any time allotted to him in settlement of his claim and being in excess of his entitlement as shown in the entitlement certificate shall be surrendered. Mst. Hameeda Begum was holding land in excess to her entitlement as `such, she surrendered land measuring 1175 Kanals. On 29‑9‑1961 M.L.R. 89 was amended through M.L.R.

91. By this amendment as scheme for the disposal of land surrendered under para. 8 of M.L.R. 89 was spelled' out. It was provided in the scheme that the surrendered land shall be disposed of and first option for the purchase of excess f land shall be given to the person who has surrendered the land and this option to purchase were to be exercised by conveying in writing to the Deputy Commissioner of the District concerned within one month from the date: of which the scheme was promulgated. Further it was laid down that if such a person exercise option to purchase the land within the period mentioned above, the land may be sold to him at the rate prescribed in the scheme and in that he was required to deposit immediately 25 per cent of the price of land and remaining 75 per cent was to be paid by him within a period of six years in twelve equal six monthly instalments.

19. Para. 10 of the M.L.R. 91 provided that purchaser shall not, without sanction in writing of the Collector, alienate any portion of the land sold, before he had paid the entire purchase price and executed deed of conveyance prescribed for similar alienation in the Region concerned. Mst. Hameeda Begum after surrendering the land sought repurchase, of the same. She did not make payment of 75 percent. of remaining amount till 1976. The price was paid by her in 1976 and the conveyance deed was executed in her favour on 17‑3‑1976. It is, therefore, cleat that in view of para. 10 of M.L.R. 91 there was a restriction on the alienation by Mst. Hameeda Begum. Neither she obtained any permission in writing from the Collector to alienate any portion of the land nor there was any conveyance deed existing in her favour, as such, she could not enter into, an agreement to sell dated 27‑11‑1963. Mst. Hameeda Begum was merely a prospective purchaser and she was not permitted to transfer even the right which she possessed in relation to the property in, the year 1963. In case titled Chief Land Commissioner, Punjab v. Atta Muhammad Bajwa reported as 1991 SCMR 736, the apex Court dealing with analogous situation observed and rendered an illuminating principle which is self‑ explanatory from the passage of the judgment quoted hereunder:‑‑‑ "Section 3 deserves special attention. In this, context Condition No. 13 of the grant already reproduced in para. 2 of the judgment acquires an overriding compulsive effect and what such a law prohibited could not be held to have validly happened. The prohibition prevails and any sale, even if the contract of sale be held to be a sale, in present, must in view of such repugnance be held to be void and having legal existence. The second and an equally important feature of the transaction pleaded as a transfer itself shows that it was indeed not a transfer but it was a contract of sale to take effect after the proprietary rights had been acquired. Till happened, the future purchaser enjoyed interest in the land only as an attorney of the grantee. There was also a provision made in the agreement with regard to frustration and compensation therefor. The various terms of the contract of sale or the agreement to sell reproduced in the judgment in para. 3 indicate that this agreement was subordinate to the terms of the grant, that it was in recognition of it and that no interest in the land as such was claimed except certain rights relating to land which were to become enforceable after the proprietary rights had been conferred on the grantee. The grantee himself being not the proprietary but only a purchaser under an Agreement to sell visualized in the form of grant could not confer more rights in the property on the contracting party, the respondents Nos.1 to 11 than he himself possessed. He was not permitted to transfer even the rights which he was possessed of in the property. Thirdly, even if the Government Grant Act was not there, the transferee under a contract of sale from one who himself derives interest from a contract of sale, creates no right in the land at all. There is no equitable aspect coming into existence. "

20. Analysis of M.L.R. 89 as amended by M.L.R. 91 lead me to conclude that Mst. Hameeda Begum was not entitled to enter into agreement to sell with respondents Nos. 1 and 2 and the agreement dated 27‑11‑1963 was in violation of para. 10 of M.L.R. 91 as such, it was void ab initio. On various other reasons already given, I have already held that ex parte decree dated 17‑12‑1975 procured by respondents Nos. 1 and 2 on the basis agreement to sell which I have observed to be void ab initio would, therefore, be of no avail to respondents Nos. 1 and 2 to use as a plank of defence against the rights of subsequent transferees who had purchased the land from Mst. Hameeda Begum through a valid sale deed dated 22‑6‑1976, as Mst. Hameeda Begum had acquired the proprietary rights through a conveyance deed from Government of the Punjab on 17‑3‑1976.

21. I now deal with the next argument advanced by the parties. Relying on the provision of section 52 of the Transfer of Property Act, it was argued by the learned counsel for respondents Nos. 1 and 2 that their rights were protected under the principle of lis pendens. The reasons advanced were that they had filed a suit for specific performance of the contract on 15‑4‑1974, which continued up to 1975 when ex parte decree, dated 17‑12‑1975 was passed. Thereafter, on 19‑12‑1975 an application for setting aside the ex parte decree was filed by Mst. Hameeda Begum which continued up to 21‑3‑1982, therefore, sale‑deed, dated 22‑6‑1976 was hit by the principle of lis pendens. On the other hand relying on the provision of section 41 of the Transfer of Property Act, the learned counsel for the petitioners submitted that they are bona fide purchaser for the value and as such, their rights were protected.

22. The doctrine of lis pendens as enacted in section 52 of the Transfer or Property Act protects the rights of the suitor in respect of immovable property during the pendency of any suit or proceedings. On the other hand section 41 embodies equitable doctrine of bona fide purchaser. In a case where the provisions of section 52 arc attracted to and its bona tide are established it enures to the benefit of party to suit or proceedings and in that doctrine of bona fide purchaser for value stands excluded.

23. The arguments advanced by both the parties relating to section 52 as well as section 41 may not be of much relevance in the circumstances of the present case for the reasons that I have already held that an agreement to sell dated 27‑11‑1963 was a contract which was void ab initio and any superstructure of rights raised on the basis of such agreement was of no avail to respondents Nos. 1 and

2. Even otherwise the transaction between respondents Nos. 1 and 2 as well between Mst. Hameeda Begum reflect collusive arrangement. Agreement between respondents Nos. 1 and 2 and Mst. Hameeda Begum was for a consideration of Rs.80,000 and it was executed on 27‑11‑1963. The suit was filed by respondents Nos. 1 and 2 on 15‑4‑1974. Ex parte decree was passed in favour of respondents Nos. 1 and

2. On 17‑12‑1975 an application for setting aside the ex parte decree filed by Mst. Hameeda Begum was dismissed in default. Mst. Hameeda Begum had also filed a suit for cancellation of agreement dated 27‑11‑1963 which was also dismissed in default. Against rejection of application for restoration and also the civil suit she filed two separate appeals which were withdrawn by her on the basis of compromise. These facts do not inspire confidence and suggest a collusive arrangement between Mst. Hameeda Begum and respondents Nos.1 anal

2. As the transaction between respondents Nos.1 and 2 and Mst. Hameeda Begum spells out collusive arrangement, therefore, the benefit of section 52 of the Transfer of Property Act is not available to respondents Nos. 1 and

2. In view of my findings herein before, I find that that judgment and decree, dated 12‑10‑1994 passed by the Additional District Judge Kasur suffers with material irregularity and misreading of evidence; as such it is not sustainable. Accordingly, I set aside the judgment and decree of the First Appellate Court, dated 12‑10‑1994 and the judgment/decree, dated 9‑12‑1993 passed by the trial Court is restored. Q.M.H./M.A.K./N‑159/L Revision allowed.