2012 PLP 983 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Admitted facts leading to this petition briefly sated are that the suit property which is a residential plot measuring 1 kanal was a property which was directed to be returned to respondent No.2 Syed Abd-ur-Rafi Sherazi (husband) as a consideration of Khullah on the basis of which marriage was dissolved vide the judgment and decree dated 25-7-2002. This judgment and decree however, was reversed by the Additional District Judge on 18-3-2003 and the said plot was decreed in favour of respondent No.1 wife Mst. Uzma Rahat in lieu of dower. The learned High Court maintained the said judgment and decree and even this Court dismissed C.P.L.A. No.504-P of 2004 against the afore-referred concurrent judgment and decrees vide judgment and decree dated 23-12-2005. The respondent No.2 Syed Abd-ur-Rafi Sherazi taking advantage of the judgment and decree of trial Court dated 25-7-2002 whereby the marriage was dissolved on the basis of Khulah on relinquishment of the plot in question sold the said plot to petitioner vide the sale-deed dated 28-9-2002. This sale transaction was challenged by respondent former wife Mst. Uzma Rahat respondent No. 1 by way of a civil suit for declaration, which was dismissed by the trial Court in terms of its findings on issues Nos.6 and 7 vide the judgment and decree dated 17-3-2007 holding as follows:- "So, it is clear that the defendant number 2 has never transferred the suit plot in the name of the plaintiff. However, it was admitted by him that the pot had been physically given to the plaintiff. On the other hand, defendant number 1 having no knowledge of any type of litigation between the plaintiff and defendant number 2, purchased the same from the property dealer, after full confirmation/verification of the suit plot, free from all type of doubts, from the CD & MD. Hence I hold that defendant number 1 is the bona fide purchaser of the suit plot. And his rights are protected under section 41 of Transfer of Property Act 1882. Hence issue number 6 decided in negative while issue number 7 decided in positive."

2. The afore-referred judgment and decree was however, reversed by the learned Additional District Judge vide the judgment and decree dated 21-8-2007. In reversing the judgment and decree, the learned Appellate Court held as follows:-- "Transposing the settled law and the events that had taken place in the peculiar set of circumstance of this case, it would transpire that by no stretch of imagination, can the family matter litigation inter se appellant and respondent No.2, be considered as not pending on 28-9-2002. As already observed that the trial Court had decided the matter on 25-7-2002 while it was consigned to Record Room on 7-9-2002 and the appeal was instituted on 30-9-2002. By that time neither the verdict of the Trial Court had attained the finality nor the prescribed period for presenting the appeal had expired. Thus the suit was pending and the subject matter thereof was disposed of by making a transfer in favour of a third party/Respondent No.1. It is evident from the perusal of the order of august Supreme Court of Pakistan dated 23-12-2005 that present respondent No.2, then respondent No.1 and on his behalf it was admitted at the bar that the plot has been physically given to the wife and that she has almost forgone nothing. In this regard the relevant portion of the said order is reproduced hereunder:-(Emphasis is supplied) 'Nikah Nama (Page-73) admitted between the parties would indicate that the amount of dower was Rs. 100,000 in lieu whereof wife was given golden ornaments weighing 50 Tolas and a plot No.238/F-4 measuring one Kanal in Phase-VI, Hayat Abad, Peshawar. It is admitted at the bar that the aforesaid plot has been physically given to the wife and she has almost forgone nothing."

17. Thus strange enough the plot was already sold upon respondent No.1 while respondent No.2 before the august Supreme Court of Pakistan at a much later point in time submitted that the plot has been given to the appellant. (Emphasis is supplied)

18. Now coming to the determination of the bona fide or otherwise, of respondent No.1 and ex parte respondent No.2, insofar the transaction is concerned. It would appear as broker to facilitate the transaction of sale originated from respondent No.2 through his Attorney Mir Qalam Din in favour of respondent No.1. During the course of his cross-examination, he expressed ignorance as to the identity of respondent No.2. Later in his statement he has submitted that he paid the sale consideration of Rs.11,00,000 to the Attorney holder of whose name and identity he did not remember. If it is presumed that by passage of time, he has forgotten those details then it is not understandable as to how he claimed that the Attorney deed was verified by P.D.A. and that Mir Qalam Din was present at the time of transfer. He belies himself when he submitted that he has purchased the plot from another dealer by the name of Humayun Khattak, if he had purchased the same from Humayun Khattak, then how the sale consideration was paid by him directly to the Attorney holder. The said Humayun Khattak was not produced as witness. Similarly the Attorney Mir Qalam Din was not brought to the dock as respondent witness, therefore, a negative presumption within the contemplation of Article 129-G of Qanun-e- Shahadat would be made. Similarly the conduct of respondent No. 1 is also quite dubious. Her Attorney Mr. Sajid Sawal (D.W.2) at the one hand claimed that they needed the property thus they contacted Mohmand Builders and Property; while on the other hand the plot remained vacant and only the Tent and Chowkidar stayed there as per his admission till date.

19. Those admissions clearly establishes the element of collusion inter se respondents 1 and 2 and it can be further gathered from the fact that the Attorney Deed Exh.P.W.3/3 registered on 11-10-2001, was specifically meant for the sale of the plot. No doubt on 11-10-2001, the family matter suit was pending before the Judge Family Court, thus respondent No.2 had then made up his mind of the sale and for which purpose he had appointed Mir Qalam Din qua Attorney and then waited for the decision of the Trial Court and before the expiration of period of limitation for presentation of appeal just two days from the institution date (30-9-2002) on 28-9-2002, the sale was effectuated. It is thus patent from the available record that the doctrine of lis pendens or pendente lite is fully applicable to the transaction." (Emphasis is supplied). The learned High Court maintained the appellate Court's judgment and dismissed petitioner's Civil Revision vide the impugned judgment dated 21-12-2009.

3. Learned counsel for the petitioner seeks leave on the ground that the petitioner is a Parda Nasheen Lady; that she is a bona fide purchaser; that the impugned sale transaction dated 28-9-2002 is relatable to a period when there was no lis pending as admittedly the appeal was filed by the respondent wife on 30-9-2002; that if the concurrent judgments and decrees are upheld, it would entail huge financial loss to the petitioner and that both the learned courts have not appreciated the evidence led by the petitioner in proper perspective and the concurrent findings rendered are not in accord with the weight of the evidence led.

4. Having given anxious consideration to the submissions made, we are of the view that the crucial issues raised in this petition are two fold. First, whether the impugned transaction is hit by section 52 of the Transfer of Property Act, 1882, and second, whether the petitioner purchaser can claim protection of section 41 of the Transfer of Property Act, 1882. A reference to section 52 of the ibid Act would be in order, which reads as follows:-- "During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of 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 or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation:

For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."

5. The afore-referred provision enshrines the age old and well established principle of equity that ut lite pendente nihil innovetur (pending litigation nothing new should be introduced) and stipulates that pendente lite parties to litigation wherein right to immovable property is in question, no party can alienate or otherwise deal with such property to the detriment of his opponent. Any transfer so made would be hit by this Section. The doctrine by now is recognized both in law and equity and underpins the rationale that no action or suit would succeed if alienations made during pendency of proceedings in the said suit or action were allowed to prevail. The effect of such alienation would be that the plaintiff would be defeated by defendants alienating the suit property before the judgment or decree and the former would be obliged to initiate de novo proceedings and that too with lurking fear that he could again be defeated by the same trick. The doctrine of lis pendens in pith and substance is not only based on equity but also at good conscience and justice. In Lalji Singh v. Rameshuwar Misra ((1983) 9 All LR 269 (271) (All)), the essential ingredients of section 52 ibid or the conditions precedent to attract this principle were construed as follow:-- (i) the pendency of any suit or proceeding in a court law: (ii) the court must have jurisdiction over the person or property; (iii) the property must have specifically described and should be affected by the termination of the suit or proceedings; (iv) the right to the said property be directly and specifically be in question in any suit or proceeding; (v) an alienation of such immovable property without the permission or order of the court; and (vi) the alienation should be during the pendency of any such suit or proceeding and a suit or proceeding in question is not collusive.

6. From our jurisdiction in recent past, the ambit and import of lis pendense came up for consideration before a Full Bench of this Court in Muhammad Ashraf Butt v. Muhammad Asif Bhatti (PLD 2011 SC 905) and at page 912, one of us (Mian Saqib Nisar, J) speaking for the Court observed as follows:-- "The rule unambiguously prescribes that the rights of the party to the suit, who ultimately succeed in the matter are not affected in any manner whatsoever on account of the alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus, the transferee of the suit property, even the purchaser for value; without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchasers in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. The transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest ................................................. ............................................................................... ........................................... The foundation of the doctrine is not rested upon notice, actual or constructive, it only rest on necessity and expediency, that is, the necessity of final adjudication (Emphasis supplied) that neither party to the litigation should alienate the property so as to effect the rights of his opponent. If that was not so, there would be no end to litigation and the justice would be defeated. In support of the above, reliance is placed upon Messrs Aman Enterprises v. Messrs Rahim Industries Ltd. and another (PLD 1993 SC 292), Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SCMR 2003). Besides, in West Virginia Pulp and Paper Co. v. Cooper, 106 S.E. 55, 60, 87 W.Va. 781, it has been held the doctrine of "lis pendens" is that one who purchases from a party pending suit a part or the whole of the subject-matter involved in the litigation takes it subject to the final disposition of the cause and is bound by the decision that may be entered against the party from whom he derived title. In Tilton v. Cofield, 93 U. S. 168, 23 L.Ed, 858, the view set out is "the doctrine of lis pendens is that real property, when it has been put in litigation by a suit in equity, in which it is specifically described, will, if the suit is prosecuted with vigilance, be bound by the final decree, notwithstanding any intermediate alienation; and one who intermeddles with property in litigation does so at his peril and is as conclusively bound by the results of the litigation, whatever they may be, as if he had been a party from the outset".

7. To appreciate the question whether the impugned transaction is hit by section 52 of the Transfer of Property Act, the import of expression "during the pendency in any court" appearing at the start of the afore-referred Section would be necessary. The afore-referred expression has been elucidated in the explanation which follows the main section. It lays down that pendency commences from the date of the presentation of the plaint or the institution of the proceedings in a court of competent jurisdiction and continues inter alia till the final decree, or complete satisfaction or discharge of such decree "or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force." (Emphasis is supplied). Thus if the appeal against a judgment and decree has not been filed but the period of limitation to file has not expired, the proceedings would be deemed to be pending. In Muhammad Ashraf Butt supra, the afore-referred expression was held to mean "that final verdict, which is given in an appeal or revision at the final level of the judicial hierarchy, which verdict has attained Conclusiveness. Therefore, the rule of lis pendens shall also be duly attracted and applicable during the period of limitation provided for an appeal or revision etc. to challenge a decree/order. If therefore an alienation of a suit property has been made by a party to the lis, who succeeds at one stage (such as trial), but the transfer is during the, period of limitation available to the other (unsuccessful) party, to challenge that decision and ultimately the decree/order is over turned in its further challenge, such alienation made shall also be hit and shall be subject to the rule of lis pendens." In the instant case, the appeal of the respondent wife against the trial Court's judgment and decree dated 25-7-2002 was filed on 30-9-2002 which was concurrently been held to be within time and the plot in question was decreed in favour of the respondent No.1. Thus the impugned transaction having been made during the pendency of proceedings relatable to the suit plot in the earlier round of litigation was squarely hit by the principle of lis pendens.

8. So far as the plea of the petitioner with reference to section 41 of the Transfer of Property Act is concerned, there is no cavil to the proposition that in terms of the said provision, a bona fide purchaser for value is fully protected. However, the doctrine of lis pendens enshrined in section 52 of the Transfer of Property Act is an exception and the impugned sale has rightly been concurrently held to be hit by the said doctrine.

9. In the afore-referred circumstances, the concurrent judgments and decrees are unexceptionable. Finding no merit in this petition, it is dismissed and leave refused. M.W.A./T-4/SC Petition dismissed.