2005 PLP 520 (YLR)

3. It appears, that Mst. Sabiran Bibi vendee/judgment‑debtor died in the meanwhile, and her heirs/legal representatives filed 2 applications, (C.M. 4212 of 1977) on 11‑10‑1977 and (C.M.1176 of 1978) on 25‑2‑1978, alleging that the judgment in R.S.A. No.114 of 1964, dated 7‑6‑1977 was result of fraud and misrepresentation. They averred that Mst. Sabiran Bibi did not appear before this Court and also did not enter into any compromise which was made out of impersonation as Mst. Sabiran Bibi had already died on 16‑8‑1976. Both these applications (C.M. 4212‑77 and C. M. 1176‑78) were accepted by this Court vide judgment, dated 21‑5‑1978 rescinding the compromise in R.S.A. No.114 of 1964. Later on, this Court dismissed both the applications (C.M. 6460/76) and (C.M. 6470‑76) vide judgment, dated 19‑12‑1978 which had been filed by respondent No.1 for restoration of the second appeal.

4. Respondent No.1 aggrieved of the decision of this Court filed civil petition for leave to Appeal No.8358 of 1979 before the Honourable Supreme Court but remained unsuccessful as the same was dismissed on 17‑3‑1986. The Honourable Supreme Court did not extend the time for deposit of pre emption money with the following observations. "The petition for leave to appeal was filed bona fide and has been pursued with diligence, therefore, application in that behalf can also be made before the High Court. As to the competency of the High Court on disposal of appeal in a pre‑emption matter to grant reasonable time to the pre‑emptor to make the deposit of the pre emption money, it has been held in a number of judgments of this Court that the High Court has such power. This view has been reiterated in a recent judgment of this Court in Bhai Khan v. Allah Bakhsh (Civil Appeal No.864) dismissed on 5‑3‑1986. With these observations we do not consider it a fit case for grant of leave to appeal which is accordingly declined."

5. On the basis of observations in the above noted paragraph of the judgment by the Honourable Supreme Court, dated 17‑3‑1986, respondent No.1 moved another application in R.S.A. No. 114 of 1964 before this Court (C.M. 1887 of 1988) for extension of time for deposit of pre emption money. This application was disposed of without notice to the petitioners on 15‑3‑1989 with the observation that respondent No.1 should approach the trial Court.

6. In the meanwhile the respondents Nos.2 and 3 filed a suit for declaration claiming their adverse possession over the land in dispute alleging that it has matured into title. This suit was decreed by the learned Senior Civil Judge vide his judgment and decree, dated 5‑3‑1983. The petitioners went in appeal before the learned Additional District Judge but remained unsuccessful as their appeal was dismissed on 23‑5‑1985. Thereafter the petitioner filed Civil Revision No.2185‑D of 1985 which was accepted on 24‑3‑1991 and judgments and decrees of both the Courts below were set aside and the case was remanded to the trial Court for fresh decision. In the post‑remand proceedings, the respondents Nos.2 and 3 (plaintiffs) withdrew their suit on 1‑4‑1991.

7. In the above narrated background of the case the petitioners filed 2 separate suits, one for possession of the land in question, on the basis of their title, on 30‑11‑1991 and pending this suit they also filed their second suit for declaration that respondent No.1 having lost his pre‑emption suit, they are owners of the land in question. This suit was filed on 14‑3‑1996.

8. Respondent No.1 also filed a suit for declaration challenging the registered sale‑deed, dated 10‑10‑1959 in favour of Mst. Sabiran Bibi, the predecessor‑in -interest of the petitioners and this suit was filed by him on 30‑11‑1991. The learned Civil Judge who was seized of all these 3 suits consolidated those vide his order, dated 18‑4‑1996. Controversial pleadings of the parties led to framing of consolidated issues and recording of evidence. After doing the needful, the trial Court decreed both the suits filed by the petitioners and dismissed that of the respondent No.1 vide judgment and decree, dated 6‑6‑1996.

9. Respondent No.1 aggrieved of the decision of the trial Court, dated 6‑6‑1996 filed an appeal before the learned Additional District Judge, where he succeeded as his appeal was accepted, his suit was decreed and the other 2 suits by the petitioners were dismissed, reversing the decision of the trial Court vide judgment and decree, dated 31‑7‑1997. Thereafter, the petitioners filed the instant revision petition for setting aide the appellate judgment and decrees. The civil revision was admitted to hearing and after completion of record the same has now been placed for final determination. The respondents are represented through their counsel.

10. The learned counsel for the petitioners submitted that the Appellate Court failed to consider that pre‑emption suit of the respondent No.1 stood dismissed on account of non‑deposit of pre‑emption money since 15‑1‑1964, thus, the petitioner who are descendants of Mst. Sabiran Bibi, the original vendee, are owners of the suit land, hence, their suit has incorrectly been dismissed. He further submitted that this Court granted the respondent No.1 permission to deposit the pre‑emption money under a fake compromise which was subsequently rescinded and application of the respondent No.1 for restoration of R.S.A. No. 114 of 1964 was also dismissed, thus, the deposit, if any made, under those orders, is of no avail to the respondent No.1 but a contrary view taken by the appellate Court is simply erroneous and not sustainable at law. He elaborated his arguments by saying that the time for deposit of pre‑emption money could have been extended by the appellate Court hearing appeal against the original decree but the same was refused up to the Honourable Supreme Court, hence no title vested in the respondent No.1 to contest both the suits of the petitioners.

11. The learned counsel appearing on behalf of the respondents refuted the arguments of the petitioners, supported the appellate judgment and decree, by urging that the decretal amount having been deposited on 30‑6‑1977, under the orders of this Court, dated 7‑6‑1977, respondent No.1 complied the pre‑emption decree and after the deposit, land vest in respondent No.1. He further contended that respondent No.1 in compliance to observations made by the Honourable Supreme Court, out of caution moved C.M. 1887‑1988 before this Court, otherwise the judgment of the Honourable Supreme Court has the effect of extending the time. He further elaborated his arguments by saying that after pre emption decree and deposit of money there under, title stood transferred to the pre‑emptor (respondent No. 1). In this behalf he relied on the judgments in the cases of Dr. Niaz Muhammad Mann and others v. Sh. Muhammad Ahmad and another (1988 SCMR 1016) and Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241). It was also argued, alternatively, that in view of circumstances of the case, time for deposit of pre‑emption money which stands already deposited, may now be extended and for this matter reference was made to the judgment of the Honourable Supreme Court in the case of Ghulam Haider and others v. Mst. Raj Bhari and others (PLD 1988 SC 20).

12. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. It is not denied by any of the parties that deposit as required by the decree, dated 31‑1‑1963 was neither made within the time fixed by the decree nor the needful was done A within the time extended by the Appellate Court, vide judgment and decree, dated 15‑11‑1963. The only point which hinges for determination is that as to whether the deposit made by the respondent No.1 on 30‑6‑1970 on the basis of compromise order, dated 7‑6‑1977 is lawful and this deposit stood rectified by the judgment of the Honourable Supreme Court, dated 1B 17‑3‑1986. This Court accepted the applications of the respondent No.1 (C.M. 6460‑1976 and C.M. 6470 of 1976) on the basis of statement of Mst. Sabiran Bibi vide order, dated 7‑6‑1977 but subsequently on the applications filed by the petitioners it revealed that Mst. Sabiran Bibi had earlier died on 16‑8‑1976 and thus, it was held that the order, dated 7‑6‑1977 was procured out of fraud, misrepresentation and impersonation, rescinding the compromise. This Court not only rescinded the compromise but also dismissed both the applications of the respondent No.1 which has the effect of wiping out all the extensions granted and the deposit made thereunder. In this situation respondent No.1 could not bank upon the deposit which was made on the basis of an order obtained through fraud.

13. Paragraph of the judgment of the Honourable Supreme Court, dated 17‑3‑1986 reproduced in the factual part of this judgment, clearly shows that the Honourable Supreme Court, graciously did not grant the respondent No.1 extension of time and also the deposit already made by him, was not held to be lawful. Likewise, prayer of the respondent No.1 for extension of time under discussion was declined by this Court vide order, dated 15‑3‑1989 passed on C.M. 1887 of 1988 and directed the respondent No.1 to approach the trial Court. This all shows that original decree, dated 31‑1‑1963 and thereafter direction extending time to deposit of pre‑emption money by the learned Additional District Judge in his judgment, dated 15‑11‑1963, remained non‑complied. The effect of default of non‑payment is contained in the judgment and decree, dated 31‑1‑1963 whereby the suit of respondent No.1 stood dismissed in April, 1963. There is no cavil about the proposition, settled in the judgment referred by the learned counsel for the respondent No.1 that in a pre emption decree, after deposit of decretal amount, the land vests in the decree‑holder even without execution thereof but the deposit has to be within the time fixed by the decree whereas, in view of the circumstances of the case in hand these judgments are of no help to the case of respondent No.1 because he did not deposit pre‑emption money according to the original decree or within the extended time in appeal. Respondent No.1 could not base his title on a decree which in its own strength dismissed his suit as noted above.

14. The appellant Court had no reason to interpret the judgment passed by this Court or that of the Honourable Supreme Court as there was no ambiguity therein. The learned counsel who appeared on behalf of respondent No.1 before the Honourable Supreme Court may not have properly assisted the Court but the fact remained that there is a specific remark regarding non‑payment of decretal amount whereby respondent No.1 was observed to have recourse to the High Court. I have no ambiguity in my mind that findings of the appellate Court are merely presumptive and cannot be allowed to be sustained, being contrary to the record.

15. For the reason noted above, suit of the respondents stood dismissed for non deposit of decretal amount under the original decree or any other lawful order and the land remained in the ownership of the late Mst. Sabiran Bibi and after her death, of her heirs, according to their "Shari shares" where with respondent No.1 has no right, title or interest. This revision petition is accordingly accepted and both the suits filed by the petitioners one for possession and the other for declaration with consequential relief are decreed as prayed, whereas the Civil Suit No.281/1 for declaration with permanent injunction filed by respondent No.1 is ordered to be dismissed. Parties are however, left to bear their own costs. M.I./A‑279/L Revision accepted.