1994 PLP 585 (MLD)

This Regular Second Appeal arises from the judgment/decree, dated the 8th of June, 1966, of the learned District Judge, Mianwali, whereby the appellant-defendant's first appeal was dismissed.

2. The respondents Malik Gul Hussain and Fida Hussain brought the present suit for a declaration that they were owners of the land in question and that the decree, dated the 20th of June, 1964, obtained by the appellant defendant, Haq Nawaz, against the respondent Muhammad Hussain vendor in regard to the sale of 1,500 Kanals in dispute, was of no legal effect against their interest. They also prayed for an injunction with a view to restrain the appellant from interfering with their possession. Their case was that the respondent Muhammad Hussain being owner of the land had agreed orally to sell it in their favour but subsequently declined to get a mutation attested. They added that on his refusal to do so, they brought a civil suit against him and that upon his confessing judgment, a decree was passed in their favour on the 20th of January, 1964. They observed that while they were trying to get the decree executed, the appellant Haq Nawaz deceitfully persuaded the vendor Muhammad Hussain to confess in his own suit the decree dated the 20th of June, 1964, about the same land. They assailed the validity of the aforesaid decree on the ground that besides being based upon fraud, it was of no legal effect against them for their non-joinder.

3. The suit was contested by the appellant who maintained that the decree, dated the 20th of January, 1964, was obtained during pendency of his own suit filed earlier in time on the 16th of December, 1963, and further that he himself being not having been joined as a party thereto, it was of no legal effect against his interest. He pleaded that the sale in his favour concluded on the 23rd of October, 1963, was also earlier in time than the sale made by the same vendor in favour of the respondents-plaintiffs and further that he being a bona fide purchaser for value, his interests thereunder were saved by section 41 of the Transfer of Property Act.

4. Appropriate issues arising out of these pleadings were framed by the trial Court which decreed the suit. The appellant's first appeal before the learned District Judge also failed mainly on the ground that the vendor in written statement (Exh.P.4) had clearly indicated that he had already transferred the land to the plaintiffs, and secondly that the copy of the `Roznamcha waqiati' (Exh.D.2) was not formally proved by examining the Patwari who had made the entry therein. Hence the present R.SA.

5. The tie was between the two confessional decrees: the one held by the respondents-plaintiffs was dated the 20th of January, 1964, whereas the other held by the appellant-defendant Haq Nawaz was, dated the 20th of June, 1964. The same vendor conceded both the suits. The appellant relied not only upon an earlier agreement, dated the 23rd of October, 1963, but also a mutation rejected ultimately on the 12th of April, 1964, the copy of `Roznamcha waqiati' (Exh.D.2), and the comparatively earlier institution of his suit filed on the 16th of December, 1963. On the other hand, the respondents-plaintiffs filed their own suit on the 16th of January, 1964, and obtained the confessional decree (Exh.P.5) on the statement of the vendor Muhammad Hussain four days thereafter, viz., on the 20th of January, 1964. A comparative study of dates would show that the appellant's suit was filed much earlier than that of the respondents. Although the decree obtained by the respondents was earlier in time, yet the very institution of their suit on the 16th of January, 1964, was during pendency of the appellant's suit which had already been filed on the 16th of December, 1963. The appellant's contention was that the respondents' suit was filed during pendency of his suit without impleading him as a party thereto and, therefore, any sale evidenced by the decree, dated the 20th of January, 1964,. in their favour was hit by section 52 of the Transfer of Property Act besides securing his rights under section 41 of the same Act.

6. There was no denial of the fact that the respondents' suit was filed after that of the appellant. The respondents did not assert in their plaint if they had purchased the land earlier than filing the suit. It obviously suggested that the transaction which formed basis of their suit had been concomitantly agreed upon with the filing of the suit itself. The presumption was that their bargain had taken place much after the agreement, .dated the 23rd of October, 1963, made in favour of the appellant by the same vendor. It was pertinent to note that the vendor in his confessional written statements did not give any other dates of the two sales and, therefore, whatever was asserted by -the rival vendees in their own suits, was accepted by him implicitly. Thus, the vendor had sold away the land to the appellant much earlier than he subsequently sold it in favour of the respondents-plaintiffs. Indeed, the sale in favour of the respondents took place during pendency of the rival suit in which they were made a party. In order to avoid application of section 52 of the Transfer of Property Act, the respondents could take up the plea that the appellant's suit was collusive. They did not take up any such plea and, indeed, contested it on merits. Any transaction made by a party to the suit during its pendency could not create any rights or obligations so as to affect the interest of the opposite side. Counsel for the respondents had no explanation against such a formidable objection as to the validity of sale held by them. The only argument advanced was that the plea under section 52 of the Transfer of Property Act was not raised earlier and that it could not be set up at the stage of second appeal. A perusal of the written statement of the appellant clearly disclosed that in para-4 thereof, he had asserted that the sale made in favour of the respondents during pendency of his suit was not valid. Rather, he was cautious to add that his own sale as a bona fide purchaser without notice was saved under section 41 of the Transfer of Property Act. The argument that the contention was being raised for the first time now was not correct. It was taken up in the written statement; there was no indication from the record that it was given up subsequently; and as such can be asserted to support the second appeal. The objection is overruled.

7. The view that the copy of `Roznamcha waqiati' (Exh.D.2) was not formally proved by examining the Patwari was patently erroneous. Rules 3.79 and 3.80 of the Land Record Manual directly touched upon the point. It was prescribed to be a public document maintained by the Patwari in the discharge of his official duties as envisaged by Article 85 of the Qanun-e-Shahadat, 1984. Being such a public document its copy per se was admissible. To say that it had to be proved by examining the Patwari who prepared it was evidently an erroneous view. The evidentiary value of this document cannot be overlooked. It was dated the 2nd of November, 1963, showing that the same vendor had already sold away the land in question to the appellant Haq Nawaz. The respondents should have taken care of verifying correctness of this entry, but they made no effort, nor could they advance any plausible reason to ignore it. Being of much earlier origin, when the dispute between the parties had not arisen, it will be taken to be an unassailable piece of documentary evidence lending substantial support to the appellant's claim of being a bona fide earlier purchaser. When confronted with the above Rules from the Land Record Manual, counsel for the respondents had nothing substantial to say about the admissibility of the `Roznamcha waqiati'. By virtue of its date, it would by itself suffice to defeat the respondents' claim of having purchased the land by the decree, dated the 20th of January, 1964.

8. No other point was urged. As a result, the R.SA. is allowed, the impugned judgment and decree are set aside and the respondents' suit is dismissed. AA./H-240/L Appeal allowed.