2014 PLP 677 (MLD)

AMIN-UD-DIN KHAN, J.

Through this revision petition, the petitioners have challenged the judgment and decree dated 22-7-2004, passed by the learned Additional District Judge, Bhalwal, District Sargodha, whereby appeal filed by the petitioners was dismissed and the judgment and decree dated 24-10-2003, passed by the learned Civil Judge, Bhalwal, whereby suit for declaration filed by the respondents was decreed.

2. The case pleaded by the respondents/plaintiffs is that they are legal heirs of Mst. Rehmoo and challenged Mutation No.570 of inheritance of Mst. Rehmoo, attested on 25-5-1974, in favour of her sole son, namely, Karam Dad, predecessor of original defendants. It was pleaded that plaintiffs Nos.1 and 2 are the sisters of deceased lady, whereas predecessor of plaintiffs Nos.3 to 9, namely, Rehman was his brother and the predecessor of original defendant, namely, Karam Dad was also brother of the deceased lady. Subsequently the plaint was amended and they pleaded that she was the mother of the parties and not the sister. An application was moved by Muhammad Riaz etc. for impleading them party to the suit on the ground that they have purchased the suit property in good faith for consideration. Their application was allowed and they were impleaded as party as defendants. The petitioners/ purchasers filed written statement and contested the suit. All other defendants opted not to file the written statement. The learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. The learned trial Court vide judgment and decree dated 24-10-2003, decreed the suit. Appeal was preferred by the purchasers and the same has been dismissed vide judgment and decree dated 22-7-2004, passed by the learned Additional District Judge, Bhalwal, hence, this revision petition.

3. Learned counsel for the petitioners has mainly stressed upon the findings recorded on Issue No.4 and states that not only this issue was framed wrongly but its onus was also placed upon the plaintiffs which is material irregularity committed by the learned trial Court. The case of the petitioners is that they are purchasers of the suit property in good faith for value, therefore, fully entitled to the benefit of section 41 of the Transfer of Property Act, 1882 and further argues that the learned trial Court fell in error while misreading the evidence as well as record of this case. States that the suit is admittedly filed on 24-7-1997, whereas sale of the land in favour of the petitioners is dated 17-7-1997. Learned trial Court fell in error while recording findings on Issue No.4 that the transaction of sale in favour of the petitioners is during the pendency of the suit and, therefore, finding that on the basis of principle of lis pendens the transaction is hit and has decreed the suit. Learned counsel states that it is factually incorrect and the sale in favour of the petitioners/defendants was prior to the institution of the suit. Further while relying upon section 41 of the Transfer of Property Act, 1882, learned counsel argues that Mutation No. 570 of inheritance of Mst. Rehmoo was sanctioned on 25-5-1974, in the name of Karam Dad, her son and he was continuously recorded as owner in the revenue record, he was in possession and under the sale in their favour possession was delivered to them and further admittedly Muhammad Nawaz respondent No.1 filed a pre-emption suit upon the sale in favour of the petitioners in question, therefore, impliedly the transaction was consented.

4. On the other hand, learned counsel for the respondents has argued that there are concurrent findings of fact recorded by the two courts below, therefore, the revision petition is not maintainable and the same be dismissed.

5. I have heard the learned counsel for the parties at full length and have also gone through the record minutely. I have noticed that the legal heirs of Karam Dad opted not to defend the suit as they have transferred the property in favour of the petitioners, therefore, petitioners were interested and they contested the suit. As I have noted above that the deceased lady Mst. Rehmoo was pleaded to be the sister of the parties to the original suit or their predecessors whereas subsequently they moved for amendment to plead that she was mother of the parties to the original suit or their predecessor. In this way they were bound under the law to produce strong evidence to prove the case pleaded by them and for proving the relationship with the deceased lady there required to produce evidence in accordance with the standards prescribed by the Qanun-e-Shahadat Order 1984. They failed to produce evidence, therefore findings recorded by the Courts below on Issue No.6 were result of misreading and non-reading of the evidence on the file and also the findings have been recorded in affirmative without the availability of the required evidence for proving the relationship of the parties with the deceased lady.

6. So far as Issue No.4 is concerned the learned trial Court fell in error while recording findings that the sale in favour of the defendants, who were subsequently added on their application, is during the pendency of the suit. Admittedly, the suit was filed on 24-7-1997, whereas the impugned mutation in favour of purchasers is dated 17-7-1997, therefore, findings of the learned trial Court are against the record. Furthermore, Muhammad Nawaz, one of the plaintiffs/ respondents filed a pre-emption suit to pre-empt the sale. It is settled principle of law that a person who files a suit to pre-empt the sale admits the sale as valid and correct one. Further relevant facts are that Mutation No.570 of inheritance of Mst. Rehmoo in favour of Karam Dad was sanctioned on 25-5-1974, mutation of inheritance of Karam Dad was attested on 15-5-1996, afterwards when the property was sold by the legal heirs of Karam Dad then the plaintiffs filed the suit in hand and furthermore one of the plaintiffs Muhammad Nawaz filed a pre-emption suit. It is clearly visible that the sale in favour of the petitioners was impliedly accepted. I am also clear in my mind that when there are two persons to be affected by a transaction the person who has allowed the transaction by his implied conduct to the third person to defraud any of the parties the person allowing the commission of fraud by his negligence must suffer. In this case, when the plaintiffs slept over their right, if any, for more than 23 years when Karam Dad remained recorded owner in possession in the revenue record and after his death inheritance mutation was sanctioned in favour of his legal heirs and then they sold the land in favour of petitioners/defendants a pre-emption suit was filed by one of the plaintiffs of suit in hand, which clearly shows that there is no fault on the part of the petitioners/defendants as before purchasing the suit property they have duly scrutinized the revenue record as well as the possession of the property, therefore, when the plaintiffs themselves allowed the original defendants to the suit, i.e. legal heirs of Karam Dad to sell the property in favour of petitioners and after sale in favour of the petitioners filing of their suit speaks volumes and even I have noticed that the plaintiffs have not prayed for possession of the suit land when admittedly the possession has been delivered in favour of the petitioners under the sale, therefore, suit for declaration only without consequential relief of possession under section 42 of the Specific Relief Act, 1877, was not competent. In view of what has been discussed above, this revision petition is allowed, findings recorded by both the Courts below upon crucial issues, i.e. Issues Nos.4 and 6 are result of misreading and non-reading of evidence as well as against record, therefore, the findings recorded by both the Courts below are reversed and the suit filed by the plaintiffs/respondents stands dismissed with no order as to costs. AG/M-169/L Revision accepted.