2006 PLP 1945 (MLD)

JAWWAD S. KHAWAJA, J.

Naseer Ahmad petitioner-defendant impugns the appellants judgment and decree, dated 29-1-2005, whereby the decree of the learned trial Court, dated 8-3-2002 was reversed and, as a consequence, the declaratory suit filed by Sheikh Gulzar Ahmad respondent-plaintiff seeking injunction and partition by way of consequential relief, has been decreed.

2. The facts of the case have been fully set out in the judgment of the learned trial Court and need not, therefore, be reproduced in extenso. It may, however, be noted that Muhammad Shafique (respondent No.2) is the brother-in-law (behnoi) of the respondent-plaintiff. The suit property measuring 9/80 undivided share in a joint khata, equivalent to 11-1/24marlas, was sold by Muhammad Latif, etc. to the respondent Muhammad Shafique vide registered sale-deed (Exh. D-1), dated 31-3-1984, for a total consideration of Rs.75,

000. Thereafter, vide sale-deed (Exh.D-2), dated 26-10-1988, the said Muhammad Shafique sold the suit property to the petitioner for a consideration of Rs.1,55,

250. After purchasing the property, the petitioner raised a boundary wall and constructed a hall and two shops on the property. He is in occupation thereof since, 1988.

3. At this point, a note has to be made of an intervening event. On 27-8-1988, the respondent-plaintiff filed a declaratory suit against his brother-in-law Muhammad Shafique claiming title to the suit property. The suit was fixed for hearing on 5-9-1988 on which date Muhammad Shafique was summoned for 26-9-1988. However, before the said date, he filed a conceding written statement on 12-9-1988 and on the same day a consent decree (Exh.P-5) was passed in favour of the respondent-plaintiff. It is important to note that the decree was not recorded or otherwise implemented in the Revenue Record.

4. The suit, out of which this petition arises, was filed by the respondent-plaintiff on 8-9-1994. He based his claim on the aforesaid consent decree (Exh.P-5). Since the petitioner was also arrayed as a defendant, he became aware of the consent decree in the present proceedings, whereupon he filed an application under section 12(2), C.P.C. which is subject-matter of the connected Writ Petition, No.8239 of 2005. The suit and the application under section 12(2), C.P.C. were consolidated and the two matters were tried together after the framing of consolidated issues.

5. As noted above, the learned trial Court dismissed the suit of the respondent-plaintiff. It also allowed the petitioner's application under section 12(2), C.P.C. The judgment of the learned trial Court is well-reasoned. The appellate judgment, however, which has reversed the findings of the learned trial Court, is based on defective reasoning. It has been observed by the learned Appellate Court that in the written statement filed by the petitioner in the respondent's suit, no mention had been made of some earlier agreement entered into between the petitioner and the respondent-plaintiff in July, 1988. This can hardly be a basis for holding against the petitioner because the failure to mention the earlier agreement is inconsequential in the circumstances of this case and nothing turns on it.

6. The circumstances, noted above, indicate per se the collusive nature of the consent decree (Exh.P-5). Another unusual circumstance appearing from the record is that while the respondent Muhammad Shafique had purchased the suit property for a sum of Rs.75,000 in 1984, he purported, (through the consent decree four years later) to have sold it for Rs.22,000 only, to the respondent-plaintiff. Learned counsel for the respondents was asked to state if there was any explanation on the record for this extraordinary circumstance. He conceded that there was none.

7. In addition to the above, it is to be noted that the construction, raised by the petitioner on the disputed land since, 1988, is established from the record. His possession of the suit-land, as such, constituted notice to all others including the respondent-plaintiff of the petitioner's interest in the property. In this view of the matter, the respondent-plaintiff could not be treated as a bona fide purchaser of the property in question. Furthermore, the respondent-plaintiff did not take any action against the petitioner to recover possession or to assert his rights in the suit property for a period of six years until he filed his suit out of which this petition has arisen. There is no explanation forthcoming for this inaction on the part of the respondent-plaintiff.

8. Learned counsel for the respondent-plaintiff could not controvert the above arguments advanced on behalf of the petitioner. He merely argued that a petition under section 12(2). C.P.C. was not maintainable. He did not give any reason why this was so. The learned trial Court has given valid bases for holding that the application under section 12(2), C.P.C. was maintainable and that the consent decree (Exh.P-5), dated 12-9-1988 was liable to be set aside. Learned counsel for the respondent-plaintiff also reiterated the observations of the learned Appellate Court based on the written statement filed by the petitioner in this case. I have already discussed this aspect of the case above and have found the appellate judgment to be based on faulty and specious reasoning.

9. The foregoing circumstances make it clear that the suit of the respondent-plaintiff was rightly dismissed and the petitioner's application under section 12(2), C.P.C. was rightly allowed by the learned trial Court. Unfortunately, the learned Appellate Court has not taken note of the above circumstances and has instead, proceeded on the basis of specious reasoning and circumstances, which do not have a material bearing on the case. In the circumstances, I find the impugned appellate decree to be unsustainable. The same is set aside and, as a consequence, the decree of the learned trial Court, dated 8-3-2002 stands restored. The petitioner shall also be entitled to his costs throughout. F.B./N-75/L Petition allowed.