1994 PLP 1610 (SCMR)

SAAD SAOOD JAN, J.‑‑‑Umar Draz, predecessor‑in‑interest of the respondents, had occupancy rights in certain State land measuring 198 Kanals situate in Chak No. 4 Naubahar of Tehsil Phalia. On conviction in some criminal case he was sentenced to a term of imprisonment. While in jail, he executed a power of attorney in favour of Ahmed Yar on 9‑7‑1954. In pursuance of this power of attorney Ahmad Yar sold the land in dispute on 14‑9‑1954 to his sons, Shah Muhammad, Ghulam Muhammad and Sher Muhammad. On 27‑1‑1958 Umar Draz filed a civil suit for a declaration that the sale‑deed executed by Ahmad Yar on 14‑9‑1954 in favour of his sons was tainted with fraud and void.

2. Umar Draz had obtained a loan from the Central Cooperative Bank, Sargodha. To realize the amount of the loan the Bank sold the land in dispute under Martial Law Regulation No.

241. The petitioners filed a Constitution petition in the High Court to challenge this sale by the Bank but it was dismissed. In view of the fact that after the sale of the land by the Bank none of the parties to the suit could claim any right in the land in dispute the suit was dismissed. In this context, the High Court observed: "I have already mentioned the facts. It is not denied that the plaintiff had obtained a loan from the Bank. Admittedly, in connection with that loan, there were proceedings under M.L.R. No. 241, the land in suit was put to auction and was, purchased by the Bank. On the application of the appellants, this Court had stayed the execution of the decree. But after the sale in favour of the Bank had taken place, the appellants made Cr. Original No. 4‑C/72 complaining that this Court's order had been violated. The application was dismissed by this Court's order dated 30‑5‑1972. Within two days thereof, the appellants instituted W.P. No. 758 of 1972 seeking a declaration that the proceedings under M.L.R. No. 241 were without lawful authority and were of no legal effect. That writ petition was dismissed by a judgment of this Court dated 6‑6‑1972. In that judgment, the pendency of this appeal was noticed and as regards the merits of the case, it was held that `very title of the petitioners in the land in question is still sub judice' but: `Be that as it may, Martial Law Regulation No. 241 makes the property of a borrower liable to attachment and auction notwithstanding ;any intervening sale made by the borrower. Examining the case even from an extreme point of view the orders of the respondents whereby they followed the property in question cannot be taken exception to. An observation to this effect exists even in the order of my Lord the Chief Justice hereinbefore mentioned. It is no doubt that the learned Chief Justice indicated that the petitioners will be at liberty to invoke any other legal remedy that may be open to them but the learned counsel has not been able to show to me as to how the property in dispute did not fall within the ambit of Martial Law Regulation No.

241. Even as late as 23‑5‑1972, this was so held by the authorities concerned after hearing the petitioner‑ The view taken by the department in these circumstances, cannot be said to suffer from any illegality of any kind.' It follows, therefore, that this judgment must, as regards the appellants, operate res judicata and that as a result of the proceedings under M.L.R. No. 241 the parties to this appeal stand divested of all their rights and interest in the land in suit. ????????? The?? petitioner seek leave to appeal from this court.

3. In support of this petition it is contended that as the land in dispute was sold during the pendency of the suit the doctrine of lis pendens was attracted in this case, and as such the rights of the parties could not be affected by the sale. There is no merit in this contention. The sale made in this case was not by one of the parties in the suits. There is no allegation that in selling the property there had been any fraud or illegality. In the circumstances, the doctrine of lis pendens is not attracted. No other point was raised in this petition. It is hereby dismissed. AA./G‑438/S ????????????????????????????????????????????????????????????? Leave refused.