2004 PLP 1046 (SCMR)

KARAMAT NAZIR BHANDARI, J.

The suit-land was purchased by Fazal Ahmad father of Sikandar Hayat, the losing pre emptor, vide sale-deed, dated 8-6-1968 (Exhs.P-1/D-1). The appellant Abdul Aziz in the year 1978 filed a suit for declaration that Fazal Ahmad was a Benami owner and in fact the real owner of the land was the appellant. These suits were decreed ex parte on 3-10-1978 and the decree attained finality. Taking the ex parte decree a fresh sale Sikandar Hayat son of Fazal Ahmad the ostensible owner brought a suit for possession of the land through pre-emption. A similar suit for pre emption was filed by Khuda Dad respondent. Both the suits were consolidated. One of the issues was to the effect as to whether ex parte declaratory decree, dated 3-10-1978 amounted to a sale and, therefore, the suit for pre-emption was competent. The trial Court answered this issue in the affirmative. The suit filed by Sikandar Hayat was dismissed on 31-10-1982 by the Civil Judge, Jhelum while that of respondent was decreed. Both the appellant and the losing pre-emptor filed two separate appeals. Appeal filed by the appellant was allowed with the result that suit filed by respondent was dismissed. The appeal filed by Sikandar Hayat was also dismissed on 7-7-1985 by the Additional District Judge, Jhelum. Respondent filed Regular Second Appeal No. 68 of 1985 in the Lahore High Court, Rawalpindi Bench which was allowed by a learned Single Judge on 10-12-1998, restoring the decree of the trial Court.

2. Leave to appeal was, granted to the appellant on 19-10-1999 by this Court to consider the contention that while deciding the second appeal, the High Court could not have interfered with without examining and assessing the, evidence, both oral and documentary and if so, what was the effect of omission to examine the record by the learned Single Judge of the Lahore High Court.

3. In support of this appeal, Mr. Gulzarin Kiani, learned Advocate Supreme Court for the appellant has argued that the High Court has disregarded the limitations imposed by section 100 of the Civil Procedure Code, 1908 in accepting the appeal of the respondent. He explained that as the decree challenged in second appeal was that of variance, therefore, it was incumbent upon the High Court to have itself re-examined the record and re-assessed the evidence. He has relied on the case of Alloo v. Sher Khan and others PLD 1985 SC 382 in support of the submission. He has also argued that the High Court has erred in holding that the ex parte decree in favour of the appellant amounted to a sale which could be pre-empted by the respondent. For this proposition, he has referred Muhammad Ramzan v. Mst. Janatan and 4 others 1983 CLC 1899. He has urged that respondent has failed to show that the declaratory decree was in fact a sale. In reply, Hafiz S.A. Rehman, Senior Advocate Supreme Court for the respondent has supported the impugned judgment and has urged that the High Court, exercising its power under section. 100, C.P.C. has rightly set aside the appellate decree and restored that of the trial Court. He has urged that ex parte decree was collusive and a device to transfer land to the appellant.

4. In our considered judgment, in the facts and circumstances of this case the ex parte decree in favour of the appellant dated 3-1-1978 did not amount to a sale in his favour. By its declaratory decree the Court only determined the true nature of the transaction of sale, dated 8-6-1968 and held that the appellant was the real owner. The effect of the ex parte decree is that right from the beginning i.e. 8-6-1968, the appellant became the owner. The ordinary ingredients of a contract of sale viz. proposal, acceptance and consideration are missing in the ex parte decree. It is also not disputed that no document of title has been executed in favour of the appellant in pursuance to the ex pane decree. Mere mutation in the Revenue Record to implement the declaration, does not amount to sale in favour of the appellant, since mutation is never a document of title. In this case the mutation only recorded a fact or an event.

5. The argument based, on the collusiveness of ex parte decree does not help the respondent as (i) the said decree has attained finality and its correctness cannot be examined in these proceedings and (ii) in any case saying that decree is collusive does not amount to saying that ingredients of sale are fulfilled.

6. In view of the above discussion, we do not consider it appropriate to decide the question to consider for which, leave to appeal was granted to the petitioner. The point decided above by us is a, question of law and as the case could be finally decided by resolving this point, we do not feel inclined to decide the question touching on the scope of section 100, C.P.C.

7. This appeal is allowed. The impugned judgment and decree, dated 10-12-1998 of the Lahore High Court, Rawalpindi Bench passed in R.S.A. No.68 of 1985 is set aside and that of the First Appellate Court is restored. The suit brought by respondent shall stand dismissed. We leave the parties to bear their own costs. S.A.K./A-32/S Appeal accepted.