1987 PLP 787 (SCMR)

Nemo for Respondents. Date of hearing: 18th February, 1987. S. A. NUSRAT, J.‑‑ The petitioner seeks leave to appeal from the judgment of the Lahore High Court dated 2‑8‑1986 whereby his regular second appeal was dismissed. 2.The dispute in this case relates to 24 Kanals 18 Marlas of land situate in the area of village Shahani Tehsil and District Bhakkar. The disputed land belonged to Muhammad Ali Khan, respondent No.3 herein. Noor Shah respondent No.1 claimed having purchased the said land from Muhammad Ali for a consideration of Rs.14,

000. This transfer was admittedly not covered by a registered sale‑deed. Muhammad Ali sold the disputed land to Atta Hussain, respondent No.2, by a registered sale‑deed dated 26‑2‑1978 for a consideration of Rs.25,

000. This sale was pre‑empted by the petitioner who got a pre‑emption decree in his favour on 23‑7‑1979 in a pre‑emption suit brought against the vendee Atta Hussain and Muhammad Ali. Noor Shah brought a suit on 8‑12‑1977 for declaration simpliciter that he was owner in possession of the disputed land having purchased the same from Muhammad Ali. The suit was dismissed on 23‑1‑1978. Noor Shah thereafter, instituted another suit on 14‑2‑1978 for possession against Muhammad Ali but after coming to know about the pre‑emption decree passed in favour of the petitioner, he impleaded both Atta Hussain and the petitioner in the said suit. Muhammad Ali in his written statement denied having sold the land to Noor Shah. In the said suit it was asserted by the petitioner that he having secured possession through a decree passed by Civil Judge his rights were protected by virtue of a registered document executed as required under section 54 of the Transfer of Property Act. The plea of res judicata was also raised in defence. The learned trial Court decreed the suit for possession in favour of Noor Shah by judgment and decree dated 26‑6‑1982. The petitioner's appeal before the District Judge as also his second appeal in the High Court failed. The matter has now been brought to this Court seeking leave to appeal.

3. The following contentions have been raised on behalf of the petitioner in support of the petition: (1) Whether the previous suit filed by respondent Noor Shah for declaration of title which was dismissed on 23‑1‑1978 did not operate as res judicata and barred the second suit for possession? (2) Whether the fact that the alleged sale which constituted the basis of the suit, and was evidenced by an unregistered document was not sufficient to throw out the suit as at the time of the so‑called sale the provisions of section 54 of the Transfer of Property Act was applicable and there was no right in existence which could be enforced through a Court of law? (3) Whether a document of sale, which was compulsorily registerable, will not give way to a registered sale even though of a subsequently date?

4. The above contentions need examination and leave is accordingly granted. Security Rs.2,

500. Status quo already granted in the case shall continue until the appeal arising out of this petition is decided. S.Q./N‑8/S Leave to appeal granted.