1993 PLP 2337 (CLC)

‑‑‑‑S. 115 & O.VII, R.11‑‑‑Revisional jurisdiction, exercise of‑‑‑Two Courts below had acted perfectly in accordance with law in passing order for rejection of plaint and had not committed any material irregularity and illegality in exercise of jurisdiction vested in them under law‑‑‑Case was eminently a fit case for rejection of plaint‑‑‑Concurrent orders of Courts below could not be interfered with in revisional jurisdiction of High Court. Khan Muhammad Bajwa for Petitioners. Naveed Sheryar for Respondents Nos. 1 and

2. Nemo for Respondents Nos. 3 and

4. Date of hearing: 3rd April, 1993. In a pre‑emption suit filed by respondents 1 and 2 against respondents 3 ahd 4, ‑Fareed deceased father of the present petitioners 3 to 5 and one Kazinz a decree for possession of land in dispute through pre‑emption was pasged in their favour by the trial Court through judgment dated 13‑3‑1978. The said vendees filed appeal against the said judgment and decree before the learned Additional District Judge, Chiniot which was dismissed through judgment dated 17‑1‑1987, R.SA. No. 19 of 1987 was filed before this Court was dismissed through judgment dated 9‑2‑1987. A Petition for Special Leave to Appeal was filed before the Supreme Court. Since Fareed vendee had died therefore petitioners 3 to 5 were the petitioners in the said petition for special leave to appeal in substitution of him. Sikandar and Sher respectively were also petitioners in‑the said petition. This petition was dismissed through judgment dated 23‑1‑1991.

2. The present petitioners filed a civil suit before the trial Court out of which this revision petition has arisen alleging that they were in possession of the land as tenants therefore could not be ejected, or dispossessed by respondents 1 and 2 in execution of the said decree for possession through pre emption. In the plaint it was not disclosed as to from which point of time, the petitioners became tenants having been inducted by the vendees. The plaint of the suit was rejected by the trial Court through order dated 3‑6‑1991 against which the appeal filed by the petitioners has been dismissed by the learned lower appellate Court through order dated 17‑7‑1991. Both these orders have been challenged in this revision petition.

3. Learned counsel for the petitioners when questioned as to on which point of time the petitioners were inducted in the land as tenants by the vendees in the said pre‑emption suit referred to copy of Khasra Girdawari attached with the revision petition which is from Kharif 1984 onward. All the petitioners have not been mentioned in the said Khasra Girdawari and even if that is to be taken as it is, it would not create any independent right in favour of the petitioners to object to the execution of decree and their dispossession as the alleged tenancy was created long after the decree for possession of land through pre‑emption was passed by the trial Court on 13‑3‑1978. Petitioners 1 and 2 being sons of original vendees namely Sikandar and Sher and petitioners 3 to 5 being legal representatives of Fareed deceased vendee who were also party before the Supreme Court in the said petition for special leave to appear, in ray view could not maintain the suit to protect their alleged possession as tenants according to which tenancy rights according to their own showing were allegedly created long after the passing of the decree therefore, they were bound by the decree itself and restore possession to the petitioners were bound to abide by the decree in the same manner as the original judgment‑debtor.

4. Learned counsel for the petitioners relied upon judgment reported as Khushi Muhammad and 2 others v. Ghulam Muhammad and 7 others (1968 SCMR 119) to contend that a tenant in the land could not be dispossessed in execution of decree of pre‑emption. He also relied upon Order 21, Rule 35, C.P.C. to maintain that ‑ for taking possession from the petitioners the respondents 1 and 2 were required to approach the Revenue Court under the Tenancy Act and obtain a fresh decree against that as tenants.

5. I am afraid the argument is wholly fallacious and misconceived and based on misconception of correct position of law. It appears that before advancing this argument the law has not at all been understood properly. This is firmly settled law to which no exception can be taken that transfer of property during the pendency of the suit muchless after passing of the decree, in favour of third party by judgment‑debtor does not create any right in favour of such a person who is bound by the decree passed in the suit.

6. Learned counsel for the petitioners still insisted that since the appeal was in continuation of the suit, therefore even if tenancy rights were created during the pendency of the appeal in the pre‑emption suit the petitioners would be protected. I am afraid, this argument is also based on misconception of law because if the 'suit was to be treated as pending in appeal any right acquired during the pendency of the same would also be hit by rule of lis pendens and no independent right could have been deemed to have been created in favour of such person acquiring rights from the judgment‑debtor. If such a third party is allowed to protect his rights acquired from the judgment- debtor after filing of the suit and passing of the decree it would amount to give permit to judgment‑debtor to render every decree in-executable by his own act.

7. The revision petition for the foregoing reasons has no merits which is hereby dismissed because the two Courts below have acted perfectly in accordance with law in passing an order for rejection of the plaint, and have not committed any material irregularity and illegality in exercise of jurisdiction vested in them under the law. This was eminently a fit case for rejection of plaint.

8. The petitioner is burdened with special costs. of Rs.500 for indulging in frivolous litigation.

9. The revision petition since has been dismissed therefore the interim order staying further proceedings before the lower appellate Court for contempt initiated against the petitioners automatically stand vacated and the said Court may proceed in accordance with law. H.B.T./M‑999/L Revision petition dismissed.