1989 PLP 3262 (MLD)

Date of hearing: 11th February, 1989. This judgment will dispose of R.S.A. Nos. 389/66, 413/66, 414/66, 415/66 and 416/66 as they are directed against the same judgment of the two Courts below and common questions of law and facts arise therein.

2. On 3rd of July, 1964, the respondents in all the appeals, filed suits for recovery of various sums of money against the appellant Miraj Din in the Civil Court at Lahore. In these suits it was averred that the respondents had purchased various pieces of land from the appellant through registered deed of sales for valuable considerations. At the time of sale, it was represented by the appellant that he was the owner of the land which had been purchased by him in a Court auction held in the execution of a decree titled "Lala Balqi Mal and Sons v. Muhammad Sharif etc." by the Court of Lala, J. N. Kapoor, Commercial Sub- Judge, Lahore. According to the case of the plaintiffs/respondents this assertion was false inasmuch the sale in favour of the appellant/defendant had been set aside by this Court in E.F.A. No.386/46 decided on 17th of June, `1949 and as such the appellant had no title which could be conveyed to the plaintiff. They, consequently prayed for the refund of the money which had been paid by them as consideration of the sale to the appellant. In the written statement the factum of sale by the appellant in favour of the respondents and the receipt of consideration was admitted. He, however, reiterated that he possessed full rights of ownership in respect of the land as the auction in his favour was not set aside by the High Court. Further that, in any case, the decision of the High Court was not binding on him as he was not a party to the appeal in which the judgment is said to have been delivered.

3. The parties led their evidence on various issues framed in the suits, which was decreed by the trial Court on 28-7-1965. It was found that the auction in favour of the appellant on the basis of which he had become an owner was set aside by the High Court and as such he ceased to have any title in the land and could not have sold it to the respondents/plaintiffs, who were held to be entitled to the refund of the price paid by them to the appellant. The appeal filed by the appellant also failed before the Addl. District Judge, Lahore on 19-1-1966. Hence this regular second appeal.

4. The learned counsel for the appellant has raised the same arguments before this Court which were addressed before the two Courts below and were repelled for valid reasons. The first contention of the learned counsel was that though in the auction proceedings, the interest of many judgment-debtors have been sold, only one of them namely, Ghulam Nabi had filed the appeal and as such the proceedings were set aside to the extent of his share and not qua the other judgment-debtors in the suit. This argument of the learned counsel is based on misreading of the judgment of this Court m E.FA. No.386/46, a copy of which has been produced as Ex.P-1. This judgment wad delivered by Mr. Justice A.R. Cornelius (as he then was) on 17-6-1949 and in its operative part it was observed: "... I accordingly show this appeal and hereby set aside all proceedings taken in the executing Court for sale of the properties of the second group of judgment-debtors specified in the decree." It was thus obvious that the sale of execution was set aside by the High Court not only qua Ghulam Nabi alone but also with regard to the properties of the second group of judgment-debtors. It is not denied by the learned counsel and even otherwise, is evident on the record that the land purchased by the appellant belonged to the second group of judgment-debtors. In face of these observations in the above-quoted judgment, the appellant cannot be permitted to reagitated the same matter and canvass that the sale to the extent of Ghulam Nabi alone had been set aside.

5. The next contention of the learned counsel for the appellant is also devoid of force. It was urged that since he was not a party to the judgment of this Court in E.FA. No.386/46, he was not bound by it. The title of the appellant was based upon the confirmation of the auction proceedings by the executing Court. This confirmation as also the proceedings leading to auction were set aside by this Court in appeal. The question as to whether the appellant was a party to the appeal, therefore, becomes immaterial. Furthermore, it is important to notice that the judgment dated 17-6-1949 was not challenged by the appellant at any stage in any Court. He even did not file any application for its review. He cannot, therefore, be permitted to collaterally attack it in the suit filed by the) respondents. It is by now well settled that if the superior Courts have already given a decision on a particular aspect of the controversy, the same cannot be reopened before the subordinate Court. If any authority is needed, reference may be made to Abdul Majid and others v. Abdul Ghafoor Khan and others PLDI 1982 SC 146.

6. It is also to be noticed that both the Courts have on the basis of evidence on the record, arrived at a finding of fact that at the time when the sales were made in favour of the respondents by the appellant, he was fully aware that his title stood defeated on account of the judgment of the Lahore High Court in EFA No.386/46. This finding has not been challenged nor shown to be suffering from any misreading. In the written statement filed by the appellant himself admitted that he had already filed a suit for possession against Ghulam Nabi etc. with regard to the same land, which was pending at the time when the sales were made. It, therefore, cannot be contended with any seriousness that the appellant was not aware of the defect in his title. Even otherwise there are no equities in B favour of the appellant. He had received valuable consideration from the respondents for conveying the title to the properties though he had no title at all to pass. In these circumstances, the least which the appellant could do, was to have refunded the money received by him. No valid exception can, therefore, be taken to the judgment and decrees passed by the Courts below. For the foregoing reasons, these appeals have no force and are hereby dismissed with costs. H.B.T./M-1292/L Appeals dismissed.