2015 PLP 223 (CLC)

ABDUL LATIF KHAN, J.

Aggrieved of the judgment and decree dated 26-5-2009 of learned Additional District Judge-I, D.I. Khan whereby the appeal filed by the respondent No.1 was accepted and the judgment and decree dated 4-12-2007 passed by learned Civil Judge-VIII, D.I. Khan was set aside.

2. Briefly stated facts leading to the instant revision petition are that the petitioner/plaintiff filed a suit for possession through pre-emption of the suit property measuring 3 marlas in khata No.44 Khatooni No.121 Khasra No.254 total measuring 9 marlas situated at Mauza Garah Noor Khan Tehsil and District D.I. Khan transferred through registered deed No.635 attested on 12-3-2001. Later on, in the amended plaint respondents/defendants Nos.2 to 6 were impleaded as parties in the suit and the petitioner/plaintiff also challenged registered deed No.1102 attested on 1-5-2001 in the name of Lashkar Ali Khan. It has alleged by the petitioner/plaintiff in his amended plaint that the respondent/ defendant purchased the suit land without his knowledge and giving notice to him from Lashkar Ali Khan vide registered deed No.635 attested on 12-3-2001 for sale consideration of Rs.1800 but in order to defeat his right of pre-emption mentioned an exaggerated amount of Rs.5000 in the registered deed. He is shafi shareek, shafi khalit and shafi jar and is in need of the suit property while the respondent/defendant has no such right in the suit property. On 11-6-2001 at 5.00 p.m. at thoroughfare of P.P. Naivela he came to know about the sale of the suit property through Hidayatullah and immediately made Talb-e-Muwathibat and on 13-6-2001 made Talb-e-Ishhad by sending notice in the presence of Shaukatullah and Hidayatullah but the respondent/defendant did not give any plausible reply. During the pendency of the suit, he came to know that the respondent/defendant has transferred the suit property through registered deed No.1102 attested on 1-5-2001 in the name of Lashkar Ali Khan, which is totally wrong and liable to be cancelled. The respondent/defendant appeared before the learned trial court and filed his written statement. The learned trial court after framing issues, recorded evidence of the parties and hearing arguments of the learned counsel for the parties, decreed the suit of the petitioner/plaintiff vide judgment and decree dated 4-12-2007. Appeal preferred against the judgment and decree of the learned trial court, was accepted on 26-5-2009, hence the present revision petition.

3. Learned counsel for the petitioner contended that the appeal court has wrongly reversed the judgment and decree passed by trial court through a non-speaking judgment passed in disregard of Order XLI, rule 31, C.P.C. He contended that the plaintiff has proved the performance of talbs in accordance with law as such the provision of section 13 of the N.-W.F.P. Pre-emption Act, 1987 has complied with and the suit of the plaintiff was rightly decreed by the trial court. He contended that the appeal court has wrongly held that the plaintiff was aware of the sale in dispute and therefore the talbs are defective in nature. He further contended that the appeal court has wrongly interpreted the section 52 of the Transfer of Property Act, by ignoring the fact that the alleged subsequent transfer was aimed to defeat the pre-emption right of the plaintiff and prayed for acceptance of the instant revision petition.

4. As against that, learned counsel for the respondent No.1/ defendant contended that the subsequent transaction took place prior to the institution of the suit. He contended that the pre-emptor has not made any talb nor filed suit against the subsequent sale and as such is estopped by his conduct. He contended that provision of section 52 of the Transfer of Property Act would not be applicable to the instant case as the subsequent transfer was not effected during the pendency of the suit. He contended that the appeal court has properly appreciated the evidence and rightly non-suited the petitioner/plaintiff.

5. I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.

6. The perusal of plaint shows that the suit was filed on 19-6-2001 against the registered sale-deed No.635 attested on 12-3-2001. However, the suit property was subsequently transferred back to the vendor vide registered deed No.1102 attested on 1-5-2001. The alleged knowledge claimed by the plaintiff on 11-6-2001 and notice of Talb-e-Ishhad was allegedly issued on 13-6-2001. The subsequent transfer made prior even to the alleged knowledge of the plaintiff. The written statement filed on 9-3-2002, wherein the factum of subsequent transfer was disclosed and the amended plaint was filed after almost one year i.e. 20-3-2003, wherein the vendor was also made party, were later on placed ex parte and they have not filed written statement nor contested the suit, even upto this court.

7. Section 22 of the N.-W.F.P. Pre-emption Act, 1987 is reproduced below:

"

22. Improvement made in the status of the vendee defendant after institution of the suit. Any improvement made in the status of a vendee defendant after the institution of suit for pre-emption [otherwise than through inheritance] shall not affect the right of pre-emptor-plaint."

8. Section 52 of the Transfer of Property Act, 1882 is reproduced for ready reference. "

52. Transfer of property pending suit relating thereto. During the pendency in any court having authority in Pakistan, or established beyond the limits of Pakistan by the Federal Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose."

9. Sale/resale of the property by vendee after the institution of suit would be barred because once suit for pre-emption is instituted, the right of the plaintiff would not be effected by improvement in his status by vendee except through inheritance. Section 52 of the Transfer of Property Act, 1882 would also be applicable if the sale/resale take place during the pendency of the suit, however, resale/further sale, took place prior to the institution of the suit would in no eventuality come within the principle of lis pendens. As being fresh transaction, the plaintiff has to file suit against the same and not the previous one, which does not even exist at the relevant juncture.

10. In Abdul Yaseen Khan's case (2004 SCMR 1270), the honourable Supreme Court of Pakistan has observed that:

"From the case law on the subject in general and from that cited at the Bar, in particular, one feels no difficulty in arriving at the conclusion that, once a pre-emption suit stands instituted, a vendee is prohibited from entering into sale or resale of the disputed property. It is obvious because the lis is pending adjudication. Even otherwise, it is a matter of common sense that the provisions of section 52 of the Transfer of Property Act would get attracted only and only when the lis is pending. Contrary to that, in the instant case, the pre-emptor had not then instituted the pre-emption suit on 5-10-2000 when the vendee Abdul Subhan had already sold the property to Ashraf Ali Khan on 29-9-2000 vide mutation No.639. How by any stretch of imagination or interpretation this further sale can be brought within the four corners of the principle of lis pendens. The learned High Court has, therefore, rightly held that it was a new transaction altogether and the pre-emptor, if at all interested in pre-empting the sale, should have filed a suit against the latest sale and not against the previous one. If the principle of lis pendens is wrongly applied to the sales taking place prior to the institution of suit then every purchaser shall be made bound to Wait for a pre-emption suit and refrain from exercising his proprietary rights over the property purchased. The right of pre-emption, by such interpretation, cannot be so over-stretched and so blown out of proportions."

11. The amended plaint filed by the petitioner/plaintiff reveals that the legal heirs of Lashkar Ali Khan was arrayed as party to the suit in the panel of the defendants with addition in the same prayer of possession through pre-emption that subsequent sale-deed No.1102 attested on 1-5-2001 in the name of Lashkar Ali Khan by defendant No.1 was wrong, illegal and ineffective upon the rights of the plaintiff. However, no suit for pre-emption was filed against the subsequently sale and the petitioners being maintained their stance to question the previous sale effected through registered deed No.635 attested on 12-3-2001 through exercise of right of pre-emption. The subsequent transaction remained unchallenged, so far as the exercise of right of pre-emption is concerned, while the previous sale for all practical purposes has been ended and is no more in existence. Needless to mention that talbs allegedly made against the previous transaction and plaintiff has made no talb against the subsequent transaction , as no suit for pre-emption has been filed against it. This state of affairs leads one to the conclusion that the defendants/vendees were not restrained from the transfer of property in the name of vendor or anyone else prior to the institution of suit and in the instant case, the same transfer took place even prior to the alleged Talb-e-Muwathibat and notice of Talb-e-Ishhad on behalf of the plaintiff. The right of the plaintiff, if vendee entered into fresh transaction/sale during the pendency of suit, would not be effected but if prior to the institution of suit neither section 22 of the N.-W.F.P. Pre-emption Act, 1987 nor section 52 of the Transfer of Property Act, 1882 would be applicable and the application would have no right whatsoever to claim any embargo upon the resale in accordance with law.

12. In this case, admittedly no talb made in respect of sale/ subsequent sale in accordance with law and as such without performance of talbs no case for pre-emption is made out.

13. For the foregoing reasons, the present revision petition being without any substance, is hereby dismissed with no order as to costs. AG/492/P Revision dismissed.