2001 PLP 844 (MLD)

Inayatullah Khan Niazi for Appellants (in R.S.A. No. 142 of 1969). Date of hearing: 2nd October, 2000. . Muhammad Nawaz son of Allah Dad (respondent in R.S.A. No. 142 of 1969) filed a suit against Muhammad Khan etc. (defendant/appellants in R.S.A. No. 142 of 19.69) claiming to be owner of the suit‑land and seeking a declaration that Mutation No.5300 attested on 21‑2‑1967, whereby the land stood transferred in favour of the said Muhammad Khan etc., was illegal and void. The suit was contested and was decreed by the learned trial Court vide judgment and decree dated 10‑4‑1968. First appeal filed by Muhammad Khan etc., was heard by a learned Additional District Judge, Mianwali, who dismissed the same on 19-10‑1968. R. S. A. No. 142 of 1969 was filed in this Court. It appears that in the. course of pendency of the first appeal a compromise had been made, whereby the said Muhammad Khan etc., had to pay a sum of Rs.5,000 to said Muhammad Nawaz son of Allah Dad. On 1‑10‑1969 undertaking was given that Muhammad Khan etc., are prepared to ‑pay the said amount. A notice was issued to said Muhammad Nawaz and status quo was ordered to be maintained. The order sheet indicates that thereafter the case was fixed on 27‑6‑1990 when notice was ordained to be issued. Thereafter, it was discovered that said Muhammad Nawaz son of Allah Dad had died and his L.Rs. have been brought on record vide order, dated 5‑11‑1990. On 23‑12‑1990 C.M. 5698 of 1990 was presented in Court. The L.Rs. were represented. A written compromise was filed. The Court recorded its satisfaction as to the legality of the compromise. The R.S.A. was allowed and the suit of said Muhammad Nawaz son of Allah Dad was dismissed.

2. Present application was filed on 9‑1‑1993 stating that said Muhammad Nawaz had sold the land to Alam Khan and Ghulam Muhammad in the year 1969. Alain Khan in his turn sold 120 Kanals of land purchased from Muhammad Nawaz in favour of the present applicants vide Mutation No.567 attested .on 28‑‑5‑1971. The case set up and the plea raised is that the said compromise was got recorded and the R.S.A. was got accepted, by the parties to the R.S.A. in collusion with each other.

3. Heard. Learned counsel for the petitioner contends that the present applicants/being the transferees sought to have been impleaded and the decision of the R.S.A. as per compromise between the parties thereto is not binding on his client as the deceased respondent in the R.S.A. had parted with his interest and title in the suit property. Learned counsel for the respondents, on the other hand, vehemently argues chat the applicants being transferees pendente lite are bound by the decision of the R.S.A. as recorded by this Court on 23‑12‑1990.

4. I have gone through the record. I have already reproduced above the details of the proceedings of the litigation. As per copies appended with the application Muhammad Nawaz proceeded to transfer 121 Kanals, 4 Marlas of land to Alam Khan son of Sawan Khan vide mutation attested on 4‑10‑1969. The said Alam Khan proceeded to further transfer the same land to the present applicants vide mutation attested on 28‑5‑1971. It will thus be seen that both the transactions had taken place not only during the pendency of the R. S. A. but also when a status quo order passed, by this Court on 1‑10‑1969 was in force.

5. Even if one were to ignore the interim order the fact remains that the applicants are transferees pendente lite. As to the status of such a transferee reference may be made to the case of Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saddi Asmatullah and others (1999 SCMR 2874). The following observations of the apex Court need to be reproduced here:‑‑ "Therefore, such transfer when litigation in respect of the said property was pending before the Court, was to be governed by the provisions of section 52 of the Transfer of Property Act, which lays down that such transaction, made during pendency of litigation, cannot affect the rights of any other party to the litigation, which may be acquired by it under the decree passed by the Court. Even a bona fide purchaser with consideration pendente lite would be bound by the result of the litigation as his rights in such property would be subject to the rights of the parties to the litigation as I finally determined by the Court. Thus, no protection was available to Respondent No. l and the judgment of the learned Judge in the High Court has failed to make a correct exposition of law." To similar effect are the observations of the apex Court in the case of Mukhtar Baig and others v., Sardar Baig and others (2000 SCMR 45 at p.48).

6. This leaves a question as to whether the fact that the R.S.A. was decided on the basis of a compromise would by itself make the proceedings collusive in the facts and circumstances of the present case. The answer to the said question must be in the negative: Already in the Court of first appeal the matter had been settled on payment of Rs.5,000 by the appellants in the R.S.A. and respondents therein. It was because of some dispute as to the quantum of the said amount that the matter did not proceed further and the learned District Judge decided the appeal on its merits. The present R.S.A. started from the offer to fulfill the terms of the compromise. The matter is spread over a period of more than 20 years. In the circumstances the mere fact that the R.S.A. was decided on the basis of a compromise would not make the proceedings collusive between the parties thereto. Reference may be made to a D.B. judgment of this Court in the case of Hakin Ghulam Rasool v. Sh. Imdad Hussain and another (PLD 1968 Lahore 501).

7. For all that has been stated above, this C.M. is dismissed. Q.M.H./M.A.K./M‑446/L Petition dismissed