2017 PLP 1600 (MLD)

ALI AKBAR QURESHI, J.

This single judgment will dispose of instant civil revision (C.R. No.196/2012) as well as the connected C.R. No.3360/2011, C.R. No.3754/2011 and C.M. No.2-C/2016, as common question of law and facts is involved in these cases.

2. The petitioners, through this civil revision, have questioned the validity and propriety of the concurrent findings recorded by the learned Courts below vide judgment and decree dated 13.10.2011 and 10.05.2010, while decreeing the suit for declaration filed by the respondents Nos.1 and 2.

3. A suit for declaration, as depicts from the record, was filed by the respondents Nos.1 and 2 for the cancellation of a sale deed bearing document No.12389, Bahi No.1 Jild No.252 dated 30.6.1979 and Mutation No.4001 dated 02.08.1979, on the ground, that the respondents Nos.1 and 2, being the legal heirs of deceased Fazal Din, inherited the estate left by their deceased father, the detail of which is given in paragraph No.2 of the plaint, to the extent of their shares; that the respondent No.3 who is real brother of the respondents Nos.1 and 2/ plaintiffs, sold their shares to the petitioner (Canal View Cooperative Housing Society) on 30.06.1979; that by playing fraud and misrepresentation, respondent No.3 with the connivance of the petitioner, got executed and registered a sale deed by producing some other persons in the place of respondents Nos.1 and 2 before a local commission allegedly appointed; that neither the respondents Nos.1 and 2 appeared before any local commission nor put their signatures, therefore, all the proceedings to execute and register the sale deed are fictitious and result of fraud and misrepresentation in order to deprive the respondents Nos.1 and 2 from their valuable land. Lastly submitted, that at the time of registration of the fraudulent and bogus sale-deed, respondents Nos.1 and 2/plaintiffs were minor, therefore, the sale-deed and any transaction of the suit land is otherwise nullity in the eye of law.

4. The suit was contested by the petitioners whereas respondent No.3 failed to appear before the learned Trial Court and resultantly ex-parte proceedings were initiated against him vide order dated 03.05.1990.

5. The learned Trial Court, after framing necessary issues, recorded the evidence of the parties, finally decreed the suit vide judgment and decree dated 18.05.2010. An appeal was filed by the petitioners wherein the judgment and decree dated 18.05.2010 was affirmed.

6. It is pertinent to mention here, that respondents Nos.4 and 5, who purchased the suit land during the pendency of the suit filed by the respondents Nos.1 and 2, filed an application under Order I Rule 10 C.P.C which was finally allowed and they were impleaded as respondents Nos.4 and 5 in the appeal.

7. Learned counsel for the petitioners submits, that both the learned Courts below have not carefully perused the record while decreeing the suit, therefore, the judgment and decree is not liable to be sustained. Further submits, that respondents Nos.1 and 2 miserably failed to prove their stance, that they were minors at the time of executing and registering the sale deed and further, no cogent and convincing evidence has been produced to this effect.

8. In response thereof, learned counsel for the respondents submits, that the respondents Nos.1 and 2 succeeded to prove their claim qua the suit land and further both the learned Courts below through concurrent findings have reached to the conclusion, that the respondents Nos.1 and 2 were minors at the time of purchasing the land by the petitioners. Further submitted, that the petitioners have failed to bring any reliable evidence to rebut the claim of the respondents Nos.1 and 2.

9. Heard. Record perused.

10. Firstly it is to be seen and decided, as to whether the respondents Nos.1 and 2, who are the legal heirs of deceased Fazal Din, were minors at the time of executing and registering the sale deed by the respondent No.3 in favour of the petitioners of the suit land. The respondents Nos.1 and 2, in order to prove this issue, produced Secretary Union Council who appeared in the witness box as P.W.2 and categorically stated about the date of birth of the respondent No.1. The copy of the birth certificate was also placed on record as Exh.P.1. The other witnesses, P.W.1 and P.W.3 to P.W.5 appeared on behalf of the respondents Nos.1 and 2 and succeeded to prove the claim of respondents Nos.1 and 2 and particularly their age. As appears from the record, unfortunately, the petitioners have failed to cross-examine the material and important part of the statement recorded by the witnesses appeared on behalf of the respondents Nos.1 and 2, wherein the witnesses stated the age of the respondents Nos.1 and

2. From the oral as well as documentary evidence, it proves, that the respondents Nos.1 and 2 were minors at the time when the transaction qua the suit land took place and the sale deed was executed by the respondent No.3 with the connivance of the petitioners in their favour.

11. As regard the respondents Nos.4 and 5, admittedly they purchased the suit land during the pendency of the case and are claiming themselves the bona fide purchasers without notice of the suit land. The respondent No.5 has also filed independent civil revision i.e. C.R.No.3754/2011 titled Shahana Khanum v. Naseem Begum etc. against the judgment and decree impugned herein.

12. The learned senior counsel Mr. Ahmad Waheed Khan and M. Baleegh-uz-Zaman Chaudhary, Advocates appeared in C.R. No.3360/2011 and C.R. No.3754/2011, and submitted, that the petitioners in C.R. No.3360/2011 and C.R. No.3754/2011 are bona fide purchasers without notice for consideration, therefore, their rights are protected under the law.

13. As regard the claim of bona fide purchaser, it is not denied that the appellant purchased the suit land during the pendency of the civil suit. The civil suit was filed in the year 2007 and during the pendency in the year 2010, the suit land was purchased by the appellant, therefore, the rule of lis pendens embodied in section 52 of the Transfer of Property Act, 1882, which has been interpreted by the Hon'ble Supreme Court of Pakistan in Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) is squarely applicable in this case. The relevant part of the judgment (supra), wherein Section 52 of the Act ibid has been defined, is reproduced as under:-- "The aforesaid section manifestly embodies the rule of lis pendens, which is available both in equity and at the common law. The rule and the section is founded upon the maxim "pendente lite nihil innovetur", which means that pending litigation, nothing should be changed or introduced. The virtual and true object of lis pendens is to protect and safeguard the parties to the suit and their rights and interest in the immovable suit property against any alienation made by either of the parties, of that property, during the pendency of the suit in favour of a third person. The rule unambiguously prescribes that the rights of the party to the suit, who ultimately succeed in the matter are not affected in any manner whatsoever on account of the alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus, the transferee of the suit property, even the purchaser for value, without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchasers in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. The transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest. The rule of lis pendens is founded upon the principle that it would be impossible that any action or suit could be brought to a successful termination if the alienations pendente lite are permitted to prevail and the subsequent transferee is allowed to set out his own independent case, even of being the bona fide transferee against the succeeding party of the matter and ask for the commencement of de novo proceedings so as to defeat the claim which has been settled by a final judicial verdict. The foundation of the doctrine is not rested upon notice, actual or constructive, it only rest on necessity and expediency, that is, the necessity of final adjudication (Emphasis supplied) that neither party to the litigation should alienate the property so as to effect the rights of his opponent. If that was not so, there would be no end to litigation and the justice would be defeated. In support of the above, reliance is placed upon Messrs Aman Enterprises v. Messrs Rahim Industries Ltd. and another (PLD 1993 SC 292), Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SCMR 2003). Besides, in West Virginia Pulp and Paper Co. v. Cooper, 106 S.E. 55, 60, 87 W.Va. 781, it has been held "the doctrine of "lis pendens" is that one who purchases from a party pending suit a part or the whole of the subject-matter involved in the litigation takes it subject to the final disposition of the cause and is bound by the decision that may be entered against the party from whom he derived title." (underline is mine)

14. In another latest judgment cited as Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), the Hon'ble Supreme Court of Pakistan, by referring the judgment supra (PLD 2011 SC 905), has further elaborated the principle of lis pendens, as under:-- "

11. Considering the plea of lis pendens raised by the appellants' learned counsel, it may be mentioned that the scope, the principle and the application of rule of lis pendens has been elaborately dilated in the judgment reported as "Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905). The ratio of the above law is that a subsequent transferee cannot sustain his transfer (e.g. the sale) if he has purchased the property during the pendency of the suit. He is bound by the outcome of the suit, obviously that shall be so if the case is decided against the transferor from whom he is purchasing the property or against the transferee if he is a party to the case, but if the lis is decided in his favour, there shall be no question about the application of the rule of lis pendens. Conceiving this case in light of the ratio of the above judgment, now when the suit of the appellants for the specific performance has been dismissed by the trial Court and the learned Revisional court and such verdicts are being upheld for the reasoning given in this opinion especially the exercise of discretion by the court(s) in this case, the conduct of the appellants, the invalidity of their agreement to sell etc. how could the rule of lis pendens be resorted to. As lis pendens shall only be applicable in case of success of the appellants, but not in the case of their defeat and failure. Resultantly, the plea raised by the learned counsel based upon this principle is liable to be discarded."

15. As regard the claim of the appellant that he is a bona fide purchaser and purchased the land in good faith, it is to be seen as to whether the appellant could prove his stance by bringing or producing unimpeachable evidence. It depicts from the record, that the appellant could not bring any evidence on record the list of precautionary measures taken by the appellant before purchasing the land. It is held in chains of judgments, that mere inquiring from the revenue officials is not sufficient to prove the stance of bona fide purchaser for consideration without notice. Reliance is placed on Usman v. (1) Haji Omer Haji Ayub, and (2) Haji Razzak (PLD 1966 SC 328), Mst. Allah Ditti v. Settlement and Rehabilitation Commissioner, Lahore and 3 others (PLD 1966 (W.P.) Lahore 659), Australasia Bank Ltd. Lahore v. Bashir Barton Stores, Sargodha 2 others (PLD 1971 Lahore 133), Ali Shan and another v. Sher Zaman and 8 others (PLD 1975 Lahore 388), Shukri and 3 others v. Ch. Muhammad Shafi Zaffar and 2 others (PLD 1975 Lahore 619), Muhammad Jan Ghaznavi v. Captain Haji Muhammad Kabir and 3 others (PLD 1977 Quetta 60), Malik Muhammad Iqbal v. Ghulam Muhammad and others (1990 CLC 670), Maulana Riazul Hassan v. Muhammad Ayub Khan and another (1991 SCMR 2513), Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others (1999 SCMR 2874), Mukhtar Baig and others v. Sardar Baig and others (2000 SCMR 45), Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others (PLD 2002 SC 303), Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SCMR 2003), Muhammad Anwar Khan v. Habib Bank Ltd. and 4 others (2005 CLD 165), Muhammad Afzal v. Matloob Hussain and others (PLD 2006 SC 84), Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) and Hafiz Iftikhar Ahmed and 3 others v. Khushi Muhammad and another (2014 CLC 1689).

16. From the principle laid down in the afore-referred judgments, the appellant, who purchased the suit land during the pendency of the suit, is not entitled to defend the suit independently. In these circumstances, it can conveniently be held, that the appellant has miserably failed to prove his stance of bona fide purchaser and needless to mention, that the transaction to purchase the suit land by the appellant during the pendency of the suit was subject to the final outcome of the suit and as per rule of lis pendens, the appellant has to swim and sink with his predecessor in interest i.e. the original vendor/respondent No.3.

17. The Hon'ble Supreme Court of Pakistan, while interpreting section 52 of Act ibid, which relates to the rule of lis pendens, has gone to the extent, that the rule of lis pendens will apply till the final adjudication which is given in an appeal or revision at the final level of the judicial heirarchy. The relevant part of judgment supra (PLD 2011 SC 905) is reproduced as under: "

8. While dealing with the proposition about the scope and application of section 52 ibid it may be relevant to state here, that as per the clear wording of the explanation to the section, when read as a whole, and especially by construing the expression "the suit or proceeding has been disposed of by a final decree or order" it undoubtedly means, that final verdict, which is given in an appeal or revision at the final level of the judicial hierarchy, which verdict has attained conclusiveness." The rule of lis pendens has further been interpreted by the Hon'ble Supreme Court of Pakistan in the judgment (supra), in the following words: "8 Therefore, the rule of lis pendens shall also be duly attracted and applicable during the period of limitation provided for an appeal or revision etc. to challenge a decree/order. If therefore an alienation of a suit property has been made by a party to the lis, who succeeds at one stage (such as trial), but the transfer is during the period of limitation available to the other (unsuccessful) party, to challenge that decision and ultimately the decree/order is over turned in its further challenge, such alienation made shall also be hit and shall be subject to the rule of lis pendens."

18. Even otherwise, there is hardly any reason to interfere with the well worded concurrent findings of the learned courts below. I am fortified by the esteemed judgments of the Hon'ble Supreme Court of Pakistan, in the case of Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373).

19. Resultantly, this civil revision as well as connected civil revision and C.M. No.2-C/2016 are dismissed and the judgment and decree passed by the learned Courts below is upheld. No order as to costs. ZC/C-10/L Revision dismissed.