2003 M L D 1970

2003 M L D 1970

[Karachi]

Before Rahmat Hussain Jafferi, J

ROSHAN ALI ‑‑‑Applicant

Versus

TALUKA COUNCIL KHAIRPUR NATHAN SHAH through Nazim and another‑‑‑Respondents

Civil Revision No.S‑2 of 1996, decided on 3rd March, 2003.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.39, 42 & 54‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Suit for declaration, cancellation of sale‑deed and permanent injunction‑‑‑Plaintiff had claimed that plot in dispute was purchased by him from the defendant on instalments which were paid and possession of plot was handed over to him in the year 1982‑‑‑Other defendant resisted suit and claimed that plot in dispute was purchased by him from defendant No. 1 in year 1980 prior to the purchase of said plot by plaintiff and he had paid instalments up to the year 1983 even after the alleged purchase of plot by the plaintiff‑‑‑Trial Court dismissed the suit on the ground that plot was already allotted to the defendant No.2 prior to the purchase by the plaintiff‑‑‑Appellate Court remanded matter to Trial Court to compel the defendant No. 1 to file written statement and cancel the registered sale‑deed under the impugned judgment and decree‑‑‑Validity‑‑‑Evidence on record had established that plot in dispute was purchased by defendant No.2 in the year 1980 on instalments which he paid up to the year 1983‑‑‑No evidence was on record to show that receipts of payment of instalments were forged and fabricated documents‑‑‑Defendant No. 1/vendee again sold the same plot to the plaintiff in the year 1982 without canceling earlier sale made by him in, favour of defendant No.2‑‑‑Second allotment/sale in favour of plaintiff was not proper and legal without canceling earlier documents of sale in favour of defendant No.2‑‑‑When plot in dispute was allotted/sold in favour of defendant No.2 in year 1980, same was not available for further sale/allotment‑‑­Appellate Court in circumstances had committed material illegality in passing judgment and decree in favour of plaintiff‑‑‑Judgment and decree of Appellate Court below were set aside and that of Trial Court were maintained. 

(b) Transfer of Property Act (IV of 1882)‑‑‑

‑‑‑‑S.52 [as amended by Sindh Act, (XIV of 1939)]‑‑‑Registration. Act (XVI of 1908), S.18‑‑‑Transfer of property‑‑‑Doctrine of lis pendens‑‑‑Application of S.52(1) of Transfer of Property Act, 1882 (as amended) would be attracted if a notice containing particulars, as mentioned in subsection (2) of S.52 of said Act about pendency of suit was registered under S.18 of Registration Act, 1908 and after registration of such notice property could not be transferred without authority of the Court. 

Illahi Bux Kehar for Applicant.

Muhammad Hashim Chandio for Respondents.

Date of hearing: 3rd March, 2003.

ORDER

The present revision application is directed against the judgment dated 11‑12‑1995 and decree dated 13‑12‑1995, passed by the learned IVth Additional District Judge, Dadu, in Civil Appeal No. 10 of 1993, by which the learned Judge had set aside the judgment and decree dated 21‑4‑1993 and 4‑5‑1993 respectively, passed by learned Senior Civil Judge, Mehar, in Family Court Suit No.20 of 1992 (Ghulam Ali v. Town Committee and Roshan Ali) who has dismissed the suit.

2. The facts giving rise to the present revision are that the respondent No.2 filed the suit for declaration, cancellation of sale‑deed, dated 11‑12‑1991 and for permanent injunction against the respondent No. 1 and the applicant. It was alleged that the plot bearing No.8 situated in Shahbaz Colony was purchased by him from the respondent No. 1 on instalments, which were paid. The plot was allotted to him and possession was handed over to him in the year 1982. The applicant filed a suit bearing No.69 of 1988 for specific performance of the contract against the respondents Nos. 1 and 2 and father of the respondent No.2 by alleging that the said plot was allotted to him by the respondent No. 1 in the year 1980. The said suit was contested by filing a joint written statement by respondent, No.2 and his father. In which they claimed the property to be their property having been allotted to them by the respondent No. 1. The respondent No. 1 did not file separate written statement but adopted their written 4tatement. During the pendency of the suit, the respondent No. 1 secretly executed a sale‑deed in favour of the applicant and then the applicant withdrew the suit on technical grounds by concealing the fact of execution of registered sale‑deed. The respondent No. 2 approached the respondent No. 1 but of no avail, hence he filed the suit.

3. The applicant contested the suit by filing written statement. He took a plea that the plot was purchased by him on instalments in the year 1980, before the purchase of the plot by the respondent No.2. He had paid the installments upto the year 1983, even after the purchase of the plot by the respondent No.2. The respondent No.2 tried to occupy the property but it was resisted. He admitted the fact of filing of suit for specific performance of contract against the respondent No. 1 and others. He took the plea that during the pendency of the suit, the respondent No. 1 agreed to execute th6 sale‑deed, which they did and then he withdraw the suit. He has denied the right, title or interest of the respondent No.2 in the suit property. He took some legal pleas and prayed for the dismissal of the suit.

4. The respondent No. 1 did not contest the suit. Out of the pleadings of the parties, the following issues were framed:‑‑

(i) Whether the suit is bad for non‑joinder of necessary party?

(ii) Whether no cause of action has accrued to the plaintiff for filing the present suit?

(iii) Whether the plaintiff has purchased the plot bearing No.8, admeasuring 2331 square feet, from the defendant No. 1 on the consideration of Rs.14,321.25 and has paid the same to the defendant No. 1?

(iv) Whether possession of the suit plot was handed over to the plaintiff by defendant No. 1?

(v) Whether documents executed in favour of defendant No.2, are forged and bogus?

(vi) Whether the plaintiff is entitled for relief prayed for?

(vii) What should the decree be?

5. The parties led evidence in support of their claim. After considering the material available on the record, the trial Court dismissed the suit on the ground that the plot was already allotted to the applicant in the year 1980, through the above mentioned judgment and decree. The respondent No.2 filed appeal which was allowed and the matter was remanded to the trial Court to compel the respondent No. 1 to file written statement and cancelled the registered sale‑deed under the impugned judgment and decree. The applicant was dissatisfied with the said judgment and decree, therefore, he has filed the revision application.

6. I have heard parties' Advocates, perused the record of this case very carefully and applied my mind to the facts, circumstances and law involved in the matter.

7. The learned Advocate for the applicant has argued that the plot was purchased by the applicant in the year 1980 and the instalments of the plot were paid upto the year 1983 but the respondent No. 1 refused to perform his part of the contract, therefore, he filed the suit for specific performance of the contract; that during the pendency of the suit the respondent No. 1 executed the registered sale‑deed, therefore, the suit was withdrawn. He has further argued that in the yeas 1982 the plot was not available for sale as it was the property of the applicant, therefore, it was illegally purchased by the respondent No.2; that the plot cannot be transferred to anybody without canceling the allotment and notice to the earlier purchaser. He has further argued that the Appellate Court has wrongly applied section 52 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act, 1882), without realizing the fact that the said section was amended through Sindh Act, XIV of 1939, under which a notice under section 18 of the Registration Act, 1908, was essential, which was not considered by the Appellate Court.

8. On the other hand, the learned Advocate for the respondent No.2 has argued that the Appellate Court has not committed any illegality in remanding the case so that the respondent No. 1 should come with clear case about the double allotment of the plot. He has denied that the plot was allotted to the applicant in the year 1980 or that he paid the instalments but argued that all the receipts (Exhibits' 59B' to '59G') filed by the applicant are forged and fabricated documents. He has further stated that the property cannot be transferred during the pendency of suit, in view of section 52 of the Act, 1882.

9. I have given due consideration to the arguments, gone through the evidence available on the record and the judgments of Court below.

10. From the evidence it is clear that the plot in question was purchased by the applicant in the year 1980 on instalments, which he paid upto the year 1983. There is no evidence available on the record to show that receipts of payments of installments (Exhibits '59B' to '59G') are forged and fabricated document. It appears that the respondent No.1again sold the same plot to the respondent No.2 in the year 1982, without canceling of the plot in favour of the applicant. As such the second allotment in the name of the respondent No.2 was, not proper and legal, without canceling the earlier documents. Thus, when the plot was allotted to the respondent No.2 in the year 1980,it was not available for sale or to be allotted to second claimant.

11. It is an admitted position that during the pendency of first litigation viz. Suit No.69 of 1998, filed by the applicant for specific performance of the contract, the respondent No. 1 executed the sale‑deed in favour of I the applicant. Now, the point arises as to whether the said sale‑deed is hit by doctrine of lis pendens as provided under section 52 of the Act, 1882. Province of Sindh has made amendment in the section in the year 1939 vide Sindh Act, XIV of 1939. As such after the said amendment, the amended section will be applicable to the Province of Sindh. The said section reads as under:‑‑

"52. Transfer of property pending suit relating thereto."(1) During the pendency in any Court having 'authority in Pakistan or established beyond the limits of Pakistan by the Central Government," of any suit or proceedings which is not collusive and in which any right to immovable property is directly and' specifically in question, if a notice of the pendency of such suit or proceedings is registered under section 18 of the Registration Act, 1908, the property after the notice is so registered cannot be transferred or otherwise dealt with by any party to the suit or proceedings 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.

(2) Every notice of pendency of a suit or proceedings referred to in subsection (1) shall contain the following particulars, namely:‑‑

(a) the name and address of the owner of immovable property or other person whose right to the immovable property is in question;

(b) the description of the immovable property the right to which is in question;

(c) the Court in which the suit or proceeding is pending;

(d) the nature and title of the suit or proceeding; and

(e) the date on which the suit or proceeding was instituted. "

12. The application of section 52(1) of the Act, 1882 will be attracted if a notice containing the particulars as mentioned in subsection 2 about the pendency of the suit is registered under section 18 of the Registration Act, 1908 and after registration of such notice the property cannot be transferred without the authority of the Court.

13. In the present case, there is no evidence that a notice as required by section 52 of the Act, 1882 was registered as such without such registration of the notice the property can be transferred. Thus the doctrine of lis pendense as provided under section 52 of the Act, 1882, is not attracted. It appears that the Appellate Court has considered the general provisions of section 52 of the Act, 1882, but did not consider the amended provisions of section 52 of the Act, 1882, applicable to the Province of Sindh.

14. After considering the material available on the record, I am of the considered view that the Appellate Court has committed material illegality in passing the impugned judgment and decree. As such it is set aside. The judgment and decree of the trial Court is maintained. The revision application is allowed.

15. Above are the reasons of my short order dated 3-3‑2003 by which I had allowed the revision application.

H.B.T./R‑99/K                                                                         Revision allowed.