2013 Y L R 332

2013 Y L R 332

[Peshawar]

Before Khalid Mahmood, J

ABDUL RASHEED and another---Petitioners

Versus

ISMAIL and others---Respondents

Writ Petition No.82 of 2008, decided on 10th October, 2012.

Transfer of Property Act (IV of 1882)---

----S. 52---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Lis pendens, principle of---Applicability---Fraud and misrepresentation---Proof---Petitioners purchased suit property during pendency of litigation in which vendors were party---After the matter was finally compromised before Supreme Court, petitioners assailed compromise decree on the plea of fraud and misrepresentation under S. 12(2) C.P.C.---Trial Court dismissed application filed by petitioners and the order was maintained by lower Appellate Court in exercise of revisional jurisdiction--- Validity--- Petitioners had purchased and exchanged suit property during pendency of suit / previous litigation wherein the vendors were party, hence principle of estoppel and lis pendens was applicable---Petitioners failed to make out a case of fraud and misrepresentation---Petitioners could file suit against vendors out of their entitlement of share of entire legacy of deceased owner on the principle of priority of sale and in alternate recovery of sale consideration paid to them---Petition was disposed of accordingly.

            Mukhtar Baig and others v. Sardar Baig and others PLD 1971 SC 791; Talib Hussain and others v. Member Board of Revenue and others 2003 SCMR 549; Mst. Iqbal Begum v. Assistant Commissioner and others PLD 1985 Lah. 345; Allah Bakhsh and others v. Mst. Irshad Begum and others 1986 SCMR 1362; Wazir Ali v. Allah Ditta and 6 others 1994 CLC 1135; Nazir Ahmed v. Muhammad Salim 2002 YLR 1531; Rashid Ahmad v. Mst. Jiwan and 5 others 1997 SCMR 171 and Mst. Bibi Sahiba and 9 others v. Mushtaq Shah and others 2002 SCMR 1838 ref.

            Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45 rel.

            Haji Ghulam Basit for Petitioners.

            Abdul Lateef Khan assisted by M. Waqas Khan for Respondents.

            Date of hearing: 9th October, 2012.

JUDGMENT

KHALID MAHMOOD, J.---Abdul Rashid and another petitioners have filed this petition praying for:--

            "that on acceptance of this petition, the impugned judgments/ orders may please be declared illegal, void, against fact, principle  of natural justice, unlawful and ineffective upon the rights of the petitioners".

2.         As per contents of petition, petitioners filed application under section 12(2), C.P.C. and challenged the compromise judgment  and  decree  dated  3-2-1986 passed by the learned Civil Judge, Mansehra on the grounds of fraud and misrepresentation. It is averred in the petition that petitioners are vendees of Khasra Nos.304 and 432 measuring 12 kanals 06 marlas situated in Village Shinkiari, vide Mutation No.8081 attested on 10-11-1983. Respondents appeared and contested the application by filing replication and learned Civil Judge-II, Mansehra after recording evidence and hearing the parties dismissed the application vide judgment and order dated 30-1-2007. Feeling dissatisfied, petitioners preferred revision petition and learned Additional District Judge, Mansehra after hearing the parties dismissed the petition vide impugned  judgment  and  order  dated   16-1-2008. Hence, this writ petition.

3.         Learned counsel for petitioners argued that petitioners being vendees of suit property were neither impleaded in Suit No.221/1 nor apprised of the proceedings of the suit and on gaining knowledge about the fraudulent decree has assailed the same by filing application under section 12(2), C.P.C. It was argued that plaintiffs in the said suit in collusion with each other managed to obtain decree and thereby usurp the rights of the petitioners. It was argued that on acceptance of application of petitioners filed under section 12(2), C.P.C., the compromise judgment and decree is liable to be set aside and thereafter the suit may be decided on merits after impleading the petitioners as party.

4.         On the other hand, learned counsel for respondents opposed the contentions of petitioners and argued that disputed property along with other property was allotted to one Hashmat Bibi wife of Nagina vide RL.II No.41 in the year 1958; that Hashmat Bibi died in 1963 and her inheritance Mutations Nos.3209 and 3210 were attested in favour of Ali Muhammad her nephew/L.R; that Ali Muhammad sold the properties to various purchases through different mutations including Abdul Ghaffar and Jumma Khan; that later on all mutations attested by Mst. Hashmat Bibi in the name of Ali Muhammad stood reversed including mutation by Ali Muhammad in favour of Jumma Khan and Abdul Ghaffar; that petitioners purchased the property in 1982-1983 during pendency of suit and kept mum for many years from Jumma Khan and Abdul Ghaffar; that main vendors namely Ali Muhammad, Jumma Khan and Abdul Ghaffar were made party, hence, the plea of not arraying necessary parties is without force and that the petitioners can at the most ask their vendor for recovery of money allegedly paid by them.

5.         Arguments of learned counsel for the parties have been heard in detail and relevant record gone through with their valuable assistance.

6.         In the light of valuable assistance of both the counsel of the parties, my findings are as under:--

            The suit property was originally transferred in favour of Mst. Hashmat widow of Nagina being limited owner. The entire legacy of late Nagina was transferred in favour of his widow namely Mst. Hashmat. After her death the legacy of Mst. Hashmat was transferred in favour of Ali Ahmed. However, after lengthy litigation vide judgment of august Supreme Court Mst. Hashmat was declared owner upto the extent of 1/4th share of late Nagina. In the light of said judgment all the subsequent mutations/transfer deeds were rectified/cancelled. The case between the subsequent transferees of Ali Ahmed and that of other interested parties was finally settled/decided through compromise in the Supreme Court. After final adjudication of the present suit the application under section 12(2), C.P.C. was moved by the present petitioners. In rebuttal thereof respondents had raised several issues of limitation, lis pendens and the petitioners' rights cannot be protected under section 41 of the Transfer of Property Act. In support of the objections raised by the respondents, learned counsel cited PLD 1971 SC 791 (Mukhtar Baig and others v. Sardar Baig and others), 2003 SCMR 549 (Talib Hussain and others v. Member Board of Revenue and others), 2000 SCMR 45 (Mukhtar Baig and others v. Sardar Baig and others), PLD 1985 Lahore 345 (Mst. Iqbal Begum v. Assistant Commissioner and others) whereas in support of contention of petitioners they relied upon 1986 SCMR 1362 (Allah Bakhsh and others v. Mst. Irshad Begum and others), 1994 CLC 1135 (Wazir Ali v. Allah Ditta and 6 others), 2002 YLR 1531 (Nazir Ahmed v. Muhammad Salim), 1997 SCMR 171 (Rashid Ahmad v. Mst. Jiwan and 5 others) and 2002 SCMR 1838 (Mst. Bibi Sahiba and 9 others v. Mushtaq Shah and others). It is not denied that the petitioners became owner through exchange vide Mutation No.8398 dated 10-11-1983 and through purchase from Jumma Khan vide Mutation  No. 8081  attested  on  15-4-1982. Though Abdul Ghaffar and Jumma Khan were party to the previous litigation from whom during pendency of the present case petitioners had purchased and exchanged the suit property upto the extent of 13 kanals, 05 marlas. So far controversy regarding lis pendens and protection under section 41 of the T.P. Act is concerned, it was argued by learned counsel for the respondents that the petitioners remained mum after final adjudication of the suit from 1986 till filing of the present application which was filed in 1991, hence, principle of laches, estoppel and lis pendens will be applicable against the petitioners. The petitioners have not disclosed any legal or factual aspect through which the period of limitation could be condoned. He was of the opinion that if petitioners want to agitate the claim regarding the rights over the suit property, which was transferred from Abdul Ghaffar and Jumma Khan, during pendency of the previous suit, they can only file a suit against the said vendors for recovery of money so paid by them.

7.         It is not denied that Ali Ahmed was entitled to 1/4th of the entire legacy of Mst. Hashmat, who thereafter transferred some of the property vide different mutations in favour of different vendees including Abdul Ghaffar and Jumma Khan from whom the petitioners had purchased the suit property. Out of his 1/4th share of legacy of Mst. Hashmat on the principle of priorities of transfer, petitioners can file a suit under section 48 of the T.P.Act against the subsequent purchasers, who derived the title from Ali Ahmed including Abdul Ghaffar and Jumma Khan and also for alternate prayer for the recovery of sale consideration paid to the said vendors.

8.         So far this petition is concerned, it is held that as petitioners had purchased and exchanged the suit property during pendency of suit/previous litigation wherein Jumma Khan and Abdul Ghaffar were parties, hence, principle of estoppel, lis pendens will be applicable, in the present case wisdom can be drawn from 2000 SCMR 45, wherein it was held as under:--

"Rule of 'lis pendens' applicability---Suit for declaration---During pendency of suit for declaration in respect of house in dispute, defendant sold the house---Defendant/vendor having sold during pendency of proceedings between parties, vendee had claimed that he being transferee of right of deceased, was entitled to contest suit independently in his own right in the same manner and to the same extent as defendant/ vendor---Validity---Vendee having purchased house in dispute during pendency of suit, rule of 'lis pendens' was applicable to said vendee and he was not entitled to defend suit independently from defendant through whom he claimed ownership rights during pendency of suit---Findings recorded against defendant/vendor and judgment delivered against him would be binding on vendee in the same manner and to the same extent as it was binding on defendant/vendor".

9.         No case of fraud or misrepresentation has been made out. However, petitioners can file a suit against Ali Ahmed and subsequent purchasers including Jumma Khan and Abdul Ghaffar out of his entitlement of 1/4 share of entire legacy of Nagina on the principle of priority of sale and in alternate recovery of sale consideration paid to them, if so advised.

10.       In the light of the above discussion, this writ petition stands disposed of accordingly.

MH/388/P                                                                                            Petition dismissed.