2014 C L C 1689

2014 C L C 1689

[Lahore]

Before Shahid Bilal Hassan, J

Hafiz IFTIKHAR AHMED and 3 others----Petitioners

Versus

KHUSHI MUHAMMAD and anther----Respondent

Civil Revision No.21 of 2010, heard on 5th May, 2014.

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

----S. 52---Civil Procedure Code (V of 1908), S.12(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Transfer of property within limitation period of appeal---Lis pendence, principle of---Applicability---Application moved under S.12(2), C.P.C. was dismissed---Contention of applicants was that no lis was pending when they purchased suit property and they were bona fide purchasers---Validity---Appeal against judgment and decree of civil court was filed within time limitation---Suit of respondent had been decreed and gift mutation had been declared null and void---Transaction on the basis of said mutation would automatically become of no use to the applicants---Applicants purchased suit land during the time limit for filing appeal---No party could alienate or otherwise deal with the immovable property pending litigation to the detriment of his opponent---Any such transfer would be hit by S.52 of Transfer of Property Act, 1882---No need existed to implead applicants as party to the suit, appeal or revision when they were not party to the suit inter se the respondents as they were not necessary party and they could not claim as such---Rule of lis pendence would apply in the present case---Respondent could not lawfully transfer the suit property---Applicants would not be deemed to have acquired land in question and their application filed under S.12(2), C.P.C. was rightly dismissed by the court below---No illegality or irregularity or wrong exercise of jurisdiction had been committed---Revision was dismissed in circumstances.

            Commissioner of Income Tax, Companies Zone-IV, Karachi v. Hakim Ali Zardari 2006 SCMR 170; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Sahib Dad v. Province of Punjab and others 2009 SCMR 385; Bashir Ahmed v. Messrs Muhammad Saleem, Muhammad Siddique and Co. (Regd.) and others 2008 SCMR 1272; Malik Muhammad Iqbal v. Ghulam Muhammad and another 1990 CLC 670; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905, Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Muhammad Naeem Butt v. Shaukat Ali and others 2008 SCMR 1024 ref.

            Sahib Dad v. Province of Punjab and others 2009 SCMR 385; Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Muhammad Naeem Butt v. Shaukat Ali and others 2008 SCMR 1024 rel.

(b) Maxim---

---"Ut lite pendente nihil innovetur"---Meaning---Pending litigation, nothing new should be introduced.

            Chaudhary Ehsan Sabri for Petitioners.

            Malik Abdul Wahid for Respondents.

            Date of hearing: 5th May, 2014.

JUDGMENT

            SHAHID BILAL HASSAN,-J.--- This revision petition calls into question order dated 31-10-2009 passed by learned Addl. District Judge, Kasur whereby application filed under section 12(2) of the C.P.C. by the present petitioners has been dismissed.

2.         Briefly, the facts leading towards this civil revision are as such that present petitioners by filing an application under section 12(2) of the C.P.C. have challenged the judgment and decree dated 5-5-2003 passed by learned Additional District Judge, Kasur whereby appeal filed against judgment and decree dated 1-2-2003, dismissing the suit, was accepted and the suit titled "Khushi Muhammad v. Rehmat Ali" for declaration was decreed. It has been contended that learned trial Court dismissed the suit on 1-2-2003 and on 6-2-2003 the petitioners purchased 16 kanals agricultural land from respondent No.2 through sale-deed No.471. On 28-2-2003, the respondent No.1 preferred an appeal against the judgment and decree dated 1-2-2003 before the learned Appellate Court, which was accepted vide judgment and decree dated 5-5-2003 and suit was decreed in favour of the respondent No.1, impugned gift Mutation No.1353 dated 8-7-1995 was declared null and void. The respondent No.2 filed a Civil Revision before this Court, which was ultimately dismissed vide judgment dated 6-6-2006. During pendency of the Civil Revision, the present petitioners filed a C.M. No.613-C of 2009 under section 12(2) of C.P.C. but by filing a C.M. No.5-C of 2009 withdrew the same vide order dated 15-7-2009 and filed application under section 12(2) of the C.P.C., which was contested by the respondents and ultimately same was dismissed vide impugned order dated 31-10-2009.

3.         Learned counsel for the petitioners has contended that the petitioners are bona fide purchasers of the suit-land; further submits that when the petitioners purchased the suit-land, no lis was pending inter se the respondents; that the respondents being father and son in collusion with each other obtained the decree on the basis of fraud and misrepresentation; that despite having knowledge about sale and purchase of the land in dispute by the petitioners, they were not made party to the appeal and revision, which shows mala fide on the part of respondents; that the learned court below ought to have obtained reply to application filed by the petitioners under section 12(2) of C.P.C., framed issues, recorded evidence and decided the same on merits, but in haphazard manner the petitioners have been non-suited, which is not the requirement of law, rather norms of justice have been defiled; that the impugned order is against facts and law; that the impugned order has been passed in a fanciful manner and without application of judicial mind; therefore, the impugned order is not sustainable in the eyes of law and liable to be set aside; resultantly, the matter may be remanded to the learned lower Court for decision afresh after framing of issues and recording of evidence on merits.

4.         Conversely, learned counsel appearing on behalf of the respondent(s) by favouring the impugned order has opposed the instant revision petition with vehemence by maintaining that case of the petitioners hit by the principle of lis pendens as admittedly they purchased the suit land just after 5 days of passing of judgment and decree by learned trial Court i.e. within limitation period of filing of appeal, therefore, they cannot be said to be bona fide purchasers without notice; therefore, the impugned order is well-reasoned and does not call for any interference. Prayer for dismissal of the instant revision petition has been made. Relies on Commissioner of Income Tax, Companies Zone-IV, Karachi v. Hakim Ali Zardari 2006 SCMR 170, Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 Supreme Court 153, Sahib Dad v. Province of Punjab and others 2009 SCMR 385, Bashir Ahmed v. Messrs Muhammad Saleem, Muhammad Siddique and Co. (Regd.) and others 2008 SCMR 1272, Malik Muhammad Iqbal v. Ghulam Muhammad and another 1990 CLC 670 Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 Supreme Court 905, Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45, Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 and Muhammad Naeem Butt v. Shaukat Ali and others 2008 SCMR 1024.

5.         Heard.

6.         Admittedly, the petitioners purchased the suit land from the respondent No.2 during the time limit for filing appeal; therefore, the contention that when the petitioners purchased the suit land no lis was pending inter se the respondents as admittedly appeal was filed after purchase of suit land by the petitioners, has no weight, as section 52 of the Transfer of Property Act, 1882, embodies the equitable principle of "ut lite pendente nihil innovetur" (pending litigation, nothing new should be introduced), and stipulated that parties to a pending litigation, wherein rights to an immovable property were in question, no party could alienate or otherwise deal with such property to the detriment of his opponent. Any transfer so made would be hit by section 52 of the Transfer of Property Act, 1882; therefore, when the petitioners were not party to the suit inter se the respondents, there was no need to implead them as party to the suit, appeal or revision, because they were not necessary party and they could not claim as such; rule of lis pendens would apply. In this regard safer reliance can be placed on Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983, wherein it has been held that:---

            "Contention of the alleged bona fide purchaser (petitioner) was that impugned sale transaction was relatable to a period when there was no lis pending as admittedly appeal was filed after the impugned sale---Validity---Section 52 of the Transfer of Property Act, 1882, enshrined the equitable principle of "ut lite pendente nihil innovetur" (pending litigation, nothing new should be introduced), and stipulated that parties to a pending litigation, wherein right to an immovable property were in question, no party could alienate or otherwise deal with such property to the detriment of his opponent---Any transfer so made would be hit by S.52 of the Transfer of Property Act, 1882---Doctrine of lis pendens underpinned the rationale that no action or suit would succeed if alienations made during pendency of proceedings in the said suit or action were allowed to prevail----Effect of such alienation would be that the plaintiff would be defeated by the defendants alienating the suit property before the judgment or decree and the former would be obliged to initiate de novo proceedings and that too with the fear that he could again be defeated---Under S.52 of the Transfer of Property Act, 1882, if appeal against a judgment or decree had not been filed but the period of limitation to file appeal had not expired, the proceedings would be deemed to be pending----In the present case, appeal of the plaintiff against the judgment and decree of the Trial Court was filed within time and property in question was decreed in proceedings and squarely hit by the principle of lis pendens…."

Similar position is in the present case, because the appeal against judgment and decree of learned Civil Court was filed by the respondent No.1 within time limitation and not otherwise; therefore, when the suit of the respondent No.1 has been decreed and the gift mutation under question has been declared null and void, the transaction on basis of said mutation, would automatically become of no use to the vendee (petitioners). Further reliance in this regard can be placed on Muhammad Naeem Butt v. Shaukat Ali and others 2008 SCMR 1024 wherein it has invariably been held that:---

            "Suit for specific performance of agreement to sell---Lis pendens, rule of---Decree passed in favour of plaintiff was challenged by defendant in appeal---Application by subsequent purchaser of disputed property for his impleadment as party in appeal---Appellate Court dismissed application---Revision by subsequent purchaser was dismissed by High Court after taking into consideration that he, knowing well about passing of such decree, had purchased property at his own risk, thus, he was not a necessary party and rule of lis pendens would apply---Supreme Court dismissed petition and refused leave to appeal."

When the position is as such, 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, as held in Mukhtar Baig and others v. Sardar Baig and others 2000 SCMR 45.

            Further guideline can also be sought from Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 Supreme Court 905, wherein it has been held that:---

            "S. 52---Rule of lis pendens---Virtual and true object---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 purchaser, 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---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---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."

7.         In view of above, when the respondent No.2 was incapacitated by rule of lis pendens, he did not have anything lawfully transferred and therefore, petitioners would not be deemed to have acquired land in dispute; therefore, the petitioners' application filed under section 12(2) of C.P.C. has rightly been dismissed by learned Court below and no illegality or irregularity even wrong exercise of jurisdiction has been committed. This Court finds no occasion to interfere in the well reasoned order of the learned Court below.

8.         The crux of discussion above is that the petitioners have failed to point out any illegality or irregularity allegedly committed by learned Court below; resultantly by placing reliance on the judgments supra as well as on case of Sahib Dad 2009 SCMR 385, the instant revision petition having no force is hereby dismissed.

AG/I-17/L                                                                                            Revision dismissed.