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Petitioner: Mst. NIAZ BIBI through L.Rs., VS Respondent: GHULAM MUSTAFA and others
Court Name: Supreme Court of Pakistan Judge(s): Nasir-ul-Mulk, Anwar Zaheer Jamali Title: Mst. NIAZ BIBI through L.Rs., vs GHULAM MUSTAFA and others Case No.: Civil Appeal No.831 of 2006R.S.A. No.625 of 1977 Date of Judgment:2011-03-07 Reported As: PLD 2011 Supreme Court 520 Result: Appeal allowed
JUDGMENT
JUDGMENT ' ANWAR ZAHEER JAMALI, J.---This civil appeal, by leave of this Court vide order dated 16-2-2006, challenges the legality and merits of the judgment dated 19-7-2005 in R.S.A No.625 of 1977, passed by learned single Judge in Chambers of Lahore High Court, Multan Bench, whereby the said R.S.A. Filed by Mst. Niaz Bibi, the predecessor-ininterest of the appellants herein (in short referred to as "appellant"), was dismissed and consequently the judgments of the two Courts below challenged therein, which were also against Mst. Niaz Bibi, thereby dismissing her suit for possession, being Suit No.63 of 1972, were maintained. As the main parties to this litigation are in Courts for a. Period of over four decades by way of two rounds of litigation, in order to understand their respective case, it will be useful that before proceeding further, a brief history of such litigation may be recorded hereunder. 2. In the first round of litigation, on 25-1-1958, Mst. Niaz Bibi had instituted a suit for possession through pre-emption before the Court of Senior Civil Judge Multan, being Suit No.47 of 1959, in respect of 81-kanals, 16-marlas land, situated at moza Khanpur (in short referred to as "suit land"), which was owned by her husband Ghulam Mustafa and sold to Messrs Khuda Bakhsh, Ghulam Farid, Ghulam Sarwar, Allah Wasaya and Allah Bakhsh etc. Vide registered sale-deed dated 31-1- 1957. ' This suit was compromised on 17-1-1959, precisely, the terms that 19/20 share from the suit land devolved upon the appellant/pre-emptor on payment of Rs.20-,000 as pre-emption money, while remaining 1/20 share of suit-land remained with the vendees/defendants in the said suit. Such amount was admittedly paid by the appellant within time and received by vendees/defendants in the suit. Further, according to her, joint possession of suit-land was also devolved/delivered to her
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as per report dated 24-9-1959. As it appears from the record, incidentally, the mutation of this pre- emption decree drawn in terms of Order XX, Rule 14, C.P.C., could not be effected in the Revenue Record due to some mistake in khasra number in the warrant of possession issued by the executing Court and the execution application filed by the appellant was also eventually dismissed for non-prosecution on 1-7-1960. 3. The second round of litigation commenced when the appellant filed a declaratory suit in order to challenge some other sale transactions of the suit-land made by her husband Ghulam Mustafa in favour of same vendees etc. This suit was, however, withdrawn on 2-3-1970 with permission from the Court to file a fresh one, and thereafter on 13-7-1970, another suit for possession was instituted by her against the respondents/their predecessors to challenge various transactions of sale of suit land, including sales vide Mutation Entry No.30 dated 9-11-1965, and Mutation Entry No.61 dated 26- 5-1967, etc. This suit was hotly contested by the defendants, except defendant No.1 Ghulam Mustafa, who, in his written statement dated 20-1-1972, conceded to the claim of the appellant (his wife). Defendants Nos.2 to 6, in their written statement dated 10-12-1971, so also defendants Nos.7 to 9 in their written statement filed in Court on 2-10-1970, did not dispute most of the factual assertions made by the appellant in her plaint regarding previous litigation about the suit-land, but disputed the claim'uf the appellant for passing a fresh decree for possession in her favour, mainly on the plea, they being bona fide purchasers of the suit-land for valuable consideration. They also challenging the authenticity of the earlier decree dated 17-1-1959, passed in Suit No.47 of 1959 by way of compromise, being not executed in time and in accordance with law, thus extinguished. It is pertinent to mention here that in all the transactions of sale challenged by the appellant in her subsequent Suit No.63 of 1972, transacting parties were either the same, who were parties to the earlier round of litigation, i.e. Suit No.47 of 1959, or those who had subsequently transacted' and purchased different portions of suit-land through them. 4. On the pleadings of the parties, following issues were framed by the trial Court of civil Judge, Multan on 23-2-1972:-- "(1) Whether the suit is collusive? OPD defendants Nos.1, 7 to 11. (2) Whether the suit is barred by time? OPD Nos.7 to 11. (3) Whether the suit is bad for, misjoinder of parties and causes of action? OPD Nos.7 to 11. (4) Whether the plaintiff is estopped by her conduct from bringing this suit? OPD Nos.7 to 11. (5) Whether defendant No.7 is a bona fide purchaser for value from an ostensible owner, if so what is its effect? OPD Nos.7 to 10. (6) Whether the alleged decree of pre-emption in favour of the plaintiff has become ineffective as it was not executed within time? OPD Nos.7 to 10. (7) What is the effect on the present suit of the previous suit filed by the plaintiff on the same cause of action? OPD 11. (8) Whether the suit is not maintainable without depositing the mortgage money under protest? OPD No.11. (9) Whether the plaintiff is the owner of the land in dispute, free of encumbrance, under a decree of pre-emption dated 17-1-59? OPP (10) Whether defendant No.1 was not competent to effect any sale in favour of defendants Nos.5 to 7 or to mortgage in favour of defendant No.11? OPP." ' After recording of evidence and due contest between the, parties, the suit of appellant was dismissed by the Court of Civil Judge, Multan vide its judgment dated 7-9-1973, precisely, for the reasons that said suit was barred by section 47(1), C.P.C. And due to non-execution of earlier pre- emption decree in time, it became infructuous and unexecutable. 5. The appellant being aggrieved by this judgment, then preferred an appeal under section 96, C.P.C. Before the Court of District Judge, Multan, being Civil Appeal No.625 of 1977. During the
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pendency of this appeal, in order to bring on record some documents regarding the earlier round of litigation between the parties, which according to the appellant were necessary for just and proper decision of the controversy involved in the suit, an application under Order XL, Rule 27, C.P.C. Was moved by the appellant on 13-11-1974, which was, however, dismissed by the appellate Court, vide its order dated 26-11-1974. This order of the appellate Court on an interlocutory application moved by the appellant was then challenged by her before the High Court, in a C,R.A., but unsuccessfully, as, the said civil revision application was also dismissed with the observations that miscellaneous appeal was incompetent as this ground/grievance could be agitated/urged by the appellant after final disposal of main appeal, by the District Judge. Eventually, the said first appeal was heard by the Court of Additional District Judge, Multan and dismissed, vide judgment dated. 14-7-1977, thereby concurring with the conclusion regarding the dismissal of the suit recorded by the trial Court of Senior Civil Judge, Multan. 6. Against such concurrent findings of the two Courts below on 13-8-1977, the appellant filed R.S.A. No.625 of 1977, before the Lahore High Court, Multan Bench, which was heard by learned single Judge in chambers of the Lahore High Court on 19-7-2005 and by his impugned judgment dated 28-7-2005, it was also dismissed. Against these concurrent findings of the three Courts below, Civil Petition for Leave to Appeal No.2181 of 2005, out of which this civil appeal arises, was filed before this Court wherein leave to appeal was granted to consider similar points in dispute as involved in another C.P.L.A. No.1369 of 2002, wherein, leave to appeal was earlier granted, vide order dated 8-2- 2003. 7. Although, in terms of leave granting order dated 16-2-2006, this appeal has been clubbed with Civil Appeal No.14 of 2003 (re: Noor Khan v. Muhammad Rafique etc.) arising out of C.P. No.1369 of 2002), but as the facts and circumstances of the two appeals are drastically different, we propose to decide the other Civil Appeal No.14 of 2003 by a separate judgment, and therefore, confine ourselves. In this judgment only to the extent of Civil Appeal No.831 of 2006. 8. Mr. Gulzarin Kiani, learned Senior Advocate Supreme Court for the appellant, addressing this Court, in the first instance, gave detailed history of litigation between the parties, as already noted above, and contended that after the compromise decree in Suit No.47 of 1959, and payment of pre-emption money strictly in terms thereof, which is an admitted position, 19/20 share in the suit land admeasuring 81 kanals, 16 marlas at Mouza Khanpur had exclusively devolved upon the present appellant, irrespective of the fact whether she had received its possession in terms of report of the Tapedar dated 24-9-1959, which is otherwise quite clear on this point, or not. As an alternate plea, he also contended that in case the actual physical possession of suit-land was not delivered to the appellant, as disputed by the respondents, still, by operation of law, being co- owner in the suit land with some of the defendants in the proceedings, she remained in joint constructive possession of the suit land. Thus, she cannot be non-suited on this hyper-technical ground raised by the defendants in order to protect their baseless claim over the suit-land. In the same context, in order to establish the clear title of the appellant towards the suit-land, learned Senior Advocate Supreme Court also made reference to some reported cases, which, according to him, lays down the principle that in terms of Order XX, Rule 14, C.P.C., the moment pre-emption money was deposited by the pre-emptor in compliance of the decree passed by the Court in a pre-emption suit, he/she acquires complete title in suit-land, irrespective of the fact, whether necessary mutation was effected in the revenue record or possession, physical or constructive, was delivered to him/her, or not. 9. Learned Senior Advocate Supreme Court for the appellant also made specific reference to subsection (2) of section 47, C.P.C., to amplify the legal position that the bar of filing another suit envisaged under subsection (1) to section 47, C.P.C. Had no application to the facts and circumstances of the case, as under subsection (2) (ibid) the Civil Court had ample power to
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convert the proceedings of a suit into any other proceedings and vice versa. Making reference to the documents, now placed on record on behalf of the appellant through C.M.A. No.1281 of 2010, most of which relate to the earlier round of litigation between the parties by way of Suit No.47 of 1959 and execution proceedings arising therefrom, submission of the learned Senior Advocate Supreme Court was that these documents are nothing but admitted record of previous litigation, which the appellant wanted to place on record for perusal and proper assistance of the appellate Court, but to his misfortune in this regard, she was non-suited by the appellate Court as well as by the High Court, on mere technical ground, least realizing the relevancy and importance of these documents for just and fair adjudication of the whole controversy between the parties. While addressing this Court, he also contended that the order regarding rejection of application under Order XLI, Rule 27, C.P.C. By the appellate Court, vide its order dated 26-11-1974 and the honourable High Court vide its order dated 25-3-1977, were also challenged by the appellant in his R.S.A. Before the High Court, but this aspect of the matter remained untouched and unattended in the impugned judgment, therefore, to meet the ends of justice, now production of these documents may be allowed or they be taken into consideration in order to foster the cause of justice and to save both the parties from another round of litigation, which is a possibility, consequent to an order of remand of the case; if passed on this ground. To fortify his submissions, in this regard he made reference to Article 112 of the Qanun-e-Shahadat Order, 1984 (section 57 of the Evidence Act 1872), and the case of Habibullah v. Muhammad Ahmad Khan (PLD 1973 Note 109). He also placed reliance upon the case of Zar Wali Shah v. Yousaf Ali Shah 1992 SCMR 1778 which lays down as under:-- "Even if one or the other party had failed to produce all the material documents and/or failed to request for proper examination of the disputed documents/signatures, the Court has ample power to collect the same evidence, and to do the needful so as to advance justice rather injustice. The concept of bar against filling gaps through additional evidence is no more available in present Pakistan Jurisprudence and the law; including the precedent law on Islamic principles; which are being made applicable progressively to proceedings before Courts and other forums which are required to record/admit evidence." 10. To further dislodge the claim of respondents, learned counsel vehemently contended that the judgments of all the three Courts below against the appellant are based on misreading and non- reading of evidence, inasmuch as, none of the three Courts below realized/noticed a hard fact that in terms of pre-emption decree in favour of appellant passed in Suit No.47 of 1959 dated 17-1-1959, Ghulam Mustafa, subsequent vendor of the suit-land in favour of defendants had, in any case, completely divested himself of all rights, title and interest in the suit land, which therefore, could not have been passed on by him again to any third party. He also urged that the observations of the Courts below that the appellant and her husband Ghulam Mustafa were in league with each other are contrary to record and have also no force, as Ghulam Mustafa was a known cheater, who had been defrauding different people and, for his sins, the appellant cannot be penalized; more so, when throughout she had been vigilant in pursuing her remedy against him before the Courts of law, with particular reference to his character/conduct, and other defendants, who again fraudulently acquired title in the suit-land from him through mutation entries etc. Were already well aware about the past chequerred history of litigation regarding the suit land. Addressing the Court on the plea of bona fide purchaser for valuable consideration raised by some of the defendants in the suit (now their successors-in-interest), learned Senior Advocate Supreme Court contended that the previous history of litigation regarding the suit-land qua acquiring clear title by the appellant in respect of suit-land in terms of the decree dated 17-1-1959 was well within the knowledge of all these parties, therefore, such plea is absolutely untenable in law. Making further submission in the some context, he also urged that the plea of bona fide purchaser for valuable
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consideration in terms of section 41 of the Transfer of Property Act, pre-supposes a clear transferable right, title or interest in favour of the vendor, which was lacking in the instant case. Obviously, if some person has purchased a property from a stranger/person having no title over it, he cannot resist the title of actual owner of the property by taking such plea, as in the instant case. Addressing the Court on the point of maintainability of the suit, further submission of the learned Senior Advocate Supreme Court was that in view of fraudulent transactions of sale between appellant's husband/Ghulam Mustafa and the defendants, so also the defendants inter se, which have caused clouds over the clear title of the appellant, a distinct and fresh cause of action has accrued in her favour and for this reason the subsequent suit was competently instituted, which was not barred either by virtue of subsection (1) to section 47, C.P.C. Or on the principles of res judicata or estoppel. He also contended that till today, the legal heirs of the appellant are in possession of the suit land and even otherwise in view of the judgment of the Shariat Appellate Bench of this Court in the case Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCMR 2063), the plea of adverse possession raised by anyone of the defendants was not tenable in law. Therefore, considering all his submissions this appeal may be allowed, concurrent findings of three Courts below, which are bereft of merits, may be set aside and the suit of the appellant may be decreed as prayed. In the end, to fortify his submissions, learned counsel made reference to the following case law:-- (i) Ali Ahmad v. Muhammad Fazal (PLD 1973 Lahore 207) (ii) Ali Ahmad v. Muhammad Fazal (1972 SCMR 322) (iii) Moulvi Abdul Qayyum v. Ali Asghar Shah (1992 SCMR 241) (iv) Muhammad Inayat v. Ghulam Murtaza (PLD 1987 Lahore 537) (v) Shahra v. Member, Board of Revenue (2004 SCMR 117) (vi) Mst. Hakam Bibi v. Khushi Muhammad (2007 SCMR 983) (vii) Sita Ram Pande v. Madho Pande (AIR 1914 Allahabad 440) (viii)Muhammad Fazal v. Memebr, Board of Revenue, West Pakistan, Lahore (PLD 1974 Notes 56) (i) In the first case of Ali Ahmad relating to the execution of compromise decree in a pre-emption suit, a learned Division Bench of Lahore High Court held that where the trial Court passed a decree for possession on the basis of pre-emption in favour of the respondent/pre-emptor as a result of compromise which was arrived at between the parties. The respondent paid the entire amount in the Court, the decree conclusively determines the rights of the parties with regard to the matters in controversy in the suit. The suit for pre-emption has special incidents. The, property vests in the vendee by virtue of the sale made in his favour by the vendor. Therefore, when a person files a suit to pre-empt the sale, he does not do so in the exercise of any right in' the property but on the basis of his statutory right to pre-empt the sale. He, therefore, does not have any existing right in the property when he institutes the suit. It is only when the decree is passed and the payment is made that the decree becomes final in his favour and he becomes vested with the property. The decree in a pre-emption case is passed in accordance with the provisions contained in Order XX, Rule 14(1), C.P.C., which lays down that where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid in the Court the decree shall (a) specify a date on or before which the purchase money shall be so paid; and (b) direct that on payment into Court of such purchase money together with the costs (if any), decree against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver the possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment." (ii) In the second case of Ali Ahmad, which was a petitioner before this Court against the above discussed judgment of Lahore High Court, it was held by this Court that when a valid decree in a pre-emption suit was passed in favour of a party he became owner of the property on payment of
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purchase price, and thus, became vested with the right, interest and title in the land from that date. He was, therefore, entitled to get mutation effected on the basis of the decree. Mere fact that the decree was barred by time, therefore, it has lost its utility was not correct as the revenue authorities were under obligation to enter mutation on the basis of such decree. (iii) In the third case of Maulvi Abdul Qayyum, with reference to the provisions of Order XX, Rule 14, C.P.C., scope of decree framed in a pre-emption suit was discussed and it was held that such decree being of a particular nature, title of property would accrue to decree-holder on payment in Court of purchase money together with costs, if any. Such requirement as envisaged by provision of Order XX, Rule 14 Civil Procedure Code, 1908, having already been complied with by the preemptor/decree holder, irrespective of the fact whether possession was delivered to him or not, title in the property would vest in him and he would be owner of the land in question. The opposition of execution of such decree by defendant/judgment debtor was thus all the more ethereal. (iv) In the fourth case of Muhammad Inayat, judgment authored by learned Single Judge of Lahore High Court, Lahore, lays down the principle that where in a pre-emption suit in the earlier execution proceedings only constructive possession was delivered, another miscellaneous application was maintainable to secure actual physical possession of the suit-land, which cannot be termed as filing of fresh execution petition. In the same context, examining the powers of the executing Court qua scope of section 47 of the C.P.C., it was held that although the executing Court cannot go beyond the decree at the stage of execution, but at the same time, it was bound to determine the true intent of the decree so as to effectually implement it. (v) In the fifth case Shahra relating to sanction of mutation on the basis of decree for pre-emption passed by the Civil Court, it was held that on deposit of pre-emption money as ordered in preemption decree, the pre-emptor/decree-holder was vested with full ownership rights of land the subject matter of the suit of pre-emption about which decree was passed. In such circumstances, sanction of mutation could be made on the basis of decree under revenue law, without resorting to Executing Court. The Executing Court in such matters would be involved in case the judgment-debtor failed to deliver possession of the land which was required to be delivered by Executing Court by issuance of warrant of possession. Law did not require that before sanction of mutation on the basis of pre-emption decree, the Revenue Authorities should have required the pre-emptors to obtain order from Executing Court. (vi) In the sixth case of Mst. Hakam Bibi, again the provisions of section 48, Order XX, Rule 14 and Order XXI, Rule 36 were discussed with reference to execution of a pre-emption decree, and it was held that the judgment in favour of the petitioner/preemptor was conditional, subject to payment of balance amount, which had been deposited by him within the prescribed period, therefore, he should be awarded relief in terms of Order XX, Rule 14, C.P.C., wherein after satisfying the decree regarding payment, decree-holder was not required to file execution petition. In order to sustain the claim of the pre-emptor/decree holder further reliance was placed on the principle laid down in the case of Moulvi Abdul Qayyum, referred to above, and to the case of Syed Phul Shah (PLD 1991 SC 1051), which lays down as under:-- "It is also a well-known principle in Islamic justice, that one who succeeds in a litigation unjustly must not retain the benefit. It has been equated with burning charcoal in one's pocket; which, burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with the law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to the principle; justice in accordance with law, we will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted
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justice and justice only in accordance with law, the general directional principles in Islam come to the aid when, one exerts.". ' In the next case of Sita Ram Pande from Indian jurisdiction, provisions of section 47, Order XXI, Rule 36, C.P.C. Were discussed and it was held that where sale price was deposited in Court on obtaining preemption decree, the mortgagee/pre-emptor became full owner and further execution was not necessary. (viii) In the last case of Muhammad Fazal dealing with a decree passed in a suit for pre-emption, it was held that in such cases title in the suit-land passes to the pre-emptor/decree-holder on or from the date the money was paid by him in Court and the Revenue Authorities have, thus, no jurisdiction to refuse sanction of mutation. 11. Conversely, Syed I ftikhar Hussain Gillani, representing respondents Nos.2 to 4, before us, who have purchased the suit-land from respondent No.10, during the pendency of this litigation, vide registered sale-deed dated 21-10-2009, strongly supported concurrent findings of three Courts below in favour of his clients' predecessors. For this purpose, his first submission was that due to none delivery of actual physical possession…
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