Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: NAZIR AHMAD and otherss VS Respondent: MUHAMMAD SALEEM and others
Court Name: Lahore High Court Judge(s): Abdul Shakoor Paracha Title: NAZIR AHMAD and otherss vs MUHAMMAD SALEEM and others Case No.: Civil Revision No,131-D of 1995 Date of Judgment:2004-04-09 Reported As: 2004 CLC 1482 Result: Petition dismissed
JUDGMENT
JUDGMENT ' This revision petition impugns the judgment and decree, dated 12-10-1994 passed by Additional District Judge, Kasur, through which the appeal of Muhammad Salim and Akbar Ali respondents against the judgment and decree, dated 9-12-1993 of Civil Judge, Kasur, was accepted. Suit of the respondents for declaration and permanent injunction adjudging the sale-deed, dated 22-6-1976 executed by Mst. Hamida Begum, defendant No,1/respondent through defendant No,2/respondent in favour of defendant No,3 in respect of land measuring 1175 Kanals and 8 Marlas, situated in revenue estate of Girba Singh Wala, Tehsil Chunian, District Kasur as void, was dismissed. 2. This case has a chequered history, Mst. Hamida Begum, respondent No,3 herein, was a displaced person from non-agreed area in India. She was allotted evacuee land in village Girba Singh Wala, District Kasur. The land in dispute measuring 1175 Kanals 8 Marlas, in Khewat No,71 Khatuni No,146- 152 was surrendered by her being excess allotted land under para-9 of the Martial Law Regulation No,89 of 1961. Such surrendered land had to vest in the Provincial. Government. Thereafter scheme for disposal of such a surrendered land was enforced, whereby the allottee could retain the land in exercise of option to purchase the same under MLR 89 and 91, therefore, Mst. Hamida Begum applied to purchase the surrendered land in question on 29-12-1961. 3. Muhammad Salim, plaintiff-respondent, claimed that Mst. Hamida Begum had entered into an agreement to sell with him on 27-11-1963 of the entire surrendered land. It was also the claim of Muhammad Salim that possession was delivered to him under the agreement on the said date and to implement the agreement she executed general power of attorney, dated 27-11-1963. Mutation No,159 was attested on the basis of sale agreement in favour of Muhammad. Salim on 28- 10-1964. Mst. Hamida Begum filed review application against the said Mutation No,159. The matter
---
## Page 2
went up to the Board of Revenue. The writ petition and review filed by said Mst. Hamida Begum were also dismissed in the High Court. 4. Respondents Muhammad. Salim and Akbar Ali filed a suit for specific performance of the agreement, dated 27-11-1963 in the Civil Court, Kasur, on 15-4-1974; the same was resisted by Mst. Hamida Begum by filing the written statement. Subsequently, she did not appear before the Court and the suit was decreed ex parte in favour of the respondents on 17-12-1975. Meanwhile, Mst. Hamida Begum deposited the amount and obtained proprietary rights vide sale-deed, dated 17-3- 1976 Exh.D.1, for which mutation in her favour was sanctioned. She further sold the land through the registered sale-deed, dated 22-6-1976 Exh.D.W.4/1 in favour of petitioners-defendants, namely, Nazir Ahmad etc. Subsequently mutation was sanctioned in their favour. 5. Mst. Hamida Begum initiated two proceedings, i,e, (i) by filing an application under Order IX rule 13, C.P.C. To challenge the decree, dated 17-12-1975, and (ii) she filed a suit for cancellation of agreement dated 27-11-1963 on 24-10-1974, through which Muhammad Salim had purchased the property from Mst. Hamida Begum. Both the above stated matters were dismissed for non- prosecution on 5-11-1981. An application for restoration of application under Order IX rule 13, C.P.C., and the other for restoration of the suit to cancel agreement were filed, which were also dismissed by the Civil Court on 21-3-1982. Mst. Hamida tiled two appeals before the Additional District Judge to challenge the above mentioned orders. It is said that during the pendency of appeal Mst. Hamida Begum entered into a compromise on 10-10-1982 and in consequence of the same the appeals were dismissed by the learned Additional District Judge on 13-10-1982. Hamida Begum accepted the ex parte decree in the suit for specific performance, agreed to withdraw the appeals and also agreed to withdraw an amount of Rs:5,20,255 deposited by Muhammad Salim in pursuance of the decree for specific performance and further that Mst. Hamida Begum would not resist the execution petition and also will not make any claim to question the decree. It is also stated that the amount of Rs,5,20,255 deposited by Muhammad Salim was drawn by Mst. Hamida Begum from the Court of Senior Civil Judge, Kasur, and thereafter in execution of the decree sale- deed was executed in favour of Muhammad Salim on 24-10-1982. 6. At this stage, Mst. Hamida Begum again filed two applications under section 12(2), C.P.C. On 2-12- 1982 challenging the order of the Appellate Court dismissing her two cases. Nazir etc., petitioners herein, purchaser of the property through sale-deed, dated 22-6-1976 Exh. D.W.4/1 also filed an application under section 12(2), C.P.C. To challenge the order of the Appellate Court and compromise therein. The learned Additional District Judge dismissed all the three applications, i,e, two of Hamida Begum and the third of Nazir Ahmad etc., petitioners herein, on 8-4-1987. Mst. Hamida Begum filed two revision petitions Civil Revision No,959 of 1987 and 960 of 1987. Nazir etc., petitioners, also filed Civil Revision No,1150 of 1987 to challenge the order of the Additional District Judge, dated 8-4-1987. The three revisions petitions, i,e, two of Mst. Hamida Begum and the third of Nazir and others petitioners, were dismissed by this Court on 19-9-1988. It was observed by the High Court Mr. Justice Munir A. Sheikh, as My Lord then was that:--- "----The case of the petitioners in this revision petition appears to be that they being bona fide purchasers for value without notice to the previous agreement of sale and that the petitioners alongwith M. Saleem respondent colluded with each other to defraud the petitioner in order to deprive them of their legal rights arising from such sale, which facts cannot be the basis for maintaining application under section 12(2), C.P.C. And the remedy of the petitioner if any lies some where else. Since Muhammad Saleem the respondent is stated to have filed a suit for cancellation of sale-deed in favour of these petitioners, therefore, they will be well within their rights to defend the said suit on any plea available to them under the law. Learned counsel for the respondent argued that the said petitioners being purchasers of the land during the pendency of the proceedings, therefore, they were hit by principle of lis pendens. I am not required to adjudicate
---
## Page 3
upon the merits of this contention as also the other contentions as it will before the said Court where the suit of the respondent is pending to adjudicate upon the same in accordance with law." ' Hamida Begum filed Civil Petitions Nos. 1130 and 1161 against the order, dated 19-9-1988, which were dismissed on 21-5-1990. 7. Muhammad Saleem filed a suit for cancellation of the sale-deed, dated 22-6-1976 against the petitioners, Mst. Hamida Begum and Aziz Ahmad Khan, respondents Nos.3 and 4. The respondents sought a declaration to the effect that the registered sale-deed executed by Mst. Hamida Begum through respondent Aziz Ahmad in favour of the petitioners in respect of the suit-land in consideration of Rs,11,75,000 is illegal and void, on the ground that Mst. Hamida Begum, respondent, had entered into registered agreement to sell, dated 27-11-1963 with Muhammad Saleem. The said suit was resisted by Nazir etc., by filing the written statement. It was contended that the plaintiffs had fabricated the story and the suit was based on fraud and forgery; the documents were forged and fraudulent; Mst. Hamida Begum never executed the same nor authorized anyone to execute the same nor she signed or thumb-marked any such document; she went to India on 6-12-1963 and on 16-11-1971 she returned to Pakistan; the plaintiff took the advantage of her absence from Pakistan and got prepared the aforesaid document; she had rightfully through registered sale- deed, dated 22-6-1976 transferred the proprietary rights in favour of defendants Nos.3 to 8/petitioners; plaintiff No,1 has no connection whatsoever with the possession of the suit-land, whereas plaintiff No,2 is only her tenant. It was further explained that the writ petition filed by her was dismissed on the ground that she should avail of the available remedy. 8. From the divergent pleadings of the parties, following issues were framed by the trial Court:- (1) Whether the plaintiffs have no cause of action? OPD (2) Whether the plaintiffs have properly valued the suit and have affixed proper court-fee? If so, what is the proper court-fee? OPD. (3) Whether the plaintiffs have come with unclean hands? OPD. (4) Whether the defendant No,1 executed registered agreement to sell, dated 27-11-1963, (amended) in favour of the plaintiffs. OPP. (5) Whether the defendant No,1 did not appoint Sher Muhammad as General Attorney through registered General Power of Attorney dated 27-11-1963? OPD (6) Whether the General Power of Attorney, dated 26-11-1963 is forged and fraudulent? OPD (7) Whether the defendants Nos.3 to 8 are bona fide purchasers for value without notice? OPD (8) Whether the registered sale-deed, dated 22-6-1976 in favour of defendants Nos.3 to 8 is illegal, inoperative on the rights of the plaintiffs? OPP. (9) Relief. 9. Amended written statement was filed and the learned Court proceeded to frame following additional issues Nos.7-A to 7-E (may be called the preliminary issues):--- 7-A Whether no rights were created in favour of plaintiff No,2 on the basis of decree, dated 17-12- 1975 because Mst. Hamida Begum was not owner of the property and therefore, registered sale- deed, dated 24-10-1982 is of no legal consequent? OPD 3 to 8. 7-B Whether the registered sale-deed, dated 24-10-1982 is of no legal significance as it was executed after the registered sale-deed, dated 21-6-1976? OPD 3 to 8. 7-C Whether the defendants Nos.3 to 8 are not bound by the decree, dated 17-12-1975? OPD 3 to 8. 7-D Whether registration of sale-deed, dated 24-10-1982 and mutation of sale in favour of plaintiff No,1 is against law and of no legal consequence in presence of Mutation No,249, dated 15-7-1978? OPD 3 to 8. 7-E Whether the registered sale-deed, dated 24-10-1982 is of no legal value in view of preliminary Objection No,13? OPD 3 to 8.
---
## Page 4
10. The petitioners moved an application for placing the onus to prove issue No,4 on the respondents. The said application was rejected by the learned Civil Judge on 6-4-1991 and the revision petition filed thereagainst was allowed by the Additional District Judge on 3-3-1992. Muhammad Salim filed Writ Petition No,3151 of 1992 in the High Court against the order, dated 3-3- 1992, which was disposed of on 15-4-1992. It was observed that issue No,7-A to 7-E be tried as preliminary issues; if the respondents (Nazir Ahmad etc.) succeed in proving issues Nos.7-A to 7-E, it is in that case that the learned trial Court will have the jurisdiction to proceed further. It was further observed that, "----the form of issue as framed by the learned Additional District Judge is not legally objectionable but it is the trial of the same before the decision on issues Nos.7-A to 7-E which cannot take place. The jurisdiction of the learned trial Court to try issue No,4 and other issues is dependent on the decision on issues Nos.7-A to 7-E." 11. The trial Court recorded evidence and decided the Issues Nos.7-A, B, C and E in favour of the plaintiff Muhammad Salim etc. Issue No,7-D was also partly decided in his favour vide order, dated 31-7-1993. Finding was recorded that Nazir Ahmad etc. Petitioners were fully aware of litigation between Muhammad Salim and Hamida Begum as well as of the decree of the Court, they did not file objections in the executing Court, did not avail the legal remedies, the sale-deed was hit by the principle of lis pendens, the legality or otherwise of the decree cannot be questioned by the purchaser; petitioners Nazir Ahmad etc., could not claim to be bona fide purchaser without notice nor their sale-deed, dated 22-6-1976 could prevail. The sale-deed in favour of the petitioners was in violation of the status quo order. They did not bother to see the Revenue Record, the decree, dated 17-12-1975 was binding. Thereafter Muhammad Salim, respondent-plaintiff filed an application under Order XIV, rule 2, C.P.C. For a decree on the basis of findings on preliminary issues. The learned Civil Judge proceeded to dismiss the suit of Muhammad Salim, respondents on 9-12-1993. Appeal filed by Muhammad Salim etc., was allowed by setting aside the judgment and decree of the Civil Judge. Consequently suit of respondent Muhammad Salim was decreed on 1210-1994. Against that order the present civil revision was allowed earlier by this Court on 6-6-1997. Muhammad Salim filed C.P.S.L.A. No,719 of 1997, leave was granted on 27-10-1997. On conversion of petition into Civil Appeal No,1221 of 1997, the same was allowed by the Honourable Supreme Court and the case was remanded to the High Court on 23-2-2000 by observing that:--- 7. We have heard learned counsel for the parties at some length. It was strenuously urged on behalf of the appellants that learned High Court acted illegally by allowing the revision application on the grounds which were not taken before the Courts below. Furthermore, in view of the judgment of the High Court in the earlier round of ligation arising out of applications under section 12(2), C.P.C. Filed by Mst. Hamida Begum and the respondents and the Writ Petition relating to framing of issues, learned Single Judge could not have non-suited the appellants. It was also pointed out that the High Court did not advert to the proviso to paragraph 14 of MLR 89 in the impugned judgment while relying upon the aforesaid provision of law. 8. Conversely, learned counsel for the contesting respondents with reference to the findings of the trial Court on issue No,7 viz. Whether respondents, were bona fide purchasers for value without notice, and finding of the Appellate Court on the issues relating to the respondents being bona fide purchasers for valuable consideration without notice of earlier agreement to sell and the transfer of lands by Mst. Hamida Begum during the pendency of the litigation contended that High Court did not decide these points. Besides the circumstance that Mst. Hamida Begum did not acquire perfect right and marketable title to the lands, for transfer to appellants was not properly adverted to by the learned Single Judge while deciding the Civil Revision. 12. The present revision petition was again allowed by this Court on 9-1-2002. Leave was granted vide order, dated 28-6-2002 on C.P.S.L.A. No,954 of 2002 filed by Muhammad Saleem and
---
## Page 5
ultimately vide order, dated 21-10-2003 the case has been remanded to this Court by the Honourable Supreme Court with the following observation:- "We have noticed that the learned High Court has given findings on the points not raised by the parties and even no issue was framed by trial Court. Furthermore, the interpretation of Martial Law Regulation 89 as amended by MLR 91 were also not taken into consideration by the High Court and the High Court did not confine itself to the determination of issues 7-A to 7-E. We would refrain ourselves to touch this subject so as not to prejudice either side. We recall the order impugned, remand this case to the High Court for decision afresh within month in accordance with the law. The High Court shall decide issues referred to above and would not go into the extraneous issues. Disposed of". 13. The learned counsel for the petitioners contends that the petitioners were bona fide purchaser for valuable consideration therefore are fully protected under section 41 of the Transfer of Property Act. Section 52 of the Transfer of Property Act is not applicable to the facts and circumstances of the present case; the plaintiff did not plead and prove that the petitioners were aware of the agreement to sell and passing of the decree; the petitioners categorically stated in the written statement that they were bona fide purchasers for consideration without notice of any earlier alleged transaction; Fazal Muhammad, one of the petitioners-defendants appeared as D.W.2 and in so many words he denied that the petitioners had any knowledge and in that event onus was discharged by the petitioners and was shifted to the plaintiffs to prove the knowledge. Reference has been made to the case reported as Abdul Hague and others v. Shaukat Ali and 2 others 2003 SCMR 14(b); there was a strict restriction on the alienation of the suit-land under para 10 of MLR 89 amended by MLR 91, therefore the agreement to sell, dated 27-11-1963 between the respondents Muhammad Saleem and Mst. Hamida Begum was void being violative of section 23 of the Contract Act. Reliance is placed -on the case reported as Chief Land Commissioner, Punjab, Lahore etc. v. Ch. Atta Muhammad Bajwa etc. 1991 SCMR 736: the direction of the Revenue Authorities to the aggrieved person to avail the remedy from the Civil Court for redress of the grievance does not in any manner testify that mutation in favour of Muhammad Saleem was validly sanctioned. Adds that the order of the - High Court in Civil Revision No,960 of 1987 does not operate as res judicata or estoppel because the questions of genuineness or validity of the agreement to sell, ex parte decree, bona fide purchaser, collusion and lis pendens were left open to be decided in the suit; Application under Order IX, rule 13. C.P.C. And suit for canallation of agreement was dismissed for non-prosecution therefore there was no adjudication on merits and as such the said judgment neither operates as res judicata against Mst. Hamida Begum or against the petitioners nor even binds the petitioners to defend the suit on any ground; after the sale of land in question Mst. Hamida Begum was not competent to initiate any proceedings or settle any compromise in view of Article 31 of the Qanun-e-Shahadat Order, 1984 (section 18 of the Old Evidence. Act) nor the plaintiff-respondent Muhammad Saleem was competent to deal with Mst. Hamida Begum for any compromise without impleading the petitioners because of the fact that he had already filed the present suit in the year 1976 challenging the sale-deed in favour of the petitioners fully knowing that Mst. Hamida Begum had lost all the interests in the land in question and therefore the principle of lis pendens is not applicable and the rights of the petitioners are fully protected under section 27(b) of the Specific Relief Act and section 41 of the Transfer of Property Act. Reliance is placed on the case of Fazal Karim v. Muhammad Afzal PLD 2003 SC 818. 14. On the other hand, learned counsel for the respondents controverted the arguments of the petitioners and contended that the decree, dated 17-12-1975 has attained finality; the sale-deed, dated 24-10-1982 was executed in favour of Muhammad Saleem in execution proceedings; Mst. Hamida Begum was no more owner, after the decree, dated 17-12-1975 she could not have executed the sale-deed, dated 22-6-1976 in favour of the petitioners. The alienation by Mst.
---
## Page 6
Hamida Begum in favour of the petitioners was hit by the principle of lis pendens; the petitioners cannot claim to be bona fide purchaser and this plea is not available to the purchaser pendente lite and secondly the finding and evidence on the record are that the petitioners had the knowledge of the pending litigation since 1979, but they collusively purchased the land in conspiracy with Hamida Begum to make unsuccessful attempt to avoid decree; status quo order was duly incorporated in the Roznamcha, Revenue Record; Akbar Ai, tenant and cousin of respondent-plaintiff Muhammad Saleem was never approached to inquire into the charge/encumbrance qua the property and also they did no make any effort to make an inquiry from the Revenue Record; the findings of the learned Courts below to the effect that the petitioners could not claim to be bona fide purchaser are not open to exception; the argument of the learned counsel foi the petitioners that the sale agreement of the respondent with Mst. Hamida Begum was violative of MLR 89 and 91 and the same was void is untenable and contrary to the record and the law applicable on the subject for the reasons that MLR 89 and 91 restricts alienation. Agreement to sell never treated as alienation by the superior Courts. Reliance is placed on the cases reported as Shamoon and others v. Ahmad and others 1986 SCMR 888, Manzoor Hussain and 6 others v. Zulfiqar and 8 others 1983 SCMR 137, Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others 1992 SCMR 1510 and Sher Muhammad Khan and others v. Ilam Din and others 1994 SCMR 470, Adds that section 18 of the Specific Relief Act read with section 43 of. The Transfer of Property Act protect the title of the respondent, as two provisions provide that an agreement by an alleged imperfect title-holder can be legitimately enforced on the perfection of title and that the subsequent transferee pendente lite. Reference has been made to the cases reported as Amanullah v. Sher Afzal 2003 MLD 1142, Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821, Muhammad Aslam and 4 others v. Ghulam Rasool and 6 others 2002 MLD 1860 Lahore, Messrs Aman Enterprises, Sialkot v. Messrs Rahim Industries Pakistan Ltd., Sialkot and another PLD 1993 SC 292, Qureshi Muhammad Anwar and 6 others v. S.A. Qureshi and 3 others 1994 CLC 733 Lahore, Shamoon and others v. Ahmad and others 1986 SCMR 888 'and Muhammad Sharif and others v. Lahore Development Authority 1989 MLD 95. It is further contended that transfer of proprietary rights from the Government to the transferee takes effect from the date of deposit of price and not from the execution of the sale- deed by the Government. Reference has been made to the following cases reported as Faiz Ali, deceased, represented by Mst. Noor Jan etc. And another v. Mst. Rafia Jan and 2 others PLD 1956 Lah. 94 and Ibrahim v. Mst. Rajji and others PLD 1956 (W.P.) Lahore 609. Adds that the agreement of the respondent with Mst. Hamida Begum, dated 27-11-1963 could not be objected as the Mutation No,159 was attested with permission of the Collector on 28- 10-1964 in terms of provisions of MLR 89 and 91 which permit alienation with the sanction of the Collector, this mutation was challenged in the hierarchy of Revenue Department and the decision was upheld by the Additional Commissioner in favour of Muhammad Saleem on 16-5-1974 and by the Board of Revenue on 15-8-1974 while the writ petition of Mst. Hamida Begum was dismissed. Adds that the petitioner was a party to the proceedings under section 12(2), C.P.C. The matter went up to the High Court in Civil Revision No,959, 960 and 1150 of 1987 decided on 19-8-1988; in terms of the observation the petitioners had remedy else where which they never availed as no suit was filed by them nor any objection petition on the execution of the decree was filed, despite the knowledge of litigation, hence they were estopped to claim any interest or right. As to the later part of the observation the Court observed that plea of lis pendens will be taken note of in the suit for cancellation; the Courts below have concurrently held that the sale was hit by the principle of lis pendens and also the subsisting injunctive order was upheld up to the High Court and the alleged sale in favour of the petitioners could not succeed. Even under section 27(b) of the Specific Relief Act the prior agreement of sale can be enforced against the vendor and the person claiming subsequent purchase from him during the subsistence of agreement, notwithstanding the
---
## Page 7
execution of any sale-deed, which does not prevent enforcement of the sale agreement nor requires specific cancellation thereof. Further that the finding of the preliminary issue by the Civil Court was against the petitioner which was not challenged by way of appeal and revision, the same had become final against the petitioners and therefore the trial Court illegally rejected the application under Order XIV rule 2. C.P.C. On 8-11-1993. The trial Court committed illegality, which has been rectified by the First Appellate Court by accepting the appeal of the respondents. 15. In rebuttal, the learned counsel for the petitioners contends that the finding on preliminary issues can be agitated before the higher forum after final decision in the suit as in appeal whole case including the interim order passed can be reopened and can be challenged therefore the finding given on preliminary issues cannot be said to have become final order…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.