' 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 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 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.
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 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.
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 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 and would operate as estoppel on the ground that the said findings were not appealed against at the stage when the suit was not finally disposed of. Reference has been made to Federation of Pakistan through Secretary General Ministry of Defence and 2 others v. Sqn. Ldr. (Retd.) Mushtaq Ali Tahir Kheli and another PLD 2003 SC 930 and Mst. Khurshid Begum and others v. Ahmad Bakhsh and others PLD 1985 SC 405. Further that the application of the plaintiff under Order XIV rule 2, C.P.C. Was dismissed on 18-11-1993, which order never challenged further, even not challenged in grounds of appeal as such it attained finality. The alleged agreement to sell is totally void and is not enforceable therefore the principle of "feeding estoppel" enshrined in section 18 of the Specific Relief Act and section 42 of the Transfer of Property Act is not attracted in the present case.
16. Before I proceed to examine the findings of both the Courts below on issues. I would advert myself to the question as to whether the finding of the trial Court recorded on preliminary issues vide order, dated 31-7-1993 against the petitioners. Against which no appeal was filed, can be agitated before this Court after decision in the suit. The appeal against the order, dated 31-7-1993 of the Civil Judge, through which he decided the preliminary issues, was not competent under section 96 or 104 read with Order 43, C.P.C. Therefore, the party could have challenged the same when the suit was finally disposed of. While interpreting the Order XIV rule 1 and section 11, C.P.C. The Hon'ble Supreme Court in the case of Federation of Pakistan through Secretary General. Ministry of Defence and 2 others v. Sqdn. Leader (Retd.) Mushtaq All Tahir Kheli and others PLD 2003 SC 930 held that. "No appeal filed against finding on preliminary issue---Such finding can be agitated before next higher forum after final decision in suit".
' Whether agreement to sell between Mst. Hamida Begum and Muhammad Salem respondent amounts to alienation by sale, as mentioned in para. 10 of MLR 91. And as such violative of section 23 of the Contract Act and therefore is void. To resolve this controversy, reading of para 10 of MLR 89, amended through MLR 91, is relevant which is as under:--- "The purchaser shall not, without the sanction in writing of the Collector, alienate any portion of the land sold, before he had paid the entire purchase price and executed deed of conveyance prescribed for similar alienation in the region concerned.
' The agreement to sell between Mst. Hamida Begum and Muhammad Saleem, respondents, did not amount to alienation by sale as mentioned in para 10 of MLR 91. The provision of section 23 of the Contract Act also for the same reason was not attracted, because the agreement to sell was not prohibited by relevant law, i,e, para 10 of MLR 91, bar under para 10 of MLR 91 being against alienation and not against the agreement. There is no force in the argument of the learned, counsel for the petitioners that the question of entering into agreement to sell by Mst. Hamida Begum with respondent Muhammad Saleem could have not been raised in this case because the land vested in the Provincial Government and it was on 3-11-1976 when it was transferred in favour of Mst. Hamida Begum. If a decree is procured by a person against another person in respect of a property which did not vest in that person it would be merely decree without corps.. This is not the position in the instant case. Here there were only some conditions precedent attached to the validity of transfer, thus it was open to parties to enter into such agreement subject to compliance with conditions precedent. Therefore, the agreement could be enforced through performance after grant of proprietary rights. Subsequently she acquired right in such a property, therefore, she was bound to Make good the character of such a contract under section 18 of the Specific Relief Act.
There is chain of authorities for this proposition under the Colonization of Government Lands (Punjab) Act, 1912, where there is bar under section 19 against alienation subject to the permission of the Collector and the Hon'ble Supreme Court held that when the alleged agreement was entered into, the proprietary rights had not been granted to the allottee/grantees or were subsequently granted to the successor. Bar in section 19 being against the alienation and not against the agreement, the agreement could be enforced through specific performance after grant of proprietary rights. See cases reported as 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. The learned counsel for the petitioners has relied on the case of the Chief Land Commissioner, Punjab, Lahore and another v. Ch. Atta Muhammad Bajwa and others 1991 SCMR 736 in winch while interpreting para 10 of the Land Reforms Regulation, 1972 MLR 115 and section 3 of the Government Grants Act (XV of 1895) it was held that "transferee under a contract of sale from one who himself derives interest from a contract of sale creates no right in the land at all nor any equitable aspect comes into existence". It was further held that "the provision was made in the agreement with regard to frustration and compensation thereof; agreement was subordinate to the terms of grant. That it was in recognition of it and no interest in the land as such was claimed except certain rights relating to land which were to become enforceable after the proprietary rights had been conferred on the grantee." It was further observed that, "grantee himself being not the proprietor but only a purchaser under the agreement to sell visualized in the form of grant, could not confer more rights in the property on the contracting party than he himself possessed and was not permitted to transfer even the rights which he was possessed of the property."
18. To my mind the right of grantee in the lands to transfer the same to the prospective buyer on the basis of agreement to sell and thereafter perfecting the title under section 18 of the Specific Relief Act, which provides that a person entering into an agreement for sale of property having imperfect but subsequently acquiring interest in the property is bound to make good the contract out of such an interest was not before the Hon'ble Supreme Court in the case of Chief Land Commissioner, Punjab (supra) nor any interest in the property was created on the basis of decree nor the decree was executed and the sale-deed was attested. A contrary view that granting permission to the prospective buyer for deposit of outstanding amount is not legal and is vitiated by section 9 of the Colonization of Government Lands (Punjab) Act and para 10 of the Scheme was taken in the case of Muhammad Siddique PLD 1980 Revenue 62. In that case optee entered into an agreement to sell with the prospective purchaser but subsequently backed out from his agreement. The purchaser obtained a decree from the civil Court restraining him from placing any encumbrance on the land and causing any interference with their possession. On the basis of this decree permission of the Board of Revenue was also obtained to deposit the instalment. The matter went up to the High Court, Peshawar, the case was remanded to the Board of Revenue, who held that the optee/purchaser could rightly claim amenity on the basis of ex parte decree and also the orders of the Board of Revenue, which were passed in his absence in favour of the prospective purchaser because the order of the Deputy Commissioner, Sheikhupura granting permission to the prospective buyer for deposit of outstanding amount were without lawful authority being vitiated by section 9 of the Colonization of Government Lands (Punjab) Act and para 10 of the Scheme. The above contrary view of the Peshawar High Court was also taken note of by the Honourable Supreme Court in the case of Manzoor Hussain and others v. Zulfiqar Ali and others 1983 SCMR 137.
Relying on the case of Haji Abdullah PLD 1965 SC 690, it was held that, where a contention is raised that whenever sale of land is prohibited, an agreement for sale without sanction should also be regarded as prohibited on the grounds of public policy and that there was a little force in the contention. It was observed that as the agreement to sell has finally been approved by the requisite authority no objection can be validly raised against it. MLR 59 (MLR 64) and the provisions of section 23 of the Contract Act. 1872 coupled with section 18 of the Specific Relief Act (I of 1877).
This principle came up for interpretation in the case of Shamoon and others 1986 SCMR 888 and it was ruled that agreement did not amount to alienation by sale as it is mentioned in para 32(2), therefore, the provision of section 23 of the Contract Act were not attracted because an agreement to sell was not prohibited by the relevant law, i,e, para 32(c) of the Scheme.
19. Analyzing the MLR 89, as amended by MLR 91, and following the cases reported in Manzoor Hussain and others v. Zulfiqar Ali and others 1983 SCMR 137 and Shamoon and others v Ahmad and others 1986 SCMR 888 and by observing that the judgment reported in 1991 SCMR 736 is distinguishable from the facts and circumstances of the present case, I am led to the conclusion that Mst. Hamida Begum could have entered into 'the agreement to sell with respondents Nos.1 and 2 and agreement, dated 27-11-1963 was not in violation of para-10 of the MLR 91, as such it was not without consideration and with unlawful objective as contemplated in section 23 of the Contract Act being against the public policy and was enforceable under the law.
20. The question of validity of the ex parte decree, dated 17-12-1975 - in favour of Muhammad Salim and against Mst. Hamida Begum needs examination in this case. In reply to para 10 to the suit Mst.
Hamida Begum in the written statement admitted that the plaintiff filed the suit for specific performance, which was decreed ex parte due to misunderstanding of the date of hearing. The application for setting aside of the said order was dismissed. The decree is still intact. The case of the petitioners is that the decree is based on forged documents. Hamida Begum had not entered into an agreement of sale with Muhammad Salim. It is well-settled that an order obtained by fraud is not void but only voidable, it remains operative as long as it is not set aside, rescinded or recalled by the competent authority in proper proceedings. An order is to be treated void only when it is made by a Court, Tribunal or other authority which had no jurisdiction either as regards the subject-matter, pecuniary value or the territorial limits where the dispute arose. Such an order would amount to "usurpation of the powers unwarranted by law" and accordingly it would be a nullity. If, on the other hand, an order is made by a Court or authority having the necessary jurisdiction it is not an order void ab initio, but an order which may be set aside on sufficient cause being shown in this behalf. While it is true as has been so often stated that fraud vitiates all proceedings, it nevertheless be borne in mind that allegation of fraud generally raised which raised mixed question of law and fact which can only be established in an elaborate inquiry. It is for this reason that the order obtained by fraud can be regarded as only being voidable at the instance of any party adversely affected by it. See case of Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, where the Honourable Supreme. Court while making a distinction between 'void' and 'voidable order' held that, "order made by a Court, Tribunal or other Authority acting without jurisdiction as regards subject-matter, pecuniary value or territorial limits---Void---Order obtained by fraud, however, not void but only voidable".
21. On the touchstone of the above stated law, the position which emerged is that ex parte decree, dated 17-12-1975 in favour of Muhammad Salim is not void. To declare it as voidable proceedings were initiated by Mst. Hamida Begum and also the petitioners by filing applications under Order IX rule 13 C.P.C. For setting aside the ex parte decree and under section 12(2), C.P.C. On the ground that the compromise before the Additional District Judge was based on fraud. The High Court while dismissing Civil Revision No,960 of 1987 observed that no fraud had been committed by Muhammad Salim. As far as the petitioners are concerned, it was observed that, "remedy lies somewhere else". No objection has been filed in the execution petition. The learned counsel for the petitioners argued that the agreement to sell, dated 27-11-1963 and ex parte decree, dated 17-12- 1975, both these documents were not placed on the record and the pleadings cannot take the place of proof. Respondent Muhammad Salim was under legal obligation to prove the agreement to sell under the provisions of Article 78 and 79 of the Qanun-e-Shahadat Order, 1984, or section 68 of the Evidence Act. Reliance has been placed on the- case reported as Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 972 SC 25. On C.M. No,1 of 2000 under Order XIII, rule 13, C.P.C. This Court summoned the record of Civil Suit No,196/1 titled Muhammad Salim v.
Mst. Hamida Begum instituted on 15-4-1974, decided on 17-12-1975 by the Senior Civil Judge, Kasur.
Taking judicial notice as per Article 111 of the Qanun-e-Shahadat Order, I find that the agreement to sell between Muhammad Salim and Mst. Hamida Begum was mentioned in the plaint, the agreement was exhibited as Exh. P.I, irrevocable power of attorney executed by Mst. Hamida Begum in favour of Ch. Sher Muhammad Exh. P.2, application to the Collector for sanctioning the mutation and order, dated 6-3-1964 Exh. P-3, mutations Exhs.P.4 and P.S. Order of the Collector, dated 11-12-1973 Exh.P.6 and mutation Exh.P.7 were produced and thereafter on the basis of evidence the decree, dated 17-12-1975 was awarded in favour of Muhammad Salim.
22. There was no prohibition to enter into the agreement to sell by the allottee with Muhammad Salim under para 10 of MLR 91. The agreement was not without consideration and with unlawful objective under the parameters of section 23 of the Contract Act being against the pubic policy. It is true that mere getting of a decree for specific performance does not create any right, title or interest unless the same is got executed and sale-deed is registered as held in the case reported as Haji Abdul Rehman and others v. Noor Ahmad and others PLD 1974 BJ E 25, but rights to enter into an agreement to sell and to get it enforced through the suit for specific performance through a valid decree and to get the sale-deed executed through the execution proceedings do create a right in favour of Muhammad Salim irrespective of the fact that Mst. Hamida Begum was not the owner of the property. The registered sale-deed, dated 14-10-1982 is binding on the parties notwithstanding the fact that the sale-deed of the petitioners dated 22-6-1976 was prior to time.
23. There was no need to advert to the question of bona fide purchaser after the decision of the preliminary issues in favour of the respondents. Since on 27-5-1993 before the trial Court both the parties made statements that the decision of the preliminary issues would affect the findings on other issues, therefore, the arguments may be heard and all the issues were decided despite the application of the respondents under Order XIV, rule 2. C.P.C. Rights of the petitioners are not protected under section 41 of the Specific Relief Act as they are not bona fide purchaser without notice. The dates are very relevant for resolving this controversy. The suit was filed by Muhammad Saleem on 15-4-1974, another suit for cancellation of the agreement had also been filed by Mst.
Hamida Begum. Both the suits continued up to 17-12-1975 when ex parte decree was passed. The suit of Mst. Hamida Begum was dismissed. The petitions of Mst. Hamida Begum for setting aside ex parte decree and for restoration of the suit were dismissed. The evidence and the findings on the record are that the petitioners had the knowledge of pending litigation between Mst. Hamida Begum and Muhammad Salim since 1975 but they collusively purchased the land in conspiracy with Mst. Hamida Begum to make unsuccessful attempt for avoiding decree which may not be possible. The status quo order was duly incorporated in the Roznamcha vide Report No,9 on 1-6- 1974 (Exh.P.W.2/2 and Report No,398 Exh.P.W.2/3 on 1-2-1.975 Exh.P.W.2/3. Akbar Ali, plaintiff, who was in possession of the land and was cousin of the respondent, was never inquired about the existing charge/encumbrance qua the property. Fazal Ahmad, one of the petitioners/defendants, in cross- examination as D.W.4 stated that:- {{URDU TEXT}} ' Due to absence of efforts to make inquiry from the Revenue Record the petitioners have disentitled themselves for the protection under section 41 of the Transfer of Property Act. It has been ruled in the case reported as Muhammad Sabir Khan and others v. Rahim Bakhsh and others PLD 2002 SC 303 that, "Alienations so made were bad in law and invalid, firstly as the same had been effected during continuously floating and flagrantly disregarding the Court order/decree, and secondly, the same were hit by doctrine of lis pendens."
' It was further held that, "Allowing such sales to exist would amount to sanctioning illegal acts of violator of Court order/decree".
' It is well-established that the title is determined from the date of execution and not from the date of registration of the document. Respondent Muhammad Salim paid the instalments. The mutation was sanctioned with permission of the Collector. The possession was delivered to him. In the case reported as Ibrahim v. Mst. Rajji PLD 1956 W.P. Lahore 609 it has been held that, "Tenant absolute owner from date of deposit---Sale-decd not necessary to complete sale."
24. It is established on the record that there was no collusion between Mst. Hamida Begum and Muhammad Salim. From the very inception parties were contesting before the revenue hierarchy up to the Board of Revenue regarding the sanction of the mutation in favour of Muhammad Salim and the decree was not obtained by collusion or fraud as it has been finally decided in Civil Revision No,960 of 1987. Therefore, section 52 of the Transfer of Property Act would be fully applicable in the present case as held in the case of Fazal Karim v. Muhammad Afzal PLD 2003 SC 818.
' For what has been discussed above, this petition fails and the same is dismissed.