MUHAMMAD MUZAMMAL KHAN, J.- This judgment proposes to decide two Constitutional petitions, one in hand and the other Writ Petition No. 19982/1998, as both these are between the same parties, arose out of consolidated judgments and raised similar questions of law/facts.
2. Both the Constitutional petitions prayed judgment/decrees dated 15.9.1998 passed by the learned Additional District Judge, Gujranwala, to be declared illegal, void and of no legal consequence, whereby two revision petitions filed by the respondents were accepted and by reversing orders dated 11 .'1.1994 passed by the Trial Court, application of the petitioners under Section 12(2), CPC was dismissed.
3. Succinctly, relevant facts are that one Chanan sold his land measuring 56 kanals, 16 marlas on 18.3.1974 in favour of Zafarullah. The sale was subjected to preemption by two different suits one by Rehmat Ali and 3 others and the other by Ashiq Ali. Both these suits were consolidated by the learned Civil Judge, who was cognizant of those and consolidated issues were framed on 1.2.1981 and partial evidence was recorded.
4. Pending pre-emption suits; one Mst. Rasulan Bibi predecessor-in-interest of respondents Nos. 11 to 16 filed a declaratory suit challenging sale dated 18.3.1974, wherein vendor Chanan and vendee Zafarullah were impleaded as parties. Zafarullah vendee conceded her suit and in result thereof, consent decree was passed by the Court concerned on 23.10.1978 Mst. Rasulan after getting the consent decree filed an application under Order I, rule 10, CPC in the suits for pre-emption, which was accepted and she was impleaded as a party. Pending pre-emption suits Mst. Rasulan Bibi died and her legal representatives, respondents Nos. 11 to 16 were brought on record in her place.
Likewise Ashiq Ali pre-emptor also died pending proceedings and was replaced by his heirs/legal representatives.
5. All the parties to the pre-emption suits compromised between them on 6.1.1985, under which Rehmat Ali etc, the pre-emptors were given 41/71 share and Ashiq Ali rival pre-emptor was given 30/71 share of the suit land and both the rival pre-emptors deposited their share of sale price. The compromise was singed/thumb marked by all the parties to both the pre-emption suits on the basis of which decrees in the suits were drawn.
6. As the facts go, respondents Nos. 11 to 16, heirs of Mst. Rasulan Bibi, pending pre-emption suits, had sold out land under pre-emption through a registered sale- deed dated 10.10.1984 in favour of Muhammad Boota son of Hassan Muhammad and Riaz Hussain son of Barkat Ali, petitioners in both the Constitutional petition. These purchasers on 14.2.1985 filed an application under Section 12(2), CPC seeking ad judgment of decrees in pre-emption suits dated 6.1.1985 on the grounds that earlier to preemption decrees they had become owners of the suit land and being bona fide purchasers without notice of pendency of the suits, for valuable consideration, they were necessary parties to the suit and the decrees passed at their back may be set aside. This application was contested by the respondents, but was ultimately accepted by the learned Trial Judge on 11.1.1994.
7. Both sets of pre-emptors filed their independent revision petitions before the learned Additional District Judge which were accepted through a consolidated judgment and application of the petitioners under Section 12(2), CPC was dismissed by reversing order of the Trial Court vide revisional judgment dated 15.9.1998. Petitioners aggrieved of dismissal of their application under Section 12(2), CPC by the learned Additional District Judge, filed these Constitutional petitions with the prayer noted above and respondents in response to notice by this Court have appeared and are represented through their counsel.
8. Learned counsel for the parties were heard on 11.4.2005 and the judgment was reserved, but while dictating judgment it revealed that copies of the record appended with the petitions were not legible, whereupon the record of the Trial Court was requisitioned and learned counsel for the parties were re-heard.
9. Learned counsel for the petitioner submitted that decrees in pre-emption suits were obtained through fraud/misrepresentation by congealing sale in favour of the petitioners and at their back, hence the same were rightly set aside by the Trial Court, but the view taken by the revisional Court is not sustainable being contrary to record. Further submitted that decree in favour of Mst. Resulan Bibi had been passed much earlier to the sale-deed in favour of the petitioners which had not been challenged by any of the parties to the pre-emption suits. According to him, declaratory decree in favour of their vendor, was also not assailed in the pre-emption suits, thus in these circumstances, pre-emption suits were incorrectly decreed on concessional statements of the parties, especially those of respondents Nos. 11 to 16, who after sale in favour of the petitioners were left with no title in the suit property to conceded suits of the pre-emptors, It was further argued that petitioners are bona fide purchasers for valuable consideration, without notice of pendency of pre- emption suits. According to him, petitioners purchased suit land from a lawful owner after undergoing all the possible inquiry about her title, hence the decrees subject of attack being tainted with fraud and misrepresentation deserve to be annulled.
10. Learned counsel for the respondents refuted the arguments of the petitioners, supported the revisional judgment and urged that sale by Chanan was effected through a registered deed, which was witnessed by Mst. Rasulan Bibi and she in her this capacity could not challenge the sale by filing a declaratory suit, proceedings of which show that the same was collusive and was aimed at to defeat/harm pre-emption suits of the respondents, It was further argued that sale by Chanan in favour of Zafarullah was subjected to two pre-emption suits. Rehmat Ali etc. Filed their suit on 18.3.1975, whereas Ashiq Ali pre-emptor filed his suit on 14.3.1975 and both these suits were pending when Mst. Rasulan Bibi filed a collusive suit ^gainst Chanan vendor and Zafarullah vendee and the pre-emptors were not arrayed as parties thereto, on whose back vendee unauthorizedly conceded suit of Mst. Resulan Bibi. According to him, a collusive decree pending pre-emption suits had no legal consequence and was bad under the principle of tis pendente. The same principle was invoked against transfer by respondents Nos. 11 to 16, as their sale- deed 10.10.1984 was also executed pending pre-emption suit, It was also assertively argued that respondents Nos.. 11 to 16 maliciously conceded pre-emption suits after transfer of land without any lawful title. As a matter of fact, they had no title to the land on the basis of a fake decree in favour of their predecessor Mst.
Resulan Bibi.
11. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended with both the petitions. Sale of land measuring 56 kanal, 16 marlas by its owner Chanan in favour of Zafarullah is the real cause of dispute but the sale-deed executed on 18.3.1974 revealed that it was witnessed by Mst. Rasulan Bibi and she after giving her consent to this sale, could not cum back to challenge the same sale through a declaratory suit filed on 20.5.1978. Parties to this suit Were well aware of pendency of preemption suits, but the out of malice conceded her suit resulting in consent decree on 23.10.1978. Both the preemption suits had been filed in March, 1975 and were pending awaiting conclusion of evidence of the parties when suit by Mst. Rasulan Bibi was conceded and decreed. Record revealed that suit by Mst.
Rasulan Bibi was conceded by Zafarullah vendee and Chanan vendor was not represented by any body. This decree without impleading the pre-emptors, pending their suits, had no legal value because Mst. Rasulan Bibi in her application under Order I rule 10, CPC did not detail how and when she came to know about the suits and absence of such assertion created a presumption that she was aware of those suits, In these circumstances, principle of lis pendente, as mentioned by Section 52 of the Transfer of Property Act, 1882 and affirmed consistently by superior judiciary of this country in the cases of Munir Hussain vs'. Muhammad Shafi and another (1981 CLC 1712), Messrs Aman Enterprises, Kotli Loharan, Sialkot vs. Messrs Rahim Industries Pakistan Ltd. And another (PLD 1988 Lahore 717) and Muhammad Yousaf and others vs. Muhammad Younas and others (1995 CLC I780), was fully attracted and applied in invalidating the decree in favour of Mst. Rasulan Bibi dated 23.10.1978 and reducing it to a nullity in the eye of law.
12. Mst. Rasulan Bibi was also estopped to challenge the registered sale-deed which was witnessed by her. She, her descendents and Zafarullah vendee acted with ill motive of defeating the pre- emptors but the course adopted was not permissible under law, as they were not impleaded as parties to the suit and such decree did not equip them with any right to further transfer it in favour of the petitioners. As* a matter of fact, sale in favour of the petitioners was conducted without lawful title to the property, thus conferred no right in them to maintain an application under Section 12(2), CPC. Earlier alike circumstances, it was held in the case of Zafar Ahmad, etc. Vs. Govt, of Pakistan (NLR 1994 Civil 743) that such consent declaratory decree pending pre-emption suit was of no legal effect.
13. Since the petitioners were transferred suit land without lawful title, as noted above, they could not claim to be bona fide purchaser without notice of pendency of suits by taking shelter of Section 41 of the Transfer of Property Act, 1882. Though petitioners claimed that they inquired about title of Mst. Rasulan Bibi from the Patwari concerned, but he was not examined in support of this stance, It is also clear from the record that parties to the pre-emption suit had produced Revenue Record in support of their respective claims, .Issued by the Revenue Patwari and it is beyond comprehension of even a layman that had the petitioners approached this revenue official, information regarding pendency of suits must have been transmitted to them. Petitioner also did not assert that the required inquiry was made from any person of the village or from the person in possession of the land. Be that as it may, since sale in their favour was made without title, protection under Section 41 of the Transfer of Property Act, 1882 was not available to them pending suits by the respondents.
Reference in this behalf can be made to the cases of Jhandi vs. Syed Baqir Ali Rizvi and another (1987 CLC 459) and Abdus Saeed Khan and 2 others vs. Basharat Ali and 13 others (PLD 1995 Lahore 255).
14. Besides the reasons which weighed with the learned Additional District Judge, the points noted above and scan of evidence on the. File repealed that he did not commit any illegality while deciding tis before him, in absence of which no interference in Constitutional jurisdiction of this Court is permissible, under law. Even otherwise, a lawful decision Within the ambit of conferred jurisdiction cannot be substituted on these petitions, hence the same having no merit, are dismissed with no order as to costs.